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<NAME>Alexis Jakobson</NAME>
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<HEAD>INFORMATION FOR THE LAIRD OF GRANT Again&s;t The Laird of <HI>WESTFIELD.</HI></HEAD>
<P>THE Laird of <HI>Grant</HI> having obtained his Lands to be erected in a Rega|lity, the &s;aid Laird of <HI>We&s;tfield,</HI> as pretending Right to the Hererable Sheriff&s;hip of <HI>Murran,</HI> within which &s;ome of the Lands ly, did rai&s;e a Proce&s;s before the Lords of Se&s;&s;ion, for Reducing of the Signature in fa|vours of <HI>Grant,</HI> and declaring that his Regality could not extend to any Lands ly|ing within the bounds of the Heretable Sheriff&s;hip. And <HI>Grant</HI> did likeways rai&s;e Reduction and Declarator of the &s;aid <HI>Alexander Dumbar</HI> of <HI>We&s;tfield</HI>'s Right to the Sheriff&s;hip.</P>
<P>The Que&s;tion in the&s;e mutual Proce&s;&s;es being not only in relation to Civil Right, but having extended to the con&s;ideration of His Maje&s;ty's Royal Preroga|tive, and the Extent of the Juri&s;diction and Intere&s;t of the Regalities and Sheriff|&s;hips in general. The Ca&s;e was Remitted to be con&s;idered by the Parliament.</P>
<P><HI>We&s;tfield</HI>'s Ground of Reduction and Declarator is founded upon the common Brocard, <HI>Quod meum e&s;t fine facto meo auferri non pote&s;t:</HI> And he did &s;ub&s;ume, That his Heretable Office of Sheriff&s;hip within the bounds of his Right, was his un|doubted Property; and therefore could neither be dimini&s;hed nor taken away, in whole nor in part, but by his Con&s;ent, or Order of Law.</P>
<P>On the other Hand <HI>Grant</HI> did repeat his Reduction of the Sheriff's Right, with a Declarator of the Right and Priviledge of his Regality: And the mutual Rea|&s;ons of Reduction did re&s;ult in Defences.</P>
<P>It was aledged for <HI>Grant.</HI> That his Right of Regality was validly founded up|on the Kings prerogative. 1mo. Becau&s;e the King is not &s;o denuded by granting a Sheriff&s;hip, as that he may not grant other Juri&s;dictions within the Sheriffdom; &s;eing the Right of Sheriff&s;hip is but a naked Office appointed for the execution of the Lawes, &amp; the King to whom the execution of the Laws does belong <HI>jure maje&s;tatis</HI> has e&s;&s;entially, notwith&s;tanding of what&s;omever Commi&s;&s;ions granted for executing of the&s;e Laws, power to grant new Commi&s;&s;ions al&s;o often as it &s;hall &s;eem expedient or u&s;eful: And the Sheriff&s;hip and Regalitys, are of quite different Natures, the Office of a Sheriff being <HI>nudum mini&s;terium,</HI> whereas the juri&s;diction of Regalitys is not only a teritorial Juri&s;diction over the Lord of Regality's own Va&s;&s;als and Tennents, but has &s;everal other priviledges which do unque&s;tionably belong to His Maje&s;ty to di&s;po&s;e of, as being <HI>inter regalia,</HI> 2do. The King has been in con|&s;tant u&s;e to <GAP DESC="illegible" RESP="MURP" EXTENT="1 word"> Regality's within the bounds of Shireff&s;hips, and there are almo&s;t innumberable in&s;tances of His Maje&s;ty and His Prodece&s;&s;ors having granted, both Ancient and Recent Regalities, &s;uch as the Regalities in favours of the Marques of <HI>Douglas,</HI> in favours of the Duke of <HI>Hamiltoun</HI> and many others that may be nam|ed. 3tio Be&s;ides the Kings Right and cu&s;tom of granting Regalities, there concurs here an univer&s;al and con&s;tant acquie&s;cence; So that the Sheriff of <HI>Murray</HI> is the fir&s;t that ever has drawn His Maje&s;ty's Prerogative as to that matter in que&s;tion. 4to. Be&s;ides, the Kings Right, Cu&s;tom, and the long acquie&s;cence of all having intere&s;t, the Kings power is likewi&s;e fortifyed by the Opinion of Lawiers and particularly <HI>Mckenzies</HI> Criminals <HI>Part:</HI> 2. <HI>Tit:</HI> 9: <HI>N.</HI> 4. Where he Cites <HI>Hope</HI> who ob&s;erves the &s;ame to have been decided, and in&s;tances a particular Ca&s;e in his own time 5t<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">. The Kings right &amp; power is further e&s;tabli&s;hed by the daily cu&s;tom of erecting Barronies.
<PB N="2" REF="2">Burghs Royal, and Stewartrys within heretable Sheriff&s;hips; and albeit the Juri&s;|diction of the Barons be only cumulative; yet &s;till it le&s;&s;ens and dimini&s;hes the Juri&s;diction of the Sheriff and prejudges him, and con&s;equently it is an undenyable evidence that the King by granting of a Sheriff&s;hip, is not excluded from erecting other fewdal Juri&s;dictions within that bounds, whereby the Sheriffs Juri&s;diction may be impaired and dimini&s;hed, and that the Rights by which the Sheriffs injoy their Offices are not con&s;idered as other Rights of Property; but only as <HI>nuda of|ficia &amp; mini&s;teria.</HI> 6to. <HI>Et &s;eparatim</HI> by the 44 Act of Parliament 11. <HI>Ja:</HI> 2. It is &s;tatute, That no Office in time coming be given in fie and heretage, which Act is the fundation of all the Revocations made by our Kings &s;ince: So that unle&s;s <HI>We&s;t|field</HI>'s Right of Sheriff&s;hip were in&s;tructed to be more Ancient than the fore&s;aid Act; it is again&s;t Law, and can be no pretence to quarrell His Maje&s;ty's Right, and this is objected not only as a Nullity again&s;t the Sheriffs Title, but as a Rea&s;on of Reduction.</P>
<P>It was An&s;wered for <HI>We&s;tfield,</HI> 1mo. <HI>That the Right of Sheriff&s;hip was al&s;e much a Right of Property, as the Right communicat to the Lords of Regality: And by the Defender's way of arguing, he lays the Foundation to de&s;troy the Right of the Lords of Regality, as well as the Right of Heretable Sheriffs: For if the King can notwith&s;tand|ding of the Sheriff&s;hip, erect a new Regality within the &s;ame bounds, becau&s;e he can ne|ver be &s;o dive&s;ted by any Commi&s;&s;ion, that he may not grant a new Commi&s;&s;ion for execut|ing of the Laws as he &s;ees expedient: Then by the &s;ame Rea&s;on, no Grant of a Regality can hinder him to erect a new Juri&s;diction within the Regality.</HI> 2do. <HI>An heretable Of|fice is truely a Right of Property, although it be</HI> quid incorporeum: <HI>For it hath all the Marks and Characters of any other Right, in &s;o far as it may be tran&s;mitted to Heirs, Gifted. Sold, or Appri&s;ed: And even the King's Maje&s;ty did &s;o far con&s;ider Heretable Sheriff&s;hips as Rights of Property that Heretable Sheriff&s;hips have been bought by our Kings for con&s;iderable Prices: And it is certain, that the Emoluments and Profits of he|retable Offices are</HI> in Patrimonio. 3tio. <HI>If the Defenders rea&s;oning can be allowed, then the King might erect another Sheriff&s;hip within the bounds of an Heretable Sheriff|&s;hip: For it is certain, that a Regality being a Privative Juri&s;diction, does al&s;e for|mally con&s;titute a di&s;tinct Territory, as if there were a New Shireff&s;hip erected within the bounds of an Old Shireffdom.</HI> 4to. <HI>As a further evidence, that the Heretable Office of Shireff is a Right of Property; it has a di&s;tin<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">t</HI> Reddendo <HI>and Duty payed for it every Year to the Exchequer. And</HI> 5to. <HI>To put the Matter beyond que&s;tion the</HI> Act 18 Parl. 1681. <HI>having declared, That notwith&s;tanding of the Juri&s;dictions and Offices be&s;towed by his Maje&s;ty and his Predece&s;&s;ors upon his well de&s;erving Subjects; yet his Maje&s;ty might by him&s;elf, or any commi&s;&s;ionat by him, take cognizance of any Ca&s;e or Cau&s;e, as he plea&s;eth: That Act is re&s;cinded is by the</HI> 28 Act Parl. 1690; <HI>whereby all pre|tence of Power to erect new Juri&s;dictions within the bounds of Heretable Offices, is in|tirely excluded: And in</HI> Anno 1693. <HI>the King and Parliament were &s;o tender of He|retable Offices, that when the Commi&s;&s;ion for the Ju&s;ticiary in the Highlands was granted, they would not incroach upon the Earl of</HI> Argile<HI>'s Heretable Ju&s;ticiary.</HI></P>
<P>Before <HI>Grant</HI> make any duply, for clearing of this point in que&s;tion, it is to be con|&s;idered. 1. That regularly in conferring of Offices with juri&s;diction, there is &s;pecial regard had to the fitne&s;s of the per&s;on, and the juri&s;diction is per&s;onal, and can nei|ther be convoyed nor tran&s;mitted to &s;ingular &s;ucce&s;&s;ors. 2. Although this did obtain by the Principles of the Common Law; yet the Fewdal cu&s;tomes did intro|duce Territorial juri&s;dictions, which was the Right of Juri&s;diction granted to a Proprietar or Superior over his own Tenents, Va&s;&s;als and Servants, which came to be a part of his property, and was a quality of his Po&s;&s;e&s;&s;ion, and was tran&s;|mitted to his Heirs and was convoyed with the Territory, to which it was a|bove annexed; And as to which he was con&s;titute the Kings Va&s;&s;al, and obliged to an&s;wer in his Maje&s;tys Courts. 3 Of the&s;e Barons, &s;ome had more exten&s;ive and larger priviledge, and enjoyed more of the <HI>regalia</HI> and &s;ome le&s;s, as appears
<PB N="3" REF="2">by our Ancient Laws, and particularly by the 9 <HI>Cap.</HI> of the Statutes of King <HI>Mai|com</HI> the &s;econd. Its evident that there was a di&s;tinction by the Chartors of the priviledges of Barrons: And it does likewi&s;e appear by the Satutes of the &s;aid King <HI>Malcom,</HI> and of King <HI>Alexander</HI> the Second, That the Juri&s;diction, the Power of repledging the Right of the E&s;cheats competent to the Ancient Barrons, was in effect the &s;ame Power which more lately came to be di&s;tingui&s;hed by the name of Regalities. 4. As there was Anciently E&s;tabli&s;hed the Territorial and Fewdal Juri&s;diction of the Barons; &s;o there were other Officers who had no &s;uch Fewdal Rights, but had Commi&s;&s;ion from the Government for the more Univer&s;al applica|tion &amp; &s;ecurity of the publick Laws &amp; quiet, &s;uch as were the Chamberland Heirs, who&s;e Juri&s;diction was over the Burrows, the Ju&s;tice Heirs, who&s;e circuits took in the re&s;t of the Kingdom the Sheriffs, who&s;e duty con&s;i&s;ted Chiefly in publi&s;hing the Laws, maintaining the quiet, and &s;eeing the&s;e Laws with the &s;entence of the Ju&s;tice Heirs put in Execution, and he had a Juri&s;diction Civil and Criminal for the&s;e effects; but &s;till it appears that that Office was but per&s;onal; and therefore by the Statutes of <HI>Robert</HI> the Third they might be removed from their Office, and another might be put in in their place, and the la&s;t day of the Ju&s;tice Heir the Sheriff was to tho&s;e an a&s;&s;i&s;e for tryal, if he had u&s;ed and done his office truely. 5. The Rights of the Sheriff&s;hips coming in the hands of con&s;iderable per&s;ons, by a|bu&s;e were perpetuat, and at la&s;t it &s;eems, that although there is no Precedent for &s;uch a juri&s;diction, whereby a per&s;on and his Heirs comes for ever to be interpo&s;ed betwixt his Maje&s;ty and his Subjects, who are no other way &s;ubject to the Sheriff either as Va&s;&s;als or Tenents; yet the Office in&s;en&s;ibly came to be Heretable. 6. It is probable that the&s;e incroachments did oblige the greater Barrons to &s;ecure them&s;elves in their Ancient priviledges and Rights by obtaining Chartors a&s;&s;erting the&s;e priviledges, which gave the ri&s;e to formal Erection of Regalities.</P>
<P>This being premi&s;ed, it is ea&s;ie to take off the Pur&s;uers reply, and fir&s;t there is a manife&s;t Di&s;parity betwixt the ca&s;e of Regalitys and Sheriff&s;hips, for the Sheriff&s;hip is but a naked Office and Commi&s;&s;ion: which the King can never &s;o ab&s;olutly grant, as to dive&s;t him&s;elf of the Royal and Supereminent Juri&s;diction which is lodg|ed in His Maje&s;ty for the Execution of the Laws and publick Good, and of grant|ing of Fews with the full extent of all priviledges which have a Name in our Law, and are clear by con&s;tant cu&s;tom, and &s;uch are Regalitys which are a part of the Fie and Property of His Maje&s;tys Va&s;&s;alls, over their own proper Tennnets, or their S<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">b-va&s;&s;alls, and the King can al&s;e litle be dive&s;ted of that Power, as he can be of the Priviledge of erecting Barrons, which is but a le&s;|&s;er in&s;tance of the &s;ame Authority: And hence it is evident, That though the King can erect a Regality, which is a Quality of a Mans own Property within the Sheriff&s;hip, yet he cannot erect a Juri&s;diction within the Regality, becau&s;e that were indeed to Impare a proper Right of Fie.</P>
<P>2do. From the &s;ame Rea&s;on it is evident, That all the&s;e In&s;tances of tran&s;mit|ting to Heirs. Gifting, Selling, Appri&s;ing, which are now e&s;tabli&s;hed by Cu&s;tom, have been at fir&s;t introduced by Abu&s;e, and are really contrary to the Nature of a per&s;onal Office: But whatever Cu&s;tom may have e&s;tabli&s;hed as to the&s;e in&s;tan|ces; yet there is no in&s;tance which is or can be conde&s;cended upon, wherever it was pretended, that the granting of an Heretable Shireff&s;hip did hinder the King to erect a Man's own Lands with &s;pecial Priviledges of Juri&s;diction; as to that Point we have no &s;uch Cu&s;tom; and all the&s;e Tran&s;mi&s;&s;ions are always under&s;tood to be under the Burden; and but prejudice to his Maje&s;ty's Right, for the good of his other Subjects: And albeit King <HI>Charles</HI> l. did purcha&s;e the Right of &s;everal Heretable Shireff&s;hips; yet that was not &s;o directly an Acknowledgement of their Property, as it was a Mea&s;ure of Government, to which his Maje&s;ty conde&s;een|ded, to avoid the Di&s;content of Great Men.</P>
<P>3tio. And as to the pretence, <HI>That the King might as well evacuat the whole Right of the Sheriff&s;hip, by erecting New Shires within Old ones, as erecting Regalities; or
<PB N="4" REF="3">the King might evacuate the Sheriffs Heretable Right, by erecting the whole Lands within the Bounds of the Shire into Regalities.</HI> It is Duplied, 1mo. It is a vain Suppo&s;ition, which probably cannot take effect. 2do. The erecting of a Shire within a Shire, were indeed to evacuat the Sihreffs Right; but there is no con|&s;equence to be drawn from the pre&s;ent Ca&s;e, that may infer &s;uch a Power: For it does not follow, the King may erect Regalitys within a Shire, <HI>ergo</HI> he may erect a a Shire within a Shire, for the intere&s;t and power of Sheriffs and Baillies of Regali|tys are of quite different Natures, the Right of regalitys is a Right of Fie and property, as has been &s;aid, and has &s;everal other Priviledges in it which does not belong to a Sheriff, &s;uch as the Rights to E&s;cheats and Replegiation with &s;everal others, all which are granted with expre&s;s regaird and con&s;ideration, that the Lords of Regality are Proprietors and Superiors of the Lands contiained in the Rega<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ity. 3tio. The granting of a Regality does not evacuat or exhau&s;t the She|riffs Juri&s;diction for &s;everal other Rights and Priviledges both of Juri&s;diction and Dignity, which belong to the Sheriffs notwith&s;tanding the Erection of Regalities, &s;uch as, The publi&s;hing of Laws, Seeing the &s;ame put to Execution, The calling together the Shire upon certain occa&s;ions, The rai&s;ing the <HI>Po&s;&s;e comitatus,</HI> And by the 97 Act Parl. 7. <HI>Ja:</HI> 5. in &s;ome Ca&s;es if the Officers of Regality be found ne|gligent, being required thereto, it is Lei&s;um for the King's Sheriff to put the Acts in Execution, even within the Regality, and if the Shireff &s;hall attatch any party within the Regalities, the Lord of Regality cannot repledge without finding Caution to do Ju&s;tice, and if he does not Ju&s;tice within Year and Day, the Sheriff may proceed. Whereby it is evident, that notwith&s;tanding the Feudal Jurisdiction of the Regality, with the Priviledges granted to it; yet there remains very con&s;iderable Power and Authority to the Sheriffs. And the Defender needs not plead, That the King may evacuat ob&s;olutely the Right of Heretable Sheriff|&s;hips, but that the granting of Heretable Offices to Shireffs, does not dive&s;t the King of erecting Fews with the Priviledges of le&s;s or more of the <HI>Regalia,</HI> to his other well de&s;erving Subjects, as his Maje&s;ty &s;ees ju&s;t.</P>
<P>As to the Pretence, <HI>That the Sheriff has a particular</HI> Reddendo <HI>in his Chartor for his Office with a particular duety for which he Compts yearly, and con&s;equently that his Right is of Fie and not of naked office.</HI> It is Duplied, That the Sheriff and his Predece&s;&s;ors might have obtained their Chartors expede in what form they plea&s;ed <HI>periculo pe|tentium:</HI> But that can never change the Nature of the thing, &amp; there can never be a Fie without a Tenement either in Property or Superiority, or which does not in &s;ome manner affect Lands and Heretages: And therefore the Office of Sheriff is a naked Office, as has been &s;aid: Nor can the Sheriff by any con&s;titution of Fie, be interpo&s;ed betwixthis Maje&s;ty and his other Va&s;&s;als.</P>
<P>5to. As to the pretence. <HI>That the Act of Parliament</HI> 1681, <HI>a&s;&s;erting the Kings cumulative juri&s;diction and power by him&s;elf, or any Commi&s;&s;ionat by him to take cogniz|ance of what&s;omever ca&s;e or Cau&s;es, notwith&s;tanding of Heretable Offices being re&s;chinded by the Act</HI> 1690. <HI>It does exclude his Maje&s;ties power of erecting Regalities within the bounds of Heritable Sheriff&s;hips.</HI></P>
<P>It is Duplyed, that the reci&s;&s;ion of the fore&s;aid Act 1681, does not at all con|cern this Ca&s;e; for the rea&s;on why that Act was declared a grievance, and after|ward re&s;cinded, is explained by the Eight Article of the claim of Right, whereby it is declared, that the imploying the Officers of the Army as Judges thorow the Kingdom, or the impo&s;ing of them, where there were Heritable Offices and juri&s;|dictions, and the puting the Leiges to death &s;ummarly, and without legal Tryal, Jury or Record, are contrary to Law. Whence it is evident, that as that Act was calculate to &s;erve the de&s;ign of granting Commi&s;&s;ions to Officers of the Army, with powers which had no determined name of Office or juri&s;diction in Law, but was to be exerci&s;ed again&s;t all Law, and the common Principles of Humanity; &s;o it was only a grievance, and was re&s;cinded upon that account; but the juri&s;di|ction of Regalities has a name, and certain limits and form of procedor pre&s;crived and to be found in our law, and they have been granted &s;ince al&s;e well as before,
<PB N="5" REF="3">and did neither ari&s;e nor depend upon that Law; and con&s;equently neither the Re|galities them&s;elves, nor the Power to grant them can fall with it.</P>
<P>It was further Replied for <HI>We&s;tfield, That whereas it is pretended, That the King has been in u&s;e to erect Regalities within Heretable Sheriff&s;hips; The &s;aid U&s;e and Power is</HI> Con&s;uetudo facti, <HI>which has no binding Power or Warrand in it; becau&s;e,</HI> Fir&s;t, <HI>the&s;e Erections are but recent, and have not as yet attained to Pre&s;cription.</HI> 2do. <HI>The Cu&s;tom is not General or Univer&s;al, which is another Character of a Binding Cu&s;tom.</HI> 3tio. <HI>Such a Cu&s;tom can never be a Rule; becau&s;e it is both contrary to Law,</HI> viz. <HI>the</HI> 43 <HI>Act Par.</HI> 11. Ja. ll. <HI>and private Right; which though it were not a &s;ufficient Rea&s;on to reduce all the Regalities that are granted long &s;ince, yet it is &s;ufficient to hinder &s;uch an Incroach|ment to be e&s;tabli&s;hed by a Cu&s;tom and Rule; e&s;pecially &s;eing no &s;uch Grant has ever been confirmed by a Sentence</HI> in judicio contradictorio. 4to. <HI>Such Regalities have not been acquie&s;ced in, but there has Prote&s;tations been taken at their pa&s;&s;ing in Exchequer; as particularly at the pa&s;&s;ing of the Regality in</HI> Athole, <HI>Prote&s;tations were taken by the E. of</HI> Argile <HI>and</HI> Broadalbin: <HI>And if it were nece&s;&s;ar, it would be found, that the&s;e Erecti|ons owe their firme&s;t E&s;tabli&s;hments to particular Tran&s;actions.</HI></P>
<P>It is duplyed, that the E&s;tabli&s;hment of a Cu&s;tom, does neither require that length of time which is nece&s;&s;ary for Pre&s;cription nor Univer&s;ality of Acts: Nay, nor judicial Sentences for Cu&s;tom is defined to be <HI>diuturni mores con&s;en&s;u utentium comprobati,</HI> and is al&s;e &s;ufficiently e&s;tabli&s;hed by a frequency of Acts, whether Judicial or extra-judicial in Ten Years as in Forty, provided that the&s;e Acts be not Clandi&s;tine and of &s;mall moment, but be &s;o publick, &s;o frequent, and &s;o importent as to inferr a Pre&s;umption of the Knowledge and Approbation of the People and &s;upream Authority, and it will not be contraverted, that in the matter of erecting of Regalitys, all the&s;e have concurred in the mo&s;t eminent de|gree, not for the cour&s;e of 10, 20, or 40 Years, but in every Kings Reign al&s;e far we have records, not in one corner of the Countrey, but thorow the whole King|dom, and particularly in the Shire of <HI>Murray,</HI> in favours of the Duke of <HI>Gordon</HI> and the Earl of <HI>Murray,</HI> nor in &s;maller and incon&s;iderable ca&s;es, great Lord&s;hips and Baro|nys have been erected and indued with the&s;e Priviledges, nor Clande&s;tinly, be|ing granted by His Maje&s;ty and his Predece&s;&s;ors pa&s;t in the Courts of The&s;aury and Exchequer, ratified in the high Court of Parliaments; and the Sentences of the Baillies of the Regality have, and are daily brought under Con&s;ideration of the Lor<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">s of Se&s;&s;ion in proce&s;&s;es, in the &s;ame manner as the Sentences of other ordinary Judges, be&s;ides many other in&s;tances which might be given for clearing how publictly and con&s;tantly &s;uch erections are granted and exerced: So that to deny cu&s;tom, in this Ca&s;e is again&s;t all Rea&s;on, and plain Conviction.</P>
<P>And as to the pretence, <HI>That &s;omtimes Prote&s;tations have been u&s;ed and tra&s;ac|tions betwixt Lords of Regality and heretable Shireffs.</HI> It is duplyed, That the&s;e in|&s;tances are very few, nor are the Rea&s;ons of the&s;e Prote&s;tations known, Regali|tys have been granted &s;ometimes irregularly, as when there are Lands contain+ed in the Grant, which do not belong to the Lord of Regality, either in Pro|perty, or Superiority, in which ca&s;e Prote&s;tations may be interpo&s;ed, without weakening the general Cu&s;tom; and however, a few Prote&s;tations taken &s;ome|times officiou&s;ly, and upon Rea&s;ons which we do not know now, but whereof never one was pro&s;ecut to this day, cannot overturn His Maje&s;tys prerogative &s;o clear|ly e&s;tabli&s;hed by the general Acquie&s;cence and implyed Approbation of the whole Kingdom.</P>
<P>And whereas it was further pretended, <HI>That cu&s;tom could not be e&s;tabli&s;hed contrary to Law and privat Right, and that Regalitys are di&s;charged by the</HI> 43 Act Par: 11: Ja. 2. It is an&s;wered, That heretable Sheriff&s;hips are much more again&s;t Law, as &s;hall afterwards appear, and Regalitys are not &s;imply di&s;charged, but di&s;charged without deliverance of Parliament, and the pre&s;ent Regality has obtained a delive|rance of Parliament. <HI>Viz.</HI> A Ratification, which by con&s;tant Cu&s;tom appears to be
<PB N="6" REF="4">all the deliverance requi&s;ite, &s;eing no Regality ever obtained more, and though Ratifications do fall under the <HI>Act &s;alvo;</HI> Yet that cannot take place in this Ca&s;e. 1mo. Becau&s;e this Ratification is all that the Law requires, being a deliverance of the Parliament, as &s;aid is. 2do. The Sheriff can have no benefit by the Act <HI>&s;alvo,</HI> becau&s;e the Parliament could not have con&s;idered his Right, &s;uppo&s;e he had compeared, &s;e|ing his heretable Office was again&s;t Law, and therefore the Parliament could only have confidered the Kings, or the publick, intere&s;t, and neither the King, nor the publick are here complaining of <HI>Grants</HI> Regality.</P>
<P>It was furder replyed for <HI>We&s;tfield, That there is no evidence either from the opinion of Lawyers or cu&s;tome to Fortifie the Defenders alledgeance of Cu&s;tome, and no regard ought to be had to the deci&s;ion, cited from</HI> Hope, <HI>becau&s;e the Parties are not mentioned, nor the</HI> ratio decidendi, <HI>nor is that Book of equal Authority with the Book called</HI> Hopes Minor Practiques. It is Duplyed, that that Deci&s;ion is marked in <HI>Hope</HI> as &s;eve|ral other Deci&s;ions are that are incontroverted, and although that work did not receive the la&s;t hand to per&s;ite it; yet what he a&s;&s;erts in matter of Fact, being a per&s;on of undoubted integrity, ought to be believed not only as true in Fact, but to be our practice, which &s;eems to be the de&s;ign of the Ob&s;ervations, and Sir <HI>George M<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">kenzie</HI> in the forecited place does not only give his judgement in the terms of the Defenders alledgeance, but gives a practique of his time.</P>
<P>It was yet furder replyed for the Pur&s;uer, <HI>That whereas</HI> Grant <HI>did alledge, that the Kings Priviledge of erecting of Baronies within Heretable Shireff&s;hips was a fur|der evidence of his Power to erect Regalities, that the difference betwixt Baronies and Regalities is va&s;t, in al&s;e far as the Barons had nothing but a &s;mall Right of preten&s;i|on, which did not prejudge the Shireff, nor demini&s;h his</HI> Territorium, <HI>but the Right of Baronies was co-ordinate and &s;ubordinat to the Juri&s;diction of the Sheriffs, and owned by all our Acts of Parliament as &s;uch, and in effect the Sheriff is a &s;uperior Officer to the Baron; So that the making of an Heretable Shireff doth no more hinder the making of a Barron, than the making of an &s;uperior Officer hinders the making of an inferior. And indeed the Barons had the mo&s;t Ancient Fewdal dignitys and Juri&s;diction, and the Shi|reffs were &s;uperinduced to them for better policy and Government of the Kingdom in their &s;everal di&s;tricts, Therefore the Shireff is compared to the</HI> praeces provinciae <HI>among&s;t the</HI> Romans, <HI>and the Barons were the Suitors in his Court, &s;o that the &s;uperinducing the Shireffs did not dimini&s;h the Barons Power, nor does the creating of Barons, being co|ordinat with and &s;ubordinat to the Shireff, dimini&s;h his Territory or juri&s;diction; and therefore there can be no Argument drawn from the creating of Barons to infer a Power of Erecting Regalities within the di&s;tricts of Heretable Sheriffs, for in Regalities all things are ju&s;t contrarie, the Right of Regalitie is privative of the Sheriffs juri&s;diction.</HI> 2do. <HI>The Right of Regalities is &s;o far from being owned by the Law, or as Co<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ordinat or &s;ubordinat to the Sheriff that they are again&s;t Law, and particularly the fore&s;aid Act</HI> Ja: 2d. <HI>and are revocked by all our Kings.</HI> 3tio. <HI>The Regalities was an incroachment upon the Shireffs, introduced fir&s;t by the arogance and ambition of the Popi&s;h Clergy, who would at any rate be independent, even in matter of Juri&s;diction, and who&s;e example was pro|bably Copyed by the greater Barons, nor is there any mention of Regalitys elder than the Reign of King</HI> Robert <HI>the</HI> 2d. <HI>although the Shireffs are of a much Ancienter date.</HI></P>
<P>It is Duplied, 1mo. That the Reply does not at all an&s;wer or take off the De|fence, but avoids it, and mi&s;-leads the Mind by a plea&s;ant account of Things, which with &s;ome Probabilities, contains &s;ome evident Mi&s;takes. The Objection is, That the creating of a Barron, who has a mo&s;t Ancient and certain Fewdal Juri&s;di|ction is to creat a new Juri&s;diction within the Sheriffs Bounds, which nece&s;&s;arly mu&s;t dimini&s;h the Sheriffs Juri&s;diction in as far as he can prevent him, but the King can creat a Barron, <HI>Ergo</HI> he can dimini&s;h the Sheriffs Juri&s;diction; which is incon&s;i&s;tent with <HI>We&s;tfield</HI>'s Alledgiance of Property: For it is equally again&s;t Law to take away any part of a Man's Property, as to take away the whole, although the Damnage be not equal: 2do. The terms of Co-ordination and Subordination, is meerly to evade in
<PB N="7" REF="4">For it is certain, that the Juri&s;diction competent to a Baron, is at lea&s;t Cumulative; and he can prevent the Shireff in &s;uch things as are contained in his Right; &amp; where he prevents, he is neither in Sub-ordination nor Co-ordination, but excludes: And the granting a Power to Prevent, does certainly dimini&s;h the Intere&s;t of him who could not be prevented before. 3tio. <HI>We&s;tfield</HI>'s Information given in to the Lords, does plainly acknowledge, That the Office of Sheriff was no right of Fie, but was a meer Office with Juri&s;diction for better Government and Policy, like the <HI>Prae&s;es Provinciae</HI> among&s;t the <HI>Romans,</HI> which was but a temporary Juri&s;|diction. 4to. As to the Pretence, That Regalities differ from Barronies, and are not mentioned till the Reign of <HI>Robert</HI> III. and were at fir&s;t introduced by Church|men, as an Incroachment upon Sheriffs. It is Duplied, That the great Barronies did anciently contain all, or the far greate&s;t part of the Priviledges of Regalities, as can be cleared from the Statutes of K <HI>Malcom</HI> II. and K. <HI>William,</HI> as is above mentioned: There was indeed a Di&s;tinction betwixt the Greater and Le&s;ler Bar|rons, as they had Priviledge More or Le&s;s in their Chartors: And when the Sheriffs began to incroatch upon the Barrons, it is probable they did a&s;&s;ertain and e&s;tabli&s;h their Rights by expre&s;s Chartors, which gave ri&s;e to the Name and formal Ere|ction of Regalities: But this was not to introduce a new Right, but to a&s;&s;ert Pri|viledges anciently belonging to the Barons, contained in our olde&s;t Laws: And the <HI>Caput</HI> 14. of the Statutes of King <HI>Rob:</HI> which <HI>We&s;tfield</HI> alledges is the fir&s;t expre&s;|ly mentioning Regalities, does not &s;peak of Regalities as a N<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">w Invention, but as a Juri&s;diction that was then, and had been in u&s;e: So that it is mo&s;t probable, that the Sheriff in &s;everal Points of his Office, and indeed in as far as he pretends to make his Office Heretage, does incroach upon the Barons, who had, as is acknow|ledged, the mo&s;t ancient Juri&s;diction, and that the Rights of Regalities is but a&s;|&s;erting the Rights of the great Barons in the Kingdom of <HI>Scotland.</HI></P>
<P>The Kings erecting of Stewarties within the Bounds of heretable Sheriff&s;hips, is a further evidence that the granting of &s;uch heretable Offices does not prelimit the King from erecting other &s;ewdal Juri&s;dictions: And it does not import, that Stewartries were anciently of the Kings Property; for it is evident that Stewartries comprehends the Kings Va&s;&s;alls as well as Shires, and by cea&s;ing to be in the Kings Property, they do not return to fall under the lieretable Juri&s;dict|ion of the Sheriff.</P>
<P>The erecting of a Burgh Royal within the bounds of an heretable Sheriff, is a further evident proof of His Maje&s;tys power notwith&s;tanding of &s;uch Offices; and <HI>We&s;tfield</HI> is forced to recur to this &s;hifting alledgance, <HI>viz</HI> The erecting a Burgh Royal, which makes the 3d. State of the Kingdom is peculiarly His Maje&s;ty's Prorogative, which mu&s;t &s;till be under&s;tood to be excepted in the Grant of any heretable Sheriff&s;hip; whereas Regalitys derogat from the Kings Power and Ca&s;u|alitys.</P>
<P>But this is ea&s;ily taken off, for <HI>Grant</HI> does alledge, that it is ju&s;t al&s;e evidently the Kings peculiar Prerogative, and mu&s;t be under&s;tood excepted from the Grants of heretable Sheriff&s;hips, to erect Regalitys or which is the &s;ame thing, to creat Borrons with more or le&s;s of the <HI>regalia</HI> in their Chartors.</P>
<P>And as to <HI>The prejudice of the Kings Ca&s;ualitys.</HI> It is <HI>jus tertii</HI> to the Sheriff, nor does the King grant any Ca&s;ualitys to the Lords of Regalitys, but &s;uch as are di&s;|po&s;ed of every day.</P>
<P>In all this Debate <HI>We&s;tfield</HI> does not adduce any good Rea&s;on to take off the <HI>Act</HI> 44: <HI>Par.</HI> 11. <HI>Ja:</HI> 2. Whereby Offices given in Fie and Heretage are di&s;charged, and declared void, nor is there a Latitude that they may be granted with delive|rance in Parliament, nor indeed can there be any an&s;wer given, and this being an exception of Nullity again&s;t <HI>We&s;tfield</HI>'s Title, his preten&s;ions fall.</P>
<P>It is further alledged for <HI>Grant,</HI> That his Regality cannot be &s;imply quarrelled by the Sheriff, becau&s;e his Right of Regality does comprehend a greater power than is competent to the Sheriff, and likewi&s;e the benefit of the E&s;cheats and other-Ca&s;ualitys
<PB N="8" REF="5" MS="y">to which the Sheriff had no Right, and therefore could not be allowed to re|duce <HI>Grants</HI> Right &s;imply.</P>
<P>It was An&s;wered for <HI>We&s;tfield,</HI> 1mo. <HI>That the right of Regality being</HI> jus individuum, <HI>he had good Right to quarrel it; nor was he bound to divide and di&s;tingui&s;h it.</HI> 2do. <HI>If the Defender &s;hould divide his Right of Regality, and maintain it only as to &s;uch Ca|&s;ualities and Powers as did not belong to the Sheriff; Then this Gift would not only import a New kind of Office, but be a manife&s;t Impingement upon the Act of Parliament, di&s;|charging the Kings Ca&s;ualitys to be given away in Great, as of a Shire or Countrey-&s;ide.</HI></P>
<P>It is Replied, That here again <HI>We&s;tfield</HI> endeavours to e&s;cape in Words: For the Right of Regality is not &s;o <HI>jus individuum,</HI> as that it has no parts, and may be quarrelled in part, and &s;u&s;tained in part, as if there were any new Priviledge contained in it, not u&s;ual in Regalities, or Lands not belonging to the Lord of Ere|ction. 2do. The pretence that the Regality would be a new Office, if it were re|&s;tricted by the Sheriffs private intere&s;t, is a meer Nicety, and it is no better pre|tence, that the granting of &s;uch Regalities would be a di&s;po&s;ing of the Ca&s;ualities in great, contrary to the Act of Parliament; &s;eeing it is evident that, that Act of Parliament does not exclude the Erection of Regalities, but concerns only &s;uch Ca&s;es where the Ca&s;ualities are directly and immediatly di&s;poned, not as the Con&s;equen|ces of any other Right or Erection: Fot as &s;uch the Ca&s;ualities have been and are con&s;tantly di&s;poned; and they are not the Ca&s;ualities in the Terms of the Act 1670. Parl: 11. <HI>Ja:</HI> VI. which Act di&s;charges the giving away the King's Ca&s;uali|ties in great, indeed, but the Examples are a whole Countrey-&s;ide, the hail Fews of a Prelacy, or the Ca&s;ualities of any &s;pecial Crimes, but not the Ca&s;ualities of any Mans own Lands in property or &s;uperiority, which is not general or in gro&s;s but &s;pecial, and conform to cu&s;tome.</P>
<P><HI>We&s;tfield</HI> does urge as a con&s;iderable Argument, <HI>That this erection is of a</HI> High|land <HI>Regality, which he incinuats, is of more dangerous con&s;equence than other Rega|lities.</HI></P>
<P>To which it is An&s;wered for <HI>Grant,</HI> that this de&s;erves no manner of regard, be|ing an alledgeance meerly injurious, and to plead favour. But 2. The <HI>Highland</HI> Landlords and Superiors being more rigorou&s;ly tyed by the Laws of the Nation for their Va&s;&s;als Tenents and Servants to pre&s;ent them to Ju&s;tice, and to repair dammages done by them, it is mo&s;t ju&s;t and rea&s;onable that they &s;hould have greater tyes upon them, and Juri&s;diction over them, and on the other hand, the puting of a whole Country too ab&s;olutely under the Power of a Shireff, and that too, &s;uch a Shireff as Nature may turn up at hazard, may not only be unfit for the Country occa&s;ion, inte&s;tine di&s;orders, but in many events may be un&s;afe for the publick Government, &s;o that this Argument does rather conclude for the nece&s;&s;ity of &s;uch Regalities.</P>
<P REND="indent">It is therefore humbly expected, That &s;eeing his Maje&s;ties undoubted Prero|gative to erect Regalities, notwith&s;tanding of the Hetetable Office of Shi|reff&s;hip, and that the &s;aids Grants of Regalities do by the Interpretation of our Law, contain a Fewdal Juri&s;diction with &s;everal other ca&s;ualities; where|as the Right of Sherriff&s;hip is a meer per&s;onal Juri&s;diction, introduced not to overturn the Ancient Rights of the Barrons, who enjoyed &s;everal of the <HI>Re|galia</HI> by the Law, and their Chartors, nor the Kings priviledge to grant them, but for better Government and policie. And &s;eeing his Maje&s;tie has been in con&s;tant u&s;e to grant the &s;ame, or like Rights of Barronies, Stewartries or Burghs Royal, and that the &s;aid cu&s;tom has been approven by a long con|&s;tant and general acquie&s;cence, and confirmed by the opinion of our Lawyers, and deci&s;ions without contradiction, till this Proce&s;s: And al&s;o &s;eeing that the drawing of this matter would make a &s;trange couvul&s;ion in the Nation, by expo&s;ing the many Rights granted by his Maje&s;ty and his Predece&s;&s;ors of this kind, and that <HI>We&s;tfields</HI> Tittle and Right to the Heretable Office is ma|nife&s;tly again&s;t Law, and con&s;equently null, To a&s;&s;oilzie <HI>Grant</HI> from the fore|&s;aid Proce&s;s, and to reduce <HI>We&s;tfields</HI> Tittle to the Shireff&s;hip, in &s;o far as concerns the Lands contained in the Regality:</P>
<PB REF="5">
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