Manuscripta juridica

Ius proprium Scotiae - Practicks (general digest of law, systematic): (extracts = bogus 'Lord Chancellor's Practicks') .

A thorough collation of the first three pages of the printed edition of Balfour's Practicks (see below) convinced me that the present MS merely selects text passages from Balfour, shortening many of them, and omitting many references. The arrangement of the eighty titles also corresponds to Balfour, and so does the arrangement of chapters within the titles.

The person who selected the extracts was obviously not interested in the following topics: criminal law and criminal procedure, border laws, tax law, sea law, procedure in Chancery, procedure in ecclesiastical jurisdiction (Commissary Courts).

Language: there still occur instances of 'richt' and 'micht' spelled out. On p. 65, 'lauchfullie' is spelled out, but usually it is abridged 'lau.llie'. Frequent use of the abbreviation 'no.t', never spelled out 'nocht', but several times spelled out 'not'. Often participium praesens '...and', for instance 'givand', 'havand', etc., but there also occurs the ending '...ing', for intance 'cumming' etc. Often participium perfectum '...in', for instance 'bruikin', more often 'bruikit', rarely 'bruiket' or 'bruiked'. Regular use of plural '...is', e.g. 'lawis' (rarely 'lawes'). Regular conjugation of verbs third person singular '...is' (rarely '...es'). 'Na' (never 'no'), 'ony' (almost never 'any'), 'guid' (never 'good'), but already 'dead' (instead of 'deid') and p. 66 'head' instead of 'heid'. Frequent use of the abbreviation 'wi.t' - but at times spelled out 'with'. On p. 62 already 'only' instead of 'allanerlie'; on p. 63 'onlie'.

Three main differences to the printed edition of Balfour's Practicks:

(1) Firstly, the present collection skips a large percentage of the propositions of law in Balfour's Practicks, from the first page onwards. Even those propositions which are taken up, are often abridged and their references left out.

(2) Secondly, in decisions, the present collection usually does not refer to the 'Registrum Scotiae', and it regularly omits the parties' first names and places of dwelling.

(3) A third fundamental difference shows that the present manuscript's model had still preserved pristine characteristics of the text which were no longer extant in the MS from which the typesetters of the printed edition copied: namely statutes are quoted in a different manner. The printed Practicks only mention the king and the pertinent folio in the edition of 1566, and often an 'act' number, but they usually omit the number of the parliament and its chapter number. The present manuscript, in contrast, never mentions the folio of the edition, yet always the number of the parliament and its chapter number. In rare cases it happens by coincidence that the former number corresponds to the latter.

The present text even provides many propositions of law without indicating any source at all. This becomes ever more frequent after the first pages. The lawyer for whom this abbreviated text was produced obviously trusted that leaving out the details would not cause inconvenience. He probably knew where to get access to a complete copy of the text, so that he could fall back on that complete copy if need would arise.

The same method of abridgment can also be seen in the subsequent pages in which the same scrivener copied Sinclair's Practicks - again leaving out almost all the references to sources.

For Balfour's Practicks, many sources were supplied by another scrivener at a later time - see page 61 onward (title Spuilzie and ejectioune = Balfour 109).This task was done by a user who probably penned towards the end of the 17th century (see his shape of letters 'h', 'k', 's', 'r'). This user obviously collated the text with a complete copy of Balfour's Practicks, to take over the references.

Details of parties' names and dates in the present text often disagree with Balfour's printed edition, or are abridged, or even completely left out. On p. 5, I found a date 1596 which is an obvious mistake for 1496. On the same page 5, 1606 is miswritten for 1506. On p. 12, 1599 miswritten for 1499. one should not lightly assume that the dates in the printed edition are always more reliable than the ones in the present MS.

[{i}Full transcription of the first three pages:{/i}]

---

Author(s):

• James Balfour of Pittendreich

No. of pages: Pag. 1-69

Rubric: Lawis [{i}= Printed edition Balfour 1{/i}].

That nane interpreitt the kingis statutis utherwayes nor the statutis bearis. That is, they aucht to be interpreitt to the effect and intent quharfor they war maid. Ja. I. p. 7, ca. 107. [{i}Balfour 1.9 p. 3 - whose wording is more detailed because Balfour reports the full wording of the statute (see below) - changing only some of the spelling. In the printed Acts of 1566, the text of this statute reads as follows:{/i}] The king of deliverance of Consall be maner of statute forbiddis, that na man interpret his statutis uther wayis than the statutis beiris, and to the intent and effect that thay war maid for, and as the maker of thame understuid. And quha sa dois the contrarie, sal be punist at the kingis will. [{i}Furthermore, the printed text of Balfour adds the folio number in the 1566 edition of the Acts of Parliament: 'Ja. I. act 121 fol. 19, 1 Mart. 1427.'{/i}] Kingis perfytt aige [{i}Balfour 3{/i}].

The king is of perfytt aige of xxi zeiris complectt, sua that nathing done be him thairefter may cum wnder his generall revocatioun, nor zit speciall. M. p. 10, ca. 87; I. 6. p. ii. ca. 22 [{i}which means: Queen Mary, parliament 10, chapter 87; King James VI, parliament 2, chapter 22{/i}] [{i}Verbatim Balfour 3.2.2, but there a reference to a decision 1557/5/28 is added, and the pertinent references to statutes of Queen Mary and King James VI are rather appended to chapter 1: Mar. Reg. fol. 181 act. pri., 15 Decemb. 1564; Ja. VI. fol. 14, 15 Decemb. 1567{/i}].

Giff the king disponis or analleis in his les aige ony annexit landis to his croun and revokis the samyne in Parliament, the samyne alienatioun is null in the selff, and requyris na declaratour. Bott giff landis cum in his handis be forfaultour or casualitie and he thairefter dispone the samyn in his minoritie to ane uther, the samyne alienatioun, being lauchfullie revokit in Parliament, aucht and sould have ane speciall declaratour of ane judge, conforme thairto, without the quhilk the possessor thairof cannot be depryvit nor putt fra his possessioun. 20 Julii 1542, Hoppringle contra Car [{i}= Ker{/i}] [{i}Verbatim Balfour 3.5 p.13, 20 July 1541 pri. t. c. 350. In Balfour p. 564, obviously the same case is meant, but its abstract is worded differently: 20 Junii 1541, 1 t. c. 1397; Spottiswoode 306: 20 Julii 1541; Morison 4658; Tait p 243{/i}].

Schereff [{i}Balfour 5{/i}].

The schereff nor his deputtis is nocht judge competent to ony ecclesiasticall persoun, nor to ony persoun duelland within the stewartrie lyand within the schereffdome, nor to the landis pertening to our soverane lord in propertie, becaus in this caice the kingis stewart is judge competent. 15 Junii 1542. Nor zit to decyde or cognosce upon the non-entres or ward of landis. Stevin Lokhart contra Thomas Weir [{i}Verbatim Balfour 5.9 p. 18 - but there much longer and with precise references to cases and to the Registrum Scotiae. Not in Tait's index{/i}].

The schereff clerk sould doe all thingis concerning his office upoun the kingis advyse and iniunctiouns in all thingis, and sall have na lig nor band nor be obleist to the schereff bott to the king allanerlye [{i}Balfour 5.13 p. 18 - but much longer, and referring to pag. 835 ex libro Sconensi{/i}].

Landis lyand within ony scherefdome and annexit be decisioun of regalitie to uther landis, lyand without the samyne scherefdome, the tennents thairof may not be callit befor the schereff of the schyre bott befor the lord of the regalitie only. Erle Mortoun contra maister Jon Ballenden [{i}Balfour 5.14, almost entirely equal wording, but the reference is more complete. Not in Tait's index{/i}].

The schereff hes na jurisdictioun within the stewartrie, nather be decisioun of his office nor zit in respect of ony commissioun. 18 Junii 1543 [{i}Balfour 5.15 first part, p. 19 - somewhat longer{/i}].

The schereff hes na power to cognosce upon deforcmentis of ony of the kingis officiaris: Schir Walter Froster contra the kingis advocatt [{i}Balfour 5.16, p. 19 - but much longer, and more detailed in the reference. Not in Tait's index{/i}], bott is judge competent to the deforcment done to his awin officiar, and siclyk to be understand of all uther judges ordinar concerning all deforcmentis committit agains the officiar witin thair avin jurisdictioun. 1564, the King contra Alexander Wauche [{i}Balfour 5.17, p. 19 - but again much longer, and more detailed in the reference. Not in Tait's index{/i}].

(Page 2) The schereff is not judge competent to actionis of heretage, bott the Lordis of Counsell, the Justice Generall or his deputtis be ane brewe of perambulatioun. Robert Dalzoll contra James Leving [{i}Balfour 5.18, p. 19 - but longer, and more detailed in the reference. Not in Tait's index{/i}].

Ecclesia [{i}Balfour 6{/i}].

That the gleib of the ministers and reidaris sal be frie of teyndis extending to four aikeris only. Ja. 6 p. 5. ca. 62 [{i}Balfour 6.6, p. 23 - but much longer. The present MS summarises the text{/i}].

The fruittis of temporalitie of all bischopis perteinis to the king, sede vacante, bott it is not leisum to him to remove the tennentis having takis or richtis [{i}Balfour 6.9, p. 23 - but much longer. The present MS summarises the text{/i}].

The fruittis of spiritualitie of all bischopis perteinis to the viccar generall, sede vacante, provyding that he be bund to give iust compt of his intromissioun to the intrant and successor of him quha is deceissit [{i}Balfour 6.10, p. 24 - but much longer. The present MS summarises the text{/i}].

Play of kirklandis betuix tua ecclesiasticall personis or ane temporall, the uther ecclesiasticall, perteinis to the ecclesiasticall (court). Bott giff the questioun be movit videlicet quhidder the samyne landis be ane ecclesiasticall few or temporall few, the samyne sould be determined in the kingis court. Lib. 3, cap. 22; de iudicibus, c. 94 [{i}Balfour 6.24, p. 28 - but much longer. The present MS summarises the text{/i}].

Ecclesiasticall few may not thairefter returne and be ane temporall few [{i}Balfour 6.25, p. 28 - but with reference to Lib. 3 cap. 30, and much longer. The present MS summarises the text{/i}].

Beneficiall causses pertenis to the ecclesiasticall judge: 23 Januarii 1567, Lewis contra Crichtoun [{i}Balfour 6.27 first part, p. 29. Not in Tait's index{/i}].

Nota, giff ony spirituall persoun caus ane uther be denuncit rebell, the Lordis ar judges competent to reduce the said horning. 1598, Hepburne contra Douglas [{i}Balfour 6.27 last part, p. 29, with date 1498. Not in Tait's index{/i}].

The spirituall judge is not judge competent to cognosce or decyde upon the ground richt of ony landis milne and wattergangis, albeit they be judges competent tuiching the possessioun thairof. Pryour of Sanctandrois contra David Ramsay [{i}Balfour 6.30, p. 29 - but much longer. The present MS summarises the text{/i}].

Giff ony spirituall man or his tennent be spoilzeit of his cornes, guidis or geir, he may not persew for the same befor the ecclesiasticall judge [{i}Balfour 6.31, p. 29 - but longer. The present MS summarises the text{/i}].

Ane contract or obligatioun maid upon ony civile or prophain mater, sic as ane assedatioun of landis, is wnderstand not to be civile or prophaine gif the samyne be confirmit or corroborat be the aith or fide media of the contrahentis or of ony of thame. And thairfor the pairtie, albeit he be ane temporall man, may be callit and persewit befor the ecclesiasticall judge for fullfilling of the same. 17 Junii 1542. Barclay contra Blakhall. Bott giff ony sic contract concernis redemptioun of landis or heretage, albeit the same be maid be interpositioun of faith of bodie or of ane aithe, nevertheles the same is wnderstand to be prophaine, and thairfor sould be decydit befor the Lordis of Counsell allanerlie [{i}verbatim Balfour 6.32 p. 30-31, but the first reference is more complete, and at the end there is a second reference{/i}].

Na kirkman may sitt upoun bloode. Anno predicto [{i}Balfour 6.33 p. 30 - but text is longer, and has references to two much earlier years{/i}].

The teyndis may be sequestrat and arreistit be the authoritie of ane judge ordinar in the parochineris or tennentis handis for reparatioun of the kirk. Anno 1540 [{i}Balfour 7.42 p. 35 - but longer, and the reference is more precise, and a second reference added{/i}].

(page 3) [{i}Title:{/i}] Barronis [{i}Balfour 8{/i}].

Na barrone or uther frie halder, thocht they have court of lyff and limme, may hald ony sic courtis, nor zit of singular battell, watter nor of iron, bott gif the kingis schereff be thair, or his servand. Quoniam attachiamenta, c. ult., statutum Alexander [{i}Balfour 8.6 p. 40{/i}].

That sic barronis only may sitt upon bluid and cognosce thairupoun quha ar infeft in ane barronie 'with tennent and tennendrie and with bloode'. And the schereff of the schyre, within the quhilk the samyne barronie lyes, is na wayes judge competent hereintill. Lord Setoun contra the schereff of Linlithgow. And siclyk the said barroun may repledge fra the schereff and his deputtie in all sic actiounis as said is. 27 Junii 1553 [{i}Balfour 8.9 p. 40 - but references are more complete{/i}].

Ane barroun in his avin court may liquidat the pryces of his ferme auchtand to him be his tennentis, and may poynd and compryse the tennentis guidis and geir thairfor, gif he refuis or delay to mak payment. Alester contra Halieburtoun [{i}Balfour 8.11p. 41 - but reference is more complete{/i}].

Burrowis [{i}Balfour 9{/i}].

The Lordis of Counsell may dischairge or depryve officiaris within brucht, and chairge the remanent magistrattis, counsell and commounitie to cheise ane uther in his place, albeit he hes committit na fault bott only incurrit suspitioun that he is not newtrall. 10 Apryll 1546. The Lordis and Olipher Maxtoun provest of Perthe [{i}Balfour 9.6 p. 43 - but longer, and reference is more complete{/i}].

He that is maid burges sall pay burrow meill to the king, videlicet geving to him zeirlie for ane ruide of land the sowme of 5 penneis. Leges burgorum, c. 1 [{i}Balfour 9.17 p. 46{/i}].

Na man may have the libertie of ane burges bott he quha hes ane biggit land, occupeit be him selff or sett for hyre to utheris. He sould not be compellit to pay borrow maillis within zeir and day efter his entrie. Leges burgorum, c. 137 [{i}Balfour 9.18 first part, p. 46 - but printed text of Balfour does not quote the chapter number in Leges burgorum{/i}].

And thairfor quhatsumever persoun is maid new burges, havand allanerly ane waist land and na biggit land occupeit be him selff or sett for hyr to utheris, he sould not be compellit to pay the borrow maill the first zeir. Bott the secund zeir he sall bigg his said land. And thairefter, gif it happin the samyne to be woustit be weirfair or fyrr, and he have one uther land biggit, he may lat that ly waist and unbiggit, untill he be of sufficient power to big the samyne again. Nevertheles he sould in the meantyme pay his borrow maill thairfor. Leges burgorum, ca. 29 [{i}Balfour 9.18 second part, p. 46{/i}].

Giff ony man dwelland without burghe, havand burgage within the brucht, he sall not be haldin nor estimat ane burges in ony place, bott allanerly within the burghe within the quhilk the said burgage lyes. Leges burgorum, ca. 13 [{i}Balfour 9.23 first part, p. 48{/i}].

Attour he sall not have loitt nor cavill equallie with burgesses duelland within burghe. Leges burgorum, ca. 59 [{i}Balfour 9.23 second part, p. 48{/i}].

Burgesses sould not be troublit with the keiperis of the kingis castellis. Leges burgorum, ca. 60 [{i}heading for Balfour 9.24 p. 48 - whereas Balfour's text and reference are omitted{/i}].

Ilk burges may have ane oyne within his avin ground, and na uther bott the kingis burgesses. Leges burgorum, ca. 20 [{i}Balfour 9.27 p. 49 - longer, and reference to chapter 29 rather than 20{/i}].

The kingis burgesses ar frie throwout the haill land to by and sell and sould not be troublit thairinto be ony persoun, under the pain of the kingis full unlaw, becaus they ar under his protectioun [{i}Balfour 9.2 p. 49 - but longer, and with references{/i}].

The burghe of Perth hes libertie to intromett and tak upe the unlawis of justice quharin thair nichtbouris fallis into, for sustentatioun of the brigg upoun Tay. And nevertheles, gif ony burges of the said burghe beis convict befor the Justice for ony cryme quharthrow his moveabill guidis fall in escheitt, the samyne on na wayes perteinis to the said burghe, bott to the king, to be disponit be him at his pleasour. 17 Decemb. 1541, the King contra Perth [{i}shortened text of Balfour 9.37 p. 50{/i}].

(Pag. 4) 1542/5/25. Hob Ormistoun and the Kingis Advocat contra the burghe of Edinburgh [{i}Balfour p. 52 c. 43{/i}].

[{i}List of the 80 titles:{/i}] Lawis. Kingis perfytt aige. Schereff. Ecclesia. Barronis. Burrowis. Craftismen. Husband and wyff. Mariage and tochergude. Terce. Tutouris. Curatours. King. Kirklandis. Prescriptioun. Possessioun. Obligationis. Payment. Generall dischairgie. Alienatioun and infeftment. Few. Tailzie. Seasing. Restitutioun in integrum. Fraudulent alienatiounis. Interdictione. Evidentis. Of pledge or cautionerie. Wed or depositum. De locato et conducto. Assedatione. Testamentis. Of aires and successoris. Bastardis. Homage and fealtie. Mariage of aires. Waird. Releiff. Non-entres. Courtis. Judges. Assyse. Regalitie. Persewer. Defender. Procuratoris. Lybell and clame. Warrand. Minor. Repledgiation. Advocatioun. Exceptionis. Probation. Juramentum. Instrumentis. Probatione be write. Witnesses. Improbatioun. Sentence. Poynding. Comprysing. Reductione of sentence. Arbitrie. Revocatioun of arbitrie. Service of breives. Purpresture. Breives of perambulatioun. Breives of lynning. Breive of divisione. Redemptione. Reversionis. Removing. Spuilzie and ejectioune. Inhibitioun. Schawing of halding. Recognitioun. Disclamatioun. Mylnes and multeris. Act of adiornall. Advocatioun and patronage of kirkis.

Pag. 69 last third and pag. 70-72 blank