•• THE LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES A TREATISE ON THE • HISTORY, LAW, AND PRIVILEGES OP THE PALACE AND SANCTUARY or HOLYROODHOUSE ; WITH APPENDIX, LIST OF CASES, AMD INDEX MATERIARUM. BY PETER HALKERSTON, LL. D. S. S. C. F. R. P. S. AI'THOR OF THE COMPENDIUM OF THE FACULTY DECISIONS, CONTINUATION THEREOF; AN EXTENSIVE COLLECTION OF LATIN LAW MAXIMS, WITH TRANS- LATION ; FIRST AND SECOND EDITION OF BUSK INK'S LATIN LAW PHRASES, TRANSLATION AND EXPOSITION? DIGEST ON THE SCOTTISH LAW OF MARRIAGE, AND OTHER WORKS. EDINBURGH: MACLACHLAN AND STEWART, 62, SOUTH BRIDGE ; AND BALDWIN AND CRADOCK, PATERNOSTER ROW, LONDON. MDCCCXXXI. EDINBURGH : FR1NTED BY A. BALI OUR AND CO. NIDDRY STREET. THIS TREATISE ON THE PALACE AND SANCTUARY OF HOLYROODHOUSE, IS RESPECTFULLY INSCRIBED ALSO TO THE RIGHT HON. THOMAS EARL OF HADDINGTON, HEREDITARY KEEPER ANB RANGER OF THE KING'S PARK, AND TO THE OTHER NOBLEMEN AND LEARNED LORDS AND GENTLEMEN WHO PATRONIZE THIS WORK, WITH THE SINCEREST FEELINGS OF RESPECT AND GRATITUDE, THEIR DUTIFUL HUMBLE SERVANT, THE AUTHOR. 2063867 PREFACE. IT were presumption in the author to assume to himself any merit in putting together these sheets on the Palace and Sanctuary of Holyroodhouse, He must, however, be excused for noticing, that the subjects of the Treatise, with which he became acquainted many years ago, when he acted as Bailie of the Abbey for a series of years, and when he wrote and published a Code of Laws, Rules, and Regulations respecting the Court and Jurisdiction of the Abbey, gave him an ample opportunity of search- ing into the ancient privileges of the Sanctuary, of which he availed himself, by putting down such notes as appeared calculated to unveil and elucidate, in some measure, not merely the antiquity of the Palace of Holyroodhouse, but to expound and explain the law and privileges of the Sanctuary, in such a manner as led him to suppose that it might prove useful to the public. And having thrown his Notes together, he found that the subject had grown to a considerable size of interest and importance, necessary for the community to be made acquainted with, and of which he was apprised by many eminent and learned VI PREFACE. persons, best calculated to decide upon its merits, and to whom he submitted the manuscript before putting the work to press : in this number are included his Grace the Duke of Hamilton; the Lord President, the Lord Justice Clerk, Lord Glenlee ; Baron Hume, Lord Balgray, Lord Corehouse, Lord Cringletie, Lord Mackenzie, Lord Newton, Lord Medwyn, Lord Ful- lerton, Lord Moncrieff, the Lord Advocate, Francis Jeffrey ; John Hope, Esq. Dean of Faculty ; Andrew Clephane, Robert Jamieson, John Shank More, Esqrs. Advocates, Tindal Bruce, Esq., Alexander Young, Esq., Colonel Wemyss, John Menzies, John Long, Alexander Kettle, William Mitchel, J. Fleming, Kirkman Finlay, C. Cuningham, Walter Moir, James Renton, Esqrs. and others. That some errors and mistakes may have crept into a first work of this description, will not appear surpris- ing, when for a moment it is considered, that the many sources of information were obscure, and difficult to be traced, and when it is known that some writers had formed different opinions on the same interesting points treated of; but, among variety of conjecture, and difference of sentiment, the author has resorted to authentic evidence for his guide, and such as cannot be questioned, namely, original charters, transferences of property, acts of parliament, and the decisions of our supreme courts. PREFACE. Vll From this Treatise will be discovered, the origin of the Sanctuary, namely, that it was founded by King David I. in the year 1128, as a monastery, or house for Canons regular, originating, as has been alleged in the monkish legends, in a miraculous interposition of Heaven in behalf of that distinguished monarch, and to that noble endowment many additions were made of lands and churches during the long progress of the religious spirit of the age. Previous, and subsequent to this event, there is ample ground for belief that this monastery was kept within the precincts of the Castle of Edinburgh, or as it was called, " Castellum Puellarum.'" The property originally belonging to the monastery, was of great extent, and lay in different counties, as will be seen enumerated in the charters and convey- ances thereof in this Work. No inconsiderable part of it was transferred to the City of Edinburgh, the Burgh of Canongate, Heriot's Work, and Leith, and comparatively but a small part of the property was retained by the Crown. The author has been led briefly to consider the law and privileges of the Sanctuary ab origine, and to look back into the ancient acts of Parliament, some of which are to be found in the Regiam Majesta- tem, from which he has traced, in some measure, Vlll PREFACE. the origin of the Sanctuary ; and, to illustrate which, he has brought into view the opinions of our emi- nent Institutional writers, and those of our sister kingdom. The family of his Grace the Duke of Hamilton, the Premier of Scotland, is shown to have been long ago invested heritable keeper of the King's Palace and Sanctuary of Holyroodhouse, from whom the bailie of the Abbey and other officers receive their appoint- ments. And it will be seen that anciently the noble family of the Earl of Haddington was invested in the office of hereditary keeper and ranger of the King's Park. At considerable length are described the bailie's powers, and the advantage and disadvantage aris- ing to debtors retiring to the Sanctuary for pro- tection against diligence for civil debts ; the first in- stance of which is discovered to have been given, as re- lated by Buchanan, to the person of John Scott, as far back as the year 1531 — being the year immediately preceding the establishment of the College of Justice by James V. after the model of the Parliament of Paris. The subject is followed up by a statement of above twenty decisions of our Supreme Court, one of which lately found its way to the House of Peers, and was PREFACE. IX reversed; some of them are given at considerable length and elucidated by the arguments on both sides, with the opinions and decisions of the Supreme Court ; and that those decisions may be easily dis- covered, there is subjoined an Alphabetical List of the Cases, and summary of their import and mean- ing, so as that the Judge, Lawyer, Practitioner, and the mercantile part of the community may at once discover the law and practice of the Abbey Court, and the benefit arising to the creditor, as well as to the debtor, by retiring to the Sanctuary. In short, from this Work, and the interesting Ap- pendix, touching the original charter of the monastery, acts of parliament, the ancient regulations of those re- tiring to the Sanctuary, the forms of legal procedure, and such like, and the copious Index Materiarum, there will be discovered such various, interesting, and curi- ous matter, as to lead to a conviction of the arduous nature of the undertaking, and such as the Author hopes will afford him some consolation that his ex- ertions have not proved abortive, and he hopes, may be the means of rectifying and correcting any abuses that have crept into the system, and in ameliorating and improving the condition of debtors with their creditors, upon more fair and just principles than now practised. PREFACE. It does high honour to our King and Nation to give the use of the Palace and precincts to unfor- tunate Princes. On page 106 of this Work, it will be seen, that the Palace formerly afforded a residence to the House of Bourbon — this happened thirty-five years ago, when driven from the throne by revo- lutionary demagogues. Charles X., then Count D'Artois, with his two sons, was then invited, by his gracious Majesty George III. to take up his residence in Holyroodhouse ; and at present, when the same democratical spirit threatened to change, and has since changed the Royal Charter, which the very same persons had sworn to maintain, and when Charles X., to prevent the effusion of human blood, had offered, but in vain, to resign his Sceptre in fa- vour of his grandson, his present most gracious Ma- jesty, William IV., again invited him, with all his family, to take up his residence in the same Royal Palace, where, by their engaging and courteous man- ners, they gained the esteem of all who have the ho- nour of their acquaintance. France may now be considered a Sanctuary to fo- reigners, for the other day the French government have resolved in Council, that in future the surrender of no one who has set foot on the French soil shall be granted, no matter from what quarter the application may come. CONTENTS. Page Origin of the Palace and Sanctuary, and 'domains, and transference of part thereof, &c. . . 1 — 23 Description of the present domains of the Abbey, . 23—25 The ancient privileges of the Abbey, . . 26—34 The heritable keeper of the Palace and Sanctuary con- ferred on the noble family of Hamilton, and his Grace's powers, . . 34 — 37 Jurisdiction of the bailie of the Abbey, . . 37 — 39 Bankton, Blackston, and Erskine's account of Palaces and Sanctuaries, ' . * • . . - . 39 — 50 King's Bench Prison, privileges of . . 50 — 53 Continuation of the privileges of Sanctuary, . 53 — 59 Jurisdiction of the Abbey is of a mixed nature, . 59 — 62 Case of Grant against Donaldson and Gumming, and other cases detailed in the work, " . . . 66 — 164 The Earl of Haddington, hereditary keeper and ranger of the King's Park, ••.. . * . . 124 Appendix. . '. , ., « 175 — 205 Alphabetical list of cases in the work, , . 207 — 210 Index materiarum, . . ;.'•". 211 — 222 L ist of hereditary offices in the Palace, >.- . ' 221 <•% /<*y" s? / -v J* \» 2-^O - A TREATISE ' ON THE SANCTUARY OF HOLYROODHOUSE. IN every country, however uncivilized, there is a defer- ence and respect due to the first magistrate of the state. In the more civilized countries of Europe, this respect is most justly extended, both by the law and the feelings of the governed, to a sort of veneration. In Scotland, as well as in England, this respect is not merely con- fined to the person of the sovereign himself, but is com- municated to his residence; and to those houses and pa- laces in which his majesty actually does, or may reside, where the insignia of royalty are preserved, and the forms of a royal residence kept up. It affords protection, not merely to the sovereign, and the dignified persons around him, but even to his domestic servants: Nor is it B PALACE AND SANCTUARY merely confined to the family and residence of the sovereign, but the privilege is likewise extended to the representatives of the sovereign, to his ambassadors, peers, members of parliament, to his judges, to the courts of justice, and to all persons therein, when sitting for the administration of the laws. The expediency and necessity of such a privilege will not be questioned. This privilege is not only necessary, from our views of decorum, but also upon the ground of personal safety, as the execution of diligence, from its very nature, is too frequently accompanied with violence, and necessarily productive of broils and confusion, alike hostile to the dignity and safety of the sovereign. It will afterwards be seen, that the exception from personal diligence, within the sanctuary, had its origin from the circumstance of the King^s holding his court within the palace, that he might not be deprived of the advice and assistance of his subjects, and that, (so far as we can learn,) the first instance of personal pro- tection being afforded for civil debt, was to one John Scott, in the year 1531, being one year before the insti- tution of the College of Justice. The Abbey of Holyroodhouse appears to have been founded by King David I. in the year 1128, as a mo- nastery, or house for canons-regular, originating, as is supposed, in a miraculous interposition of heaven in be- OF HOLYROODHOUSE. O half of that distinguished monarch. The event is re- lated by our historians1 in the following manner : — " While hunting in the forest of Drumselch, one of the royal forests, which surrounded the rocks and hills to the east of the city of Edinburgh, on rood-day, or exaltation of the cross, he was attacked by a stag, and in all probability would have fallen a sacrifice to the en- raged animal, which overbore both him and his horse, (as his attendants were left at a considerable distance behind), when lo ! an arm, wreathed in a dark cloud, and displaying a cross of the most dazzling brilliancy, was interposed between them, and the affrighted animal fled to the recesses of the forest in the greatest confusion. This having put an end to the chase, the monarch re- paired to the castle of Edinburgh, where, during the night, in a dream, he was advised, as an act of gratitude for his deliverance, to erect an Abbey, or house for ca- nons-regular, upon the spot where this miraculous inter- position had taken place.'1 How far such an apparently superstitious tale can in the present enlightened age be worthy of credence, is not for us to determine : it appears probable, however, that the state of excitement, which danger so imminent as that just related may have affected the sovereign's ima- i Rohan's History of Edin. 1530, and Maitland's History of Edin. 1753. 4 PALACE AND SANCTUARY gination to that degree, as to prevent him from ascer- taining the precise ground of alarm, into which the su- perstitious credulity of those remote times forbade inves- tigation. Lord Hailes,2 our distinguished historian and anti- quarian, in reference to King David^s hunting in the neighbourhood of Edinburgh on Rood-day, and in refu- tation of the story of his being saved from the furious attack of a stag by the miraculous appearance of a cross, observes, " It would be tedious to recite, and super- fluous to confute, the legendary history of the founda- tion of Holyroodhouse. See Ballenden, fol. 184. It has not even the merit of antiquity : for it appears to be a fiction more recent than the days of Bocce." The Abbey of Holyroodhouse was for centuries known by the name of " Ecchsia Sanctae Cruets de Edin- burgh.'1'13 The ancient cartulary of the Abbey unfor- tunately has not been preserved, but that the Abbey was established by David I. is proved by authentic do- cuments. In the English Chronicon Sanctae Crucis, there is the following entry : — " Anno 1128, cepit fundari Ecclesia sanctae crucis de Edinburgh."" Fordun,4 2 Annals of Scotland, edit. 1797, vol. i. p. 108. 3 Chron. Sanctae Crucis, ap. Anglia Sacra, vol. i. p. 160. Adr. Lib. * Book 5. cliap. 49. OF HOLYROODHOUSE. 5 the most accurate of our ancient historians says, " that David I. among other religious houses erected a monas- terium de Crag Sanctae Crucis de Edinburgh? >J Lord Hailes gives a similar account of the establishment. " In the same year (1128) David founded an abbey for canons-regular in the neighbourhood of Edinburgh. The place is still called Holyroodhouse." And in a note his lordship adds, " It is called by Fordun, Mo- nasterium Sanctae Crucis de Crag. It received this ap- pellation from its vicinity to the precipice now called Salisburgh Craigs." A very important charter has been preserved, which was granted to the monastery by David I. with consent of his son Henry, some years after its foundation. This charter was confirmed by Robert I. David II. and Ro- bert II. and the charter of Confirmation of the latter so- vereign contains, inter alia, a complete transcript of the charter of David I. To the charter of David I. to be found in the appendix, No. I. no date is annexed, but among other witnesses to it mention is made of Robert Bishop of St. Andrews, John Bishop of Glasgow, and others ; and from an examination of the periods when those persons lived, there is reason to believe that this charter was granted between 1130 and 11 47-6 5 Annals of Scotland, Edit. 1797, vol. i. p. 108. 6 Prince Henry died in 1152. Hailes' Annals— Bishop Rob. 5 PALACE AND SANCTUARY This charter of erection by David contains grants both of lands and churches in the neighbourhood of Edin- burgh," and in other counties ; and it is stated by Chal- mers, that " to that noble endowment many additions were made of lands and churches in several shires during the long progress of the religious spirit." In the King's Park, and neighbourhood, a number of holy or ecclesiastical names are to be found connected with the Abbey of Holyroodhouse. Among others the enclosure to the east of the Palace, close to the Abbey, is still known by the name of St. Ann's yards. The ruins of the ancient hermitage and chapel of St. Anthony, are known to be situated at the back of Salisburgh Craigs. Immediately to the west of the King's Park is a hill called St. Leonard's HiU. Near that there is a piece of ground which still retains the name of Hermits and Termits. According to LordHailes, a corruption of Eremittae sanctae Eremi," or the monks of St. Anthony of Egypt.8 In another part of the King's Park there is to be found the Abbot's Meadow, which in 1544 is thus described, " Lettere maid to John Crumny of the Gift of ye Abbots Medow, died in 1158 or 1159 Bishop John in 1147. Keith's Catalogue of Bishops. 7 Caled. v. ii. p. 752. 8 Reg. Sig. Tom. 18. f. 48. OF HOLYROODHOUSE. 7 profits and bouudis yereof, viz. ye pertinentis Hand bcsyde ye Abbay and Palice of Halyruidhouse, wyten the Park of the samen for all the days of his life. At Linlithgow ye penult day of May yeir of God Imo, XC.IIII yeirs." On this subject see an extract of Lord Hailes1 Annals of Scotland in the appendix, No. 2. The parish of Holyroodhouse is of great antiquity, but the Canongate parish, says Chalmers,9 " is of a more recent establishment. This suburb did not exist at the foundation of Holyrood Abbey. The canons were em- powered to settle here a village, and from them the street of this settlement was called the Canongate, from the Saxon gaet, a way or street, according to the practice of the twelfth or thirteenth centuries in Scotland and in Eng- land. The immunities which the canons and their vil- lagers enjoyed from David's grant, soon raised up a town, which extended from the Abbey to the Nether Port of Edinburgh, and the townsmen performed their usual de- votions in the church of the Abbey, till the Reformation reversed all this regimen.11 Again, " the Abbey Church of Holyroodhouse continued to be used as the parish church of Canongate with appropriate ministers." The 9 Caled. vol. ii. p. 782. ft PALACE AND SANCTUARY History of Edinburgh, by Maitland, gives a similar ac- count of the matter. Although the charter of King David was granted se- veral years after the Abbey was founded, yet it is pro- bable that the Abbey itself was not built at this period, for there is a clause authorizing the canons to take from -certain of the king's forests " tantum de materia quantum eis placuerint et voluerint, ad edificationem ecclesiae suae et domorum suarum et ad quaelibet negotia sua faci- «. enda." And thus there may be some ground for be- lieving that the monastery, for several years after its es- tablishment, was kept within the precincts of the Castle of Edinburgh, or, as it was formerly called, " Castel- lum Puellarum."" Richard Hay, the learned antiquarian, confirms the above account, for, he says10 — " In 1176, the monastery \vas as yet seated in the Castle of Edinburgh, and their canons were in the possession of the buildings of the nuns, M'ho gave the Castle the name of Castellum Puellarum. These nuns had been thrust out of the Castle by St. David, and in their place the canons had been introduc- ed by the Pope's dispensation, as fitter to live among soldiers. They continued in the Castle during Mal- colm IV. his reign, upon which account we have several 10 P. ?92. OF HOLYROODHOUSE. 9 charters of that king, granted Apud monasterium sanctae Crucis de Castello Puellarum. Under King William, who was a great benefactor of Holyroodhouse, I fancy the canons retired to the place which is now called the Abbey, and upon the first foundation, which was made in honour of the Holycross, they retained the first deno- mination of Holyroodhouse." This account given by Hay is confirmed by au- thentic documents. In 1154, Malcolm gave the Church of Tranent, " Canonicis de Castello Puell- arum'^ At a subsequent period the same king exe- cuted a confirmation, " Ecclesiae Sanctae Crucis de Castello Puellarum'" of the Church of Racbet, which Galfredus de Melville had given to the monastery. It is probable, however, that from the first it was contem- plated to erect the monastery where the Abbey now stands, and accordingly it was called " Monasterium de Crag." The original charter as a monastery will be found ,in Maitland^s History of Edinburgh.1 It grants to the abbot and the church of the Castle of Edinburgh, with the appurtenances and rights thereof, trial by duel, wa- ter and fire ordeal as far as appertains to the ecclesiasti- 1 Original Charter from 3Iaitland's Hist, of Edin. B. 1,2. 10 PALACE AND SANCTUARY cal dignity. It conveys a variety of lands, such as the town of Saughton, and its several divisions, the church and parish of St. Cuthberts, and all things thereto be- longing to the church, town, and certain lands lying under the castle, the two chapels of Corstorphin and Libberton, the church of Airth in Stirlingshire, the town of Broughton, and the lands of Innerleith in the neighbourhood of the harbour, the town of Pittendrich, Hammar and Fourden, certain pensions out of the tithes of merchandise at Perth, and out of the king^s re- venues at Edinburgh and Stirling, houses in Berwick and Renfrew, with a certain right of fishing there, and a variety of other things of the same sort, which it is u nnecessary to enumerate. From the town of Edinburgh chartulary, v. iv. p. 323, et seq. it appears, that King David I. of Scot- land, was the founder of the Abbey of Holyroodhouse, " with consent of Henry his son, and the bishops of the kingdom, and the assent and testimony of the earls and barons, the clergy and people acquiescing thereto ;""! the k ing granted a charter to the monastery and canons of Holycross, near Edinburgh, of a variety of lands, churches, and revenues, among which are the following, " Brochtunam cum suis rectis divisis et Inuyrlyth, il- 2 Town of Edinburgh Chartulary, v. iv. p. 323. OF HOLYROODHOUSE. 11 lam quae Vicinior est portui cum rectis divisis suis, et cum ipso Portu, et cum medietate piscationis, &<». con- cedo etiam eis (Canonibus) herburgare burgum inter eandem ecclesiam, (viz. Holycross,) " et meum bur- gum, viz. Edinburgh. By this charter, the abbots were authorized to erect a burgh between the abbey and burgh of Edinburgh, de- claring that the abbots shall " enjoy all things necessary, " in as full and ample a manner, as when they were in my " own possession ; and the abbots should have courts, as •' freely, fully, and honourably, as the bishop of St. An- " drews, the abbot of Dunfermline, and the abbot of " Kelso, had theirs." This charter was confirmed by Robert Bruce and Robert the III., which last monarch, by a charter in the first year in his reign, to be found in the general register office, again granted and confirmed to the abbots and canons of Holyroodhouse, all the lands then be- longing to them, among which was Broughton ; ancj he erected the whole into a regality, in the following terms, " Et volumus quod omnes terras suas praedictas ha- beant, teneant et possideant in liberam regalitatem, cum plena administratione ejusdem regalitatis in omnibus, et per omnia, adeo libere et quiete sicut aliqua regalitas in regno nostro tenetur seu possidetur, per quoscunque." It would seem, that the sheriff of Edinburgh refused 12 PALACE AND SANCTUARY to acknowledge the lands of Broughton, thus erected into a free regality, along with the Canongate and other lands belonging to the canons of Holyroodhouse ; and, moreover, compelled the inhabitants of Broughton to compear in his court ; for whkh reason, King Ro- bert III. in the third year of his reign, granted the fol- lowing charter, to be found in the general register house, " Quia per certas evidentias, et cartas etiam confirma- tionis diversorum praedecessorum nostrorum, regum Scotiae, nobis ostensas et coram nobis perlectas ad plenam conceperimus, quoad religiosi viri Abbas et conventus monasterii sancti crucis de Edin. de nobis tenent et possident terras suas de Brouchton, cum pertinentiis ja- centes infra vicecommitatum de Edinr. in liberam regali- tatem, et liberam baroniam, adeo libere et quiete sicut aliqua regalitas vel baronia in regno nostro Scotiae tene- tur vel possidetur per quoscunque, sive aliqua secta curiae exigenda, vel vindicanda, de eisdem ; tamen ex relatione dictorum religiosorum virorum, abbatis et conventus dicti monasterii nuper concepimus quod non obstantibus libertatibus regalitatis et baroniae prae- dictae, vicecomes noster de Edinr. et ejus Balivi compel- lunt terras supra dictas ad reddendum et dicta baronia de Brochtoun unum sectatorem in qualibet curia vicecomitis de Edinr. in ipsorum religiosorum virorum et suae in- foedationis nobis ostensae prejudicium non modicum OP HOLYKOODHOUSE. 13 atque damnum. Quare vobis mandamus et praecipimus, firmiter inhibentes ne dictas, terras, pro dicta secta curiae a modo praesumatis compellere quoque modo, sub omni poena quo ex inde debeat praevenire. Data sub testimonio nostri magni sigilli apud Edinr. quarto decimo die mensis Junii, anno regni nostro tertio." From these charters it appears that the barony of Broughton, comprehending the Canongate, was erected into a free regality ; and by the latter charter King Ro- bert prohibited the sheriff of Edinburgh from interfering ; and as the Canongate was the only burgh within the • bounds of the regality, it became of course to be called the burgh of regality of Canongate. These lands remained the property of the church till the Reformation, when King James the Sixth, by ad- vice of the Regent Murray, constituted Robert Lord Steuart Commendator of the Monastery of Holycross, with all the privileges and revenues belonging to it ; and on the 27th September 1568, his Majesty granted to Adam Bishop of Orkney, the same lands and reve- nues, under the reservation of 1000 pounds Scots yearly to Robert Lord Steuart. The Bishop thereby acquired a grant, during life, of all these lands which belonged to the Abbot and Monastery of Holycross ; but he resigned them to the crown in favour of Sir Lewis Ballenden of 14 PALACE AND SANCTUARY Auchenoul, his Majesty's justice-clerk, and from the re- signation and charter following thereon, July 28, 1587, the particular lands which belonged to the Abbots and Ca- nons of Holycross, will be found. — They are thus describ- ed in the chartulary of the city of Edinburgh, Vol. iv. p. 334. — " All and haill the lands and barony of Brough- ton, containing the particular burgh of regality, town lands, and others underwritten, viz. the burgh of regality of the Canongate, lying between the burgh of Edin- burgh and monastery of Holyroodhouse ; and that part of the town of Leith which lies on the north side of the water and bridge of Leith, with that part of the said town of Leith, lying on the south side of the said water, which formerly belonged to the Commendator and Con- vent of Holyroodhouse, and lies westerly from the houses called the Black Vaults, with the haill bounds, lands, tenements, houses, yards, orchards, tails, kilns, barns, and other biggings within the said burgh and towns ; tenants, tenandries, and service of free tenants, with the farms, feu farms, burrow mails, and other duties of every part thereof: and with all right, title, and claim of fishing, port harbour, customs, teinds, duties, and all other privileges of the same, which anyways pertained before to the said Commendator and Convent ; and also all and hail the rest of the lands of the said barony of Broughton, and particularly the town and linds of OF HOLYROODHOUSE. 15 Broughton, with the lands called Walkmiln Lands, and Battle Haugh ; the lands of Wright's Lands, the lands called God Bairns Croft, the lands of Harlaw and Barberland, the town and lands of Saughton, with the mill of Saughton Hall, with the miln lands, and mul- tures thereof, called Stenhop's Miln, the lands called the Ploughlands of Saughton, and the lands called the Se- cretary's Lands, lying within the territory of Saughton, the lands of Pendrich, lands of Friartoun, Backspit- tle, Forespittle, Lochflat, Meldrumsheugh, the lands of Coittes, the lands of Lochbank, otherwise Halkerston's Croft, the lands of Whitecroft, Ferguson's Croft, the lands of Warriestown, Bonnytoun, Hillhousefield, Pilrig, Fleurs, Ernside, the lands called St. Leonard's Lands, the lands of Dearenough, alias Pleasants, the lands of Dishflatt, Meadowflatt, and the milns called the Cannymilns, with the miln lands, houses, biggings, and sucken of the same, then pertaining heritably in feu to the said Sir Lewis, lying within the shire of Edinburgh, principal, the lands of Little Falside, lying within the Constabulary of Haddington and shire afore- said, the lands of Slipperfield, Middlethird, and Loch- third, within the shire of Peebles, and the acres of land lying near the town of Linlithgow, with the miln there- of, which were set in feu to the deceased James Dennis- ton, and now belonging in property to the said Sir Lewis, 16 PALACE AND SANCTUARY lying within the shire of Linlithgow, with castles, towers, Sic. And all and haill the lands and barony of Kerse, called Abbots Kerse, within the annexis and connexis thereof, containing the particular lands and yearly an- nualrents underwritten, viz. Here follows another long specification of lands " lying within the shires of Linlith- gow and Stirling : All and haill the lands and barony of Alhammar, alias Whitekirk, containing the particu- lar lands and others underwritten, viz. the town and mains of Whitekirk, &c. lying within the barony of Whitekirk, constabulary of Haddington and sheriffdom of Edinburgh ; together with full liberty and privilege of regality, chapel and chancery, within the whole bounds of the said lands and barony of Broughton, Ab- bots Kerse, burgh of the CaHongate, and of those parts of the said town of Leith before mentioned, which lie up- on the north and south side of the water and bridge of Leith," &c. Ki^» - As this property when it belonged to the church was united into one barony and regality, his Majesty declared that it should so continue to the Ballenden family, as appears by the following clause in the charter, " More- over, for the good, faithful, and free service done to his Majesty by the said Sir Lewis Ballenden, he united, erected, and incorporated the hail foresaid lands and barony of Broughton, Abbots Kerse, Alhammer, alias OF HOLYROODHOUSE, 17 Whitekirk, and the superiority of White Inch, con- taining the burgh of regality above written, with the other towns, lands, and others before recited, with the foresaid faculty and liberty of a free regality, advocation, donation, and right of patronage of the kirks and others foresaid, and all their pertinents, in one free barony to be called the barony of Broughton in all time coming, and that the mannour place of the Cannymilns, lying within the shire of Edinburgh, should be the principal messuage of the said barony, and that a seisine once taken at the said messuage, should be sufficient for the said hail lands, barony, burgh of regality, and others particularly before written, as if a particular seisine were taken upon every part thereof, notwithstanding they lie discontigue in different shires. In 1591, Sir Lewis was succeeded in the whole lands contained in the charter 1587? by h^8 sonJ Sir James, whose infeftment is dated 10th November 1591, and bears to be taken upon the stair of the tolbooth of the burgh of Canongate, (city of Edinburgh^ chartulary, vol. iv. p. 344.) — Sir James seems to have survived but a very short time after his succession to his father, during which he sold the barony of Abbots Carse, in Linlithgowshire, to the Earl of Linlithgow ; but in all the other lands which he had inherited from his father, he was succeeded by his son, Sir William, who obtained a precept from the 18 PALACE AND SANCTUABY Chancery for infefting himself as heir to his father, dated 29th April 1607, uP°n ^hich he was infeft on the first of May following. On the 6th October 1627, Sir William disponed to Robert Earl of Roxburgh, the whole lands, barony, and regality of Broughton then belonging to him, of which the Earl obtained a charter of confirmation from King Charles I. dated 15th August 1630. Upon the 8th August 1636, a tripartite contract was entered into between King Charles I. on the one part, the magistrates, council, and ministers of Edinburgh on the second part, and Robert Earl of Roxburgh on the third part, whereby, for a consideration, with a detail of which it does not seem necessary to enter, it was agreed that the Earl should dispone to the magistrates and council of Edinburgh, for themselves and their suc- cessors, " representing the whole body and community of the said burgh,5 certain parts of the barony of Brough- ton ; and to the magistrates, council, and ministers of Edinburgh, as feofees in trust for the use and behoof of Heriot's Hospital, the remaining part of that barony.11 The lands stipulated to be sold to the town for be- hoof of the community, are, in the contract, described 3 City of Edinburgh's Chartnlary, vol. iv. p. 349. OP HOLYROODHOUSE. 19 as follows,—" The burgh of the regality of the Canon- gate, that part of the town of Leith lying on the north side of the water and bridge of Leith, and that part of the town of Leith lying on the south side of the said water, sometime pertaining to the Abbacy of Holyrood- house, and now pertaining to the barony of Broughton, with the village, houses, and yards of that part of Saint Leonard's land called Dearenough, alias Pleasance, with the hail privileges, offices, liberties, and others belonging thereto, specially mentioned in the EarFs infeftment thereof; excepting forth of the said disposition, Kin- loclTs lodging in the Canongate, with the Caithpeill lying thereto, and pertinents, and all the particulars tbresaid, to be designed according to the Earl's infeft- ments ; and also excepting these six tenements of land, with houses, biggings, yards, and pertinents lying con- tigue within the said Canongate, on the south side of the High-street, betwixt the lands sometime per- taining to David Scrogie, and then to the heirs of John Thomson on the west, the lands pertaining to the heirs of John Black on the east, the High Street on the north, and the lands of Disch-flat on the south, which are declared to belong to the said Earl, to be hold- en of his Majesty; providing that the said exception noways included the right of regality nor jurisdiction thereof: But albeit, the said tenements excepted be 20 PALACE AND SANCTUARY holden of his Majesty, yet the same, and inhabitants thereof, should be liable to the regality and jurisdiction thereof, as they were before ; and with this express de- claration, that in case it should happen the Earl or his heirs to dispone the said tenements excepted, to any per- sons being of the quality of merchants, or tradesmen, or to any other quality inferior to a nobleman, not exercis- ing trade, that then the said excepted tenements, and right of superiority thereof, should pertain to the said town and their successors to be holden of them in all time thereafter, notwithstanding of the above reservation, to remain with the good town, for the common weall and profit of their burgh." Among the lands conveyed by the Earl of Roxburgh to the magistrates, council, and ministers of Edinburgh, as feofees for Heriot's Hospital, were the lands called " Saint Leonards, the walk-miln lands, Battle Haughs, Canonmillns, mill-lands, houses and sucken thereof, conform to the said contract which he warranted in pro- perty to the governynors of Heriot's Hospital." The tripartite contract contained a procuratory of re- signation of the Canongate, North Leith, Pleasants, and other subjects before noticed in favours of the magistrates of Edinburgh, for behoof of the community, and of the other parts of the barony of Broughton, in favour of the town and the ministers of Edinburgh, for behoof of OF HOLYROODHOUSE. 21 Heriot's Hospital ; in virtue whereof due resignation was made in the hands of the king, who granted char- ters, dated llth December 1639, to each, containing a novodamus, — that, conveying the Canongate, is in these terms, — " We have of new given and granted, and by this our present charter confirmed, and of new for us and our successors, give, grant, and confirm to the aforesaid provost, baillies, counsellors, and community of the said burgh of Edinburgh, and their successors, all the lands, burgh of regality, superiority and privi- ledge of regality, and things above specified, viz. all the foresaid regality of the Canongate, and parts of the town of Leith, on the northern and southern side of the river and bridge of the said town of Leith as aforesaid, with all the divisions and privileges thereto belonging, which anciently appertained to the said monastery of Holyroodhouse, and the town houses and gardens of the foresaid part of St. Leonards, called Dearenough, alias Pleasance, together with the right and privilege of re- gality, chapel and chancery, and offices of justiciary and bailliary within the districts aforesaid."" And the novodamus to the feofees of Heriot's Hos- pital, conveyed to them the remaining parts of the ba- rony of Broughton, " together with the liberty and pri- vilege of an regality chapel, and chancery, and offices of justiciary and bailliary, within the bounds aforesaid;" 22 PALACE AND SANCTUARY and both these charters were ratified in Parliament, on the 22d March, 1661. In the year 1602, the presbytery of Edinburgh erected the parish of North Leith, formerly part of Ho- lyroodhouse, into a new parish, and the decree of erec- tion was confirmed by the General Assembly.4 Not, however, satisfied with this erection, an act of Parlia- ment was passed in 1606, erecting the parish of North Leith anew. This act recites, " That the inhabitants of the north and south sydis of the waiter and brig of Leith, within the regaletie and barony of Brochtoun, hantit and maid repair of auld, to their paroch-kirk of Halyrudhous, to preaching prayeris, and to the cele- bratioun of the sacramentis, verie far distant from thair habitationis, sua that it was not habill for the maist part of thame to repair to thair said paroch-kirk of Halyrud- hous at all tymes, being ageit and seiklie persons ; quhairfoir, the saidis inhabitants of the north and south syde of the said watter and brig of Leyth, vpoun thair awin expinss and charges, hes biggit to thaemeselffis, ane kirke vpon the north syd of the brig of Leith, and hes had mmisteris serveing the cure thairat, and minister- ing to thame the sacramentes thir twentie yeiris bigane, with the mair lyk, as they haue presentlie an minister 4 Buik of the Universal Kirk, p. 586, Act 1606, c. *7. OP HOLYROODHOUSE. 23 serving the cure thairof, they being ane thousand com- municants, quha cumis and hantis to the samin kirk, dwelling within the said regaletie of Brochtoun. Thair- foir, our said soverane Lord and Estattes foirsaidis, creatis and erectis the said kirk in aneparoch-kirk, to the said is inhabitants of the north and south partis of the said waiter of Leith, to be callit, in all tyme cuming, the paroch-kirk of Leyth benorth the breig," &c. " and dis- memberis the samin, in all tyme cuming, frome the said parochin of Halyrudhous." By a subsequent act of Parliament,5 which recites that there were " sum pairtis off the burgh of Edinburgh, within the poirtis of the samin, quhairoff the inhabitants and indwellaris have, in tyme bygane, bene repute and haldin parochoneris off the paroehes of St. Cuth- berte's Churche and Hailerudhous, albeit, they duelt within the poirtes and jurisdictioun of the said burgh of Edinburgh •;" therefore, the act disjoins these parts of the burgh of Edinburgh " frae the samin kirkis and paroch- ines off St. Cuthbertis and Halierudhous, and unitis annexis, and incorporates the samin to the paroche kirkis of the foirsaid burgh of Edinburgh." The present property connected with the palace of Holyroodhouse, may comprehend the palace yard, 3 Act 1621, c. 80. 24 PALACE AND SANCTUARY King's Park, Arthur's Seat, Salisburgh Craigs, St. Ann's Yard, the ruins of St. Anthony's Chapel, and other places, embracing a range of between six and seven miles in circumference, including about the half of the beautiful romantic lake of Dudding- ston, and the surrounding hills and vallies, to the strand at the foot of Canongate, or a little farther west, the length of Holycross. — The hills of Arthur's Seat and Salisburgh Craigs, when viewed from the west and north, bear some rjesemjblance to a Lion Couchant, or the head or back of a Camel. Upon the south-west .of Ar- thur's Seat, are to be seen considerable basaltic columns of fifty or sixty feet in" height, and about three feet in diame- ter, which hang down the face of the cliffs, gently sloping, known by the name of Samson's Ribs. On the east is a stratum of whinstone or granite, and in the valley to the south are several springs of water, called the Wells of Weary. The stones from the rocks are sent to London for paving the streets. There are here found rich ores and spar, a variety of rock plants, amethysts, and precious stones, which afford an excellent field to the gentleman and naturalist. There is a fine echo,6 6 An arch Irishman, upon being told of this echoing sound, humorously observed, that it was nothing at all at all to the one at the bottom of my father's garden in Ireland. For if I go down in a OP HOLYROODHOUSE. 25 that distinctly vibrates the voice three times, called the Echoing Rock, situated upon the west corner of the park below the powder magazine. Here is the fa- vourite retreat of the lover and the musician in a sum- mer evening, which may induce the following stanza, from a paramour to his sweetheart, seated together, holding a valentine in her hand ; With all that reason, taste approve, How can I see you and not love ? Then teJl me dearest you'll be mine, And take me for your Valentine, ^Vrhen we first contemplated this work on the Sanc- tuary, we were not aware that it was to embrace even an outline of its history, or the manner in which the most of the property was transferred, but to be merely confined to the law, customs, and privileges of the Abbey, to which we proceed, after premising some of the early statutes to be found in the regium majestatem and subsequent acts of the Jameses, bearing upon the ancient law and privi- leges of the Sanctuary, after which, we will advert to May morning, and call out along the lake of Kilkenny, " How do you do, Paddy Black," I get an answer immediately, " Very well, 1 thank you, Sir." C 26 PALACE AND SANCTUARY our institutional writers and decisions as to the law and practice of the Sanctuary. The privilege of the Sanctuary has been exercised for many ages. The statutes of William, Alexander, and Robert the II. as collected in the regium majesta- tum, declare the Girth,? or Sanctuary, to be a refuge for all men, and pains and penalties are to be inflicted on the disturbers of those who betake themselves to the Sanctuary ; but the indulgence was not sufficiently nar- rowed, and the bad effects from this privilege being ex- tended to felons, were soon felt. Those statutes and others bearing upon the law and privileges of the Sanctuary, and such as prevent violence from being committed within the King's Court, that no injury shall be done to any one within the Girth, and the pains and punishments inflicted upon malefactors, we are especially called upon to notice. — Some of them are entitled to the highest respect arising from their an- tiquity, and their being grounded upon the Mosaic law, in reference to the cities of refuge, and the ancient pri- vilege of a monastery claimed by manslayers. The preamble of the act of King William, held at " The Girth or Sanctuary, sould be ane sure refuge to all men, ttat. With. c. 5. Of the repentance and relief of them quha flies to the girth. St. Alexander, c. 6. St. Rob. c. 2. 9. Reg. Maj. tab. 1436, 1. 9. OF HOLYROODHOTJSE. 27 Perth 1165, c. 5. bears, that William was " sonn to Henrie, nephew to King David the I. He began his reign in the zier of the world 5135, and of Christ 1165, and reigned 49 ziers." It is titled, " Of injurie done to ane within Girth,1' and runs in these curious terms. " Gif ane man within Sanctuarie, or in anie other place, asks and craves the king's peace, and ane other man be evil zeale and purpose, lifts up his nive or fist to strike or beat him, and that be proven by twa honest men, he shall pay to the king foure kye,8 and to him quhom he would have stricken an kow. u 2. And gif he gives ane blow with his neive nought draw and bleed, he sail pay to the king sax kye ; and to him quhom he did strike twa kye. " 3. And gif he draws blude, he sail give to the king nine kye, and three kye to him quhom he did strick. " 4. And gife he fells or slays him with his nieve, he sail gif to the king 29 kye, and ane zoung kow, and sail assith the friends of defunct conformie to the law of the countrie, stat. Alex. c. 6. stat. Rob. II. c. 9, Jac. 1. Parl. 2. c. ult. Jac. 3. Parl. 5. c. 35. Jac. 5. Parl. 4. c. 22. Exed. 21. 13, 14. Numb. 35, 15. Deut. 4. 14. 19. 2. 8 In the times of the patriachs, kye or cattle were considered pecunia or mo.iey. 28 PALACE AND SANCTUARY Again, c. 6. titled, " Of violence done within the " king's court." Gif ane draw a knife to ane other within the King's Court, the knife sail be stricken throw the midds of his hand. — Jac. 6. Parl. 13. c. 173. " 2. And if he draws blud, his hand sail be cutted aff, " 3. And gif he slaies ane man, he sail give twenty nine kye, and ane zoung kow, and make peace with the friends of the defunct, conforme to the law of the countrie." But as these ancient Scotch statutes, and others of the same sort, may not be easily understood by some of our readers beyond the borders, we have attempted an English version of them in the appendix. Another act was passed in the reign of Alexander the II. c. 6. for the protection of those flying to the " Halie kirk ;" the 6th and 7th items of which we are called on to notice. " 6. And gif anie of them quha flies to the kirk con- fesses himself to be innocent, and for povertie, may nought find borgh nor pledges, he sail acquit himself in anie sure and convenient place, as the king or the bishop sail think best : and gif he be fund clean, he sail passe in peace : and gif he be filed, he sail be punished according as he is worthie. " 7- Moirover, manslayers, traitoirs to their maisters, and they quha are challenged of murther or treason, sail OF HOLYROODHOUSE. 29 be lawfullie accused thereanent, and gif they in manner foresaid flic to the kirk, the law foresaid sail be keeped and observed to them/' Again, by an act of Robert II. titled " Ane man- 4' slayer fliand to the Girth, c. 9. It is statute and or- " dained, item, how oft an manslayer takes himself to 4< the immunitie of the kirk, he sould be admonished " and required to come furth, and present himself to " the law, to know gif the slaughter was committed be- " forethought felone, or murther." " 2. And gif he being admonished, and required, will not come forth and present himself frae that time furth in all time thereafter, he sail be banished and exiled, as ane committer of murther be forethought felonie, keepand and reservand to him the immunitie of the kirk to which he tuke himself. " 3. And give he compeirs and presents himself to the law and justice, and it be tryed by an assesi that the slaughter was committed be an chaud melle ; he sail be restored and entered to the immunitie of the kirk as of before. " 4. And he sail make securitie to the sherif anent that crime, before he pas furth of the immunitie or girth, to the quhilk he did flic." Those acts of William, Alexander, and Robert, were, even in those remote times of superstition and ignorance, 30 PALACE AND SANCTUARY peculiarly calculated to detect and punish persons guilty of fore-thought felony, and of violence committed with- in the king's court. The acts of the James's give strength and support to those of William, Alexander and Robert, on which ac- count, we are called upon to introduce them. The act of James III.,9 titled — " Of slaughter " by forethought, fellony, and suddantie, and flying to ""girth," deprives those guilty of this crime of the pri- vilege of protection, and is thus preambled : — " Item, " because of the escuing of great slauchen, quhilk has " been richt commoun amangst the king's lieges nowe " of late, baith of forethought-fellonie, and of suddan- " tie ; and because manie persones committes slaughter " upon forethought-fellonie, in traiste, they sail be de- " fended throw the immunitie of halie kirkes, and girth " and passes, and remains in sanctuaries.'1 The act then proceeds ; — " It is thought expedient, in this present " Parliament, for the stanching of the saide slaughters " in time cumming, quhair ever slaucher is committed " on forethought-felony, and the committer of the said " slaughter passis and puts him in girth for the safety " of his person, the scheriffe sail cum to the ordinar in " places quhair he is under his jurisdiction; and in 9 November 20, 1469, c. 36. OF HOLYROODHOUSE. 31 / ' ' places exempt to the lordes maisters of the girth ; 44 and let them wit, that sich a man has committed sich <•< a crime on forethought-felony : Tanquam insidator " et per industriam. For the quhilk the la we grantis *' not, nor lea vis not sik persones to joy is the immuni- " tie of the kirk. And the sheriffe sail require the < ' Ordinar to let a knawledge be taken be an assise " on fifteene daies, quhidder it be forethought-fellonie " or not ; and if it be founden forethought-fellonie, to " be punished after the king's lawes, and if it be founden " suddantie, to be restored againe to the freedome and " immunitie of haly kirk and girth." Hence the girth, sanctuary, or holy kirk, could not protect a criminal, but he might, by the statute, be taken out of the sanctuary, and tried by an assise on fifteen days, and if acquitted of forethought-felony, he might be restored to the freedom and immunities of the sanctuary. The same act is ratified by James III. Parliament 6. c. 43, and provides, that manslayers suld not be relax- ed, except they find caution — It " Ordains that quhere " any slaughter is committand, and the partie commit- " tand the slaughterer be put to the home of partie, '" and syne thereafter cum, and bind them to the lawe, " the scherif sail not receive him to the laws, nor give " him dilatores of fourtie days, without he bring with «*•* PALACE AND SANCTUABY " him sufficient bursaos that he sail compeer peremp- " tously the said day, to underlie the laws." The remaining act now to be noticed, is that of James V.,10 of now no slight importance to be ob- served at the present day, and as a guard against ma- lefactors retiring to the sanctuary. After referring to the foresaid statutes, the act ordains — " That all mais- " teris of girthes within this realme, sail make suffi- " cient responsal men, baillies or maisteris of girthes, " under them, dwelland at the saidis girthes, or near " thereby, quha sail be halden in all times cumming, " to delever all committers of slaughter upon fore- " thought-fellonie, that flies to girth, and uthers tres- " passoures that breakis the samin, and may not bruck " the priviledge thereof, conform to the commoun lawe " and act of Parliamente foresaide to our sovereign " lordis officeares, askand and desirand them to under- " ly the lawe, conform to the saide act of Parliament ; " and gif the saidis baillies failzies thereintill, to be ri- " gorouslie punished for their contemption, in their " bodys and gudes, at our sovereign lordis will." And in order that the baillies and maisters of girth be known to the Lord Justice Clerk, the same act appoints, " that 10 January 5, 1535, Parl. 4. c. 23. OF HOLYROODHOUSE. 33 " all maisters of girth es, spiritual men, sende to the " Justice Clerke, the names of their baillies and mais- " ters of girthes-depute, and to be depute be them, that " quhen ony sich crimes ar committed and done, that " letters may be direct to all schirreffes, baillies, or " stewarties, within quhais boundes the saidis gyrths " ar, to charge the said baillies or maisteris, to deliver " to them the saidis trespassoures, conforme to the acte " of Parliament." Thus, it appears from the statute, that in order to the more effectual detection of persons committing fore- thought-felony, and flying to the girthe, the names of the bailies and deputies are appointed to be sent to the Lord Justice Clerk, and that the sheriffs, bailies, or steM'arts, be commanded to charge the said bailies or maisters to deliver up to them the malefactors or tres- passors. It may, therefore, not be difficult to ascertain, with precision, by what law, at what period, and for what reason, the Abbey of Holyroodhouse was originally in- vested with the privilege of sanctuary ; besides, the pri- vilege is established by immemorial practice, which in many respects is held to be the best law, on account of the length of time it has existed, and not undergoing any change ; but upon the law of the Abbey we shall af- terwards dilate more at large. 34 PALACE AND SANCTUARY If the privilege of the sanctuary was to be given to any one place in preference to another, it seems agree- able to the genius of our law, that the king's palace and domains, where he is supposed to be present, and held his courts, should be invested with it. The act 1696 expressly mentions the Abbey as a privileged place and a sanctuary against the execution of personal diligence. Although the crown, after the Reformation, granted to the family of Roxburgh those parts of the domains of the Abbey which now form the regality of the Ca- nongate, it retains the Palace as a royal residence for our sovereigns, the Abbey church, which is in ruins, together with the king's parks, St. Ann's Yards1, and other places, which form extensive romantic walks and scenery within the precincts ; the management of which, like other royal domains, is committed to the charge of some nobleman about the king's court. By a charter of Charles I. dated 10th November, 1646, the Palace and Sanctuary appear to have been invested as an hereditary office in the noble family of Hamilton. The charter runs in these terms : — " Carolus, &c. sciate nos fecissie et constituisse te- " noreque praesentium facere, et constituere praedelic- l St. Ann's Yards were annexed to the office of Keeper by Char- ter from King William and Queen Ann on the 23d June, 1693. OF HOLYROODHOUSE. 35 " turn nostrum consanguinum et conciliarium Jacobum " Ducem Hamiltoun, &c. ejusque haeredes masculos " de corpore suo legitime procreat seu procreand, qui- " bus deficien., haeredes suos talliae, haereditaios cus- " todis Palatii nostri de Holyroodhouse, cum omnibus *' hortis, hortulis, pomariis et sphaeristeriis lie bouling- " greens, eidem spectan ; et dedisse, tenoremque prae- " sentis cartae nostrae dare, diet. Duci, haereditarium " officium et custodiam earund. cum omnibus privi- " ledgeis feodis casualitatibus et divoriis quibuscunque " ad easd. pertinen. ; cum plena potestate praefato Duci " ejusque praescript., faciendi et constituendi sub-cus- " todes dicti nostri Palatii, hortorum, aliorumque prae- " diet., unum vel plures pro eorum arbitrio ; ac nomi- *' nandi et designandi hortularios, aliosque ser\ros, pro " colendis et custodiendis diet, hortis et pomariis, diet. " Palatii turn borealibus turn australibus ; ac parvo 4< horto infra idem Palatium, sphaeristerio, lie bowling- " green, aliisque ad ejusmodi spectan. : omniaque alia " praestandi adeo libri in omnibus respectibus, sicuti *' quovis tempore praeterito fieri solebant." The charter assigns and dispones to his Grace certain annual sums of money, and quantities of victual — " Pro " custodia ipsius, Palatii, una cum omnibus divoriis et " casualitatibus dicti Palatii, hortorum veridariorum, -" et pomariorum, quae de iisdem annuatim lucrari po- 36 PALACE AND SANCTUARY " terint, cumque omnibus aliis divoriis quibuscunque, " quae procolendis et custodiendis eisd. perprius per- " solvi solobant : cum potestate semilder diet. Duci, " ej usque praescript per simet ipsos aliosque eorum no- " minibus, haben eorum warrantum, levandi praedict, " annua feoda -particulariter et generaliter suprascript, " omni tempore future ; et de omnibus annis praeteri- " tis debit, et nondum solut," &c. The Duke of Hamilton, as keeper of the Palace and Abbey, grants Commission to the bailie. His Grace, " makes, nominates, constitutes, and appoints the said " B. to be our bailie of his majesty's Palace of Holy- " roodhouse, and of the whole bounds and precincts " thereof, or belonging thereto, giving and granting to " him all the fees, casualties, profits, duties, and emo- " luments whatsoever, pertaining, or anywise known to " pertain and belong to the said office ; and that dur- " ing pleasure, allenarly, and until these presents are " recalled by us : With power to the said B. or any " substitute to be named by him, to exercise the said " office, and to hold courts within any place or part of " the Palace of Holyroodhouse, or pertinents thereof, " upon whatever day or days lawful, and to constitute " the same as often as needful : And also, with power " to him to name fiscals, Serjeants, officers, and demp- " sters, and all other necessary members of court, ex- OF HOLYROODHOUSE. 37 " cepting the clerk (the nomination of whom is reserv- " ed) the said B. being always answerable for his sub- " stitutes, to proceed and administrate justice in all " actions and causes competent to be pursued before " him ; decreets and sentences, to give forth and pro- " nounce ; and to fine, and punish delinquents and " transgressors, according to law ; and to apply the " fines to his own proper use ; and generally, all and " sundry other things, concerning the premises, to do, " use, and exercise, during the continuing in office, as " fully and freely in all respects, as any other bailie of " the said Palace have done, or lawfully may do ; pro- " mising to hold firm and stable, all, and whatever " things the said B. or his substitute shall lawfully do " in the premises."" The judge, or bailie, and substitute, or depute, au- thorized by him, have, therefore, sufficient powers, in virtue of the said commission, to exercise the duties of the offices, within the bounds of the jurisdiction, as ful- ly and freely, as any other bailie of royalty, regality, or burgh of barony in Scotland. At what precise period the Abbey of Holyroodhouse was established into a separate jurisdiction, governed by its own magistrate, clerk, fiscal, and other officers, as .now exercised, is not accurately known ; it must, how- ever, be very remote, and consequently, wrapt in obscu- 38 PALACE AND SANCTUARY rity ; but, from the records of the sanctuary, we find the bailie holding courts, making acts and rules for regu- lating the police of the district for nearly two centuries, nor is it much to be wondered at, that the precise period of this establishment cannot be ascertained, for we know, that even the erections of several royal burghs in Scot- land are as obscure and as little known ; and the rights of many of their customs and peculiar privileges, are as difficult to be traced, with absolute certainty, and often left entirely to consuetudinary law, yet it will not be de- nied, that those rights, privileges, and customs, are as well secured to the burghs, as if they could be satisfac- torily instructed from the original charters of erection. That the bailie of the Abbey has an ordinary juris- diction, like any other bailie, has been frequently deter- mined by the supreme court, as will afterwards be shown, and that no subordinate jurisdiction with him has a cu- mulative jurisdiction over the inhabitants within the precincts. It does not appear that this jurisdiction was conferred on the bailie, before or after the place was endowed with the privilege of sanctuary for civil debts. As an Ab- bey, or monastery of old, it certainly protected in civil, as well as criminal cases, in the same manner as the other religious houses in the kingdom ; after all, it is OF HOLYROODHOUSE. 39 an important question to ascertain, whether its privi- leges are derived from its being a monastery. The privilege of sanctuary, it is well known, exists to the present day, and comprehends in it not merely the Abbey itself, but all its precincts, including the grounds, by the name of the King's Park.2 The privilege of sanctuary to criminals was an ec- clesiastical refuge, on the ground, that places dedicated to the service of God should not be polluted by the hand of man. A stay to personal diligence, says Bankton, " Upon decreets for debts, takes place with us, as just " hinted, by the party flying, or retiring to the sanc- *•' tuary, called of old in our law, the privilege of girth. " All churches, in times of Popery, were sanctuaries to " protect both criminals and debtors from due course of " law ; but, upon the reformation from Popery, that " privilege ceased, and ever since we have no sanctuary " for sheltering criminals."' And in support of this doctrine, Bankton refers to the statutes of Alexander, and James III. before no- ticed. By the statute of James, 1469, c. 35, it is pro- 2 Arnot, p. 309 says — " The environs of the Palace afford an " asylum for insolvent debtors ; adjoining to it, there is an extensive " park, first inclosed by James V., all of which is a sanctuary." 3 Bankton, b. 4. tit. 39. sec. 1. 40 PALACE AND SANCTUARY vided, that no sanctuary shall be allowed for slaughter upon forethought-felony. The ancient privilege of sanctuary was, therefore, founded upon ecclesiastical grounds. In Scotland, it was extended to monasteries and other establishments of the regular clergy ; for a re- ligious house, in the ecclesiastical language of those days, was termed " ecdesia^ and within its bounds contained a church. Nay, in the times of Popery, a greater degree of sanctity was attached to monasteries than even the churches of the secular clergy.4 Blackstone5 gives the following account of the origin of sanctuaries in England. — " Formerly there was an- " other plea, now abrogated, that of sanctuary, which is 4 Annals, vol. i. p. 320 — That the privilege of Sanctuary was extended to the religious houses of Scotland, is supported by a well known fact in the words of Lord Hailes. " Bruce repaired to Dura- " fries, where Comyn happened at that time to reside. Bruce re- " quested an interview with him in the Convent of the Minorities. " There they met, when the great Alexander Bruce passionately •' reproached Comyn for his treachery. — " You lie," cried Comyn : '« Bruce stabbed him instantly. Hastening out of the Sanctuary, •• he called ' To horse !' His attendants, Lindsay and Kilpatrick, " perceiving him pale, and in extreme agitation, anxiously inquired " how it was with him, ' 111,' replied Bruce, ' I doubt I have " slayn Comyn.' — ' You doubt," cried Kirkpatrick, and rushing «' into the church, fixed his dagger in Comyn's heart. — February " 10, 1305—6." 5 Blackstone, b. iv. c. 26, p. 332. OF HOLYROODHOUSE. " however necessary to be lightly touched upon, as it " may give some light to many parts of our ancient " law, it being introduced and continued during the " superstitious veneration that was paid to consecrated " ground in the times of Popery : First, then, it is to " be observed, that if a person, accused of any crime " (except treason, wherein the crown, and sacrilege, " wherein the church was too nearly concerned) had "fled to any church, or church-yard, and within forty " days after, went in sackcloth and confessed himself " guilty before the coroner, and declared all the parti - " cular circumstances of the offence, and thereupon took u the oath in that case, provided, viz. that he abjured " the realm, and would depart from thence, forth at the " port that should be assigned him, and would never " return without leave from the king ; he by this means " saved his life, if he observed the conditions of the " oath, by going with a cross in his hand, and with all " convenient speed, to the port assigned him and em- " barking. For if, during this forty days privilege of " sanctuary, or in his road to the sea-side, he was ap- " prehended and arraigned in any court for this felony, " he might plead the privilege of sanctuary, and had a " right to be remanded, if taken out against his will. " But by this abjuration his blood was attainted, and " he forfeited all his goods and chattels. The immu- 42 PALACE AND SANCTUARY " nity of these privileged places was very much abridg- k< ed by the statutes 27th Henry VIII. c. 19 and 32. " Henry VIII. c. 12 ; and now by the statute 21 Jac. " I. c. 28, all privilege of sanctuary, and abjuration " consequent thereon, is entirely taken away and abo- « lished." Thus, it appears that in England, as well as in Scot- land, the benefit of sanctuary to criminals, consider- ed as an ecclesiastical privilege, introduced in times of popery, was abridged at the Reformation, and after- wards abolished by statute. The protection allowed to persons for civil debts is a privilege of sanctuary founded nearly upon the same principles ; and although no such privilege was specially conferred upon it, it belonged to the Abbey of Holy- roodhouse ; but in the charter of David I. there is a clause which expressly gives the right — " prohibio ne " aliquis capeat pandum super terrain Sanctae Crucis, " nisi abbas ejusdem loci, rectum et jus facere recusa- " verit." Bankton, after mentioning the passage above quoted, and stating that, since the Reformation, there was no sanctuary for sheltering criminals, adds, ft nor " any other than the King's Palace of Holyroodhouse, " (which was of old an Abbey, and is vulgarly so call- " ed,) and precincts there, against captions for debt." We may, therefore, according to Bankton, infer, that OP HOLYROODHOUSE. 43 he grounds his privilege of protection against caption upon the circumstance of the precincts being within the Abbey, and expressly states that it applies to debts as well as to crimes. And that this is his meaning, ap- pears from the words employed by the author on the margin : " All churches, sanctuaries of old — the Abbey, " the only sanctuary at present, protects only debtors."" Chalmers6 founds the privilege on the above clause from the charter of King David. Talking of the Abbots of Holyroodhouse, he says, " They were endowed with " the privilege of sanctuary, which remains to this day " annexed to the Palace of Holyroodhouse." But we hasten to give the opinion of Mr. Erskine7 on the subject. When treating of protection from privi- lege against diligence, he first makes the following ex- ceptions : " As to the first by the Articles of Union, " the privileges of the English Peers have been commu- " nicated to the Scottish, the persons of Peers are se- " cured from diligence, Art. 23, which has been ex- " tended to the widows of Peers, New Coll. 1. 212. " Such commoners also as are elected to serve in Par- " liament, are secured against personal execution by the " privilege of Parliament. Minors not yet past the age 6 Vol. ii. p. 753. 7 Erskine, B. 4. Tit iii. § 25. 44 PALACE AND SANCTUARY " of pupilarity are entitled to this privilege by 1696? " c. 41. Kilk. p. 348. ; and women clothed with hus- " bands have been ever secured in their persons from all " such diligence." Then, in speaking of the sanctuary, " This exception,'1 says he, " has probably been grant- " ed originally to the place of the king's residence " wherever he happened to keep his court, that he might " not be deprived of the assistance or advice of his sub- " jects, on any misfortune befalling them from a civil " cause ; but even after the accession of our kings to the " crown of England, constant usage hath continued that " privilege to the Abbey of Holyroodhouse, where our " kings used mostly to reside before the union of the " two crowns.11 But Mr. Erskine pursues the subject. " The kings " castles have not this right, Falc. ii. 218. ; nor even " the Palace of Holyroodhouse, when it is claimed by " the king's own debtors ; for that would be in effect, to " use a privilege which arises merely from the respect " due to the sovereign against the sovereign himself." In illustration of the rule here laid down, the court found, that " the Castle of Edinburgh hath no privilege " of sanctuary, to hinder the execution of the king's " letters, Bruce, 15th December 1714, M'Kay v. " Campbell.11 The same judgment was given in a sub- OF HOLYROODHOUSE. 45 sequent case, Falconer, 4th July 1751, Belches v. Cowan and Kinloch. In the first of these cases it was argued, that the pri- vilege of sanctuary was a privilege entirely connected with royalty, and this was attempted to be enforced by the privileges attached to the Palace of Holyroodhouse. But it was answered, that the foundation of a sanctuary in the law of Scotland, was an ecclesiastical one, and, " that no argument can be drawn from the Palace of " Holyroodhouse, since its being a sanctuary, is only " the remains of the privileges belonging to religious " houses." The Castle of Edinburgh, at an early pe- riod of our history, received the appellation of " Cas- " tellum Puellarum"" — as we have already seen. And we know that the Mint or " Cuinziehouse," situated south side of the High Street of Edinburgh, and nearly opposite Chalmer's Close, was once a sanctuary, but since the coinage was discontinued in Scotland, the privilege is lost. But the sanctuary does not afford protection against crimes, nor against fraudulent bankrupts, nor against such as conceal any funds belonging to them from their creditors, for in such a case, upon proof of fraud, the bailie may commit them to jail, or they may be carried from the sanctuary in virtue of a warrant issuing from .the Court of Session, or Justiciary, and committed to 46 PALACE AND SANCTUARY prison beyond the district of the Abbey ; the bailie may even seize and search fraudulent bankrupts, and grant warrant for seizing and securing persons who are in me- ditatione fug&- In England the privilege of the royal palaces has been long established, and is recognised at the present day. Lord Coke, in his Institute, p 3. c. 45. p. 140, lays down this privilege as a matter settled, and refers to the ancient case of Matilda d,e Neyerford v. John Earl of Warren. The more ancient authorities are equally strong and decisive. In trinity term, 2 of Queen Anne, 1703, " Elderston's Case,8 the Bailiff of Westminster. " He was committed by the Duke of Devon, and other " Commissioners of the Board of Green Cloth for " executing a fieri facias within flie Palace of White- " hall, without leave of the Board, and being brought " up by Habeas Corpus, several exceptions were taken. " The commitment was for riotously and forcibly enter- " ing into a house within the Palace of Whitehall, not " having leave from the officers of the household." Ex- ceptions were taken on the part of the prisoner, that Whitehall was no longer a palace, and that when the queen no longer lived there, the privileges determined. Lord Raymond's Rep. V. ii. p. 978. OP HOLYROODHOU8E. 4J The only doubt that occurred in this case was, whether Whitehall still remained a palace, and that was only doubted by one judge out of four, and was over-ruled. The precise question has still more recently however occurred, and met with a similar determination. In the case of Winton v. Moles, sittings after Easter Term, 48 Geo. III. reported by Campbell, Vol. I. p. 45. and 10. East's Reports, p. 575. It was an " action against " the Sheriff of Middlesex for a false return of nulla " Jena, to a writ offugte against the goods of his royal " highness the Duke of Sussex.1' The same question occurred as to whether Kensington Palace was still a royal residence, and sustained its privileges as such. The question was tried before Lord Ellenborough, and his lordship " was of opinion, that Kensington was " privileged as a royal residence, and the jury found " for the defendant.11 " In trinity term following, a rule nisi was granted " for a new trial, against which cause was shown in " Michaelmas term, and which was discharged in Hi- " lary term. The court, after taking time to consider, " having unanimously determined that this writ could " not have been lawfully executed in Kensington Pa- " lace, and the sheriff had therefore made a return of " nulla bona."1"1 Chitty on the Law of Prerogatives of the Crown, c. 14. in treating of the privileges of the king, says, " It should 48 PALACE AND SANCTUARY " seem, that if a servant of the king be clearly privileged, " from the nature of his employment, the privilege will " not be affected by the circumstance of the king not " residing personally, at the time, in the palace in which " the servant is employed, such place being still privi- " leged as such : And it has been decided, that a ser- " vant of the king is privileged from arrest, though he " publicly carry on trade. Where the privilege is clear, " the court will discharge the party on motion ; where " it is doubtful, they will leave him to his writ of pri- " vilege. On the same principles, no arrest can pro- " perly be made in the king's palace, or within the verge " of the royal palace, except by an order of the Board " of Green Cloth, or unless the precept issue out of the " palace of court. And all the royal palaces are sanc- " tuaries for persons liable to be arrested ; and no species " of judicial process can be executed therein, if any " thing in the shape of possession and royal appearance " be kept up, though the king do not, at the time, per- " sonally reside there ; nor can a distress be made on " lands in the king's possession." Such are some of the authorities of England upon the prerogatives and pri- vileges of royal palaces. " In England," says Professor Bell,9 " every man's 8 Comment. Mercant. Law, p, COS, 2d Edit. OF HOLYROODHOUSE. 49 The king's debtors are not protected in " their own house, the sheriff may break in. 2d, When " the sheriff or bailiffs have got into the house, they « may take the debtor from it. 3d, Upon repeated " capiases and outlawry, a capias utlagatum may be " issued, in virtue of which the sheriff may break [in ; *{ and, it would appear, that this is competent upon " mesne process.10 And 4tth, a capias may be issued " from king's bench, or the chancery, for forcing a man " to find sureties to keep the peace ; which, by a fiction " similar to that which made a trespass the ground of " civil jurisdiction, is sometimes employed to effectuate " execution in common debts." In continuation, the king's bench, from the sax-banca, a bench or forum, is the supreme court of common law in the kingdom, consisting of a chief justice, and three puisne justices, who are, by their offices, the sovereign conservators of the peace, and supreme coroners of the land. In this court the king used formerly to sit in person, 10 2 Sha. 87, PL 78. 3. Blackst. 284. D PALACE AND SANCTUARY the style of the court still being coram ipsa rege, (4 Inst. 73.) It is the remnant of the aula regia, and, from its nature and constitution, is not fixed to any cer- tain place, but may follow the king's court wherever it goes ; for which reason, all process issuing out of this court, in the king's name, is returnable, ubicunque fu- erimus in Angla. In William's dictionary of the English law, m «vi- dence of theCourt of King's Bench, (bancus regius,)being a perambulatory court, we find, that after Edward had conquered Scotland, this court actually sat at Roxburgh, (M. 20, 21, Edw. 1. Hafles'Hist. c. 1, 200.) But, for a more satisfactory account of this dignified court, 'and of its moveable quality, privileges and power, see Blackstone, iii. 41. iv. 266. And it may not be unacceptable to our readers to per- use, with some interest, the regulations and rules ob- served in the King's Bench Prison, in reference to insol- vents, and the mode of obtaining their liberation and The King's Bench Prison is a prison for debtors sued in the Court of King's Bench ; to which they are com- mitted for want of bail, when the person of the debtor is taken in execution, that is, committed to prison, be- cause he does not pay the debt ; for the law of England never supposes that a man cannot pay what he owes. OP HOLYROODHOtJSE. 51 The liberty of residing within the rules or verge of the prison is granted, upon giving security to the marshal (that is, the jailor,) that the prisoner will not extend his walks beyond the prescribed bounds ; to this must be added, a fee of about L.10, if the debt does not ex- ceed L.100. As to the privileges of the King's Bench Prison, it may be observed, that it is not properly a place of sanc- tuary, but is simply a debtor's prison, the keeper of which may, if he pleases, grant to his prisoners the pri- vilege of residing without the walls, but within a pre- scribed boundary. No one is protected from arrest by residing within the rules, unless as a prisoner ; and if he resides there at the suit of A, B can lodge a de- tainer against him ; and, in that case, he will have to give further security, and pay further fee, for permission to reside without the walls of the prison. The only privilege that a prisoner enjoys, is, that he cannot be removed to any other prison, as long as he is a prisoner there. Then, with regard to the limitation of the insolvent's confinement, and the mode of obtaining his release, ob- serve, that the court for the relief of insolvent debts is established for the only purpose of discharging debtors, in actual custody within the walls of prison, for debt ; and it also supposes, that the debtor is not a voluntary 52 PALACE AND SANCTUARY prisoner, or made a prisoner by a friendly or collusive arrest. It discharges the debtor upon petition to the court, and he must be in custody within the walls of a prison, when the petition is signed. If the debtor's health requires it, the court will grant permission to the insolvent to reside without the walls of the prison, upon giving security to the marshal. As soon as the petition is filed, (lodged,) the debtor is required to make an assignment to the provisional assignee of the court, of all his property ; it then ap- points a day for hearing the case, when he is taken to the court, and he is discharged or remanded, (recom- mitted,) as the case may be satisfactory or otherwise. The time of hearing is generally about two months from the time of the petition ; it may be more, but that de- pends upon the dispatch used in preparing the accounts of the insolvent's debts and effects ; a full, true, and cir- cumstantial statement of which, according to the pre- scribed forms of the court, must be filed. Upon a prisoner being discharged from the court, he is protected from future arrest, on account of any debts owing (and inserted in his schedule,) at the time of his discharge, but his future property is liable to those debts. A difference of opinion exists among lawyers, as to whether this liability embraces property acquired by inheritance or bequest ow/y, or by the individual's in- OF HOLYROODHOUSE. 53 dustry and good luck also. At any rate, his property is first liable to the claims of his creditors, to whom he has become indebted after his discharge. It is also doubted, whether a discharge here would be good against creditors whose debts were contracted in Scotland, by a person residing in Scotland, as the act does not ex- tend beyond the Tweed. If the debtor reside in Eng- land or Wales, his creditors may reside in any part of the world, and their claims barred as before said. With the expense of taking the benefit of the insol- vent act, exclusive of the prison expenses, the court has nothing to do ; they devolve entirely upon the insolvent, and generally may amount to about L.40. That the abbey of Holyroodhouse was a sanctuary for civil cases, as far back as 1531, one year before the establishment of the College of Justice, is clear from Buchanan, who relates the story of one John Scot, who, that year, being cast in a law suit, (the words used by Buchanan,) retired to the sanctuary. That Mr. Erskine's opinion, as before laid down, is not altogether founded in conjecture, may be supported from other considerations. The temporality of the monastery of Holyroodhouse was erected into a Lord- ship, in favour of the Earl of Roxburgh, from whom the Magistrates of Edinburgh purchased the regality of Canongate, Broughton, Pleasants, and North Leith. 54 PALACE AND SANCTUARY Hence, the Earl, or Magistrates, came in the place of the ancient abbots of Holyroodhouse ; and neces- sarily, in terms of the act 1535, c. 33, have right to nominate bailies of the Girth, 1 as therein mention- ed, had the present privileges been derived from a re- ligious source ; but they did not pretend to any such rights, as it is well known that the magistrates name bailies to the foresaid districts. On the other hand, his Grace the Duke of Hamilton, in the true character of keeper of the king's palace, names the bailie, who has the charge of the sanctuary, not under the authority of the statute, but in the quality of keeper, as is specially set forth in the commissions granted by his Grace to the bailies, of which a specimen has been given in a preceding part of this work. _.— But in whatever way the precincts of the Palace be- came a sanctuary, certain it is, that the same privileges obtain now that it did centuries ago. This important fact may be discovered from the records of court ; nor does it appear that there is the least innovation ; hence the privileges of whatever nature must be held to make part of the constitution : Lord Bankton considers the matter in this light. * Dirl. 7 Jan. 1668. Hume, 171. Diet. vol. ii. Voce. Sanct. OP HOLYROODHOUSE. 55 But, besides the advantages gained by the poor debtor, in obtaining here a place of refuge fronvperhaps the diligence of his cruel creditors, the creditors them- selves, especially since the Act 1696? of which an out- line will be given, will find their account by it, for by that act the taking the benefit of the sanctuary is one of the circumstances that constitutes notour bankruptcy, and, as much may depend on ascertaining the precise pe- riod of taking protection there, so, since the date of that act, or perhaps at an early period, the bailie to whom the government of the district is committed, has been careful to provide a correct record2 of persons taking the benefit of the sanctuary. Even the bare retiring to the sanctuary, though the debtor does not avail himself of booking, will, in terms of the statute, and the decisions of our Supreme Court, constitute bankruptcy, because an attempt to conceal- ment there, so as to enjoy personal protection, and a desire not to be considered a bankrupt, is a fraudulent act, and he cannot, doubtless, be benefited by his own fraud. As just said, the debtor's bare retiring to the sanc- tuary, eo ipst, constitutes him a notour bankrupt in the eye of our law, as was found in the case, the Executors of White v. Butter, 25th November 1800, Fac. Col. 2 All persons obtaining an inspection of this record, pay a fee of 2s. 56 PALACE AND SANCTUARY There, under the construction of the Bankrupt Act, 33 Geo. III., it was found that a debtor retiring to the Abbey, after receiving a charge of horning, becomes no- tour bankrupt although no caption should be issued against him. If the debtor does not book himself according to the ancient and immemorial practice, he does not come un- der the protection of the law. The bailie is not bound to take any notice of him, nor afford him protection till required. When his situation is known, and a protection is de- manded, it is always granted ; and upon production thereof, the officers of the jurisdiction, the constables of the bounds, the Abbey guards, and the whole inhabi- tants are bound to turn out and protect the debtor ; and should any person seize upon him in those circumstan- ces, they are authorized to resist and detain him by force, But, t converse should any person choose to trust his own security to the sanctity of the place itself, with- out applying for and obtaining a regular protection, he must abide by the consequences, and in that case he cannot expect protection, from the only power which could save him. Suppose the case that a person so retiring applies for a protection, but is refused on the ground that he has OF HOLYROODHOUSE. 57 not at command the fee of two Guineas, to pay for it, which has happened, we would like to be advised, that in such circumstances the debtor is ad interim forced beyond the jurisdiction by a messenger at arms, and im- prisoned within the Edinburgh or Canongate jail, would the debtor, so imprisoned, be justified in suing an action against the messenger and creditor for wrongous imprison- ment and damages. We do not answer, that the debtor so removed and imprisoned would prove successful, but we merely throw out the hypothetical case in passing for consideration, and with the view at least of modify- ing the protecting fee to a sum more within the power of the unfortunate person imploring protection, to avoid the squalor carceris, the filth, nastiness, and brutal con- finement of a jail. For a prison is constructed for keeping men, but not for punishment. When the author acted as bailie of the Abbey, the principles of justice and mercy made him on some occasions pass entirely from the then protecting fee of L.I, Is., and to obtain if possible an equitable arrangement with the debtor's creditors within the sanctuary. Not very many years ago the protecting fee was 6s. 8d., but upon principle, reason, and necessi- ty, the fee now exacted may with perfect propriety be modified to one half, and thereby remove the many com- plaints made by persons in the circumstances just de- scribed.— But to proceed. 58 PALACE AND SANCTUARY Wliether, in such circumstances, a person retiring to the sanctuary has a right to defend himself, vi aut armis, may be questioned. Doubtless, after retiring, his si- tuation, the only place which affords protection, is changed, but the question still is, does the retirement alone, without the personal protection of the bailie, per sc secure him from the squalor career is or personal dili- gence ? Lord Bankton is of opinion, that if persons re- fuse to book themselves, they may be removed from the sanctuary, and proceeds on the assumption that the bailie has power to make regulations, and judge and determine who has, and who has not, right to the bene- fit of the sanctuary. From the usage of the district, grounded on written acts and the decisions of the Supreme Court, persons not booked, are so far from being protected, that the officers, constables, and others are enjoined to assist messengers and other officers of the law in putting diligence in execution against them — the precise mode of doing this is laid down, namely, that the officers of the Abbey, and others, are to conduct such persons to the confines of the sanctuary, and there leave them with the executors of the diligence. Whereas, in the case of a person being regularly pro- tected, the officers and inhabitants of the Abbey are bound to oppose and hinder the execution of such dili- OP HOLYROODHOUSE. 59 gence, and if insisted in, the person attempting to exe- cute it, and his concurrents, are subject to be kept in the guard, and detained there, till they find bail to an- swer before the bailie for invading the privileges. The bailie-fiscal and clerks generally live without the bounds of the sanctuary, which not unfrequently occa- sion much trouble and inconvenieney to those retiring to, or residing within the precincts. The officer of the bounds is no doubt provided with copies of blank pro" tections for the use of persons taking refuge within the Abbey ; still this inconvenience is felt more or less, in the case .cf quarrels or riots, or of persons taking refuge as in meditatione fugae, or fraud, and such like, and we know that this deviation as to residence is severely felt.3 We shall just notice in passing, that the jurisdiction of the Abbey is of a mixed nature, civil and criminal ; the first refers to private rights, ratione rei citae, ratione domocilii, or ratione contractus : the other has respect to crimes, rationi delicti, or locus delicti: but both de- scription of cases, on which we do not think it necessary to enlarge, are subject to the review of the Court of Session or Justiciary, in the same manner as other sub- ordinate Judges. 3 We understand that the present clerk is also depute-bailie. How far those offices are compatible with one another, we shall not deter- mine. See the case of M'Jntosh ». M'Kenzie, Nor. 1815 Fac. Coll- 60 PALACE AND SANCTUARY The jurisdiction of the Abbey is also of a delegated nature. It has been shown that the bailie is appointed by His Grace the Duke of Hamilton, hereditary keeper of the palace, with power to name his depute, for whom he is responsible, and in some respects may be likened to the sheriff-depute of a county, who has a delegated power to name his own substitute, for whom he is an- swerable, and who must constantly reside within the county for the administration of justice ; hence, from a parity of reason, necessity, and duty, the depute-bailie at least ought to reside within the bounds, or, at no great distance from the Abbey. — Act James V. before no- ticed. Persons coming recently within the sanctuary, and seeking protection there, will not be protected by force or deception, if they have fled from the messenger or other officers of the law, who, in such case, may pursue and seize them, even within the precincts, and remove them from beyond the jurisdiction of the Abbey, if, in the interim, a protection is not granted ; and it may even be doubted, whether, in these circumstances, such protection would be found valid if tried, seeing the debtor had escaped from the messenger by force or de- ception. So far as we know, there is no law or practice to regulate the case now put, but generally we know, that the first twenty-four hours after a person's OF HOLYROODHOUSE. 61 retiring to the Abbey de praxi is allowed him to obtain a regular protection and find lodgings, during which period no diligence can be executed against the debtor ; and the officers, constables, and inhabitants of the dis- trict in general, are authorized to oppose the diligence of the law till a protection is obtained ; and so jealous is the bailie of the privileges being innovated, that even a poinding of the refugee's effects cannot proceed without his concurrence. But a poinding of effects within the Abbey may follow in virtue of a decreet of the court and act of warding, after a charge of six days is given and expired, for a debt contracted within or without the bounds to a person protected while resident there. As before said, the sanctuary is a place of protection to the unfortunate ; it does not, however, from thence fol- low, that the resident inhabitants of the district are at all times protected, and do not consider themselves secure from diligence within the precincts for debts contracted within or beyond the verge of the Abbey, and as such are subject to be sued before the bailie court in the same manner as protected persons, but the resident inha- bitants wanting protection, must be booked in the same way as strangers. Nor is the debtor's security and interest alone affected, for though the precincts be spacious and extensive, yet 62 PALACE AND SANCTUARY at best it must be considered as a prison at large.4 It is even perhaps the creditor's interest that his debtor should not enjoy his liberty at large : Therefore, by another regulation, if the debtor shall absent himself from the sanctuary for the space of fourteen days toge- ther, he loses the benefit of the protection, and if he returns after that period he must obtain a renewal of it, upon the same terms as when he first took out his pro- tection. And it is most worthy of observation, that during the period of protection the debtor has the sacred privilege of removing beyond the bounds of the Abbey during Sundays, and thereby affording to him the glorious pri- vilege of attending divine service at Edinburgh or else- where in the neighbourhood, as it is not now to be found in the Royal Abbey chapel within the sanctuary. The roof of the chapel fell in, nearly 70 years ago, and it has not since been repaired.5 * Bonaparte is said to have consoled his friend, Bertram, by hum- ming the following stanza of an old ballad : — " Every Island is but a prison, " Strongly guarded by the sea, " England's Itegent, for that reason, " A prisoner is, as well as we." 5 We know of an instance of a Clergyman, protected in the Ab- bey, removing from it late on Saturday night, preaching to his congregation on Sunday, and then returning to the Abbey the same day, thereby travelling fully forty miles. OV HOLYROODHOUSE. 63 In a word, every thing respecting the person protected, from his first obtaining the protection down to his re- moval from the precincts, of importance to be known, is established by rules and inveterate custom. It will, however, be recollected, that the regulations in reference to personal protection from diligence are not in observ- ance, unless to persons booked ; booking, therefore, is essentially necessary for the security of the person retir- ing to the sanctuary, as without it, he is not entitled to the privileges. In the noted case of Grant v. Donaldson, decided 15th Jan. 1779> Fac. Col. soon to be noticed ad longum, it was inter alia urged that the bailie had no right to exact fees for protections, but on the fullest consideration the Court of Session, on the ground of expediency, found otherwise. The bailie's jurisdiction is not confined to questions qua sanctuary, but he judges in all questions between the inhabitants and others, fixes the fees of court, those paid to officers, fiscals, and procurators, 6 constables, and, in short, acts in most capacities as any bailie within burgh. But more particularly the bailie has the superintend- 6 In 1816 the author framed and printed a Code of Laws and Rules applicable to the Bailie Court. 64 PALACE AND SANCTUARY ence of the palace, takes care that the under-keepers and wardrobe men do their duty, and in the event of any of them dying, the commission of his successor must be re- corded in the bailie-books, for which certain fees are paid, and by his directions the wardrobe ought to be de- livered over conform to inventory. When the king makes a grant of a lodging in the palace, the nobleman is put in possession of it by an act of court, and the royal grant is recorded accordingly. It will afterwards be seen, that, by a recent decision, of the last resort, the furniture and effects of any noble- man having lodgings within the palace cannot be dis- trained, or poinded, or the doors broken open at the in- stance of any creditor against such nobleman residing within the palace, even though his person is unprotect- ed, because the palace is held to be the sovereign's resi- dence, and because any subject possessing it by royal warrant is per se held to be protected, and cannot be disturbed in his possessions by any of his majesty's sub- jects, by diligence of the law, or otherwise, even though proceeding from the Court of Session, the Supreme Court of Scotland. This is not all, for we have seen from Mr. Erskine that, according to the Articles of Union, article 23, the persons of peers are protected from diligence as well as OP HOLYROODHOUSE. 65 the widows of peers, and members of Parliament, while Parliament is sitting. There is another branch of the office peculiarly appli- cable to the bailie. When the Scots Peers, or a single one of them, is to be elected, it is necessary that the peers be properly protected during the election within the Palace of Holyroodhouse.7 This province is solely vested in the bailie. Before such election, the fiscal of court applies by petition to the bailie, stating the cir- cumstances of the intended election, and, in terms of the Articles of Union, craves the bailie to appoint a guard out of the inhabitants of the Abbey for protecting the peers at the election ; and accordingly the bailie grants warrant to the officers of court to summon the whole in- habitants of the Abbey of Holyroodhouse to compear before him on a particular day and hour, and from them to select a captain, lieutenant, ensign, and others, as a safe and proper guard to attend the peers at the election, under a penalty ; and each of them receive commissions from the bailie, authorizing them to attend and protect the peers on the day of election, to keep off the crowd, to seize and apprehend delinquents, rioters, and others. These preliminary remarks as to the jurisdiction in- herent in the bailie, and the privileges of th'e subjects, 7 The election takes place in the picture gallery of an oblong form. 66 PALACE AND SANCTUARY as well as the exceptions in reference thereto, being no- ticed, perhaps, too minutely, we hasten to consider the still more important doctrines and rules of the establish- ment, as laid down by the decisions of the Supreme Court, which are held to make part of the constitution- ary laws of the British nation. And, first of all, we feel ourselves called on to notice the case of Grant and Donaldson, which was fully argu-* ed, and duly considered, and held to be law, that the concurrence of the bailie of the Abbey of Holyrood- house is necessary to the apprehending a prisoner with- in its precincts, and that in order to obtain the privilege of the sanctuary booking is necessary. The question originated in a complaint to the Court of Session at the instance of John Grant, junior, writer in Edinburgh, against Robert Donaldson, W. S., and John Gumming, messenger in Edinburgh. Grant had retired to the sanctuary, but had not been booked, and the defender, without obtaining the consent of the bailie, caused a messenger execute a caption against him, and cany him to the Canongate Jail. Argument for Grant, — On the part of Grant it was maintained, first, that the privilege is attached to the place. The bailie's protection is not necessary : he has no right to require that persons resorting to the sanctuary should enter their OF HOLYROODHOUSE. «/ names in a book, or pay him 6s. 8d. or any other sum, for protection. That, by the powers confirmed by the act 1535, the Duke of Hamilton has been in the use to appoint bailies for the Abbey. The bailie has a salary from the Exchequer ; but what the nature and extent of his jurisdiction is the complainer has not been able to dis- cover, from the statutes of William, Alexander, and Robert the Second, and the Acts 1469, c. 36,8 1696, c. 5, and the Act 1535, referred to. That agreeable to these statutes certain regulations are annually made by the bailie to the constables of the Abbey, by which they are directed to assist or oppose the execution of legal diligence in certain cases. But no power has been conferred, either by these or by any other statutes upon the bailie to exact fees, or re- quire the entry of names under the forfeiture of privi- lege of sanctuary. The bailie cannot therefore either exclude or admit any other persons than the law debars from or entitles to the privilege, and it is still less com- petent for the bailie to impose taxes. Mr. Erskine speaks of the privileged as free from any such conditions : 8 This act has special reference to forethought felony, or a previ- ous design to commit murder, in opposition to claud-melle or mur- der committed on a sudden. 68 PALACE AND SANCTUARY Lord Bankton says that persons not booked may be ex- tracted from the sanctuary. 2. But in fact the bailie has never made any such regulations. The act of the bailie court in 1697 Pro~ hibits the inhabitants and householders from harbouring and entertaining any stranger within their houses, or allowing them beds, unless they procure them the bai- lie's warrant in writing to that effect, under the penalty of L.5, Scots, to be paid by the landlord, by and attour his doubling the dues of the respective booking money for each fault. This act seems only to be a renewal of a former act 1686, which proceeds thus, " And de- " clared rebels, traitors, and other persons of bad prin- " ciples, disaffected to his majesty's interests, and also " to the bailie's own prejudice, and also considering " that other persons fleeing to the bounds of his juris- " diction aforesaid, ought to be protected : Therefore " the bailie prohibits and discharges the hail inhabi- " tants to harbour or rest any person whatever, until " such time as they cause their names and signatures, the " place from which they came last, and the time of their " entry to be inserted in a book appointed for that " effect, under the pain of L.20 Scots money for ilk " failure toties quoties, by and attour which cost and " skaith and damage the said bailie may be found OF HOLYROODHOUSE. 69 " liable in for suffering such persons to be harboured " within the bounds and jurisdiction aforesaid.1' The act was obviously extended, solely to prevent the penalties which the bailie apprehended he might be liable to, from resetting declared rebels and traitors. These regulations were made to give effect to the act of parliament already mentioned, but neither these acts of parliament, nor the consequent regulations, take the least notice of those retiring to the sanctuary for civil debts, and, accordingly, the certification of these acts of parliament is directed simply against the householders to a forfeiture of the privilege of the sanctuary, against those retiring for protection against personal diligence, for not applying to the bailie for his warrant of pro- tection. What sufficiently explains the origin and nature of booking, is an act of the bailie so late as the year 1757> which requires, " All the inhabitants, or householders, " to give in to the bailie or clerk, a note of such lod- " gers as shall come to reside with them from time to " time, and that within 24 hours after they shall so " come to reside, or lodge with them, under the pe- " nalty of L.5 Scots, toties quoties, for each transgres- " sion, as also, the time of their removal, and to what " place, if to them known." At any rate, the complainer with these forms can on- 70 PALACE AND SANCTUARY ly be required by the bailie himself, if he chooses to dispense with them, no third party has a right to com- plain. Lord Bankton's opinion on this subject is very strong. After mentioning the practice of booking, he expressly adds, that under shelter of the sanctuary, a person is protected from the effects of caption, with re- gard to the booking, and he says, if they refuse to book themselves, they may be taken from the sanctuary, which plainly supposes, that the power of protection belongs in this case only to the bailie, who can alone be inte- rested in the observance of his own regulations. 4. The creditor had not the concurrence of the bai- lie to the execution of the caption, but the messen- ger, aware of the necessity of such concurrence, false- ly asserted, that he had, to the constable, who otherwise would have interfered and protected the corn- plainer. Answered for the respondents — To these grounds of complaint it was answered, — No person is entitled to the benefit of the sanctuary, merely " from his being locally within " the precincts." If this was so, all the inhabitants of the precincts would be protected against diligence, but they do not consider themselves entitled to any such privilege. Diligence is always executed against them in the usual way, unless they have booked themselves for the benefit of the sanctuary, and, accordingly, there l 0» HOLYROODHOUSE. appears in the records from 1717 to 1777? numberless instances of inhabitants in the Abbey booking them- selves for the privilege. The privilege of the sanctuary is established by usage and custom alone, and not by any positive law. For no statute exacts, that diligence shall not be put in ex- ecution within the precincts of the Abbey : Therefore, whoever claims a privilege, founded solely upon cus- tom, must take it with all the limitations and restric- tions, either established by practice, or introduced by reasonable acts of that jurisdiction, especially when such acts and regulations are perfectly agreeable to the law of Scotland, and without prejudice to the privileges claim- ed. There are many things established by custom alone. Instance the case of infeftments erroneously taken, but agreeable to the uniform practice, Lord Stair, Duff v. Forbes of Culloden, Decem. 11, 1671, and Forbes, Fe- bruary 11, 1708. But the respondents' defence does not rest on custom alone, they are advised, that the bailies of the Abbey have undoubted jurisdiction to make such acts and 3re- gulations as from time to time may be necessary, for preserving peace and good order within the precincts of the Abbey. The commissions to the bailies grant them right to exact " fees, casualties, and profits, &c. and 72 PALACE AND SANCTUARY " also, power to appoint fiscals, dempsters, and to fine de- " linquents, &c. and to apply the fine to their own use." In consequence of these, the bailie has been in the immemorial practice of holding courts, as appears from the records for above 100 years back, and of exercising the jurisdiction given him by his commission, and of giving particular instructions to the constables, and those that reside within the precincts, which are always enforced, and kept within due observance, the 18th ar- ticle of which runs in these terms — " That all the in- " habitants, or householders, do give in to the bailie or " clerk, a note of such lodgers," &c. And number- less instances appear in the record of the inhabitants of the Abbey having been fined by the bailie for not observing the above, and other regulations. This is the act of court in 17^7* already noticed. INSTANCES OF THE BAILIE S JURISDICTION. . 1. No person can be buried in the Abbey Church without his warrant. 2. He appoints a guard, and grants commissions to its officers to attend to the election of Peers. 3. Past all memory, he has exercised every act of ju- risdiction necessary. HOLYROODHOtrSE. 4. This jurisdiction early recognised by the acts of parliament, 1489, c. 35 and 1535, c. 23. 5. His decreet against Cockburn of Clerkington for debt, contracted in the Abbey, sustained on a suspension,, denying the bailie's powers, Fount. 12th June, 1708. His regulations in 1686 and 1697- This last act aP~ peared absolutely necessary, in order to give effect to the act of 1696, the express intention of which was to ascertain the description of notour bankrupts, 8 by plain and unambiguous marks, and at a certain period. It was material to fix with accuracy the precise period that a bankrupt took the benefit of the sanctuary, which by his having his name inserted in the Abbey records, in terms of the regulations 1697» could be easily done ; and the compulsitor for enforcing this was its being universally understood that if the person retiring to the Abbey did not, within 24 hours, enter his name in the books, his creditors were at liberty to put their diligence in execution against him, notwithstanding that he con- tinued to reside within the precincts. 8 By the act 1696, c. 5. " A notour bankrupt" is a " debtor ** who being under diligence by horning and caption, at the instance " of his creditors, shall be either imprisoned, or retire to the Ab- " bey, or any other privileged place, or fly, or abscond for his person . ** al safety, or defend his person by force, and who shall afterwards "* be found by sentence of the Lords of Session to be insolvent." 74 PALACE AND SANCTUARY Without this, a person might strut about the Abbey till the sixty days were out, and thus defeat the aft 1696. Besides, the precincts of the Abbey are of large extent, and many merchants and tradesmen have their constant residence within them, who are of good credit, and not under the pressure of diligence. If any of these should become bankrupt, according to the com- plainer^ doctrine, it would be impossible to bring him under the description of the statute 1696, for, agreeable to what the complainer pleads, the mere residence with- in the Abbey protects from personal diligence, therefore he has no occasion to fly, or forcibly defend himself, nor can he be imprisoned ; and he may have resided his whole lifetime in the precincts, therefore cannot be said to have retired there to be protected from diligence. The regulation 1697 prevents any difficulty of this kind. Innumerable instances are to be found of persons complying with it : that it is in strict observance at this day appears from this, that if a person, after being book- ed, shall leave the sanctuary for fourteen days, and then return to it, he has no privilege unless he is booked of new. A long list of instances of this, from the year 1713 down to July 1777> was produced in process, and it will there appear that the same person has entered his name in the Abbey book several different times. The complainer alleged that the regulations 1697 OF HOLYROODHOL'SE. 7» apply only to criminals ; but this is not the case. The regulation 1686, to which it refers, mentions expressly- civil debtors ; and innumerable instances of these ap- pear, of those last claiming protection, while " in the " record there is hardly to be found any person claiming " the benefit of the sanctuary except for protection from *' diligence or civil debts." Clerk Hume reports a case, 22d June 1741» Hamil- ton v. The Bailie of the Abbey, where, upon a com- plaint made by Mr. Hamilton that the bailie of the Abbey had done wrong in allowing a caption to be put in execution against him within the Abbey, the bailie founded his defence upon the regulation 1697 » an(^ tne judgment of the court was in these words: — " The " Lords found that, in consideration of the act 1697? " and practice agreeable thereto, of putting captions in " execution against persons not booked, it was lawful for " the bailie of the Abbey to grant his concurrence com- " plained of for putting the caption in execution." 9 Such was the case in 1741 , and the same has con- 9 As Mr. Hamilton was not protected, the creditor might hare, in virtue of his diligence, removed his debtor from the Abbey with- out the bailie's concurrence, but which, if resisted, the bailie may hare concurred. 76 PALACE AND SANCTUARY tinucd since that time. No less than 716 persons have been booked since 17^1? viz. From 1741 to 1752, - 183 1750 to 1760, - 175 1766 to 1770, - 184 Mr. Erskine's opinion, quoted by the complainer, does not say that there are no forms to be complied with in taking the sanctuary, and Lord Bankton says ex- pressly, that they may be imprisoned if they are not booked. It is not the bailie alone who has the right to com- plain of this want of booking. Every lawful creditor may take advantage of it, and the bailie's concurrence to apprehend the complainer, was not here necessary- ls£, The complainer was not under the bailie's protec- tion, not having been booked and got a protection ; and, 2rf, That being the case, there was no infringement of the privilege of the sanctuary. Replied for the complainer, — To these answers the complainer replied, — It is alleged that the case of Hamilton is erroneously reported. The bailie's concur- rence was indeed granted, but Hamilton having there- upon complied with the regulations, by booking himself, the caption was not executed. The creditors then ap- plied to the bailie, stating, that he had concealed money, and craving warrant to search him, which was granted ; OF HOLYROODHOUSE. 77 but only L.5 found upon him. On a complaint the court assoilzies the bailie and fiscal, but Hamilton re- claimed, and his petition was answered, but never ad- vised, the matter being compromised by his getting back the L.5. Replied for the respondents. — The respondents have seen the printed papers in Hamilton's case ; and his re- claiming petition states the decision of the Court, pre- cisely as it is given by Clerk Home. The bailie denied being accessory to, or knowing of any compromise. Ha- milton being obliged to conform to the regulations, to protect himself against the caption, strengthens the re- spondent's plea. In England the verge of the King's Court affords a sanctuary. The board of green cloth, on cause shown, may grant warrant for apprehending persons within the verge, unless actually within the Royal Palace. It appears from 27th Henry VIII. cap. 19, and from Bacon's works, vol. iii. p. 86, that sundry forms were to be observed by persons taking sanctuary. The interlocutor of the Court, dated 17th November 1778> runs in these terms, — " In respect that it is ad- " mitted, that the complainer, previous to the time when " he was apprehended, had for several days resided within " the precincts of the Abbey of Holyroodhouse, without t( being booked in the Abbey books : therefore find that 78 PALACE AND SANCTUARY " the caption at Mr. Donaldson's instance against him " was properly executed. Dismiss the complaint : as- " soilzie the defenders : Find the complainer liable to " the respondent in expenses, which modify to LJ5 Ster- " ling, with the expense of extract, conform to the col- " lectori certificate, and decern." Against this interlocutor Grant reclaimed, praying the Court to find, ls£, that the privilege of the sanctuary is competent, ratione loci, the booking and paying of fees to the bailie and his officers is solely for their be- nefit, and quite separate and unconnected with the pri- vilege : and, therefore, the granting of the caption on account of his not being so booked was illegal and un- precedented. 2d, Or at least, that no person can be apprehended and taken out of the Abbey without con- sent of the bailie, and that the doing so in the present instance was illegal and unwarrantable ; and, 3d, In every event to find no expenses due to the respondents. Answered for the respondents. — The respondents an- swered, that they went over the prior grounds, and pro- duced a letter from Mr. Jeffrey,10 the then bailie of the Abbey, in which he states, ls#, " That local habitation 10 This gentleman, Mr. Jeffrey was a Depute-Clerk of Session, of dis. tinguished talent, and father of the learned Francis Jeffrey, Esq. advo- cate, formerly Dean of Faculty, now the Lord Advocate of Scotland. OP HOLYROODHOUSE. 79 " without booking, appeared ineffectual ; 2d/j/, That he " neither knew, nor had ever heard of any person not " booked being protected ; 3dly, That he had no salary " from the exchequer; and, 4thly, That he intended to " make out and publish an express act and regulation " on the subject of booking." The final interlocutor of the Court, January 15, 1779* was, " Find, that when a messenger executes a caption " within the precincts of the Abbey of Holyroodhouse, it " is necessary to have the previous concurrence of the bailie " of the Abbey to that effect. Farther, find, that in order "• to entitle a person to the benefit of the sanctuary, it is " necessary to be booked in the Abbey books. And upon " the whole circumstances of the case, and the former " practice, find, that the respondent, in executing the " caption against the complainer, acted bonafide; there- " fore dismiss the complaint, assoilzie and decern, and " find expenses due to neither party." It must therefore be held to be law, that when a person is not booked within twenty-four hours after retiring to the sanctuary, he is not entitled to the privilege of pro- tection, but he may be seized by messengers at arms, and other officers, by virtue of diligence, and carried be- yond the limits, and imprisoned in the jail of Edinburgh or Canongate. As far back as 12th June 1708, the right to have a 80 PALACE AND SANCTUABY prison in the Abbey was questioned, but sustained in the question, Cockburn of Clerkington, collected by Lord Fountainhall, vol. ii. p. 422, in the following terms : — 12th June 1708, Richard Cockburn, elder of Clerk- ington, having retired to the Abbey, to save him from captions, at his creditors'' instance, he there contracts about L.35 Scots, in a change-house, for meat and drink furnished to him ; and he being pursued before the bailies of the Abbey, a decree is taken against him, holding him as confessed, and thereupon he is incarcer- ated in a prison1 they have for delinquents, or such debtors. He gives in a bill of suspension, craving to be set at liberty on these two reasons, ls£, the decreet was, a won suo judice, they having no jurisdiction for cog- noscing on debts ; 2rf, he craves to be reponed to his oath, there being no other mean of probation against him. Answered to the first, they were most competent to debts contracted within the precincts of the Abbey, especially for vivers, (meat and drink.) To the second, he was personally apprehended, and so could not pre- 1 The Abbey prison, (consisting of one apartment only,) has been long, and is presently in the worst condition, and calls loudly on go- vernment to improve and enlarge it. OF HOLYROODHOUSE. 81 tend ignorance, and does not condescend on any thing to purge his contumacy at all ; and the only thing he seemed to contra vent, was the exorbitant articles of the account. The Lords repelled his reasons of suspension, and re- fused his bill. Some doubted of their having a prison, and thought he should have been transferred to *he Canongate or Edinburgh Tolbooth ; but then his other creditors might have arrested him, which they cannot do so well in the Abbey, which is a sanctuary ; sed non Jure, see it debated alibi, if it be the king's palace, and of old a religious convent as well as a prison. In the question determined by the court, Feb. 24, 1810, Richard Tounly, a merchant in Canongate v. Richard Perry Ogilvy, an Englishman, who had taken refuge in the sanctuary, by virtue of a protection from the bailie of the Abbey, and had contracted a debt, while there, beyond the jurisdiction ; it was neverthe- less found (a bill having been granted for the debt,) that it was competent for the bailie to give decree for such debt, and for expenses of diligence thereon, and to imprison the debtor in the jail of the Abbey till paid. The case, as stated in the Faculty Report, is short, but we give it therefrom verbatim, especially as the grounds of decision assumed by the then bailie John Craw, W. S. were highly eulogized and approved of by the court at advising. 82 " Ogilvie, who resided within the sanctuary, com- " missioned some linens from Tounly, a merchant in the " Canongate, and granted a bill for the amount. The " bill was protested for not payment, the protest regis- " tered in the books of Council and Session, and letters " of horning and caption raised thereon. A complaint " was afterwards presented to the bailie of the Abbey, " as is usual in such cases, craving a decree for payment " of the debt and expenses." Defences were given in, ls£, Denying the jurisdiction of the court. 2rf, Alleging that at least action is only competent to the court for necessaries, i. e. vivers, and not for payment of a debt contracted by bill. 3d, It was also alleged, that Ogilvy was only a cautioner for the debt, which, in the Abbey Court, was a relevant defence. 4tfA, And lastly, it was said that decreet could not be pronounced by the bailie of the Abbey, for the expense of diligence. It was answered, that all these defences were directly contradicted by the immemorial usage of the court, and in support of its jurisdiction the following cases were cited, Cockburn, 12th June 1708, Fount, v. ii. p. 422, Diet. vol. ii. p. 361, — Hamilton v. Bailie of the Abbey, 12th June 1741, Clerk Hume, 287, No. 174, Mor. 3, Husband v. Carnie, 26th July 1749, Kilk. 502, OF HOLYROODHOUSE. OO Mor. 3, and Grant v. Ronaldson, loth Jan. 1779) Fac. Col. No. 55, viii. 98, Mor. 5. The bailie pronounced the following interlocutors, (4th Dec. 1809,) Repels the defences in so far as re- gards the principal and interest, for which sum decerns in terms of the libel ; repels the defences pleaded against being liable in the expense of diligence ; modifies the claim of the said expense to L.2, 10s., and decerns against the defender for that sum ; finds the defender liable in the expense of process, and allows an account thereof to be given in. Thereafter, thefollowing articulate interlocutor was pro- nounced, (18th Dec. 1809,) " Finds it instructed by the " records of court, in as far as they have been discovered " to be extant, that, for the best part of two centuries, " the bailie of Holyroodhouse has possessed a jurisdiction " as absolute and unlimited as that of any other inferior " judge, in all cases of debt, or other civil obligation, " where the debtors have been resident within the juris- " diction, whether they were registered for the sanctuary " or not : Finds, that a jurisdiction of this description " was exercised at times, and by magistrates, when, " and by whom, its origin and constitution must be pre- " sumed to have been better understood than they may " now be supposed to be ; and, in particular, that, from " the year 1669 to the year 1709, Mr. Robert Hamil- 84 PALACE AND SANCTUARY " ton of Beil, Mr. John Hamilton of Badenoch, and " Mr. James Hamilton of Pencaitland, all profes- " sional men, and the last mentioned of them af- " terwards a Senator of the College of Justice,2 success- " fully sustained the character of Magistrates of " Holyroodhouse, exercising a jurisdiction of the above, " and of a more extensive description : Finds, that " the said jurisdiction did not suffer any abatement " or interruption by the act of Parliament, abolish- " ing the heritable jurisdictions ; that its records never " were removed under the provisions of that act, and « that on the contrary, the proceedings went on as " usual, and so early after passing that act as 7th May " 1750, and 23d February 1751» such regulations are " made by the bailie respecting the imprisonment of " debtors in sums exceeding L.100, Scots, and for con- " ducting the business of the court, as are altogether " inconsistent with the supposition of any abatement or " interruption of the jurisdiction : Finds, that the suc- " ceeding magistrates down to the present time have " been possessed of and exercised a jurisdiction equally " ample : And therefore find, that the bailie is judge 2 Mr. James Hamilton was a Lord of Session, from 1712 to 1729, by the title of Lord Pencaitland. He succeeded Lord Blair- hall, who was succeeded by Mr. John Pringle, Lord Haining. OF HOLYROODHOUSE. 85 " competent, and possesses an original jurisdiction in all " cases of debt or civil obligation, without limitation as " to amount, against all persons resident within the " territory, whether registered for the sanctuary or not ; " and separatim, Finds that in the present case the " jurisdiction exercised by the bailie, is not so much " original, as it is an accessory to, and in aid of the " jurisdiction of the Supreme Court, the execution of " whose diligence is impeded by the petitioner's being " registered for the sanctuary, according to the form " immemorially established in such cases ; and with " regard to the petitioner's plea, that the debt for which " diligence is attempted to be put in execution against " him within the sanctuary, has not been exercised for " necessaries furnished to him while resident there, " but arises from a cautionary engagement : Finds, " that as the petitioner's engagement was voluntary on " his part, and was undertaken while he was registrate " for the benefit of the sanctuary, without any excep- " tion being made as to his being made amenable to " any part of the diligence competent against persons " in that situation, the petitioner was the only person " entitled to determine upon the considerations for which " he was to forego the benefit of the sanctuary, in vo- " luntarily exposing himself to such diligences : and " that it would be equally fruitless and inexpedient for 86 PALACE AND SANCTUARY " any magistrate to be engaging in all the distinctions " and controversies that might arise by counterbalanc- " ing pleas and obligations of this description : And " therefore finds that the petitioner, and all persons in " his situation, are liable to imprisonment within the " jail of the sanctuary ; and for removing the erroneous " supposition, which is attempted to be supported in " this petition, that the sanctuary or its magistrates " have been recognised principally, if not exclusively, " for the protection and convenience of debtors, finds " that the establishment of the sanctuary, as modelled " by the acts of the legislature, and the acts and regu- " lations of the Supreme Court, involves in it, and is " calculated for preserving the most important interests " of creditors equally as the personal liberty of the " debtor ; and therefore refuses the desire of the peti- " tion, and adheres to the interlocutor against which it " reclaims, and decerns : And having considered the " account of expenses of process given in by appoint- " ment, modifies the same to L.2, IQs. Sterling, for " which, and for the full expense of extract, decerns : " And appoints this interlocutor to be engrossed at " length by the clerk in the diet book." A bill of advocation was presented, complaining of these judgments, which, through some mistake or delay of the party, was passed without answers. A petition OF HOLYROODHOUSE. 87 was given in to the Court, on considering which, with answers, the Lords refused the bill, and thus confirmed the judgment of the bailie. A reclaiming petition was afterwards presented, ar- guing that the findings in the bailie^s interlocutor were neither sanctioned by grant nor jurisdiction, nor by the practice of his court ; and that although he might be entitled to imprison for alimentary debts, as a matter of police between persons both residing within the precincts of the Abbey, yet truly he had no proper jurisdiction in matters of debt, and took no cognizance of actions raised by persons out of the precincts, or by letters of diligence issuing under the signet, accordingly, confinement in his jail is not reckoned such imprisonment as entitles a debtor to bring an action of cessio bonorum. — Dunlop v. His Creditors, llth July 1779, Fac. Col. xii. 312, No. 139. This petition was allowed to be seen and answered, but the case was afterwards settled extrajudicially. Of the like description of cases with the preceding, is that of the still more recent case of Berry v. the Honoura- ble Mr. Boyes, determined 24th February 1820, Fac. Col. where it was found, on the fullest consideration, that a debtor having taken refuge in the sanctuary, and while under protection there contracted a debt constituted by bill, it was competent for the bailie of the Abbey to grant 88 PALACE AND SANCTUARY warrant for imprisonment in the jail, within the bounds, until payment of the debt. It is, however, incompetent for a debtor, imprisoned in the Abbey jail for debt, by warrant of the bailie, to sue for a cessio bonorum, Dunlop against his creditors, determined llth July, 1779- FACTS. James Dunlop having retired to the sanctuary of Ho- Jyroodhouse in consequence of diligence executed against him by the Managers of the Royal Bank of Scotland, he was incarcerated in the jail of the Abbey for a debt of L.10, contracted during his residence there, but in consequence of a certificate from a physician, that his health was in danger from confinement, he was imme- diately liberated on caution, and he returned to his lodg- ings in the Abbey. In these circumstances, he brought a cessio honor um against his whole creditors. The summons narrated the imprisonment, and that he was " in danger of being " arrested in prison, at the instance of the following " persons, real or pretended creditors, viz. Hugh Auld, " ironmonger in Glasgow, Alexander Allan, merchant " there, &c. Appearance was made for the bank, and James Chris- OF HOLYROODHOUSB. 89 tie, who, as preliminary objectors to the competency of the action, besides stating that the imprisonment of the pursuer was wholly collusive, which was denied on his part, contended — Imo, That the prison of the Abbey was not of the description required by the act of sederunt, 18th July 1688. 3 2do, That the pursuer being within the sanctuary, of itself precluded the action. On the first point, the pursuer gave in a deduction of titles of the Abbey of Holyroodhouse, from which he concluded the Abbots had a jurisdiction of regality over the whole property belonging to them, comprehending a burgh of regality, in which the present site of the Ab- bey prison was included. When what is called the Burgh of the Canongate, and the Barony of Broughton were given off from the Abbey, a corresponding juris- diction was only disponed, while the original right re- mained with the Abbots over the part retained. It re- 3 The act requires that in time coming, when any bankrupt shall raise a process of cessio bonorum, against his creditors, that with the process he produce a certificate under the hand of one of the magis- trates of the burghs where he is incarcerated, bearing that he had been for the space of a month in prison, without which certificate the process is not to be sustained. 90 PALACE AND SANCTUARY verted to the crown, with the Abbey, at the Reforma- tion, and is now held by the bailie of the Abbey in vir- tue of a commission from the Duke of Hamilton, having right by grant from the crown. — Maitland's History of Edinburgh, vol. iv. p. 323. As it appears from the report that the court ground- ed their judgment chiefly on the second point, we shall feel ourselves justified to confine ourselves to it in the words of the report itself. On the second point, the pursuer pleaded — Suppos- ing the requisite of imprisonment to have been complied with, there is neither reason nor authority for contend- ing, that the privilege of the sanctuary should deprive the pursuer of the common law-right of applying for a cessio. On the contrary, it has been obtained in simi- lar circumstances, June 1798, Linley, 19th June, 1798, Donaldson, 19th March, 1799, M'Kenzie. 4 If the objection were well founded, it would go far to destroy the privilege of the sanctuary by condemning persons imprisoned for debt contracted within it to perpetual confinement. Answered — The pursuer of a cessio must be liable to be arrested in prison at the instance of his whole credi- 4 None of the cases appear to be fully reported, but the general question was not discussed in either of them. OP HOLYROODHOUSE. tors. This is always narrated in the summons, and is even adopted in the present case, though the fact does not warrant it, and he must be subject to future confine- ment by them, if he fail in his action. The process is' therefore, inconsistent with the privilege of the sanc- tuary. Nor is there any hardship in this retiring to the sanctuary, as a voluntary act on the part of the bankrupt ; and, if he is imprisoned there, and wish to obtain a cessio, he may get himself imprisoned in the Canongate jail, where he will meet with his creditors on equal terms. The Lords dismissed the action, 1st June, 1779-~— A reclaiming petition was followed with answers, and after a hearing in presence, as part of the trials of Lord Probationer Hermand, the Court thought both defences well founded, but the decision rested chiefly on the se- cond. The Lords unanimously adhered to the former interlocutor, dismissing the suit. The following decisions establish the sound doctrine and rule, that no fraudulent person can be protected in the Abbey — that the bailie has even power to search the person of a debtor for money, who has retired to the sanc- tuary, although not booked ; were this not the case, it is manifest, that fraudulent persons might retire to the sanctuary with impunity, defeat the important ob- ject of booking, and the act 1696, explanatory of no- 92 PALACE AND SANCTUARY tour bankruptcy, and permit the debtor, in the face of law, principle, and justice, to trample upon the most salutary rule of jurisprudence, to give to every man his own. In the case of Hamilton against the bailie of the Ab- bey, decided 12th June, 1741, C. Hume, p. 287, ifc was expressly found, that the bailie had right and title to search the person of the debtor, for money, while in the Abbey, though his name had not even been entered in the book. Hamilton of Redhouse, the pursuer, having retired to the Abbey, information was exhibited to the bailie by some of his creditors, setting forth that he had money in his pockets, but that he had refused to pay any of his debts with it : Therefore craving warrant to apprehend and search Redhouse, and to take what money should be found in his pockets from him. The bailie accordingly, without requiring an oath of the informers, or granting warrant to bring Redhouse before him for examination, granted the desire of the creditors1 petition against Red- house, who had not been booked in the bailie books ; and which warrant having been accordingly executed, and L.5 sterling taken from him, he, to redress these griev- ances, brought a process against the bailie for damages. The Lords found, that in consideration of the act of the Abbey Court in the year 1697? an(i practice agree- OF HOLYROODHOUSE. 93 able thereto of putting captions in execution against per- sons not booked, it was lawful for the bailie of the Ab- bey to grant his concurrence complained of, for putting the caption in execution : and found that, in considera- tion of the signed information exhibited to the defender Halyburton by the other defenders, it was lawful for Halyburton to grant the warrant complained of, to seize and search the pursuer. By the finding of the court, therefore, the regula- tion of the bailie 1697? ant^ practice following thereon, a person retiring to the sanctuary subjects himself to the jurisdiction even though not booked. In 1816 we remember of another1 instance of the same nature occurring at the instance of a person of the name of Miller of Balumbo against a debtor of his who had retired to the Abbey with, it was alleged, L.300 in his pocket. He was searched by the officer in virtue of a warrant from the bailie, but all that was found upon him was L.4. Nor will persons flying to the sanctuary, and medi- tating flight from Scotland, \nfraudem of their creditors, receive protection, but it will be competent to the credi- tor to apply to the bailie for warrant for incarcerating, on account of being in meditatione fuga, in the same manner as may be done to any judge competent beyond the jurisdiction of the Abbey, and of which the follow- 94 PALACE AND SANCTUARY ing is a decided case, Park and Brown v. Bennet, Feb- ruary 10th, 1787, Fac. Col. No. 311, p. 480. Alexander Park and George Brown, two of the cre- ditors of John Bennet, who had retired to the Abbey, made oath before the bailie, that they believed he had gone thither to have an opportunity of leaving the king- dom, and thus disappointing the demands of his credi- tors. John Bennet was examined by the bailie, and on his refusing to find security for his remaining in Scotland, he was committed to the jail of the Abbey. Afterwards, in consequence of an application to the Lord Ordinary on the Bills, in which it was stated that the creditors in- tended to bring Bennet to trial as a fraudulent bank- rupt, and that the Abbey jail was insufficient for the purpose of securing his person, a warrant was obtained for removing him to the prison of the Canongate. Observed on the Bench — - The privilege of the sanctuary would be greatly per- verted, if it could be used as a means of a bankrupt's escaping from Scotland, and thus evading altogether the demands of his creditors. The bailie of the Abbey, therefore, with regard to those who take refuge within his jurisdiction, must be warranted, in the same manner as the other ordinary judges, to use the necessary pre- cautions for preventing wrongs of this sort. OF HOLYROODHOUSE. 95 Upon advising a reclaiming petition for John Bennet, with answers for the creditors, which were followed with replies and duplies, the Lords affirmed the interlocutors that had been pronounced by the Lord Ordinary. Even the sanctity of the Sabbath can afford no pro- tection to a criminal, nor to a person in meditationefugee on Sundays, otherways a debtor may escape, the credi- tor defeated of his lawful debts, and the ends of justice frustrated, as was found in the case of Gavin Kemp. In that case the court were " unanimously of opinion, " that as the imprisonment was founded on an alleged " intention to defraud creditors by flying to another " country, it might proceed at any time."" And the imprisonment was accordingly found legal, 16th Janua- ry 1786. Kemp v. his Creditors, 7 Fac. Col. 387- In Rome, under the Christian Emperor, Sunday was consecrated from all labour and legal proceedings, Cod. Lib. iii. tit. xii. De Feriis, 1. 3. 7- II. In England no judicial act can proceed on Sunday, Blackstone, 290. 29- Ch. ii. c. 7- In that country, as no- ticed before, everyman's house is his sanctuary against dili- gence for debt, either by arrest or capias, but there are ex- ceptions against this common diligence of the law, viz. the king's debtors are not protected in their own house. If the sheriff or bailiffs enter the house, they may bring the debtor out of it. Upon renewed capiases, and outlaw- 96 PALACE AND SANCTUARY ry, the sheriff may break in, in virtue of a capias utlagatum, which is competent upon mesne process, 3 Blackston«. 284. The KingVBench or Chancery issue capiases for forcing a man to find security to keep the peace, and sometimes may be used to support execution in cases of common debt. In Scotland neither poinding nor arrestment nor per- sonal execution can legally proceed on Sunday, 2 Diet. 405. A debtor may remove beyond the precincts of the Abbey, unmolested, during Sundays, as was in effect found by the following decision of the court, Halybur- ton v. Stewart, July 21st, 1709, Fount. Vol. ii. p. 518. Patrick Halyburton having contracted a debt, near to L.3000 sterling, and having secretly conveyed away his effects, he retired to the Abbey ; but Sunday being a day wherein they are secure from all captions and other diligence, he came up to the house of Mr. Stewart, one of his creditors, and having supped with him, and thereafter stayed until it was past twelve o'clock at night, he is seized upon by a messenger, by virtue of a cap- tion, and put in prison ; whereupon he gives in a com- plaint to the Lords, that having come to Edinburgh on a Sunday to treat with Mr. Stewart, anent his satisfac- tion and security, and his own liberation, he did trepan and ensnare him, by pretending much kindness, and in- viting him to supper, and then protracting the time, in 1 •OP HOLYROODHOUSE. 97 overtures and terms of accommodation, till the town- clock struck twelve o'clock at night, and then he had a messenger prepared to take him to prison, by a most il- legal and treacherous practice, all the preparatory steps being done on the Lord's-day, which is all one as if he had executed his caption on the Sunday, contrary to our law and decisions, and the prohibitions of the Roman Emperors, 1. ii. c. de feriis, to secure that holy day from profanation : second, The queen by her indemnity has pardoned all offences, contempts, forfeitures, and outlawries preceding the 19th April last, which is the date of her indemnity, which will extend to denouncia- tions and captions prior to that date, and ita est this caption was raised long before, and escheat being a casu- alty falling to the queen by the debtor's contumacy and delinquency, she may either gift it or discharge it as she pleases, and having done it he could not be warrantably incarcerate by any denounciation or contempt prior to the said act. Answered., — He staying till the Monday morning there was neither law nor reason to stop their legal dili- gence ; and for the queen's pardon, it only indemnifies contempt and outlawries ; and if it were restricted to civil rebellion for debts, it would introduce a strange confusion, and be like the Roman novae tabulae, or the Jewish year of jubilee, which discharged all former 98 PALACE AND SANCTUARY debts ; and let indemnities for a hundred years back be consulted, it was never pretended that any of them dis- charged captions or legal diligence, to compel debtors to satisfy their just and lawful debts. Decision. — The decision of the Court was allowing a proof, — whether Halyburton had been fraudulently de- tained out of the Abbey after twelve o'clock on Sunday night, when a caption was executed against him, but repelled the second reason foresaid on the queen's in- demnity, and found that it did not extend to take off the effects of captions for civil debt prior to the date thereof. The case Rachlet v. Lauder, 4th July 1628, noticed by Durie, was referred to ; but whether the proof allowed by the Court was taken, the import known, or a decision pronounced, we are not informed. According to the decision, Hamilton against the Bailie, the regulation 1697> and inveterate practice of debtors retiring to the Abbey, subjects him to all the consequences of the jurisdiction, in the same manner as if he had been booked. Nearly upon the same prin- ciples it was found in the case Dickson against the Re- presentatives of Mitchell of Alderstcn, December 3, 1751 ; Falk. ii. 2. p. 292,' that a debtor who had re- tired to the Abbey, was found to have incurred bank- ruptcy although not booked. James Sommerville held his estate of Castle Sommer- OF HOLYROODHOUSE. 99 \ille, of John Mitchell of Alderston, and being also his debtor, disponed the same to him as for a price paid. To which disposition it was objected in the ranking of his creditors, that he was at the time bankrupt in terms of the statute 1696. It was proved that Mr. Sommerville had left his country house at mid-summer 1751, before resignation upon the disposition, and took lodgings in the Abbey : That he used to leave the Abbey late on Saturday night, at which time he avoided being seen, and returned on Sunday night ; that he lived there a considerable time, but was not marked in the clerk's book of those who had taken sanctuary. The bailie-depute of the Abbey deponed, that he heard that the former clerk used sometimes not to mark in his book people who had taken sanctuary, that he might sink the fees paid to him on that score, for which he was accountable to the bailie. The Lords were generally of opinion, that it was not necessary to bring a man under the qualifications of the act, that he should be marked in the clerk's books. And found it proven, that James Sommerville was notour bankrupt. In connexion with the preceding decision and others, there is another, viz. the executors of White against Butter, 25th November 1800 ; Fac. Col. which estab- 100 PALACE AND SANCTUARY lishes, that the bare retiring to the Abbey, though not booked, constitutes bankruptcy in terms of the statute 1696 ; because the attempt at concealment there, so as to enjoy personal protection, and a desire not to be con- sidered a bankrupt is a fraudulent act, and consequently he will not be benefited by his o\vn fraud. The debtor's bare retiring to the sanctuary to ipso, constitutes bank- ruptcy in the eye of our law, as was found in this case. There the Court, under the construction of the bankrupt act, 54 Geo. III. c. 137, f°un(l that a debtor's bare retiring to the Abbey, after receiving a charge of horning, becomes notour bankrupt, although no caption should be issued. In the case Husband against Camie, July 26, 1749, the Court found that the keeper of the Abbey Jail, in common with other keepers of jails, is liable, if a debtor escapes by his fault. Kilk. No. 1. p. 502. In the action at the instance of Paul Husband, mer- chant in Edinburgh, against Alexander Carnie, late keeper of the prison of the Abbey of Holyroodhouse, for payment of a debt of L.8, 7»- Sterling, due to him by George Beveridge, and which Beveridge had contracted in the sanctuary in the Abbey, on the ground that Carnie, while jailor of the Abbey prison had allowed Beveridge, imprisoned at the instance of another credi- tor to go out of prison, although arrested by Husband, and although Husband had paid Carnie the ordinary OF HOLYROODHOUSE. 101 thies, and had advanced to him money for the prisoner's aliment as usual. Some of the Lords doubted if any action lay against the prison-keeper of the Abbey at all, for it was not clear, ls£, That there could be a prison within a royal asylum ; 2d, That even in a royal burgh such action lay against the jailor. But as such prison for debts contracted within the Abbey, has been in use by long practice ; and as the same doubt was formerly made and overruled, the ac- tion was sustained. The case of the Earl of Strathmore, to which we have before alluded, shall now be given in detail. In the year 1815, Lady Campbell of Arkinglass, thereafter (in 1817) the Countess of Strathmore, obtain- ed from his Majesty, Geo. III. a royal warrant to occupy and possess certain apartments in his Majesty's palace of Holyroodhouse, as her residence. These were com- pletely furnished by the property belonging to the Crown. In consequence of this warrant, her Ladyship was put in possession of the apartments pointed out in the grant by the proper authorities, with the whole furniture and articles therein situated, conform to inven- tories made up at the time, and her Ladyship took up her residence within the palace. After the Earl's marriage in 1817? he took up his 102 PALACE AND SANCTUARY residence in the palace with the Countess, his Lordship became indebted to William Laing, bookseller in Edin- burgh, in the sum of L.694, for which he and the Coun- tess granted their acceptance on 1st October 181 7> at- four months. John, late Earl of Strathmore, died in July 1820, and his only brother, the present Earl, who succeeded him, and the Countess shortly after repaired to London, leaving the management of his affairs to their agent, Mr. Hamilton. Mr. Laing raised horning on his acceptance, and edictal citations for payment were given thereon at the market-cross of Edinburgh, pier and shore of Leith, as then required by law, against persons forth of the kingdom, upon sixty days1 charge. The object of this diligence and charge was to operate a poinding of the effects within the apartments of the Palace so possessed by the Earl and Countess, by virtue of his Majesty's gift, for payment of the said debt. A suspension and interdict was obtained, and after various steps of procedure unnecessary to be here men- tioned, the bill was passed, and came to depend before the late Lord Alloway as ordinary, who, on a debate of the parties, was pleased to pronounce this judgment — " 4th Dec. 1821, — Having heard parties procurators, " finds that there is no precedent for the sanctuary, of OF HOL YROODHOUSB. • 103 " Holyroodhouse, or for the palace affording any protec- " tion to effects of debtors residing therein so as to re- " lieve them from poinding : Finds, that the suspender's " reasoning could only apply to the sovereign's residence " in the palace, whose presence ought not to be disturbed " by the intrusion of persons into the palace without his " permission, or that of the keeper appointed by him : " Finds, that the diligence in question was authorized " by the Baron Bailie of the Abbey, the officer appoint- •' ed by the hereditary keeper of the palace; therefore *' repels the reasons of suspension, and finds the letters " orderly proceeded, and decerns." Argument for the Earl and Countess. — Against this interlocutor it was maintained, inter alia, " The Abbey " of Holyroodhouse was founded by David the First, " in the year 1128, the original charter is given by " Maitland, taken, as he says, from a beautiful original " in the archives of the city of Edinburgh. King Da- " vid thereby granted ecclesiae sancti cruets, fyc. et " canardis regularibus in eadem Deo sertantibus, fyc. " various lands in the neighbourhood of Edinburgh, " accompanied by a number of privileges, among which " are the following : et prohibio ne aliquis capeat pan- " dum super terram sancta crucis nisi abbas ejusdem " loci rectum et jus facere recusaverit. Volo autem ut 44 omnia prescripta ita liberaliter et quieti teneat sicut 104 PALACE AND SANCTUARY " ego meas proprias terras possideo." The former of " which clauses, Maitland translates thus : and I strict- " ly forbid all persons from taking a poind, or making " a seizure in or upon the lands ef the said Holy cross, " unless the abbot refuse to do justice to the person in- " jured.^ So far from any encroachment having been made on the monastic privileges of the Abbey of Holyroodhouse, they were handed down entire for a period of four cen- turies, when, in addition to the privileges of a monastery, those of a royal palace were superadded by the erection of a palace by James V. of Scotland in 1528, adjoining to the south-west corner of the church. On the after suppression, and the annexation of their property to the Crown in the year 1587? *he whole domain of Holy- roodhouse, with the privileges thereby annexed, came to be vested absolutely in the Crown, and one of the most conspicuous of those privileges, amongst others, was the right which for centuries had accompanied the grant of erection, to the exclusion of all legal measures within the precincts : that it was a privilege of protection from insult, as a royal residence, and containing at all times the property of the sovereign : That from the erection of the palace, down to the accession of James the Sixth, to the throne of England, it continued to be kept up as a royal residence, fit at any time for the reception of the OF HOLYROODHOUSE. 105 sovereign, and was occasionally occupied as such by our monarchs, and upon the strongest principles of expe- diency, it became indispensably requisite, that the exe- cution of diligences, whether of the nature of a caption or poinding should not be permitted within the very walls of the royal palace.5 Letters of open doors were not adverted to, which is a species of diligence containing warrant to messengers at arms to break open the doors of those places in which the goods of the debtor are lodged, and to poind the same. This was held to be a severe practice against the residence of a private individual, and seldom had re- course to ; but when applied to the sovereign, the dili- gences of poinding and letters of open doors were justly considered as a gross violation of the law, inasmuch as that an officer and his concurrents might destroy the very walls and doors of the palace, to pierce with sledge hammers, and the locks forced open or destroyed by false keys, or instruments of violence, and which vio- lence could not be reconciled, either with the idea of a 5 In the Mosaic Law, we find that the Kothathites followed their charge, and carried on their shoulders the utensils and sacred furni- ture of the tabernacle in the midst of the camp, the safest and most honourable place — Exod. vi. 16. 25 — Num. iii. 4 10. 21. 106 PALACE AND SANCTUARY place of protection, or with the decorum, which is due to the sovereign and his residence. In conclusion, it was maintained that there never had been any relinquishment of the royal dignity. It was given by the king as a residence for the princes of the houses of Bourbon, in a completely furnished state for their acceptance. On the recent visits of the Arch- dukes of Austria, and of Prince Leopold, to Scotland, their Royal Highnesses were entertained in the Palace of Holyroodhouse as the king's own guests. The grant by his Majesty to Lady Campbell, no farther back than 1815, designated it expressly " Our Palace of Holyrood- " house," which designation of itself was sufficient to con- fer upon it all the privileges of a palace ; and the terms of the warrant expressly show, that his Majesty at no time ceased to regard Holyroodhouse in the character of a royal palace. But if doubt could ever have existed on this point, it was now completely set at rest by his gra- cious Majesty George IV/s visit to Scotland, during which he actually occupied Holyroodhouse as a palace, holding his courts there, and displaying all the splen- dour of royalty within these very walls, where Mr. Laing with his messengers and concurrents would assume the right of entering by main force. Argument for Mr. Laing. — For Mr. Laing it was maintained, principally upon the ground that the privi. OF HOLYROODHOTJSE. 107 lege of the sanctuary extended merely to the protection of the person, but not to the property of the debtors; that even the protection did not extend to criminals, nor to debtors in meditatione fugee, which, however, is a criminal charge : neither did it extend to the king's debtors, nor to debts contracted within the bounds of the sanctuary of Holyroodhouse ; and farther, no debtor was privileged, beyond a certain limited time, unless he got his name registered in the Abbey books. He like- wise maintained, that it was only to the actual residence of the king, or " where his Majesty's royal person re- " sideth," that the privileges of the palace attached, and that the Palace of Holyroodhouse did not admit of that description ; and he refers to the authority of Coke and others upon the subject, but it was denied that these authorities, so far from supporting his position, establish the reverse. For the authority of Coke, as well as the statutes referred to, no doubt, made a marked distinction as to striking in actual presence of the king, or within the inner-gate of the king^s palace, where the king is residing at the time, as to the punishment inflicted. But this is evidently on account of the magnitude of the punishment, which, according to the Scottish sta- tute James VI., is declared to be treason, and punish- able by death, and establishes in the most marked de-> 108 PALACE AND SANCTUARY gree the very distinction for which the defenders con- tend. It was stated that Mr. Laing labours to confound the distinction between the extended sanctuary and the ac- tual Palace, while he himself affords the most satisfac- tory statutory proof of the existence of that distinction. The act of James VI. c. 173, marks the distinction in the most decisive manner between the king's Palace and the precincts of his palace : for it expressly limits the capital offence of striking " within the cornour yatte of " the King's Pallace." And Sir George M'Kenzie follows up the same notion, when he says, " This act " 173 bears expressly the King's Palace, where his " highness makes his residence for the time, and it " expresses the inner gate to cut off the ordinary debates " de confinis Palatii" Finally, Mr. Laing relied on the concurrence of the bailie to the execution of the diligence in question, but he mistook the fact, for the bailie had at no time con- curred in the execution of any diligence within the gates of the Palace. Had the bailie, however, granted such concurrence, his act was reversible, the same as that of any other inferior judge, and the case just re- solved into the competency of any such proceeding with- in the walls of the royal Palace. OF HOLYROODHOUSE. 109 On the part of the Earl it was farther urged, that the findings of the Lord Ordinaiy were not applica- ble to the question at issue, and by no means bear out the conclusions contended for. The finding " That " there is no precedent for the Sanctuary of Holyrood- " house affording any protection to the effects of debtors " residing therein, so as to relieve them from poinding," so far from being averse to the plea of the Earl is complete- ly in his favour, seeing there is no precedent for such proceeding. This was not a general question of sanctu- ary,' but purely a case of the privilege of the royal Pa- lace, and there never has a case occurred where such a measure as that here resisted was attempted, till the re- cent proceedings which have called for this interference of the Earl as well as the officers of the crown. Had such a power existed, there had been no lack of instances where proceedings of this description had been adopted, concerning the number of private individuals who have from time to time held apartments in the royal Palace. On the other hand, the absence of all precedents is just what might have been expected, on the supposition of the general acquiescence of the country at large, in the privileges which accompany a royal Palace, from the re- spect and deference due to the head of the state. The next finding of the Lord Ordinary's interlocutor, " That the suspender's" reasoning could only apply to 110 PALACE AND SANCTUARY the sovereign's residence in " the Palace," is equally ill borne out by the actual circumstances of the case. Happily for Scotland, the respect due to the sovereign has been so universally acknowledged, that no instance till now has occurred of such an attempt. But in the absence of precedent in Scotland various authorities were referred to in the English courts, that no distinction as that taken by the Lord Ordinary exists. Once consti- tuted a royal authority, so it remains, with its privileges attached -to it, whether the sovereign be within its walls or not. No temporary absence, however extended, de- prives it of its privileges, or incidental or casual circum- stances gives it privileges to-day, and denies it to-mor- row. The criterion is, if the residence is recognised and kept up as a royal residence, with the appendages and insignia of royalty, where the sovereign may take up his dwelling, if he thinks fit, the Palace of Holyroodhouse always preserved those requisites to constitute a royal Palace, so that at no time was there ever any reason for the operation of the Lord Ordinary's opinion. If, how- ever, doubt could have existed, recent events have fully removed that doubt, by the actual residence of the sove- reign in the royal Palace, holding his court there, with all the splendour and insignia of royalty. The last finding of the Lord Ordinary, " That the " diligence in question was authorized by the baron OF HOLYROODHOUSE. Ill " bailie of the Abbey, is equally unsupported by the " matter of fact." Though correct in fact, the baron bailie giving his authority, could certainly have never fixed an important, and at best, a very dubious question of this description. The acts of the bailie are subject to review, the same as those of any other inferior jurisdic- tion, and his judgments, in discussions with litigants, are daily submitted for review, to the Court of Session. The concurrence of the bailie could never go farther than a mere opinion, liable to be questioned upon any grounds in law ; and if such authority had been truly given in the present case, it would just have resolved into the question now under consideration, how far his concurrence was legally and properly given ? But the truth is, that this finding of the Lord Ordinary pro- ceeds upon a mistake upon a point of fact, which his Lordship was led into by the erroneous statements of Mr. Laing. The bailie gave no concurrence in this case, either to the execution of the poinding, or letters of open doors within the royal palace. It is true, he granted his " concurrence to the execution of the poind- " ing on the within letters of horning over effects situated " within the sanctuary of Holyroodhouse." Now, this is but a concurrence to the poinding, and to a poinding within the precincts of the sanctuary, not to a concur- rence to a poinding within the walls of the royal palace. 112 PALACE AND SANCTUARY The Earl and Countess might have had horses in their stables, or other property within the precincts, totally distinct from the palace, and without its walls, liable to the operation of the diligence of poinding ; but the bailie of the Abbey at no time gave his concurrence to the execution of poinding within the palace itself, nor would he have ventured to have done so ; and to the let- ters of open doors, in the present case, no concurrence was given. The Second Division of the Court having, by their judgment under date 18th Feb. 1823, adhered to an in- terlocutor of the Lord Alloway Ordinary, the same was carried by appeal to the House of Peers, who, on the 22d Feb. 1826, reversed the judgment of the Court below. The chief point involved in that decision, as reported in Wilson and Shaw's Appeal Cases, was, whether some valuable pictures, belonging to the Earl and Countess of Strathmore, could be poinded by a creditor of the Earl's, in certain apartments in the Palace of Holy- roodhouse, which they occupied in virtue of a royal warrant. The creditor pleaded, that the Abbey afford- ed only protection to the person ; and whether it should be regarded as a sanctuary or a royal palace, it afforded no protection against diligence executed against the goods of the debtor. The Court of Session sustained OF HOLYROODHOUSE. 113 this plea of the creditor, but the judgment was reversed by the House of Lords, or, in other words, it was found that a poinding could not be executed of goods within the Palace of Holyroodhouse. In the narrative of the case, the reporters give some account of the Abbey and Palace. " In 1528, James V. erected, at the south- " west corner of the Abbey, a royal palace ; and on the " suppression of religious houses in 1587? tne whole " domain, with the privileges thereto attached, wasvest- " ed absolutely in the Crown." The case was first brought from the Bill Chamber to the Second Division of the Court of Session. In the speeches of the judges which were then delivered, a distinction is made be- tween the privilege of the Abbey as a sanctuary, and , the privilege attached to the royal palace. The revered and learned Lord Robertson observes, " the first ques- " tion is, how far is it lawful to poind within the sanc- " tuary ?" and a little below, he states it as the second question, " whether it is competent to execute a poind- " ing within the royal palace ?" With regard to the first question, his Lordship was of opinion, that no ques- tion occurs with respect to privileges of the sanctuary, because the person of the debtor has not been attacked. And with regard to the second question, his Lordship thought, that the privilege of exemption from the poind- 114 PALACE AND SANCTUARY ing of goods, could be pleaded only with regard to the effects of the sovereign. The Lord Justice Clerk, after dividing the case into two questions, as Lord Robertson had expressed him- self thus, " I agree that the sanctuary affords no pro- " tection against the diligence of the law in relation to " goods, but I have much doubt as to the competency " of a poinding within the palace. It happens to be " situated within the sanctuary, and this leads to some " confusion. But let it be supposed that it were in the " Castle or at Linlithgow, the question will then be " purely presented." His Lordship then expressed an opinion favouring the idea, that goods situated within the Palace of Holyroodhouse, whether belonging to the King or his guests, could no more be poinded than they could be attacked by diligence. . The bill of suspension having been passed, the rea- sons came to be discussed before the First Division of the Court, when their Lordships adhered to an interlocutor of Lord Alloway, finding the letters orderly proceeded, or finding the poinding legal. And it was this judg- ment that was reversed by the House of Lords, on the motion of Lord Gifford. The opinion of the Second Division of the Court seems to be in unison with that of Lord Gifford, who, after do- OF HOLYBOODHOUSE. 115 scribing the locality of the Abbey and palace, expressed himself thus, " Your Lordships thus see, that there re- " mains in Scotland the privilege which formerly belonged " to abbeys. It so happened, that within the precincts " of this sanctuary, and attached to the Abbey, a royal " palace was built, which became the residence of the " monarch s of Scotland. It is admitted, that this pa- " lace still retains the semblance of a royal residence, " that it has a guard of honour, officers, heritable and " otherwise," Sic. His Lordship then gave an opinion, that a poinding could no more be executed within the Palace of Holyroodhouse, than an execution in the Pa- lace of Kensington, for this reason, " that it is not " seemly, that the royal palace, or the royal presence, " should be exposed, to be made a scene of disturbance " or confusion." In a subsequent part of his speech, he expresses himself thus, " As to the permission given " by the baron bailie of the Abbey, it was a permission " to poind, not to use letters of open doors ; and it ap- " plied to the sanctuary, and did not bear to extend to " the palace. But here the privilege claimed is not "what attaches to the sanctuary, but to the palace ; " and the circumstance of the palace being placed with- " in the precincts of the sanctuary, cannot effect or im- " pair the privileges of the palace." Thus, in pronouncing the decision of the upper 116 PALACE AND SANCTUARY House, Lord Gifford adopted the view that the Second Di- vision of the Court had taken of the case, namely, that the palace being placed within the precincts of the sanctuary, could not affect or impair the privileges of the palace. There is another question lately in dependence be- tween the trustees of the late William Bruce, uphol- sterer in Edinburgh, against the Earl and Countess of Strathmore, who still retain apartments in the Palace, a brief account of which we are called upon to give, in respect of the analogy that it bears to the preceding case of Mr. Laing. It appears that upon the 2d July 1818, the late Mr Bruce purchased, or agreed to purchase, from the Earl of Strathmore certain furniture and books in the custody of the Earl in his lodgings in the Palace, at the price of L.499 Sterling, which was paid. Afterwards the Earl, by letter to Mr. Bruce, under date 10th July 1818, agreed to hire from Mr. Bruce, on certain terms stated by him, the foresaid furniture and books. Mr. Bruce having died, certain proceedings were adopted by his trustees, to get delivery of the furniture and books then in the possession of Lord Strathmore, and hired to him as above-mentioned. Mr. Bruce's trustees applied by petition to the bailie of the Ab- bey, to authorize them to take the said furniture and OF HOLYBOODHOUSE. 117 books out of the apartments in the Palace occupied by the Earl. This led to some litigation as to matters of form ; but on the merits the Earl seemed to plead, that the sale whereby Mr. Bruce had acquired right to these articles was fictitious and collusive, and was tainted by usury, so that, in truth, the articles still belonged to himself, and not to Mr. Bruce. As this matter could not be competently tried, except in an action raised at the instance of the Earl himself, he raised a summons of reduction and declarator before the Court of Session, in which he concluded that the alleged sale should be set aside and reduced, and the furniture and books de- clared to belong to himself, and not to Mr. Bruce. The chief and only relevant ground alleged by the Earl for making such a demand was, that the sale or transaction with Mr. Bruce, whereby he had acquired right to these articles was tainted with usury, and was therefore null and void : and after a good deal of discussion, the Court of Session remitted to the Jury Court to try how far this allegation was well founded. Accordingly the following issues were adjusted and sent to be tried by a jury : — " It being admitted, that on the 2d July 1818, the " pursuer executed a deed or writing, (No. 3. of pro- " cess), bearing to be a sale and assignation of certain " furniture and books, then the property of the pursuer " to the late William Bruce, for the sum of L.499 118 PALACE AND SANCTUARY " sterling; and that on the said day, the said sum was " paid by the said William Bruce to the pursuer. It " being also admitted, that on the 10th July 1818, the " pursuer, by a letter, (No. 6. of process), agreed to " hire from the said Mr. Bruce the said furniture and " books, on the terms stated in an offer by the said " William Bruce, prefixed to the said letter : Whether " it was intended and understood by the parties to the " said assignment and agreement, that the sum of L. 499 " in the assignment mentioned, was to have been " lent to the pursuer by the said William Bruce ; " and whether it was usuriously stipulated between the " pursuer and the said William Bruce, that the said " William Bruce should receive at the rate of more " than five per cent, by the year on the L.100, for for- te bearance of payment of the sum of L.499 in the said " assignment mentioned ?"" At the time of this issue, a minute was put in by the pursuer, bearing, that the verdict should go for the defenders ; and, on the other hand, the defenders agreed that the furniture and books should be inventoried by persons named by the respec- tive counsels, and that if the principal sum of L.499> and interest that were not paid within a month, the fur- niture and books should be sold at the sight of persons named by the counsel, and the price paid out of the pro- OF HOLYROODHOUSE. 119 ceeds to the defenders, on which all claim at their instance should cease. On the 21st May 1828, a verdict was accordingly returned for the defenders. Inventories were then made up, and the month having elapsed without an offer of redemption, the counsel named two parties at whose sight the sale of the inventoried effects should proceed. On the 28th May 1829, the authority of the Jury Court was interposed to this agreement, and the sale of effects ordered to proceed, if payment was not made on or before the 20th June. On the 5th of that month a motion by the pursuer to have that order recalled was refused with expenses. The effects were situated in Holyroodhouse ; and on the 12th a messenger-at-arms, by virtue of a warrant of the Jury Court, passed to the Palace ; but being refused access, he returned an execu- tion of deforcement against a person acting on behalf of Lady Strathmore. When a motion, founded on the alleged deforcement, brought the situation of the furni- ture, as within the Palace, before the view of the Jury Court, their Lordships ordered intimation to be made to the Officers of State ; and also, to the alleged deforcer, who was ordained to lodge a minute, stating what had passed between the messenger and himself. He stated that he had acted upon the authority of Lady Strath- more, who claimed right to the effects, and who had 120 PALACE AND SANCTUARY transmitted to him the royal warrant in his favour for enjoying the exclusive possession of the apartments, and which warrant he had exhibited to the messenger. The Lord Advocate appeared for the Crown, and, on the 30th June the Jury Court pronounced the following interlocu- tor. " In respect, it is admitted, and now appears to the " Court that the goods in question are situated within " the Palace of Holyrood, and are thereby protected from " the diligence of the law, whether the property of the " Earl of Strathmore, or Countess of Strathmore ; and " as the statement has been made by the Lord Advo- " cate, in his character of Officer of State, that he was " bound to protect the prerogative of the king to the " full extent of the law, it is ordered, that this motion "be dismissed; and farther, it is ordered, that this " cause be transmitted back to the Court of Session to " apply the verdict." The cause then came before the Court of Session to apply the verdict. No appearance was made for the pursuer, and the Court, upon the motion of the defend- ers, applied this verdict, assoilzied them, " and granted " interdict against the Earl and Countess of Strath- " more, and all other persons under their authority or " direction, from removing the furniture and books in " question from the premises in Holyroodhouse occu- " pied by them.11 OP HOLYROODHOUSE. 121 This decree, by which the Earl was also found liable in expenses, having been duly extracted, Mr. Bruce^s trustees presented a new application to the bailie of Ho- lyroodhouse, setting forth, that by this decree it had been decided that the furniture and books in question did not belong to Lord Strathmore, but to them, and therefore praying for warrant and authority to them at the sight of the clerk of Court, or of any other person to be named by the bailie, to remove the said books and furniture from their apartments in the Palace, or from any other place within the jurisdiction of his honour, where the said books and furniture, or any part thereof, now are, or can be found, in order that they might dis^ pose of the same for the behoof of the representatives of the late Mr. Bruce. A litigation is now in dependence relative to this matter, Lord Strathmore maintaining, that though the articles in question may belong to Mr. Brace's trustees, they can obtain no legal warrant for taking them out of his possession or custody. He has referred to the case of Laing ; but the difference between the two cases is very obvious ; and even supposing the case of Laing to have been correctly decided by the House of Lords, (as to which, with all deference, some doubt may be en- tertained,) it by no means follows, that because the ac- knowledged property and effects of a debtor cannot be 122 PALACE AND SANCTUARY attached in the Palace for the payment of debt, the true owner, whose property happens to have got within the Palace, and to be there detained, whether by a tortuous act, or by mere accident, cannot have the ordinary reme- dies of law for vindicating and recovering it. It would be strange if a valuable bird should fly to the palace, or if a quadruped should accidentally get within the Pa- lace, such animal could be withheld from the owner by any person, residing within the Palace, who happened to catch or secure the animal. The same principle must apply to any other article unjustly withheld from the true owner. No, decision, however, has yet been pro- nounced upon the application of Mr. Brace's trustees, which has been very recently presented. Another question, fraught with no small importance, came lately to be determined by the whole Court. It originated in an action of augmentation and stipend at the instance of the late first minister of Canongate, and insisted in at the instance of his successor, the present incumbent, the Rev. Dr. Gilclirist, against the Earl of Haddington, as hereditary keeper and ranger of the king's park of Holyroodhouse ; and in which, after a lengthened expensive litigation, the Court, on the 25th November 1829> found for the defender, that the king's park of Holyroodhouse having always been in the pos- 1 OP HOLYROODHOUSE. 123 session of the Crown, and from which no teind had ever been paid, was not liable in payment of teind. Against this suit the Earl of Haddington objected, Is/, That the property held by him, on which it was proposed to allocate part of the stipend, was not within the parish of Canongate ; and, 2rf, That the property being a royal park, and having been Crown lands at the remotest period at which their history can be traced, enjoys at common law as Crown lands a complete. ex- emption from teinds. The defender afterwards abandoned the first defence in respect of a decision that was pronounced by the Second Division of the Court, between one Ross, calling himself collector for arrears of assessment, against the Earl, 8th June 1824, where it was found that the king's park was within the parish of Canongate, to the effect of subjecting the defender in his proportion of the expense of a manse. As to the second defence it was admitted, that if it can be shown, that the king's park formerly belonged to a subject, and was a novum acquisition by the Crown, the case will then be governed by the decision of the Court, in regard to the lands of Falkland : which de- cision, it was maintained, originally gave rise to the present action, the incumbent having been misled by the notion, that the two cases were exactly the same. Another question was urged by the noble Earl, whether, 124 PALACE AND SANCTtTAHY supposing the king's park to have been uniformly from the earliest period part of the ancient patrimony of the Crown, is it on that account entitled to an exemption from the payment of teinds ; that exemption having been uniformly enjoyed by the Crowtt lands in Scot- land. The papers upon both sides of the question embracing more than an ordinary field of discussion, learning and . importance, it would be improper to go beyond an outline of a limited nature, in which indeed we are in some measure superseded, in consequence of the learned and lengthened opinions given seriatim by some of the Judges at pronouncing judgment. The property in question called to be subjected to pay teinds to the first minister of Canongate, came into the family of the Earl in the following manner : In 1646, Sir J. Hamilton of Prestonfield, a younger brother of the second Earl of Haddington, was infeft upon a Crown charter, granted in his favours, of the office of heritable keeper and ranger of the royal park of Holyroodhouse, in payment of a large debt due to him by Charles the First. To this office the whole rents, emoluments, and profits arising from the park were attached to the grant. In 1690, Thomas Earl of Haddington acquired right to the office by adjudication, and afterwards obtained OF HOLYROODHOU3E. 125 from William and Mary a crown charter destining the office to the heirs of entail, of the honours and estates of Haddington. This charter granted to the Earl " To- " turn et integrum haereditarium officium et custodiam *' Roborarii rostri lie Park de Halyrudehouse, cum om- " nibus reditibus, proficuis, divoriis, viridariis, feodis, *' casualitatibus,privilegiis,et emoluments quibuscunque " ad idemspectan. et pertinen. cumpotestate admittendi " et constituendi etiam expellandi sub custodes unum vel " plures, in diet. Roborario, pro diet. Comitis de Had- *' dingtoune, ej usque praedict. eorum arbitrio, ac etiam " cum plena potestate levand. et recipiend. annuos et " terminos reditus proficua et divorias ad id pertinen. *' omni tempore futuro jacen. infra vicecomitatum " rerum de Edinburgh. Quodquidem totum et integ- " rum diet, haereditarium officium et custodia diet. Ro- " borarii lie Park de Halyrudehouse cum integris profi- " cuis privilegiis et casualitatibus ad idem pertinen. ad " Dominum Jacobum Hamiltoune, militem, filium et " haeredem deservit. et retornat. quond. Jacobi Hamil- " toune dePriestfield perprius ha^reditarie pertinuerunt." The tenendas clause in this charter is of the fol- lowing tenor: " Tenend. haereditarium officium et " custodiam diet. Roborarii de Halyrudehouse, cum •' omnibus et singulis integris reditibus, proficuis, divo- ' ** riis, viridariis, feodis, casualitatibus, privilegiis et im- 2 PALACE AND SANCTUARY " munitatibus quibuscunque ad idem pertinen. et spectan, " particulariter et generaliter supra mentionat. jacen, " modo praedict. prsefat. Thomae Comiti de Hadding- " toune et haeredibus masculis talliae et provisionis et " assignatis praedict. de nobis et successoribus nos- " tris in libera alba firma feodo et haerpditate in " perpetuum per omnes rectas metas suas antiquas " et divisas prout jacen. in longitudine et latitudine in " domibus edificiis, hortis, pomariis, boscis, planis, " moris, raaresiis, viis, semitis, aquis, stagnis, rivolis, " pratis, pascuis, et pasturis, molendinis, et multuris, " aucupationibus, ven'nibus, pisca'nibus, petariis, turba- " riis, carbonibus, carbonariis, cuniculis, cuniculariis, " columbis, columbariis, frabrilibus, brasinis, brue- " riis, genistis, silvis, memoribus, virgultis, lignis, " tignis, lapicidiis, lapide et calce, cum curiis et earum " exitibus, herezeldis, blood witis, amertiamentis cum " communi pastura, liberoq. introitu et exitu, ac " cum omnibus et singulis aliis libertatibus commodi- " tatibus proficuis asiamentis, et justis suis pertinen. " quibuscunque, tarn non nominat. quam nominat. tarn " subtus terra quam supra terram procul et prope, ad " praedict. haereditarium officium cum proficuis divoriis, " viridariis, feodis, casuali tatibus, privilegiis, et im- " munitatibus quibuscunque spectan. seu juste spec- «c tare valen. quomodo libet in futurum libere quiete OF HOLYROODHOTJSE. 127 ** plenarie, integre, honorifice, bene et in pace, sine *' ulla revocatione, contradictione, aut obstaculo ali- 'i quail." On this charter infeftment was taken, and the office, along with the estates of the family, had descended to*the present Earl of Haddington. It was further mentioned, that the office was heredi- tary, and includes the absolute right " of levying the "whole rents, profits, and emoluments arising from " the park,1"1 for the Earl's behoof exclusively. That it still remains a Royal park, and in respect to third parties, is in the same situation as if no heritable grant had been made of the office of keeper. And it was argued that .the office of keeper and ranger of the Royal park had been enjoyed by the defender without any con- nexion whatever with the parish of Canongate, and that no demand had ever been made by the clergyman, since any thing is known of the history of the park of Holy- roodhouse, either prior or subsequent to the creation of the office, for teinds from the lands. And the property has been held to be crown lands from time immemorial, and of course that it cannot be presumed that it was in the hands of a subject at a period when its history is to- tally unknown, and before and after the Reformation the property has always been de facto free teind. It was further stated, that the property has always been free teind, et decimae nunquam antea separata sunt. 128 PALACE AND SANCTUARY The next point contended by the defender was, that at no period whatever did the King's park, or Arthur Seat, belong to any subject, and did not belong to the Monastery of Holyroodhouse ; or, in other words, that the hill or park did first belong to the Crown, and in reference thereto, notice is taken of an admission on the part of the pursuer, viz. that Arthur's Seat and Salis- bury Crags, and the lands forming the King's park, were part of the original possessions of the crown. The case of Falkland was different from the present. There the property at Falkland formerly belonged to the Earl of Fife, and was purchased by our Sovereign from the Earl, and being therefore originally the pro- perty of a subject, could not be exempted from payr ment of tithe to the minister of the parish. But here the King's park was originally the .property of the Crown, and could not be subjected in payment of tithe, even although it afterwards fell into the hands of a subject. On the part of the pursuer it was pleaded', inter alia, that no statute dictum or doctrine of any kind has ever recognised the existence of any exception in favour of the Crown lands by the law of Scotland. And while there is no authority in favour of such an exception, there is authority against it. Craig B. 1. dieg. 15, § 10. Sir George Mackenzie, in stating the exemptions OF HOLYROODHOUSE. 129 from tithes, does not include the Crown lands among the number ; II. 10. 6 and 7 ; Stair 2. 8. § 8, 9, 10 ; Bank. 2. - 8. 206 ; Forbes 8. 368. None of these authors include the Crown lands as an exception to the payment of tithes. The question was tried in regard to the Royal lands at Falkland, and decided against the exception pleaded for these ; Lister t). Skene, 25th May 1814. That it was alleged on the part of the defenders, that as the King's park has never been in the use of paying either tithes or stipend, it must be exempted from such a burden. This plea is irrelevant, as by the law of Scotland the non-payment of tithes for any length of time can never create a legal right of exemption. Among the different modes of exemption from a right of this kind, enumerated by our authors, exemption by pre- scription or immemorial usage is not included. But in point of fact, there never was any exemption of tithes in operation respecting this park. The pursuer here entered into a detail regarding the Abbey of Holyroodhouse, and the church which was afterwards merged into the Canonga'te parish ; and argued that there was nothing in that history which could benefit the defender's plea. Prior to the Refor- mation the minister was merely a chaplain or vicar, de- pending for his provision on the pleasure of the abbot. 130 PALACE AND SANCTUARY After the Reformation, he was, like other parochial clergy of Scotland, provided out of the third of benefices ; and more lately the ministers of Canongate received their augmentations from the rents of houses in the Canon- gate, by an act of the Legislature, originating in an agreement between the parties. Neither can the history of the stipend of this parish afford any aid to the gene- ral argument maintained by the defender, that there has been an immunity from tithes and stipend by immemo- rial usage with respect to all, the Crown lands in Scot- land. From the power and influence of our kings, there may have been occasionally a relaxation from this burden with respect to their lands ; but a mere immu- nity from the payment of tithes will never confer a legal right of exemption ; and that there was no such exemp- tion in favour of the sovereign, is clear upon the autho- rity of all our institutional writers, who agree that the obligation to pay tithes is universal, but none of them give the least hint that there was any exemption in favour of the king. But although this park may at one time have formed part of the patrimony of the king, it has ceased to be so, and has become really the property of the family of Haddington. Even if the kings of Scotland did pos- sess any privilege of exemption from tithes, that privi- lege must have belonged to the sovereign alone, and OF HOLYROODHOUSE. 131 would not be extended to the king's donees. In Eng- land, where the king alienates any of his lands, to which he has prescribed an exemption from teinds, the prescription is thereby destroyed, even if the same lands should again come to the king by escheat or otherwise ; Gwillim, 514. If, therefore, the defender, or any of his predecessors, obtain infeftment in the king's park, it must follow, that whatever the king's right of exemp- tion may have been, the land in the person of the de- fender must be subject to tithes. It is true, the grant in favour of the family of Hadding- ton bears to be of the keepership of the park, not of the property ; but infeftment has followed on the right ; and it includes the absolute right of levying the whole rents, profits, and emoluments arising from the park, for his own behoof exclusively, and without making any ac- count in exchequer ; and from the date of the grant, the family have drawn the whole of the rents and pro- fits. This, therefore, is really an alienation of the sub- ject from the king to the Earl of Haddington. Such an alienation in relation to tithe must have just the same effect as the most complete alienation in any con- ceivable form. Tithe is a claim on the fruits, not on the solum. If the alienation be perfect and complete in respect to the fruits, it must be a perfect and com- plete alienation so far as tithe is concerned. After such 132 PALACE AND SANCTUARY alienation, the king has no interest to maintain the exemption, more than if the exemption had been feued out in the common mode of complete alienation of king's property. Even, therefore, if the king had a. complete exemption from tithe, that exemption cannot apply to the defender, who is thus infeft in the whole fruits and profits, the only subject upon which tithe can be claimed. The right of the defender is not merely aa ,r honorary one ; it is in substance a right to the property, and, of course, it must be subject to all the burdens- attachable to property. When this case came to be advised, the Court, (4th- March 1829), Found, " That the king's park is pro- perty originally belonging to the Crown, and that there is no evidence of said king's park ever having belonged in property to the Abbey of Holyrood, or to any sub- ject." But it was considered by the Court, that it might be of importance to know, what was the law of England in regard to domains of the Crown being liable in the payment of tithes. With that view the follow- ing queries were put to English Counsel : — PrtmO) Are Crown lands in England generally ex- empted from the payment of tithes ? Secundo, In this respect, is there any distinction be- tween the ancient and original domains of the Crown, OF HOLYROODHOTJSE. 133 and these which it may have acquired from subjects by forfeiture or inheritance ? Tertio, Is any distinction made between the more remote and extensive domains of the Crown, cultivated by tenants or villains, and the domains adjoining or at- tached to the royal palaces, and which were in the more direct occupancy of the Crown ? Quarto, If such exemption exists, does it belong to the Crown larlds absolutely, jure corona, or only to cer- tain lands in virtue of prescriptive usage ? Quinto, In the case of parks attached to royal resi- dences, over which keepers or rangers are appointed, are such keepers or rangers chargeable with tithes in re- spect of their occupancy of or drawing the rents and emoluments from such parks? Sexto, In the last case, is it a ground of distinction as to payment of tithes, that the keeper or ranger enjoys all the titheable produce of the park by virtue of his office, and that he holds the office in fee ? To these queries the following answers were returned by Sir Nicolas C. Tindal, and Sir James Scarlett. To Question ls£, The king, by his prerogative, is ca- pable of prescribing in non decimando : but without such prescription, the Crown lands are not by the law of Eng- land discharged from tithes. To Question 2d, The only difference between the 134 PALACE AND SANCTUARY ancient and original domains of the Crown, and those subsequently acquired by forfeiture or inheritance, would be, that in the former case, the prescription in won de- cimando would be more likely to be established by evi- dence than in the latter. To Question 3d, We think there is no distinction upon the ground suggested in this question. To Question 4tth, The exemption belongs only to lands the property of the Crown, which appear never to have paid tithes. To Question 5th, If the patent passes the freehold of the park to the rangers, the exemption from tithes would cease, and the land would be titheable in the hands of such patentee. But if the freehold does not pass to the patentee, but still remains in the Crown, which we understand to be this case, the prescriptive exemption from tithes still re- mains, notwithstanding the rents and emoluments be- long to the patentee. To Question Gth, We do not think any difference arises upon the ground pointed out in this query, if the freehold of the land still remains vested in the Crown. We think it right to state, that we answer these questions upon the supposition, that no ground of ex- emption of tithes is set up except that of mere prescrip- tion of non-payment of any tithes from time immemo- OF HOLYKOODHOUSE. 135 rial. If the parks belonged to any of the great religious houses which were dissolved at the time of the Reforma- tion, and the land was discharged from tithe in their hands, it will remain so under all the circumstances above supposed. On advising these opinions and whole cause, the ma- jority of the Judges being of opinion that the exemption claimed by the defenders was well founded, the follow- ing interlocutor was pronounced. " The Lords hav- " ing resumed consideration of this cause, and in parti- " cular their interlocutor of 4th March last, now final, " finding that the King's park is property originally " belonging to the Crown, and having again heard par- " ties procurators, and advised the opinion of English " counsel : in respect it has not been shown that said " King's park ever was subjected to minister's stipend, " or paid teind in any shape ; find that the immemo- " rial consuetude has established an exemption from " payment of tithe in favour of the Crown for these " lands called the King's park : therefore find that the " said King's park in the occupation of the Earl- of " Haddington, as heritable keeper and ranger, is not " liable in the payment of teind ; and sustain the de- " fences or objections for his Lordship to the rental in " the process, and decern." 136 PALACE AND SANCTUARY The Judges delivered their opinions seriatim to the purpose following. LORD BALGHAY. — This is a question of importance in point of law, and deserves consideration. From the discussion of the parties several original matters of dis- pute have been set at rest. 1. It is now admitted that the Palace and Park of Holyroodhouse lie within the parish of Canongate, or in other words, that the parish of Holyroodhouse and the parish of Canongate are the same. 2. It has been found under all the circumstances of the case, that the King's park and grounds about the palace are now the property of the Crown, and are to be held as part of the original Crown demesnes. At the same time this is a point not without difficulty ; and it is perhaps only the strictest examination of the charter of David I. which leads a lawyer to conclude that the property in question never was granted to the Abbey of Holyroodhouse. If such a grant had been made, it must have either appeared from the original grant, or been discovered from the description in feudal grants of adjacent lands, or would have been acknowledged in the transference of the property to the Crown after the Reformation, if such had truly taken place. It may be fairly admitted that there are many strong presumptions and probabilities adverse to this ; but it is doubted if such can be listen- OF HOLYROODHOUSE. 137 ed to in fixing the rights of heritable property. But let the argument stand on this point as it may, still now it must be held that the King's park has been from time immemorial the property of the Crown. 3. It is acknowledged on all sides, that no teinds ever have been levied or paid from the property in question. Under all these circumstances, it appears to be clear that the great general question must be decided, how far the property of the Crown in Scotland is to be held by that law as free from the burden of tithes. This is a question which must be decided on principle, as there is no legal authority to guide or direct us. If a certain proportion of the produce of the ground has been allotted for the maintenance of the ministers of religion, the Sovereign personally is just as much concerned in this as the meanest of his vassals. With reference to any such religious establishment, and the object of it, on principle there is no distinction of per- sons or of rank. — Each and every one is bound to con- tribute his mite. There are no correct traces to be found when teinds were introduced first into Scotland. Probably this ex- action was introduced gradually and imperceptibly like the feudal law. As the Christian religion gradually extended itself, so in all likelihood the levying of tithe did in the same manner accompany it. Although in 138 PALACE AND SANCTUARY this particular we are left in the dark, yet for some cen- turies we know for certain, that in Scotland we adopted the same religious establishment which pervaded all Europe. So much was this the case, that although it cannot be affirmed that the canon law is part of the di- rect law of Scotland, yet our acts of Parliament teach us that it is often to be taken for our guide and director, 1493, c. 51 ; 1540, c. 80 ;— 1551, c. 22. According- ly, Lord Bankton (L. 1. 42.) states explicitly, that that law " is much respected with us in what relates to ec- " clesiastical rights established before the Reformation, " and not inconsistent therewith ; and in consistorial " cases it still predominates : and the canon law is to " be preferred in matters entirely derived from it as in " tithes, because it is the law properly adapted to them, « and the Reformation cannot alter the case in things " that have no dependence upon it." When, therefore, in Scotland, we had the same re- ligious establishment as in other countries where the canon law was received and acknowledged as a written law, it is just as reasonable to conclude that we received and acknowleged the same means of support and main- tenance to the clergy, and that the introduction of tithes was coeval with the admission of Christianity into this country. From this it naturally follows, if nothing ap- pears to the contrary, that we adopted the same general OF HOLYROODHOUSE. 139 rule that all men were bound to furnish a certain pro- portion of the fruits to maintain the ministers of reli- gion. In this all are equally interested, and in princi- ple there is no room for making a distinction in rank or condition. What appears generally accords entirely with this view. All our law authorities lay it down, that the ob- ligation to pay tithe is founded on the public law ; that such obligation is in the nature of an universal servi- tude, and to which all lands are subjected ; and that there is no existing legal power or authority whatever which can grant an immunity from such burden ; Craig 1. 15. 8. 9 ; Mackenzie 2. 10. 6 ; Stair 2. 8. 7 ; Bankton 2. 8. 1—12 ; Ersk. 2. 10. 13 ; Forbes c. 8. p. 368. So universal was this burden understood to be, that even minister's glebes were by act of Parliament declar- ed to be free of teind ; 1587, c- 62 ; and no explana- tion of this act can unhinge the general understanding to be concluded from such enactment, that all lands were subject to tithes. So much is the burden fixed on the land, that it is admitted that the Sovereign can give no grant of land with such exemption. It is even admitted, that if land has ever been in the hand of a subject, it must for ever remain liable to the burden of tithe, even though acquired by the Sovereign himself. All this is founded 140 PALACE AND SANCTUARY on .principle, if the true nature of tithes is attended to, and as the same is understood in other countries. Our own Scots Legislature has declared, at a period when this matter was better understood than now, that the teinds are the proper patrimony of the kirk ; 1567> c. 10. These general principles being admitted, and sup- posing that the King's park attached to the palace of Holyroodhouse has been the original demesne of the Crown, and never in the hands of a subject, it comes then to be considered as a pure question of general law, upon what ground can it be legally maintained that the lands of the crown are exempted from tithe ? It is admitted that whenever the Sovereign parts with his property, such property becomes subject to tithe the instant it comes into the hands of a vassal. This is not the case with other transferable crown privileges. Neither is it the case with private individuals who have legally obtained an exemption. The exemption from tithe, then, must proceed from some privilege of the Sovereign. It must be vested in him jure corona. — In short, a personal privilege. As to this important right, it may be observed, 1. Is there any rational principle upon which this privilege can be founded ? Has not the Sovereign just as great an interest in supporting the ministers of the established religion as any of his OF HOLYROODHOUSE. 141 vassals ? Our earlier Sovereigns have just shown the reverse from our own conduct, and from the grants which they have made from their own lands. In fact, when we come to reflect on the great extent of the Crown lands at certain periods, and which were allowed to be feued by certain acts of Parliament, provided it was done without diminution of the rental, and particu- larly the extensive principality lands in the western parts of Scotland, if such a privilege had existed, then in all such wide and great districts, there could have been no religious establishment at all. If the Crown had enjoyed this exemption, it is not easy to explain how the feuars alluded to, or rentollers, who were no- thing but tenants at will, should always be subject to the payment of tithes. 2. If such a personal privilege had existed, vested in the person of the King of Scotland, it must have ap- peared in some of our earlier authorities. It would have been noticed in the old statutes authorizing the feuing of the Crown lands for the benefit of the revenue of the King. Craig has a most anxious title treating of all the rights of the Sovereign ; and yet there is no mention of this most important privilege distinguishing him from all his subjects. If such a right had existed in any of the other feudal kingdoms of Europe, he would most assuredly have mentioned it. 142 PALACE AND SANCTUARY 3. All our authors have laid down the general rule most distinctly as already noticed ; and they have, moreover, anxiously mentioned the exemptions there- from, and which they have fully explained. Now, if it be true that the Scots sovereign enjoyed this privi- lege, is it possible to conceive that these authors would not have mentioned it among the exemptions, particu- larly when some of these authors had such full access to know the fact. Were law officers of the Crown, and were men of the first legal knowledge and talents ? Their total silence, when their attention was necessarily called to it, affords a strong presumption that such a privilege was unknown. 4. Forbes, who wrote a treatise on church lands and tithes early in the last century, expressly says, (p. 368-9) that the prince's own goods are titheable; and he assigns this as a cause and a reason, that the king " cannot con- " stitute fens de novo cum decimus inclusis."" It is not possible that Forbes could have made this direct asser- tion, if it was part of the undoubted consuetudinary law, that the king's property paid no tithe. Taking all these premises into consideration, it does not appear that there is any foundation either in prin- ciple or in legal authority to assert, that there exists jure corona any privilege exempting the king's property from the payment of tithe. OF HOLYROODHOUSE. 143 If it is said that this is a public burden created for the good of the community, from which the Sovereign's pro- perty should be exempted, it ought to be remembered, that no such exemption exists as to any other public burden jure corona. The property of the Crown in Scotland is by common law subject to house-duty, win- dow-duty, &c. but by special clause in the several acts of parliament, such is particularly exempted. The only arguments which have been prominently brought forward, and indeed the only defence which can be made is, that no payment or exaction of tithe has been made or demanded from the subject in question from time immemorial ; and, therefore, it must be pre- sumed, that the parties concerned had no right to de-« mand it. When the matter comes to be properly explained, these premises are not sufficient to draw so broad a con- clusion. Except the simple fact, that no payment of tithe has been made, nothing more can be predicated ; and it so happens in the case of tithes, that no disuse of payment ever can create a right of exemption. The truth is, that the question never could have occurred till the present time, when the augmentations of stipend have been put on a new footing, and when the law has been completely matured and understood, that detinue debcntur parocho. 144 PALACE AND SANCTUARY In this very case the non-payment of tithes may be explained on grounds far more obvious, more natural, and more just, than any supposition of existing privi- lege. It arose from two natural causes, — the one the natural quality of the subject itself, and the other, that there was no call for the payment till the present period. As to the first it ought to be remembered, that this park was very limited in extent, — miserable as a royal domain. At one time a sort of forest, — the greater part of it totally incapable of cultivation, — the best part of it turned into what was called gardens, according to the fashion of the times, — some of it converted into meadow ground ; and occasionally the keeper was permitted to take a white crop from a few acres. It will at once be seen that this was not a possession or farm from which a regular tithe was to be drawn. As to the second again, it is utterly impossible that the question could arise till after the case of Tingwall, and of course, till the present time. 1st, Prior to the Reformation, there was no occasion for asking or levying any tithe for the maintenance of the minister of the church or chapel of Holyroodhouse. The charter of David the First provided the most ample means for the support of all the clergy of the Abbacy of Holyroodhouse. That provision was most OF HOLYROODHOUSE. 145 ample ; and the duty of serving the cure of the parish was accordingly imposed upon them. During that long period, there was not the smallest pretence for asking a single sheaf of corn from any lands except from those specially contained in the charter. 2rf, After the Reformation the funds were ample for the provision of the parochial clergy. The thirds of be- nefices were allotted for that purpose. Accordingly the ministers serving the cure of the kirk of Holyroodhouse were so provided. When certain lands were erected into a temporal lordship, and granted with the spirituality of certain, parishes to Lord Holyrhood, he was burdened with the payment of the ministers1 stipends of that parish. These thirds of benefices afforded a most ample fund, and were more than sufficient to provide for the whole parochial clergy of Scotland, according to the extent of the allowances then given. That fund extended to up- wards of L-72,000 Sterling per annum. Such was its extent, that by its various statutes 1567» c. 10. ; 1592, c. 121. ; 1-597, c- 241 ; it is declared that the surplus shall be levied and " employed to our sovereign Lord^s use." The highest stipend then allowed was only 300 merks, and what is hardly credible, the total amount of the stipends first granted, came only to L.2019, 6s. 6d. While such was the state of the church revenue, it never H 148 PALACE AND SANCTUARY could come into the head of any mortal to ask teind from the king's lands. 3rf, In the next period from the time of Charles the First to our own time, there was little occasion to make any demand from the king's property, because the king had ample means from the teinds of church lands still remaining in his hands, and from the teinds of bishops, to make provision for the clergy of his own parishes where he had property ; and it is not likely that the officers of the Crown would sanction any such exaction when they lawfully could provide the clergyman from another source. In fact, if a more liberal construction of the law re- specting the mode of augmenting ministers' stipends had not occurred, the present question never would have been stirred. It is quite in vain, therefore, to draw any con- clusion from non-payment as an evidence or proof of existing right. Neither are the terms of the act 1663 the least dero- gatory to the existence of any exemption on the part of the Crown. It will be remembered, that the burgh of Canongate was erected under the royal charter to the abbacy. The second minister was created by the inha- bitants prior to 1613 ; and these inhabitants had no right to place that second minister on the teinds of the parish ; and, of course, it was most just and reasonable. OF HOLYROODHOUSE. that he should be provided out of some impost levied from the property within the bounds of the burgh. The only other authority referred to is, the decree of the privy council in 1574 ; as to which it may be ob- served, that there is no court whose decrees are less en- titled to regard than those of the privy council of Scot- land, at least where the interest of the Crown was con- cerned. It is further to be noticed, that the question did not occur with the minister demanding a main- tenance, but it was a question with the tacksman whose right might be less or more, according to the under- standing of parties, and the practice of the country. And, lastly, from what has been already noticed, it is utterly impossible that in 1574, or prior to that period, any tithes should be levied from his majesty's property,, unless by special grant, of which instances did exist. From the nature of the thing such payment could not take place. The king was truly the grand titular ; and of course, when he had ample means, it is not likely he would burden his own lands when he could so easily ob- tain the end otherwise, although even this was sometimes done. Since the Reformation, the very same thing has happened with respect to lay titulars by creation. Till the late augmentation, there were many titulars who never paid for two centuries one farthing of stipend. 148 PALACE AND SANCTUARY tThey laid the stipend upon other lands, and saved their own. The non-payment of tithes from the Crown property can therefore be explained upon far more rational and constitutional grounds than the existence of any personal privilege jure corona. It has in the last place been said that the king, at least in England, can by long custom prescribe a right in non decimando. Whatever may be the law of Eng- land, this never can be the law of Scotland. On the subject of tithes, the law of England is to be resorted to with great caution. The two laws differ as to subjects teindable, and particularly as to vicarage. The very principle carries .in its own bosom an admission of the right of another ; and the law of Scotland permits no transference of property without a title. The Sovereign is as much subject to the law of prescription under the statute 1617 as any of his vassals. If he could by the constitution of the law acquire a right sine litulo, he must acquire it complete out and out ; and yet it is con- ceded, that his property, however long in his hands, is subject to the burthen of tithes the moment it gets into other hands ; and what is more, if the property ever was in other hands at any distance of time, no possession by .the Crown can justify a plea of exemption. Such a principle, therefore, is quite inadmissible by the law of OF HOLYROODHOUSE. 149 Scotland. It is possible to deduce a consuetude from a series of uniform positive acts ; but it is certainly not easy to understand a consuetude by a state of nega- tion as to a right which never could be called into exer- cise. On these grounds I am humbly of opinion, that there is no principle, no law, and no authority for maintain- ing, that the property of the Crown of Scotland is ex- empted from the payment of tithes. Lord Craigie concurred in the opinion given by Lord Balgray. LORD PRESIDENT. — I confess I have formed a dif- ferent opinion. We have no doubt on the one hand, of the general rule of law as laid down by Lord Balgray, that the whole land of the country is liable in teinds ; but on the other hand, we have to inquire what was the general prerogative of the Crown. I consider the case of Falkland a very strong case, as pointing out the opinion of the country in regard to the prerogative of the Crown. The land there did not form originally part of the domain of the Crown, yet still, having become the property of the Crown, it was con- ceived, erroneously, no doubt, that it was from that cir- cumstance exempted from the payment of teind. But the Court found that the lands having been originally the property of the subject, and liable to teind, were not 150 PALACE AND SANCTUARY exempted from that burden by becoming the property of the Crown. In this case, however, it is established, that these lands originally belonged to the Crown, and never had been the property of a subject. The question then is, whether in such a case the pre- rogative of the Crown exempts these lands from teinds. In the case of Falkland, we have the strongest indica- tion of the opinion of the country as to the prerogative of the Crown, that it exempted from teind every proper- ty acquired by the king, as well as what originally be- longed to the Crown. It is not a sufficient answer to this, that all the lands in Christendom are liable in teind. This is not the case. There are exceptions in every country ; and even in Scotland we have the exemption of land, cum dccimis inclusis et nunquam antia separatt's. From whom did this right of exemption flow ? If a charter from the Crowrt was produced, conveying lands cum decimis in- clusis, we would hold these lands exempted from teind. This proves, that the Crown had right to give the ex- emption. The Crown could not convey that which it had not to give ; therefore, the teinds must have been the property of the Crown before the Crown gave them away. If these teinds had belonged to the clergy, the Crown could not have given them away : therefore they must have been in the Crown, and in no one else. OF HOLYROODHOUSE. 151 We must also consider the strong indication of the opinion of Parliament, as declared in the act 1663, which proceeds on the narrative of the small stipend of the minister of Holyroodhouse, and it lays a tax on the inhabitants for the purpose of increasing that stipend. It is not a demand upon the teinds, but a tax upon the stock. There is not one word in the act to infer, that there were teindable subjects in the parish. And this is a clear indication of the opinion of parliament at the time. If they had ever supposed that there were teind- able subjects belonging to the Crown in the parish, out of which an augmentation might have been granted, they never would have laid a tax upon the inhabitants. Upon the whole I think the lands are exempted. LORD COREHOUSE. — This is a question of great diffi- culty, inasmuch as we can receive no light from any of our institutional writers, and no information from the decisions of this Court ; except in the case of Falkland, I do not think that much light has been thrown upon the subject by the opinions of the English lawyers, ex- cept from the evidence which it affords, that the Canon law has been adopted in England. I do not consider, in the view which I take of this case, that it is of much importance whether these lands were originally the pro- perty of the Crown, or were acquired. But the difficul- ty is to get at a principle. 152 PALACE AND SANCTUARY I am disposed to go back to the radical principle of the Canon law. It is true, that it was afterwards laid down, that all lands were teindable, and that there was no exception. But we find that that rule has not been universally adopted in any country. In Spain the pro- perty of the Crown is exempted ; and in France, there are a variety of exemptions, not only of the Crown lands, but the lands of private individuals. If then there is such a principle, that we are entitled to be regulated by consuetude, I thinl; that is the rule that should guide us in this case, — I say consuetude, not prescription ; for I do not think prescription will do. How do the facts stand here ? With regard to lands which fell to the king by forfeiture, there has been a constant consuetude of paying teind from them. But then there is this difference in regard to lands which have been always the king's property, and which continue in the king's possession, or in the possession of his lessees or keepers ; in that case there has been the constant consuetude of exemption from tithes. The king's park is in this situation ; and what has been the consuetude ? It does not appear that in any one instance this park has ever paid teind. There is no appearance in the ac- counts of the Crown of any such payment ever having been made : There were other parks belonging to the Crown in the same situation ; and there is no- evidence OF HOLYROODIIOUSE. 153 of any teind having ever been paid for these. I cannot lay out of view the opinion of the privy council in 1574. They expressly find, " that the said park, nir nae utheris " of our soverane Lordis parkis, are, or has been in use " of payment, of any teinds for the comes or gudes " growand or being tharein." This is the statement with regard to the practice of the country two centuries and a half ago. This is very strong evidence as to the desuetude, coupled with the circumstance that, after all the research that has been made, no instance has been found, that any of the lands in possession of the king or his lessees, or keepers, have ever paid tithes. Upon this ground I am for sustaining the defence. One difficulty I had, was the nature of the right in the person of the Earl of Haddington. If these lands had been feued out to his Lordship, or any other subject, then I should have held, that they would have been liable in teind. But Lord Haddington had no right to the lands themselves, for he is only custodier or keeper, with the right to all the profits. In short, he is only an officer of the Crown ; and the fruits are given as the patrimony of the office. If I was satisfied that this was a feudal grant, then I would think there was no ground of exemption from tithes ; but that is not the case here. LORD JUSTICE CLERK. — This is a question attended 1 54 PALACE AtfD SANCTUARY with considerable difficulty ; and I confess that at dif- ferent times, I have had different views of it ; but upon the whole, I have not been able to bring my mind to such a principle, as would warrant me in the conclusion that these lands are not Kable in teind. It does not appear to me, that the principle of consuetude, laid down by Lord Corehouse, is sufficiently strong to bear out the exemption claimed in this case. I admit that great weight is due to the evidence which is afforded by the declaration of the Privy Council, as to the general practice and understanding at that time ; but this can- not be decisive of the law. There is no evidence of the proper party having had an opportunity of stating his case. But we are to keep in mind, that not one of our authors takes the slightest notice of this exemption, even when they are stating the different exemptions from the payment of tithes. On the whole, I have not been able to bring my mind to any principle, which would entitle me to give effect to the exemption claimed by the defender. LORD GILLIES. — I concur in the opinion that has been delivered from the chair. Although there is a total silence in our law authorities as to the exemption now claimed, yet I think the authority of the Act of Parliament 1663 is very strong. The opinion before us as to the law of England says, that the King's lands OF HOLYROODHOUSE. 155 there are not liable ; and it appears to me, that in Scot- land we have adopted the same rule. We have acknow- ledged exceptions from the general rule, that all lands are subject to teind. There is an exemption by the law of Scotland with regard to particular lands, such as temple lands, " Lord Stair"" says " some lands also, by " long custom are teind free, as temple lands being out " of the use of payment for fifty years, were found free " from all time thereafter.'1 So that these lands were held to be free by non-payment for fifty years. What- ever therefore, the general rule of law may have been, an exemption is here admitted by the law of Scotland, arising from a non-payment of a certain number of years. We are called upon here to subject certain lands in payment of teind, when it appears that these lands have never at any one time been subject to that burden. From the whole evidence produced, and the documents referred to, I hold it to be quite clear, that the non-pay - meiii- of tithes in this case, must have originated from the conviction that these lands were not liable. It has not been made out that in any case these lands have ever been subjected to this burden, and therefore I am for sustaining the defences. LORD MONCRIEFF. — I am for sustaining the defen- ces. The Act 1663, which was passed for the express purpose of making a suitable provision for the Minister 156 PALACE AND SANCTUA'BY of this parish, never could have been passed, if it had then been thought that these lands were liable in teind. That act was after the Reformation, and when the keep1- ership of this park was in the hands of Sir George Douglas. The terms of that Act are very important. It lays a heavy assessment on all the inhabitants — there is no mention of teinds, but while every building is taxed, there is an express exception of his Majesty's palace. This is very important in connexion with this other fact, that not only this part, but all the King's patri- mony through the country was exempted from that bur- den. The terms of the judgment of the Privy Council, as declaratory of the fact, and of the general understand- ing of the country in 1 7^j are a^so very iniportant ; and it is to be observed, that this was a judgment of the Privy Council when both of the contending parties were present. 1 do not say, that this judgment of the Privy Council should rule your Lordships, if there was nothing else to be taken with it ; but you have wkft it the immemorial usage that in no one instance has teind ever been paid for the King's Park. Upon the whole, I think we should give effect to the exemption claimed. In the case noticed above at considerable length, the rights and titles of the noble family of Haddington, as heraditary keeper and ranger of the King's park, aire OF HOLYROODHOUSE. 157 stated. It would appear that the Earl of Haddington under the said titles, had exercised the right of property in the park, by opening quarries and working the same to a considerable extent, and, as was alleged, by opera- tions materially hurting and deteriorating the property. Accordingly an action was raised at the instance of the Officers of State, setting forth, " That th»e said " office of keeper and ranger, which the said Earl of " Haddington enjoys, although it may give right to " the annual profits of the park, vest in him no right " to the property itself — that remains with us and our " royal successors, and of which there has been no grant " or deed of alienation in favour of the said Earl, or " his predecessors in the said office, he and they being " bound to administer the same salv'a substantia, and not " entitled to exhaust or dilapidate, either partially or " totally, the property itself, by any operations of any " sort. That notwithstanding this clear and distinct " grant, the said Charles Earl of Haddington, or others " deriving, or pretending to have authority from him, " have thought proper, without any right or title what- " ever, to exhaust and dilapidate the property of the " said park, by opening quarries, and working the " same to a great extent, by which operations the pro- " perty of the said park is materially hurt and deterior- " ated." The summons then concludes, that it should 158 PALACE AND SANCTUARY be declared, that " the said Charles Earl of Haddington, " and his successors in the office of keeper and ranger " of our said park of Holyroodhouse, have no right of " feudal property thereto, and no right or title to work " quarries, or to do, or authorize any act or operation, " by which the property of the said park may be in " anywise dilapidated or exhausted : and therefore " ought to be decerned and ordained, to cease and " give up working the said quarries, and to desist " in all time coming from doing any act or operation, " by which the property of the said park may be in " anywise injured, dilapidated, exhausted or deterior- " ated." The following Interlocutor was pronounced by the Se- cond Division of the Court, (4th June 1830) as embodying the opinion of the majority of the whole Judges. " Find " that in opposition to, or inconsistingly with the terms " of the grant from the crown, which is the defender's " title of possession, there are not termini habiles for " any plea of the positive prescription in defence against " the conclusions of the action, and repel the defences " accordingly : that in consistency always with the " peculiar nature and terms of the grant from the crown " to the defender's ancestors and authors, the conditions " and extent of his right must be explained, defined, " and regulated by ancient and continual usage : that OF HOLYROODHOUSE. 159 " from time immemorial, quarries for stones had been " opened and worked within the park of Holyrood- " house by the defender's ancestors and authors : but " further find that the defender's right in that respect " is of a limited nature, and that he has not a right to " work quarries for general and unlimited sale : and " before answer as to the nature and special purposes or " extent of any limited right in the defender of opening " or working quarries, allow the pursuers to give in a " special condescendence of what they aver and offer to " prove as to the usage in these respects, both ancient " and recent, and when given, allow the defender to " give in answers thereto." As far back as 15th December 1714, the Court found, in the case M'Kay against Campbell, that the Castle of Edinburgh, though formerly a sanctuary for civil debts, did not hinder execution of his Majesty ""s letters. That the Castle was formerly a sanctuary, will be seen from pages 7 and 8 of this work, but as much legal and in- teresting matter is to be found in graemio of this decision, we give it at length from Bruce. — Gilbert M'Kay, one of the depute-clerks to the bills, against Campbell of Burnbank, store-master to the Castle of Edinburgh, and Colonel Stuart, deputy-governor there- of. Burnbank being under caption at the instance of Gil- 160 PALACE AND SANCTUARY bert M'Kay, a messenger apprehends him in Edinburgh Castle, but the governor having ordered the gates to be shut till the prisoner should be dismissed, the execution of the letters was stopt : whereupon M'Kay gives in a complaint to the Lords, which having occasioned an- swers, the case under debate was, Whether the Castle of Edinburgh was a sanctuary, and had jus asyli ? And it was alleged for the Governor and his Majesty's advocate, That it was a sanctuary as well as the Abbey, because of the statute of King William, cap. 4. 5. where it is said, That he who unjustly withdraws himself from the attachment, the officer shall raise the king's horn upon him for that deforcement, until the king's Castle ; whereby such diligence is bounded, (until the king's house.) And cap. 5. if any man strike or beat another within sanctuary, he shall pay a fine to the king : therefore the king's house is a sanctuary, otherwise the fine should have been paid to the church. And this, conform also to the civil law, where the emperor's palaces were called JEdes nobis consecratae. And to the law of nations, all princes' palaces in Europe, nay, amoassadors' houses, being privileged. 2rf, This was never disputed, and mognae autoritatis habitur, quod in lanlum proba- tum est res non fuerit nece&se scripto id comprehendcre, this being the greatest evidence of the conseimis utcn- dium ; nor is there any other authority for the common OF HOLYROODHOUSE. 161 law of England, and customary laws of France. 3d, As sanctuaries were not rejected by the Mosaic law, so the objections raised of late against them do cease in the present case, viz. The insolvencies with which the Roman clergy supported the privileges of these places, and their making them sanctuaries for criminals. But sanctuaries for private idebts, such as the precincts of Whitehall, the Savoy, the Mint, &c. have still been reckoned inter levamina inopum debitorum. Answered for the cornplainer, to the first, that by the act 173. Parl. 13. James VI. these statutes of King William are expressly restricted to the king's palaces, where he actually had his residence for the time. And as to the civil law, the very law here insisted on says, — That inclyta palatia ab omnia privatorum usu et communi habitatione excipimus. Nor by that law were the persons of such as were in the prince's service, or inhabited his proper patrimony, exeemed from diligence, as is expressly declared in 1. 2. c. De Conduct. Dom : August ut pari disceptationis eventu in omnibus causis legibus serviant. Neither is there any such privilege mentioned in the prince's palaces in all the titles, De his qui, Confug. ad Eccl. and De his qui Confug. ad Asylis, take no notice of any Jus Asyli, belonging to them. And as to the ambassadors'1 houses, if any country indulge it to them, it depends entirely upon the good will of the prince with 162 PALACE AND SANCTUARY whom they reside, but is nowise founded on the law of nature or nations ; as says De Grot, de Jure Belli ac Pac. 1. 2. cap. 18. No. 2. And it was stiffly refused to the French ambassador by Pope Innocent II. because he could give no reason for it. And this also proves, that it cannot be here without an act of Parliament, or the like. To the second answer, that custom cannot be ob- truded as law, merely ex opinions vulgi, unless it had been the opinion of lawyers, or the lords had so decided. Nay, as to the former of these, Sir George M'Kenzie, in his observations upon act 35. Parl. 5. Ja. III. says expressly the contrary ; so that though no caption had ever been executed there, yet this can never give privi- lege by prescription, unless by contrary acts they had asserted their privilege all the years of a legal prescrip- tion. To the third, that there is no proof offered that any such privilege belongs to the above-mentioned places in and about London. And though it were so, yet they may have it either by express concession, or clear pre- scription, and then their authority can have no weight in the present case. It was further alleged for the complainer, that the Castle being now converted to another use, and become a garrison, that relative sanctity, (if ever any there was) can now take no place ; and though some of our kings have resided there, yet it seems to have been principally OP HOLYROODHOUSE. 163 designed for a fort rather than a palace. 2d, That no argument can be drawn from the Palace of Holyrood- house, since its being a sanctuary, is only the remains of the privileges belonging to the religious houses, which privileges are continued to such places even in reformed countries beyond seas, as appears from Simon Van Lewen, in his Consur ; For, Par. 2. lib. 1 . cap. 1 . 3d, If these reasons prevail, the like may be said of Falk- land, Linlithgow, &c. Answered for the Lord Advocate, — To the first, that when any place is vested with a privilege, it continues in that case till it be disfranchised. And, therefore, the Castle's becoming a fort, will not disfranchise it, since it does not cease to be the king's house, nor come into any private use. To the second it was answered, that the pretence is precarious, and even these religious places abroad derived their privileges from grants of the respec- tive princes, which was only to communicate to them the privileges of the princess own palaces. Nay, the Castle of Edinburgh having anciently been castrum puel- larum, it was originally a religious house as well as the Abbey. To the 3d, It was answered, 1st, There has been no common nor settled belief, that these above- named palaces were sanctuaries. *2d, They are not con- stabularies nor garrisons. 3d, They are now private dwellings. 164 PALACE AMD SANCTUARY The Lords found, the Castle of Edinburgh hath no privilege of sanctuary to hinder the execution of the king^s letters. Act. Charles Erskine. — Alt. Lord Advocate. — Mac- kenzie, clerk. Hence, from these decisions, we have established, — 1. That it is necessary for a messenger executing a caption within the precincts of the Abbey, to have the concurrence of the bailie ; and to obtain protection, book- ing is necessary. 2. That the jurisdiction of the bailie was confirmed, and the right to have a prison there sustained. 3. That a debtor, though protected, is amenable to the jurisdiction of the Abbey, for debts contracted within and beyond the sanctuary. 4. That for a debt contracted by bill within the Ab- bey to a person protected, it is competent for the bailie to grant warrant for imprisonment within the jail there. 5. That incarceration in the Abbey jail was found not to be such imprisonment as to entitle the party to institute a process of cessio bonorum before the Court of Session. 6. That the bailie of the Abbey is entitled to grant warrant to search for money alleged to be about a debtor OF HOLYROODHOUSE. 165 who had taken refuge there, but had not been entered in the books. 7- That the same doctrine was some years ago sus- tained in a question that depended before the bailie after much discussion. 8. That a warrant for incarcerating a person, as in meditatione fugee, may be obtained against one who has retired to the sanctuary for protection. 9- That a warrant for incarcerating a debtor as in meditations fuga may be put in execution at any time, even on Sunday. 10. That a proof was allowed, whether a debtor had been fraudulently detained out of the Abbey after 12 o^clock on Sunday night, when a caption was executed against him. 11. That a debtor who had retired to the Abbey was found to incur bankruptcy, although not booked. 12. That a person retiring to the Abbey, though not booked, constitutes bankruptcy, horning having been raised, but no caption. 13. That the keeper of the Abbey jail is liable for the debt, if the debtor escapes through his fault. 14. That a person having a regular warrant to pos- sess certain apartments in his Majesty's Palace, cannot be disturbed therein by a poinding of effects, although the diligence proceed from the Supreme Court. 166 PALACE AND SANCTUARY 15. That in consequence of a verdict granted by the Jury Court, and transmission to the Court of Session, an interdict was granted at the instance of the trustees of a deceased person against a person residing within the Palace, from removing therefrom books and furniture hired by him. 16. That the king's park of Holyroodhouse having always been in the possession of the Crown, and from which no teind had ever been paid, was not liable in the payment of teind. 17. That the heritable keeper and ranger of the king's park cannot work quarries there for unlimited sale. 18. That the Castle of Edinburgh, though anciently a sanctuary for civil debts, long ago lost this privilege. And we know that the Mint Close, or " Cuizinhouse," formerly situated in the Mint Close, south side of the High Street of Edinburgh, a little below Blackfriar's Wynd, was, prior to the Union, a sanctuary ; but as there has been no coinage since that period, the privilege is discontinued. In conclusion, we are called on briefly to notice the following decisions. 1. The Court refused to grant the bailie of the Abbey power to give his concurrence in executing a Justice of Peace warrant for a Crown debt, 24th July 1734, El- chies Advocation, No. 1. Monro v. M'Millan. OF HOLYROODHOUSE. 167 2. The sanctuary can afford no protection against an obligation adfactum prestandum, 2d Decem. 1709- Fount. 2. 535. Turner v. Ross. 3. The privilege of a Peer in not being liable to in- carceration for a civil debt, extends also to his widow, M'Donald v. the Widow of a Peer, July 29, 1756. Fac. Col. 4. A pupil cannot be imprisoned for his father's debt. Johnston, 16th Decem. 1575. Colvil. 5. Diligence was suspended against a minor until she attains her fifteenth year. Sommerville v. her Father's Creditors, 25th June 1624. Durie. 6. Diligence against a pupil was suspended till his fourteenth year, Mackenzie of Rosehaugh v. Sir Wil- liam Scott, 5th December 1696. No. 1. Fount. By the French law minors were exempted from the Contrainte par Corps, " II est de jurisprudence," says M. Pothier, " que les mineurs pour dittes civiles et hors le cas de dol sont aussi exempts de la contrainte par corps, (Traite de la Procedure Civ. 287- See also Denisart Col. de Jurisp. vol. i. 696.) But if they had entered into merchandize or business on their own account, they were reputed majors, in that respect, and subject to imprisonment. In a preceding part of the work, we have shown that in the case of Dunlop, the Court found, that incarcera- 168 PALACE AND SANCTUARY tion in the Abbey jail, was not such imprisonment as to entitle the party to institute a process of cessio bono- rum, but there is no instance of the Court of Session having rejected the suit of any individual suing for the benefit of the act of grace ; there are, however, cases of persons having obtained the benefit of the last men- tioned act, while confined within the Abbey jail for debt, and claiming the privilege of sanctuary, and of which the following may be considered examples. 1. David Lindsay's petition for liberation presented 17th Jan. 1774 2. Elizabeth Jameson, do. 20th August 1775- 3. James Watson, do. . 22d January 177^- 4. George Scott, do. . 30th March 1794. 5. M. M. Drummond, do. . . 22d April It is altogether a mistake to suppose that persons re- tiring to the sanctuary elude the diligence of the law ; the very opposite is the case, for if fraud is alleged, they may be detected and imprisoned ; or if, in their flight, to leave the country, they may be secured as in medita- tione fagae, or, if effects are alleged to be secreted, they may, on proper application, be made safe : their chief object of availing themselves of protection being personal 1 OP HOLYROODHOUSE. 169 liberty, and to obtain a fair settlement with their credi- tors upon just principles ; and thereby avoiding much time and expense, but which too frequently unprincipled creditors despise, to gratify, it is to be feared, a malevo- lent disposition, even to their own hurt, of which, at the present day, lamentable to say, we have many instances, even among persons professing the outward appearance of morality and friendship. And surely, in these circum- stances it is desirable that a law similar to that in our sister kingdom, as practised in theCourt of King's Bench, were adopted, and of which we have taken some notice in pages 50, 51, 52, and 53 of this work, importing that unfortunate persons are allowed the benefit of the sanc- tuary to the effdct of obtaining a discharge within two months after application, on a fair surrender, without the necessity of being thrust into gaol. If this point shall reach the ears of the Legislature, and be productive of good, we shall have attained a great national blessing, and such as will far more than com- pensate for the labour, research, time, and expense to which we have been subjected in throwing together these sheets. In conclusion, we will be pardoned for more directly combining together a summary of the law of the Abbey, absolutely necessary for unfortunate persons retiring there to know. 170 PALACE AND SANCTUARY The protection from personal diligence, within the precincts of the Abbey of Holyroodhouse, was probably originally granted to the place of the king's residence, wherever he happened to hold his Court, that he might not be deprived of the advice and assistance of his sub- jects. In the records of the Abbey, the first instance of a protection having been granted to a debtor, as recorded by Buchanan, was in the case of John Scott, in the year 1531, just three centuries ago, and since that remote period down to the present time, protections have been granted to insolvent debtors, by the bailie of the Abbey. His appointment, and that of the clerk and officers of court, as before stated, originate from his Grace the Duke of Hamilton, as hereditary keeper of the Palace of Holyroodhouse., A person retiring to the sanctuary for personal protection from diligence, is understood to remain protected for the first twenty-four hours, that time may be afforded to him to obtain a pro- tection, after which he may be seized in virtue of dili- gence, and carried beyond the jurisdiction, unless a re- gular protection has been in the mean time obtained and booked.6 The fee for the protection, which ex ojficio is signed by the bailie, is L.2, 2s. including booking. It 6 Fac. Col. Abbe/ of Holyroodhouse or Sanctuary, No. 55, Janu- ary 15, 1779, Grant v. Donaldson. OF HOLYROODHOUSE. protects against all civil debts, but it does not pro- tect a person against punishment for crime or delict, or against the diligence of caption, if he escape from the mes- senger or other officer to the sanctuary by force or intrigue. The date of booking the protection is of great importance in ascertaining the period of the bankruptcy of debtors retiring to the Abbey, and in regulating the preference of creditors under the Bankrupt Act. If the debtor contract debt, either within or without the jurisdiction, after so retiring to the sanctuary, he may be sued for payment before the Bailie Court ; 7 and decreet being obtained and extracted, and a charge given, he may, in virtue of an act of warding, be incarcerated in the jail of the Abbey, or his effects poinded. He has not the privilege of suing a process of cessio bonorum in the Court of Session, while confined in the Abbey jail for debt, in respect that the jail is not of the description required by the act of Sederunt, 18th July 1688 ; and the circum- stance of the debtor's being within the sanctuary, of itself precludes the action.8 He may, however, sue for the benefit of the Act 1696, c. 32. usually called the 7 Fac. Col. No. 199. Thomas Townly, v. llichard Perry Ogilvie, February 24, 1810. 8 Fac. Col. Abbey of Holyroodhouse or Sanctuary, No. 139, James Dunlop v. his Creditors, July 11, 1779. PALACE AND SANCTUARY Act of Grace, in the same manner as any other debtor may do, wfco is incarcerated in any other jail. The bailie has power to grant warrant to apprehend, examine, and imprison debtors within the jurisdiction, as in medi- tatione fog firm to the church of the Holy Cross at Edinburgh, the several things hereafter mentioned : — That is to say, I grant to the said church, and to the canons regularly, 180 APPENDIX. serving God therein, in free and perpetual alms, the church of the castle (of Edinburgh), with the appur- tenences and rights thereof; trial by duel, water, and fire ordeal, so far as appertains to the ecclesiastical dignity ; " with the town of Selectuna (or Saughtcni) and its seve- ral divisions; and the church and parish of St. Cuth- berts, with all things thereunto belonging ; with the church, town, and its divisions, and the ground where- on the church is situate ; together with all the lands ]yiug under the castle : viz. from the well,1 which riseth or springeth near the corner of my garden, by the way which leads to the church of St. Cuthberts, and, on the other hand, along the foot of the Castlehill, to a rock at the east side of the Castlehill, with two chapels be- longing to the said church of St. Cuthberts, viz. Cros- torfin (Corstorphin), with two bovates2 and six acres of land, and the chapel of Libberton, with two oxgangs ;3 together with all the rights aud tithes, as well of the dead as of the living, in Legbernard, which Macbetver \_Mcwbeth] gave to the said church, and I have con- firmed. Also the church of Hereth, \_Airth in Stirling- shire^, with the lands thereunto belonging; together with the several lands by me thereunto annexed, a& 1 Supposed to be the well under the Well-house tower, vulgarly called Wallace's tower, situated at the foot of the perpendicular craig on the north side of the Castle, where there is still a constant spring of pure water, even in the dryest season. 2 Bovate of land is commonly taken at 15 acres, or as much as an ox can plough in a year. 3 Oxgang, the same as bovate. APPENDIX. 181 surveyed by my officers and others, I have given to Alvvinus the abbot, with a saltpan and twenty- six acres of land, in the said town of Hereth : Which church and lands I will, that ,the said canons of the Holy Cross freely hold and quietly possess for ever. And 1 here- by strictly enjoin, that no person* presume to molest or disturb any of the said canons, their vassals, or servants, residing on the said lands ; or that any work, auxiliary or secular customs, be unjustly exacted from them. I likewise grant to the said canons, liberty to erect a mill upon the said lands, and to have and enjoy in Hereth all the following rights, customs, and conve- niencies ; viz. in rivers, fishings, meadows, and pastures, and to enjoy all things necessary, in as full and ample a manner as when they were in my own possession ; together with the town of Broctunam \_Broughton\^ and its respective divisions ; the lands of Inverlet \_In- rerleith'] in the neighbourhood of the harbour, with the said harbour ; half of the fishings and tithes of the several fisheries belonging to the church of St. Cuthberts ; the towns of Petendreiam, \_Pittendrich~\ Hamere, [Hamar~], and Fordam, with their several divisions ; and the hospi- tal, with a carucate 4 or plough of land, and a perpetual annuity of forty shillings, out of my town of Edwinesburg, [Edinburgh~\. And for supplying the said canons with apparel, I give to them 100 shillings, payable out of my 4 Carucate, or Carucata terrtr, or as much land as a plough could till in one year, reckoned in England at 100 acres. Skene de Sig. verbo. 182 APPENDIX. I cam5 at Pert \_Perth~\, and from the duties that arise to me out of the first merchant ships that arrive at Pert [ Perth~\ ; and if none shall happen to arrive, I then give to the said church, out of my revenue in Edwinesburg [Edinburgh~\ , the sum of 40 shillings ; out of Streveline [Stirling'] 20 shillings, with a house, and one draught of a fishing-net at the said place ; and 40 shillings out of Pert [Perth"], with a house in my town of Edwinesburg [Edinburgh~\ free of all duties and customs whatsoever ; together with a house in the town of Berewick [Berwick~], a draught of two nets in Scypwell [Spytwett~\, a house in Rerafry [Renfrew'], five particates, 6 and one draught of a net for salmon, with a right to fish for herrings. And I strictly command, that no person whatsoever presume to take of any of the said canons, their vassals or servants, any toll or duty whatever. I also give to the said canons out of my camero [Ex- chequer^, a perpetual annuity of 10 pounds, for lighting and repairing their church. And I command my respec- tive officers and foresters, in the counties of Streveline [Stirling'], and Clacmannant [Clackmannan'], that they permit the said abbot and canons to take out of my se- veral woods and forests as much wood as they shall have occasion for, towards building their church, houses, and 5 Cain, the duty paid to the Superior, or Lord of the Manor, by the tenants ; but more especially, as in this place, certain petty tithes paid to the clergy, for lands held of the church. Skene de Sig. verbo. 6 Particate, or Partkata: terra:, is a rood, or the fourth part of an acre of land. Ibid. APPENDIX. 183 • other necessary constructions. I likewise order and direct, that the vassals and servants of the said canons shall have liberty to take out of my said tooods or forests whatever wood they may have occasion for, without molestation. And I also grant, that the swine belonging to the masters or canons of the said church be free from pannage. 7 I also give and grant to the said canons one half of the tallow, lard, and hides, of the beasts killed in Edwinesburg [Edinburgh^, with the tithes of whales and sea-monsters, due to me from the river Avin, \_Avon~] to Colbrandes- paide, [ Colbrandspath~\ , with the tithes of all my pleas and profits from the said Avin to the said Colbrandespaide, and the half of my pleas and profits of Kentyr, [Kintyre] and Errogeil [Argyle;~] with the skins of all the rams, sheep and lambs, belonging to my castle of Linlitcu, n^jE, \_Linlithgow~] which die .naturally, and eight chalders of ?yr4- ^ malt, eight of meal, thirty cartloads of brushwood from Libbertune, \_Libberton ;] one of mymills of Dene, \_Dean~], with the tenths of my mills of Libbertune and Dene, and those of my new mill at Edwinsburg, [Edinburgh~\ and *' * Cragfenmar, [Craigsendmark~\, as far as they appertain to me ; with all that belonged to Vineth White on the said rock, to be held in free and perpetual alms. I likewise grant to the said Canons the town of Her- fyergare, 8 lying betwixt the said church and my town of 7 Pannage, duty on swine that fed in the king's wood upon beech- nuts, mast, &c. 8 Herbergare, where the Canongate is now, so called from the houses of the canons, and the street where they were situated. APPENDIX. • \_Edinburgh,~\ and that the burgesses thereof have the liberty of buying and selling goods and merchandise in open market, as freely and without molestation and re- proach as any of my own burgesses. And I strictly en- join, that no person presume to take by force any bread, ale, or other vendible commodity, without the consent of the said burgesses. I also grant, that the said canons be free from all tolls and customs in my several burghs and lands, in all things they deal in. And I strictly forbid all persons from tak- ing a poind, or making a seizure in or upon the lands of the said Holy-Cross, unless the Abbot refuse to do jus- tice to the person injured. I will likewise, that the said Canons hold all the aforesaid things as fully as I enjoy my lands. And I grant, that the said Abbot shall have his court in as full, free, and honourable a manner as the Bishop of St. Andrews, Abbot of Dunfermline, and Ab- bot of Kelcu (Kelso) enjoy theirs. Attested by these witnesses — Robert, Bishop of St. Andrews ; John, Bi- shop of Glasgow ; Henry, my son ; William, my nephew ; Edward, the Chancellor ; Herbert, the Treasurer ; Gil- limichell, Comite, Gospatrick, brother of Delphin ; Ro- bert Montague ; Robert de Burneville ; Peter de Bruce ; Norman the Sheriff; Ogu Leising Gillise ; William de Graham ; Turtan de Crictune ; Blemo the Archdeacon ; Alfric the Chaplain ; and Waleran the Chaplain. APPENDIX. 185 No. III. EXTRACT from HAILES' ANNALS, Vol. I. p. 108. " In the same year (1128) David founded an abbey for canons regular, in the neighbourhood of Edinburgh. The place is still called Holyroodhouse." And in a note be- low he adds, " It is called by Fordun, L. v. c. 48, Monas- terium Sanctce Crucis de Crag. It received this appella- tion from its vicinity to the precipice now called Salisbury Craigs. Some of my readers may wish to be informed of the etymology of a word so familiar to them. In the Anglo Saxon language, saer, sere, means dry, withered, waste. The Anglo-Saxon termination of Burgh, Buih, Burrow, Bury, Biry, &c. implies a " castle, town, or ha- bitation ;" but in a secondary sense only, for it is admitted that the common original is Beorg, a rock. The reason of this is well explained by Gibson : " Oppida solebant antiquitus in locis eminentioribus aedificare ; unde est quod nostrae gentis historiae produnt, plurima per An- gliam oppida insignoria quse in valibus hodie consistunt primum super montes fuisse constructa ; incolas autem, aquarum inopia, coactos in loca inferiora descendisse."— Regula generates de nominibus locorum, subjoined to Chr. Sax. p. 4k Hence we may conclude Saerisbury, Serisbury, Salisbury, is the dry or waste habitation, — an apt descrip- tion, when it is remembered that the hills which now pass under the general though corrupted name of Arthur's Seat, were anciently covered with wood. The other eminences 186 APPENDIX. in the neighbourhood of Edinburgh had similar appella- tions. Calton or Caldoun is admitted to be " the hill covered with bushes." Moutrees is supposed to be the corruption of two Gaelic words signifying the " covert or receptacle of the wild boar." There is a small eminence in the neighbourhood of Salisbury Craigs, called St. Leonard's Hill, from Leonard a French anchoret : a par- cel of ground adjacent to it still retains the name of Her- mits and Termite. This is a manifest corruption of Ere- mitae Sanctce Eremi, or the Monks of St. Anthony of Egypt. The chapel of the same St. Anthony, at the back of Salisbury Craigs, is well known. From the grant by David I. to the Canons of Holyrood, bearing " Concedi- mus Herbergare quoddam burgum," Maitland, the histo- rian of Edinburgh, draws this pleasant inference, that th°, Canongate was anciently called Herbergare. The true sense of the word is to be seen in a grant made by Mal- colm IV. to the Prior and Monks of Coldingham : " Ut secundum voluntatem suam adducant suos proprios ho- mines ubicunque maneant in terra sua, ad herbergardum villam de Coldingham." Chart. Cold. p. 14, i. e. " to in- habit or people." It would be tedious to recite, and su- perfluous to confute the legendary history of the founda- tion of Holyroodhouse ; see Bellenden, fol. 184. It has not even the merit of antiquity ; for it appeal's to be a fiction more recent than the days of Boece. APPENDIX. 187 No. IV. ENGLISH VERSIONS of some of the OLD SCOTS ACTS in the Work. I. — Act of King William, Nephew to King David the First, titled, " Of Injurie done to ane within Girth" (P. 27.) 1. If any man within the Sanctuary, or any other place, asks and craves the King's peace, and any other man, by will, zeal, and purpose, lifts up his nive or fist to strike or heat him, and that it be proven by two honest men, he shall pay to the King four cows, and to him whom he would have stricken one horse. 2. And if he gives one blow with his nive (his hand folded) without drawing blood, he shall pay to the King six cows, and to him whom he did strike two cows. 3. And if he draws blood, he shall give to the King nine cows, and three cows to him whom he did strike. 4. And if he kills or slays him with his nive or fist, he shall give to the king twenty -nine cows, and one young cow, and shall satisfy the friends of the defunct, conform to the law of the country. Again, C. 6, same year, titled, " Of violence done with- " in the king's court" If any person draws a knife to another within the king's court, the knife shall be stricken through the mid- dle ofhis hand. 188 APPENDIX. Ja. 6. Parl. 13. C. 173.— 1. And if he draws blood his hand shall be cut off. 2. And if he slays (murders) any man he shall give twenty-nine cows, and one young cow, and make peace with the friends of the deceased, conform to the laws of the country. Act. Alexander 2d. C. 6. titled, " Of him quha flies to " halie kirk." P. 26. Item 6. And if any person flying to the kirk (sanctuary) confesses himself to be innocent, and for poverty may not be able to find security, he shall appeal- in any sure and convenient place, as the king or bishop shall think best ; and if he be found innocent, he shall depart in peace ; and if he be found guilty, he shall be punished according to his demerits. 7. Moreover, manslayers, traitors to their masters, and they who are challenged of murder or treason, shall be lawfully accused thereanent ; and if they in manner fore- said flie to the kirk, the law foresaid shall be kept and ob- served to them. By Act, Rob. 2, titled, " Ane manslayer fliand to the " girth." C. 9. P. 27. It is statute and ordained, Item, how often a manslayer takes himself to the privilege of the kirk, he should be admonished and required to come forth and present himself to the law, to know if the slaughter was committed, beforethought felonie or imir- der. 2. And if he being admonished and required, will not come forth and present himself, from that time forth in all time thereafter, he shall be banished and exiled as a committer of murder by forethought felonie, keeping and reserving to him the privilege of the kirk, (church) to which he may behold himself. APPENDIX. 189 3. And if he compears and presents himself to the laws and justice, and it be proved by an assize that the slaugh- ter was committed on a sudden, he shall be restored and entitled to the privilege of the kirk as before. 4. And he shall find security to the sheriff anent that crime, before he pass forth of the privilege or girth, to where he did flie. No. V. ACTS of the Bailie Court, 1686, 1697, and 1757, fixing the Rules to be observed by persons taking refuge in the Sanctuary, and other matters of importance. ACT 1686. " Considering that declared rebells, traitors, and other persons of bad principles disaffected to his majesty's inte- rest, and also to the bailie's own prejudice, and also consi- dering that other persons fleeing into the bounds of his ju- risdiction foresaid, ought to be protected : Therefore, the bailie prohibits and discharges the hail inhabitants to harbour or resett any person whatever, until such time as they cause their names and designations, the place from which they came last, and the time of their entry to be insert in a book appointed for that effect, under the pain of L.20 Scots money for ilk faillie toties quoties, by and attour what cost, skaith and damage the said bailie may be found liable in for suffering such persons to be har- boured within the bounds and jurisdiction foresaid." 190 APPENDIX. ACT 1697. This act prohibits the inhabitants and householders to harbour or entertain any strangers within their houses, or allow them beds, unless they procure the bailies' war- rant in write for that effect, under the penalty of L.5 Scots to be paid by the landlord, by and attour his doub- ling the dues of the respective booking-monies for eacli fault. ACT 1757. This act requires " All the inhabitants or householders to give into the bailie or clerk a note of such lodgers as shall come to reside with them from time to time, and that within twenty-four hours after they shall so come to reside, or lodge with them, under the penalty of L.5 Scots, toties quoties for each transgression ; as also the time of their removal, and to what place, if to them known." FEES payable by the Knights of the Order of the Thistle at their Instalment in the Abbey in the year 1685. To the Under wardrobe- Keeper for erecting the Throne, L.I 11 6 To the Clerk of the Abbey, 220 To the Housekeeper, - 220 To the Porter, - - - - - 110 Sterling, L.6 16 6 APPENDIX. 191 No. VI. By his Royal Highness the PRINCE OF WALES, Regent of the United Kingdom of Great Britain and Ireland, in the name and on the behalf of his Majesty. A PROCLAMATION. GEORGE, P. R. Whereas George William Earl of Rothes was duly elected and returned to be one of the sixteen peers of Scotland, to sit in the House of Peers in the present Par- liament of the united kingdom of Great Britain and Ire- land, and is since deceased : in order to the electing an- other peer of Scotland to sit in his room, we do, in the name and on the behalf of his Majesty, and by and with the advice of his Majesty's privy council, issue forth this proclamation, strictly charging and commanding all the peers of Scotland to assemble and meet at Holyrood House in Edinburgh, on Thursday the seventeenth day of April next, between the hours of twelve and two in the afternoon, to nominate and choose another peer . of Scotland to sit and vote in the House of Peers of this present parliament of the united kingdom of Great Bri- tain and Ireland, in the room of the said George William Earl of Rothes deceased, by open election and plurality of voices of the peers that shall then be present, and of the proxies of such as shall be absent (such proxies being 192 APPENDIX. peers, and producing a mandate in writing duly signed before witnesses, and both constituent and proxy being qualified according to law) ; and the Lord Clerk Regis- ter, or such two of the principal clerks of the session as shall be appointed by him to officiate in his name, are hereby respectively required to attend such meeting, and to administer the oaths required by law to be taken there, by the said peers, and to take their votes, and, imme- diately after such election made and duly examined, to certify the name of the peer so elected, and sign and attest the same in the presence of the said peers, the electors, and return such certificate into the High Court of Chancery of Great Britain : and we strictly charge and command that this proclamation be duly published at the market cross at Edinburgh, and in all the county towns in Scotland, twenty-five days at least before the time hereby appointed for the meeting of the said peers, to proceed on such election. Given at the court at Carlton House, the first day of March one thousand eight hundred and seventeen, in the fifty-seventh year of his Majesty's reign. Goo SAVE THE KING. APPENDIX. 193 No. VII. PETITION by the Fiscal of Court to the Bailie to name a Guard to attend the Election of a Peer. Unto the Honourable the Bailie of the Abbey, The PETITION of A, Procurator Fiscal of Court ; Humbly SJieweth, That his Majesty has issued his royal proclamation for summoning the peers of Scotland to meet at the Palace of Holyroodhouse, upon to elect a peer in the room of B, deceased, to sit and vote in the Parliament of Great Britain, agreeable to the articles of union of the kingdom of Scotland and Eng- land. That by ancient practice the inhabitants of the Abbey of Holyroodhouse are by your honour's authority sum- moned to attend in your Court-room some days before the election of a peer or peers, under the penalty of five pounds Scots money, each inhabitant for contumacy or Tton-appearance, and so many of the inhabitants as your honour pleases, are appointed and ordained to mount guard, properly accoutred, by ten o'clock, before noon, at the said Palace, upon the day of election of the peer or peers, and to attend and obey such officers as you shall name for preserving the peace and guarding the peers upon the day of the election ; and that under the K 194 APPENDIX. penalty of five pounds Scots each, for absence or dis- obedience, and immediate imprisonment till payment. May it therefore please your honour to grant war- rant to your officer of court, to summon the inha- bitants of said Abbey personally, or at their dwell- ing houses, to compear before your honour or your depute, in your court-room there, upon a day certain, at noon, or such day or hour as you shall think fit, to the effect, and under the penalty as usual in the like cases. According to justice. (Signed) F. Holyroodhouse, 18 The bailie naving considered this petition, grants war- rant to the officers of Court -to summon the whole in- habitants of the Abbey of Holyroodhouse to compear be- fore him upon the at one o'clock afternoon, to answer at the petitioner's instance, and then to accept of the nomination of being on the guard at the ensuing election of a peer, which proceeds in the Palace of Holyroodhouse, on the if they shall be then so named, and that under the penalty of five pounds Scots each, as is usual in the like cases. (Signed) B. APPENDIX. 195 No. VIII. Petition for Protection. Unto the Honourable the Bailie of Holyroodhouse, The PETITION of Humbly Sheweth, That, from various unforeseen and innocent misfortunes in life, which need not be here enumerated, the petitioner finds himself declining in circumstances, so that, in justice to his creditors, as well as for his own personal safety, it becomes necessary for him at present to retire to the sanctuary of Holyroodhouse, till a settlement of affairs be effected ; and, accordingly, this application is made to your honour for an act and warrant in manner under- written. May it therefore please your honour to find the petitioner entitled to the benefit and privilege of the sanctuary aforesaid, admit him thereto, and ordain an act and warrant to be issued accordingly, for the protection of his person and effects, while residing therein, agreeably to the rules and regu- lations of the sanctuary. According to justice, &c. 196 APPENDIX. Holyroodhouse^ 18 The bailie, having considered this petition, and no ob- jections being made by the creditors, or appearing to the contrary, Finds the petitioner entitled to the benefit and privilege of the sanctuary, admits him thereto, and or- dains a protection to be issued accordingly, in common form. No. IX. PROTECTION. At Holyroodhouse the the which day Avas, and hereby is, admitted and received to the benefit and privilege of the Sanctuary of Holyroodhouse, whole bounds and precincts thereof; and was, and hereby is, protected therein accordingly, conform to law- Extracted from the Records of the Sanctuary by me Clerk of Holyroodhouse. If the party leaves the Sanctuary for fourteen days, this protection fails, conform to the established Rules and Regulations thereof. APPENDIX. 197 No. X. PETITION against a Person as in Meditatione Fugce. Unto the Honourable the Bailie of the Abbey of Holy- roodhouse, The PETITION of A, Grocer in Edinburgh. Humbly Sheweth, That B, lately residing in Edinburgh, now in the Sanctuary of Holyroodhouse, is justly resting and owing to the petitioner the sum of L.20 sterling, conform to an account thereof herewith produced. That the petitioner is creditably informed, and has just reason to suspect, that the said B intends to leave the kingdom, and is in meditatione fugae, whereby the peti- tioner will lose his debt, which makes the present appli- cation necessary. May it therefore please your honour to take the pe- titioner's oath, and, upon deponing to the facts be- fore set forth, to grant warrant to your officers of court, or other executors of the law, to apprehend and imprison the person of the said B in the jail of the Abbey, there to remain ay and until he find caution dejudicio sisti, in any action to be brought at the petitioner's instance against him for pay- ment of the foresaid sum and consequents. According to Justice. A. 198 APPENDIX. Abbey, 1816. Compeared the petitioner A, who being solemnly sworn and examined, depones, that what is set forth in the petition is truth ; and depones, that the deponent is credibly informed, and believes in his conscience that the within designed B is in meditatione fugce, and about to fly from this kingdom, for the purpose of defrauding the petitioner of payment of the debt mentioned in the peti- tion, which is justly due to him by the said B. Depones, that, &c. (here mention the particular grounds of the cause of belief that the said B intends to leave the country in f modern of the petitioner's debt). And this is truth, as the deponent shall answer to God. Holyroodhouse, The bailie having considered the foresaid petition, ac- count, and oath of the petitioner, grants warrant to the officers of the Abbey to search for, take, and apprehend the before designed B, wherever he can be found within this jurisdiction, and bring him before him for examina- tion. (Signed) No. XL PRECEPT and DECREET of the Bailie of the Abbey against a Person obtaining Protection and contracting Debt there. A B, Esq. Bailie of the Abbey of Holyroodhouse and APPENDIX. 199 precincts thereof, To Officer of court, executor thereof, specially constituted, greeting, that in the action at the instance of C, merchant, Edinburgh, against D, residenter at the Water- Gate, within the precincts of the Sanctuary, the pursuer, upon the obtained decreet and sentence at his instance against the said D, decerning and ordaining him to make payment to the pursuer of the sum of L.5 sterling, being the amount of an account produced in process, with L.I ster- ling, as the modified expenses of process, besides five shillings, as the dues of extracting this decreet, as the same, of the date foresaid, ordaining these presents to pass and be direct therein in manner underwritten : — HEREFORE I command you to charge the said de- fender to make payment to the pursuer of the sums of money above-written, and that within fifteen days next after such charge, under the pain of poinding and impris- onment, wherein if he fail, that ye apprize, compel, poind, and distrainzie ; attour, fence, ana arrest his readiest goods and gear, make prey thereof to the avail and quantity foresaid, and make the pursuer fully satisfied and paid thereof, after the form and tenor of the said decreet, in all points. According to justice, &c. Given at Holy- roodhouse, under the hand of the clerk of court, the day of EXECUTION of Charge of Payment. Upon the I, C, abbey officer, by virtue of the within precept, lawfully charge the within designed 200 APPENDIX. D to make payment to the also within designed C of the sums of money and expenses within expressed, and that within fifteen days next after the said charge, under the pain of poinding and imprisonment, &c. This I did, by giving a just copy of charge to the said D personally, with certification. EXECUTION of Search for Effects to Poind, and Warrant for Imprisonment. At Holyroodhouse, the , in presence of A B, Esq. bailie, compeared C, officer, and made faith that he had searched and sought for the goods and gear of the within designed D, for payment of the sums of money charged for, but could find none poindable to that amount, and, therefore, the said bailie grants warrant to, and ordains the officer of this court, to pass, search for, take, and apprehend the person of the said D, and put him in sure ward, firmance, and captivity, within the Tol- booth of Holyroodhouse, therein to remain upon his own proper charges and expenses, ay and until he pay the foresaid sums. Extracted by No. XII. BOND of Presentation for a Person confined in the Abbey Jail on the head of Fraud. We, A B, hereby bind and oblige ourselves, jointly and severally, APPENDIX. 201 • as cautioners for C, present prisoner in the Jail of Holy- roodhous«, that the said C shall remain within Scotland for the space of six months from this date, and shall at any time when required by D, Edinburgh, or any other person acting as agent for the creditors of the said C, or their factor or trustee, within the said space of six months, present himself within the Court Room of the Abbey of Holyroodhouse, so as the warrant of incarceration from which he is to be liberated may be again put in force, he always receiving twenty -four hours previous notice, if within the precincts of the Abbey, by a written intimation delivered to him personally, or left within his lodgings by a notary and witnesses ; but if without the precincts, that eight days' notice shall be given to him by an intimation made in a similar manner, either personally or within his dwelling-house at and in case of his failure to ap- pear after such intimation, we bind and oblige ourselves, jointly and severally, our heirs and successors whomso- ever, to make payment to E of the sum of L. with interest from and in time coming till payment, and that for behoof of himself, and the other just and lawful creditors of the said C, or to any other person who may be chosen interim factor or trustee for his creditors. And we consent to the registration hereof in the books of Council and Session and Court books of Holyroodhouse, that letters of horning on six days' charge may pass thereon, and thereto constitute Our procurator, &c. In witness whereof. 202 APPENDIX. No. XIII. From Chambers' Book of Scotland \re are enabled to select the following curious particulars in reference te the Castle and suburbs formerly enjoying the privilege of the Sanctuary. The king's stables, he says, now forms part of a wretch- ed suburb towards the west from the Grassmarket, and im- mediately without the city wall at the Westport. How- ever homely may be the appearance of this squalid dis.- trict, and however degraded may have been Us inhabitants at one time ; when regality took up its residence in the Castle, which rises on its northern quarter to the height of more than 200 feet, it was the scene of many a riv?l rout and feat of arms. The low piece of level ground on which the houses of the very lowest classes, and every species of pollution now rest, was then a cheering spot on which the eye could dwell with pleasure. It was one of the two, and most favourable tilting grounds of the courtiers in the environs of the city ; the other having been on that equally hollow spot of ground at the north base of the Caltonhill, now partly covered by the houses of Blenheim Place, and partly by some tin and brass manu- factories. The stables, or mews for the studs and hawk- ing establishment of the king and his suit, were situated at the eastern extremity of the ground which was ter- minated in this direction by the Chapel of our Lady, the vestigia of which still remain, and give the name to a narrow close. On the south the lists were commanded 4>y the sloping gardens of Portsburgh, then a rural vil- APPENDIX. 203 lage ; and on the north the steep ascending bank of the Castle gave the utmost accommodation to the fair specta- tors of the amusements going on at their feet : Overhead the royal family and household occupied projecting bar- tizans and battlements, hung with rich velvets and car- pets for the occasion, and when all the various groups of persons of high and low degree had taken up their posi- tions, and the smooth green places of combat exhibited the various mailed knights, and marshall of the field ; there was altogether formed a scene of so much beauty, grandeur, and romance, that in the nineteenth century we are almost compelled to sigh over the depreciated and for- gotten glories of chivalry. It was not till past the middle of the last century that the ancient appearance of the king's stables in the tilting ground was destroyed by the inroads of leather and other manufacturers. Maitland describes the lists as be- ing in his time a pleasant green of about 150 yards in length, by 15 in breadth, wherein martial exercises and feats of arms had been performed by the brave. He, as well as every other writer, is, however, silent respecting its privilege of sanctuary, which may have originally been enhanced by the proximity of the chapel of the virgin : and it is only by minute inquiry among the aged denizens of Portsburgh, that we have discovered that it continued to give refuge to debtors for twenty-four hours, as far down as the year 1805. From about this time no one in the place remembers of a debtor having fled thither. The last who was seen was a horse-dealer, who eluded a messenger and his concurrents in the Grassmarket, and, with them in hot pursuit, gained the precincts ere they could lay hands upon him. 204 APPENDIX. The most honourable Order of the Thistle (the fees of which in 1685 are mentioned in page 190) was in- stituted in 787, and restored in 1540, and revived in 1687. It is of the Order of St. Andrew's, a military order of knighthood, the origin of which is given by Lesly, bishop of Ross, who reports, that the night before the battle between Athelstane, king of Northumberland, and Hungus, king of the Picts, a bright cross, in the form of that whereon St. Andrew the tutelar saint of Scotland suifered martyrdom, appeared to Hungus, who, having gained the victory, ever after bore the figure of that cross on his banners. Others assert, that Achaius, king of Scotland, first instituted this order, after having made the famous league, offensive and defensive, with Charlemagne, king of France. The chief and principal ensign is a gold collar, com- posed of thistles and sprigs of rye, interlinked with amulets of gold, having pendent thereto the image of St. Andrew, with his cross, and the motto, Nemo me impune lacessit, " Nobody shall provoke me with impunity." The ordinary or common ensign worn by the knights is a star of four silver points, and over them a green circle, bordered and lettered with gold, containing the said motto, and in the centre is a thistle, all which is embroider- ed on their left breast, and worn with the collar, with a green ribbon over the left shoulder, and brought under the right arm ; pendent thereto is the image of St. An- drew, with his cross, in a purple robe, with an oval of gold enamelled vert, with the former motto ; but some- times they wear incircled in the same manner a thistle crowned. APPENDIX. 205 The present Knights of the Thistle are, — The SOVEREIGN Duke of Buccleugh Earl of Aboyne Duke of Athol Earl of Warwick Earl of Cathcai c Earl of Murray Earl of Aberdeen Earl of Fife Earl of Galloway Marquis of Ailzsburg Earl of Abergavenny Marquis of Tweeddale Earl of Cassillis Marquis of Queensberry Earl of Lauderdale Viscount Melville. ALPHABETICAL LIST OF THE CASES IN THE WORK, IN THE ORDER OF THE PURSUERS' NAMES. B Page No. 1. — That for a debt contracted by bill within the Abbey to a person protected, it is competent for the bailie to grant wan-ant for imprisonment within the jail there. Berry v- Boyes, 24th February 1820; Fac. CoL 87 No- 2. — That in consequence of a verdict of the Jury Court, and transmission to the Court of Session, an in- terdict was granted at the instance of the trustees of a deceased person, against a person residing within the Palace, from removing therefrom books and furniture hired by him. Bruce's trustees v. the Earl of Strath- more, 28th May 1629 ; Fac. Col. . ' .-- 120 C No. 3. — The jurisdiction of the bailie was confirmed, and the right to have a prison there sustained. Cockburn of Clerkington, 12th June 1708; Fount, v. 2. p. 422.; Diet voL L p. 361. Mor. . 80 D No. 4. — That incarceration in the Abbey jail was found to 208 ALPHABETICAL LIST OF CASES. Page be such imprisonment as not to entitle the party to insti- tute a process of cessio bonorum before the Court of Ses- sion. Dunlop v. the Bank of Scotland and others, 1 1th July 1779; Fac. Col.; Mor. 7. . . 88 G No. 5. — Found, that the king's park of Holyroodhouse, having always been in possession of the Crown, and from which no teind had ever been paid, was not liable to the payment of teind. Gilchrist, the Rev. Dr., first minister of Canongate v. the Earl of Haddington, hereditary keeper and ranger of the king's park of Holyroodhouse, 25th November 1829 ; Fac. Col. . . 122 No. 6. — It is necessary for a messenger executing a caption within the precincts of the Abbey, to have the concur- rence of the bailie, and to obtain protection, booking is necessary. Grant v. Donaldson and Gumming, 15th January 1779; Fac. Col. ; Mor. 5. ^.. . 66 H No. 7. — The bailie of the Abbey is entitled to grant war- rant to search for money alleged to be about a debtor, who had taken refuge there, but had not been entered in the books. Hamilton of Redhouse a, Bailie of the Abbey, 12th January 1741 ; Home, Mor. 3. . 92 No. 8. — A proof was allowed whether a debtor had been fraudulently detained out of the Abbey after 12 o'clock on Sunday night, when a caption was executed against him. Halyburton v. Steuart, July 21, 1709; Fount- vol. ii. p. 516. Mor. 3. . .96 I No. 9. — A pupil cannot be imprisoned for his father's debts. Johnston, 16th December 1575 ; ColviL . 167 ALPHABETICAL LIST OF CASES. 209 Page K No. 10. — A warrant for incarcerating a person as in medi- tatione, may be put into execution at any time, even on Sunday. Kemp v. His Creditors, 16th January 1786 ; Fac. CoL ; Mor. 8554. . . . 95 L No. 11. — That a person having a regular warrant to pos- sess certain apartments in his Majesty's Palace, cannot be disturbed therein by a poinding of effects, although the diligence proceed from the Supreme Court. Laing v. the Earl and Countess of Strathmore, 24th February 1826; Fac. Col. . . .101 M No. 12. — The bailie has right to search for money alleged to be about a debtor who has retired to the Abbey. Miller v. M'Rae, 1816 ; Bailie records, . 93 No- 13.— The Lords found the Castle of Edinburgh hath no privilege of sanctuary to hinder the execution of the i* king's letters. M'Kay v. Campbell, 15th December 1714; Bruce, 1. 25.; Mor. 14305. . . 164 No. 14. — The Court refused to grant to the bailie" of the Abbey power to give his concurrence in executing a Justice of Peace warrant for a Crown debt. Monro v- M'Millan, 24th July 1734; Elchie's Ab. No. I. 166 No. 15. — Minors in France are exempt from constraint) — Potier, " ; . . . 167 No. 16. — The privilege of a peer in not being liable to in- carceration for a civil debt, extends also to his widow. M'Donald v. the Widow of a Peer, 29th July 1756 : Fac. Col. Mor. 10031. .... 167 No. 17. — A diligence against a pupil was suspended till his 210 ALPHABETICAL LIST OF CASES. Page fourteenth year. M'Kenzie of Roxburgh v- Sir William Scott, 5th December 1696; No. I. Fount. . 167 P No. 18. — That a warrant for incarcerating a person, as in meditations fugae, may be obtained against one who had retired to the sanptuary for protection. Park and Brown v. Bennet, 10th February 1787 ; Fac. Col. Mor. 7. 94 \ S No. 19. — A debtor Avho had retired to the Abbey was found to incur bankruptcy although not booked. Sommerville v. Mitchell of Alderston, 3d December 1751 ; Falk. 99 No. 20. — The heritable keeper and ranger of the king's park cannot work quarries there for unlimited sale. State Officers v. the Earl of Haddington, 4th June 1830; Fac. Col. . . . . 158 No. 21. — Diligence was suspended against a minor until her 15th year. Sommerville v. her Father's Creditors, 26th June 1624 ; Durie, ..... . . 167 T No. 22. — That a debtor, though protected, is amenable to the jurisdiction of the Abbey for debts contracted both within and without the sanctuary. Tounly v. Ogilvy an Englishman, 24th February 1810; Fac. Col. . 81 W No. 23. — That a person retiring to the Abbey, though not booked, constitutes bankruptcy, horning having been raised, but not caption. White v. Butter, 25th Novem- ber 1800; Fac. Col.; Mor. No. 1.; Bankr.-No 12- 99 INDEX MATERIARUM. Page Abbey of Holyroodhouse, just three centuries ago, according to Buchanan, afforded protection to John Scott for a civil debt, . . 53 Abbot's meadow, situated in the king's park, ;' ' 6 Abbots and Canons authorized to erect a burgh be- tween the Abbey and burgh of Edinburgh, called Canongate, . . "* \ . 11 Abbots allowed to have courts as fully, freely, and honourably as the Bishop of St. Andrew's, the Abbot of Dunfermline, and the Abbot of Kelso, 1 1 Act 1621, c. 8. disjoins parts of the burgh of Edin- burgh, from the kirks and parishes of St. Cuth- berts and Holyroodhouse, and annexes the same to the parish kirks of the burgh of Edinburgh, . 23 Act 1696 mentions the Abbey as a privileged place, and a sanctuary against the execution of personal diligence, .... 34 Acts of William, Alexander, and Robert, contained in the regium. majestatem, respecting the girth or sanctuary, interesting and curious, . 27, 28, 29 Acts of James III. V. and others, in reference to the kirk or sanctuary of Holyroodhouse, . 30, 31, 32 212 INDEX. Page B Bailie of the Abbey, has power to name his depute, for whom he is accountable, ... 37 Bailie of the Abbey has an ordinary jurisdiction like any other bailie, . •' . . 38 Bailie has the superintendence of the Palace, attends to the under-keepers doing their duty, &c. . 63 Bailie entitled to grant warrant to search for money, alleged to be about a debtor who had retired to the Abbey, . ... 93 Ballandine, Sir Lewis, the property united into one barony and regality, and declared that it should so continue to the Ballandine family, . . 16 Ballandine, Sir James succeeded to Sir Lewis his son, in the lauds of Broughton and others, 17 Ballandine, Sir William succeeded to his father, Sir James, and was infeft on the 1st May 1607, . 17 Ballandine, Sir William, d?sponed to Robert Earl of Roxburgh, the whole lands, barony, and rega'ity of Broughton on the 6th October 1627, and on the 1st August 1630, the Earl obtained a charter of confirmation from Charles I. . . 17 Bankton, his account of the origin of the canctuary and privileges thereof, . . . 39, 40 Bankton is af opinion, that if a person does not book himself, he may be removed from the sanctuary, 58 Bell, Professor, his account of the privileges of the English in reference to the common diligence of the law for debt, ... 49 Bill granted by a debtor residing in the Abbey, — it is competent for the bailie to grant warrant for im- prisonment within the jail, • . 87 Blackstone's history of the origin of sanctuaries in England, .... 40 INDEX. 213 Page Booking in the Abbey-books not necessary to con- stitute bankruptcy, the bare retiring being suf- ficient, . ... 55 Broughton erected into a free, regality with the Can- ongate and other lands — the sheriff of Edinburgh refused to acknowledge them, and compelled them to appear in bis Court, . . • 11 Buonaparte, condolmg stanza of ai old ballad hummed to his friend Bertram, . . 62 C Canongate, part of St. Leonard's lands, called Dear- enough, alias Pleasance, and others thereto be- longing, with the exception of Kinloch's close and others, . . . . . .,, 19 Canongate in comparison with the parish of Holy- roodhouse is of a recent establishment, . a 7 Castle of Edinburgh, though anciently a sanctuary for civil debts, long ago lost this privilege, . 159 Castellum Puellarum, the ancient name given to the monastery situated within the precincts of the Castle of Edinburgh, . • .'« ft , , • < ' 8 Cessio bonorum, process of, not competent to be sued by a person confined in the Abbey jail for debt, 88 Chalmers grounds the privilege of the sanctuary from the original charter of David I. . 43 Charter by David I. with consent of his son Henry, creating a monasterium de Crag Sanctae Crucis de Edinburgh, and confirmed by Robert I. David II. and Robert II. ' . . 5 Charter by David I. contains grants of lands and churches in the neighbourhood of Edinburgh, and other counties, . . . . 6 214 INDEX. Page Charier of Robert III. erected the barony of Brough- tori, Canongate, and other lands into a free regality, and by which the sheriff of Edinburgh was prohi- bited from interfering, . . . . 12 Charter of David I. points at the privilege of protec- tion to persons for civil debts, . . 42 Concurrence of the bailie necessary to the apprehend- ing of a prisoner within the Abbey, . 66 Contract Triparte entered into between Charles I. the magistrates and ministers of Edinburgh, and the Earl of Roxburgh, ... 18 D Date, none annexed to the charter of David I. but supposed to have been executed between the year 1130 and 1147, . ; % ;> - 5 Debtor not booking will not be protected in the Abbey, . ... 56 Debtor, though protected, is amenable to the jurisdic- tion of the Abbey for debts contracted within and beyond the sanctuary, >.:,&'. . . 18 Debtors' advantages attained by retiring to the Abbey, 55 Description of the Abbot's meadow, . . 6 Description of the lands contained in the grant to Adam Bishop of Orkney, but resigned to the Crown in favour of Sir Lewis Ballandine of Anchenoul, his Majesty's Justice Clerk, . . 13 Diligence suspended against a minor till she attains her fifteenth year, . . . 167 Diligence suspended against a pupil till his fourteenth year, . . 167 INDEX. 215 E Ecclesiastical names in the king's park and neighbour- hood connected with the Abbey of Holyroodhouse, 6 Edinburgh chartulary, from which it appears that David I. was the founder of the Abbey of Holy- roodhouse, and granted a charter to the monastery and Canons of Holycross near Edinburgh, — of a variety of lands, churches, and revenues, . 10 Edinburgh Castle, though anciently a sanctuary for civil debts, has long ago lost this privilege, . _159 England, royal palaces of, and privileges, . 46 Erskine's exceptions of the privilege against dili- gence, . ... 43 Erskine's opinion of the origin of the sanctuary, 44 F Feofees, the magistrates, toAvn council, and ministers, are feofees for Heriot's Hospital, . . 18 Fraudulent persons retiring to the Abbey may be searched for money alleged to be about them, . 92 French law exempts minors from the constrainte par corps, .... 167 Furniture and effects of a nobleman residing in the Palace, by virtue of a royal warrant, cannot be poinded, although the diligence proceed from the Supreme Court, , ,. . ~. 64 G Girth or sanctuary of Holyroodhouse, privilege of, 26 Girth, sanctuary, or holy kirk, could not protect a criminal, . . . < ,«,',, 10 Girths, maisters of, spiritual men appointed to send 216 INDEX. Page to the Lord Justice Clerk the names of their bailies and maisters of girth-depute, . . 33 Grace, act of, competent to be sued before the bailie of the Abbey, . :1'jf . 168 Grant of lodgings in the Palace by the king in favour of a nobleman, is put in possession of it by an act of Court, and the royal grant recorded, . 64 H Haddington, Earl of, found, that his Lordship, as hereditary keeper and ranger of the king's park, which had always been in possession of the Crown, and from which no teind had ever been paid, was not liable in payment of teind to the first minister ofCanongate, '.' '. • . 122 Hailes, Lord, our distinguished countryman, histo- rian, and antiquarian, his idea of the miraculous interposition of Heaven in behalf of David I. . 4 Hailes' Annals : an account of the murder of Gum- ming by Bruce and Kilpatrick, in the convent of Minorities, Dumfries, . . . 40 Hamilton, the noble family of, invested with the Palace and sanctuary of Holyroodhouse, conform to charter by Charles the First, dated 10th No- vember 1646, . . . 34, 3j Heriot's Hospital, lands conveyed to the town of Edinburgh, council and ministers, as feofees for the Hospital, viz. St. Leonard's, the Walk Mill-lands Cattlehaugh, Canonmills, Mill-lands, Sucken there- of, and others, . . . .20 Hermits and Termits, the name given to a piece of ground near St. Leonard's, being a corruption of INDEX. 217 Page Eremittae sanctae Eremi, or the monks of St. An- thony of Egypt, . ' *• • .< ; v € Holyroodhouse founded by David I. in the year 1 128, 2 Holyroodhouse known for centuries by the name of " Ecclesia sanctae Crucis de Edinburgh," ».'. v- 4 Holyroodhouse likewise known by the name of " Mbnasterium de Crag Sanctae Crucis de Edin- burgh," . . . . ". 5 Holyreodhouse comprehends the Palace, Palace-yard, King's Park, Arthur's Seat, Salisbury Craigs, St Anthony's Chapel, and other places, ;-', - 23 Hypothetical case as to a protection being refused for want of the fee of L.2, 2s. and the debtor being imprisoned beyond the precincts, . 57 I Infeftment given to Sir James Ballandine upon the stair of the tolbooth of the burgh of Canongate, 17 Inhabitants resident in the Abbey requiring protec- tion must be booked, . - • 61 Introduction to the work in reference to the insignia of royalty and privilege of protection to the So- vereign, and the dignified persons attending him, 1 Irishman, humorous anecdote of, . 24 J Jail-keeper is liable for the debt if the debtor escapes through his fault, . 100 Jurisdiction of the Abbey, at what period it originated as governed by its own magistrates, clerk, fiscal, and other officers, as now exercised, is wrapt in obscurity, .... 37 218 INDEX. Page Jurisdiction of the Abbey, is of a mixed nature, civil and criminal, and of a delegated nature, . 59 Jurisdiction of the bailie questioned but confirmed, and the right to have a prison there sustained, 80 Jurisdiction in the Abbey jail does not entitle the party to institute a process of cessio bonorum be- fore the Court of Session, «. « 88 K. King's Bench, or forum, the Supreme Court of the common law in England, is not fixed to any place, but may follow the King's Court, ; .*» as . 49 King's Park, comprehending Arthur's Seat and sur- rounding hills, Salisbury Craigs, the ruins of St. Anthony's Chapel, Wells of Weary, Samson's Ribs, part of the bake of Duddingston, &c. . 23 King's Park, which had always been in possession of the Crown, and from which no teind had ever been paid, was found not to- be liable in payment of teind, . . . . 122 L Law, the genius of, supposes that the Palace and do- mains are invested with the king's presence, where he may hold his courts, • • 34 Leith, North, formerly part of Holyroodhouse, erect- ed into a parish on 22d March 1602, by the pres- bytery of Edinburgh, confirmed by the General Assembly, and ratified by Parliament in 1606, erecting the parish church anew, . . 92 Leith, the lands stipulated to be sold to the town of Leith, lying on the north side of the water and bridge of Leith, and that part of the town of Leith lying on the south side of the said water, • 2 INDEX. 219 P*ge M Magistrates of Edinburgh, town-council, and minis- ters, are feofees for Heriot's Hospital, . 18 Malcolm IV. Charters granted by, Apud monasterium sanctae crucis de Castello Puellarum, . 8 Ministers of Edinburgh, magistrates and town-coun- cil, are feofees for Heriot's Hospital, . 18 Mint-close, south side of the High Street, Edin- burgh, prior to the Union enjoyed the privilege of sanctuary, but since that event the privilege was lost, . . . &V>; 166 Miraculous interposition of Heaven in behalf David L in the year 1 128, . . "...-•-' 3 Monastery of Holyroodhouse, for several years after its establishment, was kept within the precincts of the Castle of Edinburgh, or as formerly called the Castellum Puellarum, . "'• .. -'• :Jf'' 8 " Monasterium de Crag," supposed to be the ancient name of the Abbey, :•'. ' VJ-r. ,.iJ~ ; 9 N Novodamus granted to the feofees of Heriot's Hos- pital, dated llth December 1639, ratified in Par- liament 22d March 1661, .>• . 21 Novodamus granted to the Canongate 1 1th December 1639, ratified in Parliament 22d March 1661, . ; • , 21 Nuns thrust out of the Castle by St. David, and Canons introduced there by the pope's dispensation, as fitter to live among soldiers, . . * O Original charter as a monastery, to be found in Mait- land's history of Edinburgh, • „•• ,. 9 220 INDEX. Page Orkney, Adam Bishop of, on 27th September 1568, was constituted into the lands and property of the church, under the reservation of 1000 pounds Scots yearly to Robert Lord Stewart, .f«. . 13 P Palace, a person having a warrant to possess certain apartments in the Palace, cannot be disturbed therein by a poinding of effects, although the di- ligence proceed from the Supreme Court, . 114 Palace, interdict granted against a person inhabiting part of the Palace, from removing therefrom furni- ture and books hired by him, , . 1 20 Park, King's, found that the^King's park of Holyrood- house having been always in possession of the Crown, and from which no teind had ever been paid, was not liable in the payment of teiud, . 122 Peers, Scots, are protected at elections in the Palace by the inhabitants of the Abbey forming a guard, in virtue of commissions from the bailie, . 65 Poinding of effects within the Abbey may proceed in virtue of a decreet of Court, after a charge of fifteen days is given and expired, . 61 Poinding of effects cannot proceed without the bailie's concurrence, . . . . 61 Privileges of the sanctuary and precincts, from whence derived, and what they comprehend, . 39 Privilege of the sanctuary, to obtain which, booking is necessary, . . . • 66 Privilege of a peer in not being liable to incarcera- tion for civil debt, extends also to his widow, . 167 Protection always afforded when applied for, and INDEX. 221 Page should any person seize upon the debtor protected, the officers and inhabitants are authorized to detain him by force, . . ; . v • ; 56 Protection in the Abbey will not be given if a debtor escapes by force or stratagem, .'•'»' ; "•'•* ' '" 60 Pupil cannot be imprisoned for a civil debt, . 167 Q Quarries, the heritable keeper and ranger of the king's park cannot work quarries for general and unli- mited sale, . . : . ; . 158 R Reformation, when James the VI. by the advice of Regent Murray, constituted Lord Robert Stewart Commeadator of the monastery of Holycross, and into the property of the church, * • « :-' 13 Reformation after, the Crown granted to the family of Roxburgh those parts of the domains of the Abbey which now form the regality of the Canon- gate, but retains the Palace as a royal residence for the sovereigns, St. Ann's yards, the Abbey church and other domains, . ! . .-..->« 31 Regulations and rules observed in the King's Bench prison respecting insolvents, and the mode of ob- taining their liberation and discharge, . 50 Roxburgh, Earl of, acquired right to the whole lands, barony, and regality of Broughton, : u; ; 17 S Sabbath affords protection to the debtor beyond the precincts of the Abbey, , .62 222 INDEX. Page Sabbath can afford no protection to a criminal, nor to a person in meditatione fugae, . . 95 Sanctuary to criminals held to be an ecclesiastical privilege introduced in times of popery, abridged at the Reformation, and afterwards abolished by statute, ... 42 Sanctuary the, can afford no protection to a person against an obligation ad fact urn prestandum, . 167 Scott, John, afforded protection in the Abbey for a civil debt in 1531, as related by Buchanan, . *.. ; 53 Session, Court of, refused to give the bailie power to concur in executing a Justice of Peace warrant for a Crown debt, . . , . 166 St. Ann's yards lies close to the east of the Abbey, 6 St. Anthony's Chapel, situated at the back of Salis- bury Craigs, . .•*'*$.»• . • 6 St. Leonard's Hill lies upon the west of the king's park, . .,.*•.;• . . 6 T Town-council of Edinburgh, magistrates and ministers are feofees for Heriot's Hospital, . . 18 Triparte contract entered into between Charles I. the Earl of Roxburgh, and the magistrates, town- council, and ministers of Edinburgh, . 18 W Witnesses to the charter of erection of David I. Robert, bishop of St. Andrew's, John, bishop of Glasgow, and others, ... 5 Warrant for incarcerating a person, as in meditatione fugae competent to the bailie, against persons re- tiring there, .... 94 APPENDIX TO INDEX MATERIARUM. Page Austria, Archdukes of, were entertained in the Palace as the king's guests, . . 106 B Bourbons, the princes of, become residents in the Palace, during part of the usurpation of Bonaparte, and again, they now occupy apartments in the Palace, 106 Falkland Palace, the King's Park of, is subject in pay- ment of teinds to the minister of the parish, in respect that the lands formerly belonged to the Earl of Fife, 123 G George IV. his visit to Scotland in 1822, when he occu- pied Holyroodhouse as a Palace, held his Courts there, and displayed all the splendours of royalty, . 106 Leopold, Prince, not many years ago, was entertained in the Palace of Holyroodhouse, as the King's own guest, • . 106 FROM THE CIVIL LIST OF SCOTLAND, 1830. The Hereditary Keeper of our Palace of Holyroodhouse . . £45 10 0 The Under Keeper of the Palace, do. 50 0 0 The Porter of said Palace ';' *••- 3715 6 Our Under Falconer , . . . 50 0 0 First Physician . . . 97 0 0 Second, do. . . . ., 50 0 0 Apothecary . . . . 40 0 0 Master of the Wardrobe . . 53 0 0 First Under Keeper of do. . . 37 10 0 Second, do. do. -,,,„ . , 20 0 0 Clockmaker . . . . 16 13 4 £498 8 10 TABLE OF FEES, PAYABLE TO THE PROCURATORS OF THE BAILIE COURT OF THE ABBEY OF HOLYROODHOUSE : FEES PAYABLE TO THE CLERK, &c. AND REGULATIONS OF THE BAILIE COURT. ACT OF THE BAILIE ANENT THE FEES OF COURT, &C. Abbey of Holyroodhouse, August, 22, 1816. THE Honourable the Bailie of the Abbey of Holyrood- house, having taken into his consideration the state of the fees payable to the Clerk and procurators of Court, which seem to have varied from time to time, and a great many of them having gone into disuse, and that such fees are not applicable to the present times ; and having also con- sulted the tables of fees exacted in other Courts, he has from thence collected and made up the two following tables, which he considers reasonable, and calculated to promote the ends of justice. Therefore, the Bailie here- -•26 APPENDIX. by enacts and declares, that the fees contained in the an- nexed tables shall take effect and be observed from the date hereof, subject always to such alterations or modi- fications as from experience may be judged necessary and proper. PETER HALKERSTON, B. FEES TO BE EXACTED BY THE PROCURA- TORS OF THE COURT. Z. s. (I. Drawing libel, 1st sheet . . 050 Each other . . . 030 Possessory actions, summons of removing, and other applications where no sum is concluded for — the same. The same in summary cases. For defences, answers, minutes, &c. under L.15,—1 sheet . . .030 Every other . . . 020 L.15 or upwards — 1st sheet . .040 Every other . . . 020 For every attendance in Court at calling a cause, if under L.20 . . 026 If above L.20 . . . 050 If attendance is given off Court hours, such as in the procedure of meditatione fuga? war- , rants— for each hour 4s. but in no case to exceed L.I, Is. at one sitting. APPENDIX. 227 Z. s. d. For obtaining protestation . . 0 3 4 For writing an aflBdavit . . 036 For every necessary attendance on the Bailie 026 Filing mandate in every case above 40s. 036 Attendance on Clients, if less than one hour 0 4 .0 Every other hour . . . 034 Attending proofs or oaths of parties, in cases under L.5 — each hour . . 026 L.5 and not exceeding L 20 — each hour 036 L.20 or upwards — each hour . . 050 Fair copy of each paper per sheet . 008 For writing bonds adfacta prestanda : Where the snm for which security is granted is under L.50 . . .06 Above L.50 and not exceeding L.I 00 . 07 Exceeding L.100 and not L.150 .. 0 10 Exceeding L. 150, and not L.200 - ., 013 Above L.200, and under L.500 . - 0 16 If L.500 or upwards t> i> •-,:.•.'• 1 0 For obtaining the Fiscal's concurrence . 0 3 Inquiries at the Clerk for an interlocutor in summary applications » ' • . 026 For taking out bond of caution and returning it executed .. • •. • -.. 026 Writing the bond : > ..; ;,» . 060 Writing attestation of the sufficiency of a cau- tioner . . . .026 Taking it out for .that purpose, and returning it 026 In summary cases for lodging each paper, and intimating it to the other procurator or par- ' ty . . .026 APPENDIX. L. i. ,1. For inrolling a cause . . 010 Borrowing a process . . 010 Returning it . . 010 For attending the Court at reporting interlocu- tor . . . 034 Procurator fee for obtaining decreets in absence, under L.5 . . 034 L.5 and under L.20 . ; . 040 L.20, or upwards . \ r. 068 One- half to be exacted by the procurator, if settled after summons is served, and before calling. Where no sum is concluded for, the charge to be according to the trouble, but subject to the modification of the Bailie. Writing and booking letters, of ordinary length, each . . . 034 If longer, the charge to be progressively higher. Each sheet in this table shall contain 300 words, but the last sheet will be allowed, although under that num- ber. All processes must be tied with tape, as cords lacerate the papers, and often render the writings unintelligible. All causes shall be enrolled between eleven o'clock forenoon and three afternoon, of each Saturday ; and the Couit to be held on the Mondays following, at one o'clock afternoon precisely, unless adjourned by the Bai- lie. John Somerville, Clerk of Court, is hereby appointed auditor of accounts, which are to be taxed according to the foregoing table or regulations ; and for his trouble lie shall be entitled to receive the following fees ; — APPENDIX. 229 L. s. (L If the account is under L. 5 . •'•"- • 0 1 6 L.5, and under L JO . '.' 020 L.10, and under L.20 . . 030 L.20, and under L.50 . r 050 All exceeding L.50 . . 076 For taxing accounts of decreets, in absence 016 After the remit is made to the auditor to tax an ac- count, he shall give notice to the procurators, on both sides, to attend him, and state their objections viva voce if they incline ; and, in the course of the investigation, the auditor may call for production of all papers referred to in the account. And the Bailie appoints the foregoing rules and regu- lations to be recorded in the proper Court-hooks, and printed and published in common form. FEES TO BE EXACTED BY THE CLERK, &c. Z. *. d. Libel or summons . «„ 010 Warrant of service on a summary application 020 Ditto, for apprehending a person for examina- tion . • . 020 Ditto, if against more than one person . 040 Attending the examination of a party in sum- mary applications, if the debt does not exceed L.20, each hour . . . 036 Exceeding L.20, each hour ,. 040 Extracting protestation . .036 230 APPENDIX. L. a.