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<NAME>Alexis Jakobson</NAME>
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<PB N="1" REF="1">
<HEAD><HI>INFORMATION</HI> For <HI>Alexander Dunbar</HI> of <HI>We&s;tfield</HI> heretable Sheriff of <HI>Elgin</HI> and <HI>Forres.</HI> Again&s;t The Laird of <HI>Grant.</HI></HEAD>
<P>THe Laird of <HI>Grant</HI> having lately obtained from his Maje&s;ty a Signature erecting his Lands in a Regality, and a part of his Lands lying local|ly within the Shire of <HI>Elgin,</HI> when this Signature was pre&s;ented to be pa&s;t the Exchequer, <HI>Dunbar</HI> of <HI>We&s;tfield</HI> heretable Sheriff of the &s;aid Shire oppo&s;ed and prote&s;ted again&s;t it, as hurtful and prejudicial to his heretable Sheriff-&s;hip, and <HI>Grant</HI> having now pa&s;t Infeftment of the &s;aid Signature, the Sheriff for vindicating of his heretable Office, and the bounds thereof from &s;uch a manife&s;t Incroachment, hath rai&s;ed a Reduction and Declarator to hear and &s;ee it found and declared, that <HI>Grants</HI> Signature of a Regality, cannot be extended to, nor comprehend<GAP DESC="illegible" RESP="KEYERS" EXTENT="3 letters"> of the Land<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> <GAP DESC="illegible" RESP="MURP" EXTENT="5 letters">ging to <GAP DESC="illegible" RESP="MURP" EXTENT="1 span"> in prejudice of the &s;aid Sheriffs heretable Office, but the &s;amen ought in &s;o far to be declared and reduced.</P>
<P>This Action being called in the Inner hou&s;e, it was alledged, that the Laird of <HI>Grant</HI> had al&s;o rai&s;ed a Reduction and Declarator again&s;t the Sheriff for taken away of his heretable Office of Sheriff-&s;hip, but the Production not be|ing &s;atisfied by the Sheriff, in &s;o far as was requi&s;it for debating of <HI>Grants</HI> Re|duction and Declarator, and on the other hand, the Sheriffs Reduction, and de|claim again&s;t <HI>Grant</HI> being ready to be debated, the Sheriff in&s;i&s;ted in his Acti|on and &s;ome little Qu&s;tion having been moved about his Title, as if his Sea|&s;in on his Retour as Heir to his Father were not &s;ufficient; The Lords allowed him to produce farder <HI>eum proce&s;&s;u,</HI> which is al&s;o done, the Sheriffs heretable Sheriff&s;hip being indeed unconte&s;table, and founded in a clear Progre&s;s of more than a hundreth Years with an interrupted Po&s;&s;e&s;&s;ion.</P>
<P>It was therefore alleadged for the Sheriff, that the Ground and Rea&s;on of his Reduction and Declarator, was in it &s;elf &s;o clear and &s;o clearly founded in one of the fir&s;t Maxims of Law, viz. <HI>quod meum e&s;t &s;ine facto meo aufferri non potest,</HI> or that no mans property can be taken from him without his own con&s;ent, or the force of Law which is equivalent, that it was not capable ei|ther of farder Probation or Illu&s;tration; But <HI>ita e&s;t</HI> that the fore&s;aid heretable Office within the whole bounds teereof is the Sheriffs undoubted Right and
<PB N="2" REF="2" MS="y"> Property, and therefore cannot be taken away or dimini&s;hed by the Laird of <HI>Grant</HI> either in whole or in part, without the Sheriffs own con&s;ent, or the deed of Law which is equivalent.</P>
<P>To this there were &s;everal An&s;wers and Exceptions made by the Laird of <HI>Grant,</HI> which for &s;huning of Repetition &s;hall be noti&s;ed and taken off by the Sheriff in order as they were proponed, and are now re&s;umed. 1. It was An|&s;wered for <HI>Grant,</HI> that there was a Di&s;tinction to be made betwixt an Office tho' heretable, and other Rights of Property, in as far as an Office was in effect but only a Power and Commi&s;&s;ion flowing from the King, who &s;till retained the Soveraign Power, and by vertue thereof might erect other Offices, as that of Regality within the bounds of any Shire, albeit it &s;hould be found re&s;tri|ctive or prejudicial to the heretable Office of Sheriff-&s;hip, whereas other Rights of Property as of Lands and Tenements were full and ab&s;olute, and by the Law &s;ecured from all Diminutions and Incroachments; And farder, that a bare Office was not to be judged <HI>in patrimonio,</HI> and could never hinder the King to erect Regalities which were Praedial and Feudal Juri&s;dictions, which the King in all time might give with the Feu of the Lands at his plea&s;ure.</P>
<P>To which it was replyed for the Sheriff, that this An&s;wer and Di&s;tinction was neither founded in Law nor Rea&s;on, but in effect did militat as well again&s;t the Defenders Regality, as the Sheriffs Sheriff-&s;hip; The Defenders Procura|tors in proponing this Allegiance, acting clearly <HI>Samp&s;ons</HI> Part, who to de|&s;troy the <HI>Phili&s;tines,</HI> pulled down the Hou&s;e, and involved him&s;elf in the &s;ame Ruines; It being evident that if heretable Offices cannot be reckoned Pro|perty, but are &s;till &s;ubject to be limited or re&s;tricted by the Kings Soveraign Power, the &s;ame may happen as well to an heretable Regality, as an here|table Sheriff-&s;hip, nor doth it &s;ignifie any thing, that the Office of Regality is praedial or Feudal, and annexed to Lands, becau&s;e the Que&s;tion here is, not concerning the nature of Regalities, but preci&s;ely this, whether the here|table Office of Sheriff-&s;hip being lawfully con&s;titute, can be dimini&s;hed by the erecting of a Regality within the &s;ame bounds, &s;eing whether the Regality be annexed to Lands or not, it is not material to this Que&s;tion whereof the preci&s;e point is, whether a prior Right of the Office of Sheriff &s;hip can be taken from the Sheriff without his own Deed or Law, by erecting another Office within the &s;ame bounds, manife&s;tly privative of the Sheriff-&s;hip, whether that other Office be called a Regality or not, or whether this Office of Rega|lity be annexed to Lands or not? And without Controver&s;ie, if the King &s;hould grant a Feu of certain Lands within a Shire, with an Office of Bailliary, or of any other De&s;ignation, but &s;till privative of the Sheriffs Juri&s;diction, the heretable Sheriff might &s;till reclaim, notwith&s;tanding of its being annexed to Lands, which plainly makes no material difference in this ca&s;e.</P>
<P>But 2. The Defenders material Error is, that he would have a heretable Office to be no Property nor Right, and in effect it cannot well be &s;aid what he would make it, or how he would di&s;tingui&s;h it from any precarious Com|mi&s;&s;ion, but &s;etting a&s;ide the&s;e dark Notions, it is granted that a heretable Office is neither Lands nor Tenements, but <HI>quid incorporium,</HI> is it therefore not capable of Right or Property, when it is certain it hath all Marks, Characters and U&s;es of any other Right, in &s;o far as it may be tran&s;mitted to Heirs, it may be Gifted or Sold, or Appry&s;ed, and even as to the Soveraign Power whence it flows, it is &s;o far a Right of Property, that the King hath him&s;elf bought back heretable Sheriff-&s;hip by a con&s;iderable Price, and the
<PB N="3" REF="2"> Defender contends that they are &s;till redeemable, &s;eing therefore that a here|table Office is a mans Property as well as a heretable Right of Land, the De|fenders di&s;tinction is wholy groundle&s;s, and farder it is certain that an here|table Office hath not only Emoluments and Perqui&s;its, which even the De|fender cannot deny to be <HI>in patrimonio,</HI> but al&s;o that the heretable Office it &s;elf, &s;eing it may be Bought and Sold is patrimonial.</P>
<P N="3">3. The Ab&s;urdity and Impertinency of the fore&s;aid di&s;tinction as to the ca&s;e in hand, is yet more manife&s;t; If it &s;hall be inquired, whether the King may on the ground thereof erect another Sheriff-&s;hip within a Sheriff-&s;hip, or if he may di&s;member a Shireff-&s;hip, and no doubt both will be denyed; If then he may not erect another Shireff-&s;hip within the Bounds of an he|retable Sheriff-&s;hip, or di&s;member a Sheriff-&s;hip by making two of one even albeit he &s;hould grant this new Erection with an annexation to Lands, <HI>multo minus</HI> may he erect a Regality, becau&s;e a Reg<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">lity in effect is as privative of the Sheriff-&s;hip, as if it were another Shire: And it is a mi&s;take, as if the priviledge of Regality were only to repledge from the Sheriff, and to have &s;ome Ca&s;ualities of E&s;cheat, and the like which the Sheriff hath not, when in effect the Bounds of the Regality are &s;o di&s;tinct from the Shireff &s;hip that they are plainly <HI>alterum territorum,</HI> and a Sheriff by the Act of Parliament, in the Pur&s;uit of a Man-&s;layer, or Robber, is to behave to|wards a neigbouring Lord of Regality, as toward a neighbouring Sheriff. It is true, that as the Lord of Regality, hath &s;ome powers of Juri&s;diction as well as Ca&s;ualities beyond the Sheriff, &s;o the Sheriff hath power in &s;ome Ca&s;es, e|ven within the Regality; as to fortifie his Court with Suits out of the Regality, when they are wanting out of the Shire: And to rai&s;e the In|habitants of the Regality with the re&s;t of the <HI>po&s;&s;-comitatus,</HI> but it is as cer|tain, that the&s;e are only mea&s;ures of Policy and Government, and making no|thing to the pre&s;ent que&s;tion, which is preci&s;ely this, whether an Heretable Sheriff-&s;hip can be dimini&s;hed or incroached upon by Erecting of a Regality, which is clearly privative, and if by the &s;ame Rule, the whole Sheriff-&s;hip may not be exhau&s;ted, by erecting the like Regalities over the whole Shire, which is plainly the &s;ame, as if an old Heretable Sheriff-&s;hip were Di&s;mem|bred in &s;o many New Sheriff-&s;hips, as &s;hould leave the old Sheriff nothing but the Name, which were mo&s;t ab&s;urd: But &s;eing the Heretable Office of Sheriff is truly the Sheriffs Property, for which he payes a di&s;tinct <HI>Redendo,</HI> wherein he makes his Equie every year, and that it hath all the marks of pro|perty, and is in <HI>patrimonio</HI> as &s;aid is. It is certain that in Law, and by the Kings real Intention which is never by any Gift to take away another Mans Right, it can no more be dimini&s;hed in part, or de&s;troyed in the whole, for both are the &s;ame thing, by new Regalities, than by new Bailliaries, Sheriff-&s;hips, or other exclu&s;ive Juri&s;dictions, for names are but names and &s;ignifie no|thing.</P>
<P>But here it was farder urged for the pur&s;uer, that in the late Times, <HI>viz.</HI> In the year 1681. there was an Act made for the Kings cumulative Juri&s;dicti|ction, which all men know was purpo&s;ely de&s;igned, not as the Defender alled|ged to have &s;ome Laws more &s;harply execute, but really to dimini&s;h &s;ome He|retable Juri&s;diction, and yet this Law by an expre&s;s Act of Parliament in the year 1690: was abrogat, if then the granting of cumulative Juri&s;dictions, in prejudice of Heretable Rights, was judged a Grievance, and abrogat, how much more the granting of private Juri&s;dictions, which are evidently
<PB N="4" REF="3"> ly a far greater Non&s;en&s;e. And farder it is to be remembred, that even when the Parliament 1693. did make the Act for a Commi&s;&s;ion of Ju&s;ticiary in the High-lands, they would not incroach upon the Heretable Ju&s;ticia|ries of the Earl of <HI>Argle</HI> and others, without their own con&s;ent, and if any Per&s;on having Lands within the Ju&s;ticiary of <HI>Argyle,</HI> or of <HI>Caithne&s;s, &amp;c.</HI> Should obtain a Regality to be Erected, it would certainly be reprobat: How can it then be que&s;tioned, but that an Heretable Sheriff may Defend his Right in like manner.</P>
<P>As to what the Defender here an&s;wered, that the Act anent Cumulative Ju|ri&s;dictions, was made for a warrant to give Commi&s;&s;ions to Officers to exe|cute the then Laws, as Sheriffs in that Part, in place of the ordinary Sheriffs. And therefore, and for no other Rea&s;on abrogat, it was rea&s;onably replyed, that as to that exce&s;s and abu&s;e of the Cumulative Juri&s;diction, it was Con|demned by the Claim of Right, but the E&s;tates and the Parliament went yet farder, and found, That the very power of Erecting new Juri&s;dictions <HI>Cu|mulativ&egrave;,</HI> within the Bounds of Old Juri&s;dictions, was a Grievance, and therefore did abrogat it, which concludes <HI>a fortiori,</HI> that the Erecting of new privative Juri&s;dictions within the &s;ame Bounds, are <HI>multo magis</HI> to be repro|bat, and in effect are &s;o contrary to the fundamental Rule of Right, that there is no need of a po&s;itive Con&s;titution to di&s;charge them.</P>
<P N="2">2. It was alledged for the Defender, that the Cu&s;tom hath now been for many years, that the King hath granted &s;everal Regalities within the Bounds of Heretable Sheriff-&s;hips, and this hath been generally acquie&s;ced to, nor hath it hitherto been di&s;proven in Judgement, &s;o that the old Act of Parlia|ment, Ja. 2. Di&s;charging the Erecting of New Regalities: without the de|liverance of Parliament, is gone in de&s;uetude, and the contrary Cu&s;tom hath taken place.</P>
<P>To which it was replyed, for the Pur&s;uer, that this Alledgeance of Cu|&s;tom, is mo&s;t groundle&s;s and frivolous, &s;eing that any Cu&s;tom that can be conde&s;cended on, is meerly <HI>con&s;uetudo facti,</HI> which hath no binding power, or Warrand in it. Becau&s;e 1. It is but re&s;ent, and none of the late Erecti|ons of Regalities, hath yet &s;o much as attained to pre&s;cription, much le&s;s can a binding Cu&s;tom be thence inferred. 2. Becau&s;e this Cu&s;tom is not general, or univer&s;al, which is another Charecter of a binding Cu&s;tom. 3. Becau&s;e no Cu&s;tom contrary to Law, or private Right, can never be binding, but this Cu&s;tom of Regalities is contrary to Law, <HI>viz.</HI> The fore&s;aid expre&s;s Act of Parliament, and albeit it be granted, that the &s;aid Act of Parliament is not in that fre&s;h ob&s;ervance, to cry down, and reduce all contrair Reg<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">lities, yet it will not be doubted, but that the Act of Parliament is &s;till of that con&s;ide|ration, as to hinder any Cu&s;tom to pre&s;cribe again&s;t it, in prejudice of any mans private Right; And it is very ob&s;ervable, that the Act of Parliamenr hath not only &s;ince been made a perpetual Article of our Kings Revocations, who expre&s;ly revoke all Regalities, as contrary to Law, but hath al&s;o &s;till had the force, that to this day it cannot be conde&s;cended on, that ever there was &s;uch a Deci&s;ion e&s;tabli&s;hing a Regality, by way of Regality, again&s;t any o|ther mans Right, and that the fore&s;aid Cu&s;tom of Regality is contrary to privat Right cannot be denyed, even by the Defenders, &s;ince it no dobut, de|mini&s;hes the Right of the Heretable Sheriffs, where ever it happens: And therefore can never be judged a binding Cu&s;tom. And further, it is certain, that if all <HI>Scotland</HI> &s;hould by never &s;o long ane acquie&s;cence, much more,
<PB N="5" REF="3"> when the acquie&s;cence is not yet the length of Pre&s;cription, &s;uffer their privat Rights to be dimini&s;hed, yet it would never prove a Cu&s;tom to bind any &s;ingle man, who had &s;tood out to depart from his Right, it being in this ca&s;e ab&s;o|lutely nece&s;&s;ary, that Cu&s;toms prejudicial in this &s;ort &s;hould be e&s;tabli&s;hed by a tract of Deci&s;ions, to give them the force of a binding Law, nor doth this in the lea&s;t militat again&s;t the Kings power and gift, who certainly never gives any thing to the prejudice of private Rights, but if any Gift of that kind happen to be Impetrat, it is only <HI>periculo impetrantis,</HI> but in &s;o far as it de|bords from the intention of the Kings Ju&s;tice and Goodne&s;s; it is to be under|&s;tood as the deed of the Impetrator, rather than of His Maje&s;ty. But 4. The late Gifts of Regalities have for the mo&s;t part been reclaimed again&s;t by Pro|te&s;ts taken in Exchequer, whereof many in&s;tances can be given, and particu|larly the Pur&s;uer produces the Prote&s;t, both taken and admitted in Exchequer, again&s;t the Regality of <HI>Athol</HI> by the Earls of <HI>Argile</HI> and <HI>Breadalbin,</HI> and &s;e|veral others: By all which it is evident, that the alledged cu&s;tom of granting Regalities, is only <HI>con&s;uetudo facti,</HI> and no binding Cu&s;tom to found any de|fence in prejudice of the Pur&s;uer. And farder, if it were worth the inquiry, it would be found that the acquie&s;cing of per&s;ons concerned to the fore&s;aid new Erections, hath proceeded from private Motives and Bargains, but it is enough for the Pur&s;uer, that this pretended Cu&s;tom cannot be alledged to be a binding Cu&s;tom, and that he for him&s;elf is very far from acquie&s;cing to it.</P>
<P N="3">3. It was alledged for the Defender, that the King hath always granted, and every day grants new Baronies within Heretable Sheriff-&s;hips, and the &s;ame neither has, nor can be que&s;tioned. If then he grant Baronies, why not Re|galities? Seing <HI>magis &amp; minus non variant &s;peciem.</HI></P>
<P>To which it was Replyed, 1. That the Maxim <HI>majus &amp; minus non variant &s;peciem,</HI> was never admitted either in Morals, Politicks, or Que&s;tions of Law. 2. That the difference betwixt Baronies and Regalities is va&s;t, in as far as it is certain, that except a &s;mall Right of Pretention, the Baron hath nothing that in the lea&s;t prejudges the Sheriff; and the &s;ame Right of Pretention is in ef|fect rather an ea&s;e than prejudice to the Sheriff; whereas a Regality is quite privative of the Sheriffs Juri&s;diction, dimini&s;hes his <HI>Territorium,</HI> and con&s;e|quently both his Juri&s;diction and <HI>Imperium,</HI> and erects a new Juri&s;diction, as di&s;tinct from, and Collateral with him, as a new Sheriff-&s;hip, and all within the Sheriff-bounds, whereby in effect by a few more Regalities, the Sheriff-Shire may be quite evacuat. But 3. Baronies as they are no ways privative of the Sheriffs Juri&s;diction, &s;o they are therewith plainly co-ordinat and &s;ub|ordinat thereto within the &s;ame bounds, and perpetually owned as &s;uch by all our Acts of Parliament; &s;o that the Law ari&s;ing from the&s;e Acts, doth e&s;ta|bli&s;h Baronies; whereas on the other hand the Acts of Parliament Reprobat Regalities, unle&s;s granted in Parliament, and all our Kings have con&s;tantly re|vocked them, which is a mo&s;t manife&s;t di&s;parity. And whereas it was alledg|ed by the Defender, that Regalities and Baronies were in this equal, becau&s;e the power of Regalities was as well defined by Law, as the power of Baronies, which is all the Argument imports. It was Replyed, that the Argument is not taken from the ab&s;tract power of Baronies, but the di&s;parity alledged by the Pur&s;uer lyes in this, that the very co-ordination &amp; &s;ubordination of Baronies within Shires, appears to be con&s;tantly &s;uppo&s;ed and ratified by Acts of Parliament, which can no ways be &s;aid of Regalities, which not only excludes the Sheriffs power, but are expre&s;ly condemned by &s;everal Acts of Parliament.</P>
<PB N="6" REF="4">
<P>But 4. The manife&s;t di&s;parity betwixt Baronies and Regalities, in order to Sheriff-&s;hips, lyes in this; that the Sheriff is in effect a Superior Officer to the Baron: &s;o that the making of an Heretable Sheriff doth no more hinder the making of a Baron, than the making of any other Superior Officer hinders the making of an Inferior, which as to Regalities is quite contrary, in as much as a Regality is plainly exclu&s;ive and privative of the Sheriffs power, and &s;o cuts off his Territory: That if all the Shire were erected in Regalities, the Sheriff and his Heretable Office &s;hould become a Cypher, and he obliged to pay a <HI>Reddendo</HI> for ju&s;t nothing, which can never be &s;o much as thought of Baronies. But to clear this point to full &s;atisfaction, it is to be remembred, that Baronies are certainly the fir&s;t and mo&s;t ancient Feudal Dignities and Ju|ri&s;dictions that are known: Likeas the Barons make the mo&s;t con&s;iderable State in the Kingdom; and it is among&s;t the chief of His Maje&s;ties Preroga|tives, that he creats Barons at his plea&s;ure; next that Sheriffs were &s;uperin|duced to Barons, for the better Government and Policy of the Kingdom, be|ing appointed to their re&s;pective Shires and Provinces, including &s;everal Baro|nies, and as a Superior Officer over the Barons; and therefore the Sheriff is by our old Lawyers mo&s;t fitly called and compared to the <HI>Prae&s;es Provinciae</HI> a|mong the <HI>Romans,</HI> and the Barons are obliged to attend as Suiters in his Courts, and he may &s;it or appoint per&s;ons to &s;it with the Barons in their Courts: And farder,, of old there lay an Appeal from the Baron to the Sheriff: Whence it follows, 3. That as this &s;uperinducing of Sheriffs did dimi|ni&s;h nothing of the Barons Rights, &s;o the Office of Sheriff being Su|perior, doth &s;till imply a power to the King, to Creat Inferior Ba|rons as formerly; and being thus co-ordinat with, and &s;ubordinat to the Sheriff within the &s;ame Bounds, and con&s;tantly approven for &s;uch by our Acts of Parliament, it is &s;carce po&s;&s;ible to imagine how the making of an Heretable Sheriff &s;hould hinder the after-creating of Ba|ronies, &s;ince it plainly here includes that power as naturally re&s;erved. But 4. As to Regalities all things <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">r<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> contrary, For fir&s;t. It may well be believ|ed that their Original was a Church Incroachment upon the Crown, and that it was in effect the Prelats of the Church who alway pretending to Exempti|ons, re&s;ted not till they got their Prelacies erected in Regalities. 2. That it is very likely that &s;ome of the greater Barons were incouraged by their example, and got their Lands erected in Regalities, when probably there were few He|retable Sheriff-&s;hips. But 3. This is certain that there is no mention of Re|galities in our old Law, until the Reign of <HI>Robert</HI> the Second, &s;o it is manife&s;t that the Abu&s;e of Regalities was &s;oon noticed, <HI>viz.</HI> In the Reign of King <HI>James</HI> the Second, and no doubt it was both for their Incroachments upon the Crown, and their Incroachments upon Sheriffs and other ordinary Juri&s;di|ctions, that by the Act of <HI>Pael. Ja.</HI> 2. <HI>par.</HI> 11. 43. <HI>cap.</HI> they were di&s;charged to be granted without deliverance of the Parliament: Likeas ever &s;ince they have made an Article in our Kings Revocations, by all which it is evident, that Baronies are co-ordinat and connatural to Sheriff-&s;hips, whereas Regalities are privative, and effect de&s;tructive of them, &s;o that to argue from the in&s;tance of Baronies, which is mo&s;t con&s;i&s;tent with a Sheriff-&s;hip to that of Regalities, which is utterly incon&s;i&s;tent, is ill and ab&s;urd <HI>Logick.</HI></P>
<P>The Defender did here take notice, that Heretable Officers are likeways di&s;charged in the very next Law to that di&s;charging Regalities, but that is nothing to the pre&s;ent purpo&s;e, &s;eing the Pur&s;uer is not craving that the De|fenders Regality may be &s;imply di&s;charged, but only contends that &s;o long
<PB N="7" REF="4"> as heretable Offices and Regalities are both allowed, the Defenders Regality ought and &s;hould be re&s;tricted, and declared not to extend to the Pur&s;uers prejudice.</P>
<P N="4">4. The Defender alledged, that it was incontraverted, that Stewartries might be Erected even where there are Heretable Sheriffs, but to that it was &s;hortly and plainly Replyed, but there was no Parity betwixt Stewartries and Regalities, in as much as Stewartries are only Erected in, and over the Kings Property, and it cannot be doubted that the granting of a Heretable Sheriff-Ship does naturally imply that Exception. <HI>viz.</HI> That the King may exempt his own Property from the Sheriffs Power, unle&s;s that any man can think, that the King him&s;elf and his Court re&s;iding as they may do with in the Kings Property, &s;hould yet be &s;ubject to the Sheriffs Juri&s;diction, which were ab|&s;urd, but as to Regalities there is no &s;uch ground for their Erection, but they are in effect di&s;charged by Law as Inva&s;ions both of the King and Sheriffs Rights.</P>
<P N="5">5. It was alledged for the Defender, that the King might erect Burghs Royal within heretable Sheriff &s;hips, and therefore may al&s;o erect Regalities; To which it was Replyed. 1. That a Burgh-Royal as to the points of Juri&s;|diction differs little or nothing from the power of a Barony, and therefore is only to co ordinat and not at all exclu&s;ive of the Sheriff. 2. That the di|&s;tingui&s;hing Priviledges of a Burgh-Royal, are the Liberties of Trade and the Immunities thereto pertaining, which are nothing prejudicial to the Sheriff-&s;hip. 3. That if a Burgh royal came to be Erected with the Power of Sheriff-&s;hip, as &s;everal Burghs have it, no doubt a heretable Sheriff would have both Law and Rea&s;on to oppo&s;e it and it could not in Law be granted to his prejudice. And 4. The erecting of Burghs-royal, which makes the Third State of the Kingdom, is peculiar to his Maje&s;ties Prerogative, which mu&s;t &s;till be under&s;tood to be excepted, and untouched in the Grant of any Here|table Sheriff &s;hip; But as to Regalities they only derogat from the Kings pow|er and Ca&s;ualities, &amp; are incon&s;i&s;tant with and privative of the Sheriff, Juri&s;dic|tion, and therefore are by Law di&s;charged, and every heretable Sheriff is mo&s;t clearly founded in the &s;ure&s;t Rules of Law and Right to oppo&s;e them in &s;o far as they encroach upon, or are prjudicial to his Right and Heretable Office.</P>
<P N="6">6. It was farder moved by the Defender, that the Pur&s;uer might declare whether he did in&s;i&s;t for reducing of his Regality <HI>&s;impliciter</HI> as encroaching upon, and prejudicial to his Right of heretable Sheriff-&s;hip, or if he only cra|ved the &s;aid Regalitie te be reduced, as to the&s;e Powers and Juri&s;dictions, wherein it did prejudge the <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ur&s;uers fore&s;aid heretable Office, for &s;eing that a Regality did include a Juri&s;diction, <HI>viz.</HI> as to the Power of Life and Death, and Crimes capital greater than was competent to the Sheriff, and did al&s;o give Right to the E&s;cheats and other Ca&s;ualities, which the Sheriff had no Right to it was more rea&s;onable that the Pur&s;uer &s;hould only quarrel the Defenders Re|gality as to the&s;e points wherein it concurred with and dimini&s;hed the Sheriffs Right, but not at all as to the&s;e other Powers and Ca&s;ualities to which the She|riff could not pretend.</P>
<P>To which it was Replyed for the Pur&s;uer, that he in&s;i&s;ted in the Conclu&s;ion of his Declarator as lybelled, <HI>viz.</HI> to hear and &s;ee it declared, that the De|fenders Regality could not be extended to any part of the bounds of the Shire nor was it he to divide and di&s;tingui&s;h the fore&s;aid Right of Regality which he
<PB N="8" REF="5"> conceived to be <HI>jus individuum,</HI> and to be &s;o granted by then Defenders &s;igna|ture. 2. If the Defender &s;hould offer to divide and di&s;tingu&s;h his Regality in manner fore&s;aid, <HI>viz.</HI> that it &s;hould only &s;ub&s;i&s;t within the bounds of the Shire as to the&s;e Powers and Ca&s;ualities that did not at all pertain to the Office of Sheriff-&s;hip, this was not only to &s;et up a new Office, but a manife&s;t Im|pingement upon the Act of Parliament di&s;charging the Kings Ca&s;ualities to be given away in great as of a Shire or Countrey &s;ide; For albeit &s;omething might be pleaded for the generality of a Right to E&s;cheats when only given as a con&s;equent of the Juri&s;diction of Regality, yet to pretend that the Right to the E&s;cheats in general &s;hould &s;ub&s;i&s;t where the power of Juri&s;diction was &s;ub&s;tracted, was plainly contrair to the fore&s;aid Act of Parliament, and there|fore the Pur&s;uer in&s;i&s;ted to have the Defenders Regality in &s;o far as it incroach|ed upon the bounds of the Shire <HI>&s;impliciter</HI> reduced, and that without any di|&s;tinction, &s;ince the Defenders Gut contained none, and was in &s;o far privative and exclu&s;ive of the Pur&s;uers Heretable Office, which neither the nature of his Right nor Law did allow.</P>
<P>The Pur&s;uers might farder repre&s;ent to the Lords, the particular inconve|niencies of extending this <HI>Highland</HI> Regality as in effect it was to the bounds of the <HI>Lowlands,</HI> but &s;eing the Pur&s;uer was &s;ufficiently founded in the point of Right in general, <HI>viz.</HI> that his Property and Right of heretable Sheriff could not be taken from him either in whole or in part, without his own deed or the force of a Law, and that the extending of this Regality within the Bounds of the Shire was realy in &s;o far privative and exclu&s;ive of the Sheriffs heretable Office, that therefore in &s;o far it ought to be reduced.</P>
<P>The Pur&s;uer doth farder, with all Submi&s;&s;ion offer to the Lords con&s;idera|tion, That albeit it may be yeilded, That the giving of Regalities in gene|ral, have not the&s;e many years been quarrelled upon the fore&s;aid Act of Parli|ament, as granted without deliverance of Parliament, yet that may be as true upon the other hand, that hitherto no Deci&s;ion of the Lords can be conde|&s;cended on po&s;itively, &s;u&s;taining a Gift of Regality, without deliverance of Parliament, contrairy to the &s;aid Act, much le&s;s &s;u&s;taining the &s;ame in a direct Oppo&s;ition to, and Competition with another Heretable Office, &s;tanding unreduced.</P>
<P>The Defender did al&s;o Alleadge, That his Regality was Ratified in Parli|ment, But 1. a Ratification in Cour&s;e, and which pa&s;&s;es <HI>&s;alvo jure,</HI> is not at all the Deliverance of Parliament requi&s;it by the fore&s;aid Act, to make a Gift of Regality lawful. And 2. The Pur&s;uer did prote&s;t again&s;t the fore|&s;aid Ratification in Parliament, as he had prote&s;ted again&s;t the Gift, when it pa&s;t the Exchequer, whereby it was certain, that the Pur&s;uer did pre&s;erve his Right unprejudged by the fore&s;aid Ratification, as the Act <HI>&s;alvo jure</HI> ex|pre&s;ly &s;tatute.</P>
<P>By all which, it is evident, That the Defenders Right of Regality cannot &s;ub&s;i&s;t within the bounds of the Shire, to the manife&s;t hurt of the Pur&s;uers Heretable Office of Sheriff-&s;hip and that the Pur&s;ueris founded both in a com|mon Right, and likewayes, on the fore&s;aid Acts of Parliament, That the fore&s;aid Heretable Right of Sheriff-&s;hip, which is his Property, cannot be taken from him without his own Deed, or the force of Law, which is equival|ent by the Defenders incon&s;i&s;tant privative and exclu&s;ive Regality.</P>
<P>The Defender, &s;ince the Debate, and which he may po&s;&s;ibly in&s;ert in his Information, alleadges, out of <HI>Hopes</HI> Collection, That there was an Act of
<PB N="9" REF="5" MS="y"> Parliament in K. <HI>James</HI> the fourth's time, impowering the King to Unite, Disjoyne, and Erect Sheriff-&s;hips, as he &s;hould &s;ee cau&s;e, without con&s;ent of Parliament, whence it is inferred, That the King by vertue of his Soveraign Power, may erect Regalities within Sheriff-&s;hips, and di&s;pon on Sheriff-&s;hips at his plea&s;ure.</P>
<P>To which it is An&s;wered. 1. No &s;uch Act of Parliament Printed. 2. That in the &s;ame Kings Reign, in his &s;ixth Parliament, <HI>cap.</HI> 61. The Sheriff-&s;hips of <HI>Ro&s;s</HI> and <HI>Caithne&s;s</HI> were Erected, but by an expre&s;s and publick Act of Parliament; So that it is not likely, that either K. <HI>James,</HI> or any other of our Kings allow that Power by them&s;elves, and it may al&s;o be remembred that it was by Act of Parliament in the years 1661, or 1692, that the Shires of <HI>Ro&s;s</HI> and <HI>Inverne&s;s</HI> were divided; And al&s;o by an Act of Parlia|ment in the year 1685, that the Shire of <HI>Kinro&s;s</HI> was augmented. But 3. What ever may be of the&s;e Acts, yet it is certain, that all Acts are only to be civily under&s;tood, that is, that the King may Unite, Disjoyne, or Erect by him&s;elf, where there is no Heretable Office, but where there was, or is an Heretable Office, the con&s;ent of the Sheriff, or el&s;e a Statute of Parliament is ab&s;olutely requi&s;it. And 4. That the King doth not acclaim the ab&s;olute Power of di&s;po&s;ing upon Heretable Sheriff-&s;hips, is manife&s;t by the Acts of Parliament 1633, And the Surrender that poceeded, and the care that the King took at that time, to buy in Heretable Sheriff-&s;hips,, which had been a needle&s;s, and lo&s;t Expen&s;e, if &s;o be the King might di&s;po&s;e upon Heretable Sheriff-&s;hips at his plea&s;ure. And therefore, &s;ince the King hath always ac|knowledged the Right of the Heretable Sheriffs, and that it could not be ta|ken from them, without a lawful Purcha&s;e, it is impo&s;&s;ible, that the Regali|ties can be Erected within their Bounds without their Con&s;ent to their pre|judice.</P>
<P REND="block">In re&s;pect whereof, The Regality in favours of the Laird of <HI>Grant,</HI> in &s;ua far as the &s;ame comprehends Lands lying within the Sheriffdom of <HI>Elgin</HI> and <HI>Forre&s;t,</HI> alias Sheriffdom of <HI>Murray,</HI> where|of the &s;aid <HI>Alexander Dumbar</HI> of <HI>We&s;tfield</HI> is Heretable Sheriff ought to be Reduced, and the Laird of <HI>Grant</HI> Decerned in the Expen&s;es &s;u|&s;tained by the Sheriff in maintaining his own Right, and reducing the &s;aid Regality, whereupon the Sheriff is willing to depone.</P>
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