THE Laird of Grant having obtained his Lands to be erected in a Rega­lity, the said Laird of Westfield, as pretending Right to the Hererable Sheriffship of Murran, within which some of the Lands ly, did raise a Process before the Lords of Session, for Reducing of the Signature in fa­vours of Grant, and declaring that his Regality could not extend to any Lands ly­ing within the bounds of the Heretable Sheriffship. And Grant did likeways raise Reduction and Declarator of the said Alexander Dumbar of Westfield's Right to the Sheriffship.

The Question in these mutual Processes being not only in relation to Civil Right, but having extended to the consideration of His Majesty's Royal Preroga­tive, and the Extent of the Jurisdiction and Interest of the Regalities and Sheriff­ships in general. The Case was Remitted to be considered by the Parliament.

Westfield's Ground of Reduction and Declarator is founded upon the common Brocard, Quod meum est fine facto meo auferri non potest: And he did subsume, That his Heretable Office of Sheriffship within the bounds of his Right, was his un­doubted Property; and therefore could neither be diminished nor taken away, in whole nor in part, but by his Consent, or Order of Law.

On the other Hand Grant did repeat his Reduction of the Sheriff's Right, with a Declarator of the Right and Priviledge of his Regality: And the mutual Rea­sons of Reduction did result in Defences.

It was aledged for Grant. That his Right of Regality was validly founded up­on the Kings prerogative. 1mo. Because the King is not so denuded by granting a Sheriffship, as that he may not grant other Jurisdictions within the Sheriffdom; seing the Right of Sheriffship is but a naked Office appointed for the execution of the Lawes, & the King to whom the execution of the Laws does belong jure majestatis has essentially, notwithstanding of whatsomever Commissions granted for executing of these Laws, power to grant new Commissions also often as it shall seem expedient or useful: And the Sheriffship and Regalitys, are of quite different Natures, the Office of a Sheriff being nudum ministerium, whereas the jurisdiction of Regalitys is not only a teritorial Jurisdiction over the Lord of Regality's own Vassals and Tennents, but has several other priviledges which do unquestionably belong to His Majesty to dispose of, as being inter regalia, 2do. The King has been in con­stant use to [...] Regality's within the bounds of Shireffships, and there are almost innumberable instances of His Majesty and His Prodecessors having granted, both Ancient and Recent Regalities, such as the Regalities in favours of the Marques of Douglas, in favours of the Duke of Hamiltoun and many others that may be nam­ed. 3tio Besides the Kings Right and custom of granting Regalities, there concurs here an universal and constant acquiescence; So that the Sheriff of Murray is the first that ever has drawn His Majesty's Prerogative as to that matter in question. 4to. Besides, the Kings Right, Custom, and the long acquiescence of all having interest, the Kings power is likewise fortifyed by the Opinion of Lawiers and particularly Mckenzies Criminals Part: 2. Tit: 9: N. 4. Where he Cites Hope who observes the same to have been decided, and instances a particular Case in his own time 5t [...]. The Kings right & power is further established by the daily custom of erecting Barronies. [Page 2]Burghs Royal, and Stewartrys within heretable Sheriffships; and albeit the Juris­diction of the Barons be only cumulative; yet still it lessens and diminishes the Jurisdiction of the Sheriff and prejudges him, and consequently it is an undenyable evidence that the King by granting of a Sheriffship, is not excluded from erecting other fewdal Jurisdictions within that bounds, whereby the Sheriffs Jurisdiction may be impaired and diminished, and that the Rights by which the Sheriffs injoy their Offices are not considered as other Rights of Property; but only as nuda of­ficia & ministeria. 6to. Et separatim by the 44 Act of Parliament 11. Ja: 2. It is statute, That no Office in time coming be given in fie and heretage, which Act is the fundation of all the Revocations made by our Kings since: So that unless West­field's Right of Sheriffship were instructed to be more Ancient than the foresaid Act; it is against Law, and can be no pretence to quarrell His Majesty's Right, and this is objected not only as a Nullity against the Sheriffs Title, but as a Reason of Reduction.

It was Answered for Westfield, 1mo. That the Right of Sheriffship was alse much a Right of Property, as the Right communicat to the Lords of Regality: And by the Defender's way of arguing, he lays the Foundation to destroy the Right of the Lords of Regality, as well as the Right of Heretable Sheriffs: For if the King can notwithstand­ding of the Sheriffship, erect a new Regality within the same bounds, because he can ne­ver be so divested by any Commission, that he may not grant a new Commission for execut­ing of the Laws as he sees expedient: Then by the same Reason, no Grant of a Regality can hinder him to erect a new Jurisdiction within the Regality. 2do. An heretable Of­fice is truely a Right of Property, although it be quid incorporeum: For it hath all the Marks and Characters of any other Right, in so far as it may be transmitted to Heirs, Gifted. Sold, or Apprised: And even the King's Majesty did so far consider Heretable Sheriffships as Rights of Property that Heretable Sheriffships have been bought by our Kings for considerable Prices: And it is certain, that the Emoluments and Profits of he­retable Offices are in Patrimonio. 3tio. If the Defenders reasoning can be allowed, then the King might erect another Sheriffship within the bounds of an Heretable Sheriff­ship: For it is certain, that a Regality being a Privative Jurisdiction, does alse for­mally constitute a distinct Territory, as if there were a New Shireffship erected within the bounds of an Old Shireffdom. 4to. As a further evidence, that the Heretable Office of Shireff is a Right of Property; it has a distin [...]t Reddendo and Duty payed for it every Year to the Exchequer. And 5to. To put the Matter beyond question the Act 18 Parl. 1681. having declared, That notwithstanding of the Jurisdictions and Offices bestowed by his Majesty and his Predecessors upon his well deserving Subjects; yet his Majesty might by himself, or any commissionat by him, take cognizance of any Case or Cause, as he pleaseth: That Act is rescinded is by the 28 Act Parl. 1690; whereby all pre­tence of Power to erect new Jurisdictions within the bounds of Heretable Offices, is in­tirely excluded: And in Anno 1693. the King and Parliament were so tender of He­retable Offices, that when the Commission for the Justiciary in the Highlands was granted, they would not incroach upon the Earl of Argile's Heretable Justiciary.

Before Grant make any duply, for clearing of this point in question, it is to be con­sidered. 1. That regularly in conferring of Offices with jurisdiction, there is special regard had to the fitness of the person, and the jurisdiction is personal, and can nei­ther be convoyed nor transmitted to singular successors. 2. Although this did obtain by the Principles of the Common Law; yet the Fewdal customes did intro­duce Territorial jurisdictions, which was the Right of Jurisdiction granted to a Proprietar or Superior over his own Tenents, Vassals and Servants, which came to be a part of his property, and was a quality of his Possession, and was trans­mitted to his Heirs and was convoyed with the Territory, to which it was a­bove annexed; And as to which he was constitute the Kings Vassal, and obliged to answer in his Majestys Courts. 3 Of these Barons, some had more extensive and larger priviledge, and enjoyed more of the regalia and some less, as appears [Page 3]by our Ancient Laws, and particularly by the 9 Cap. of the Statutes of King Mai­com the second. Its evident that there was a distinction by the Chartors of the priviledges of Barrons: And it does likewise appear by the Satutes of the said King Malcom, and of King Alexander the Second, That the Jurisdiction, the Power of repledging the Right of the Escheats competent to the Ancient Barrons, was in effect the same Power which more lately came to be distinguished by the name of Regalities. 4. As there was Anciently Established the Territorial and Fewdal Jurisdiction of the Barons; so there were other Officers who had no such Fewdal Rights, but had Commission from the Government for the more Universal applica­tion & security of the publick Laws & quiet, such as were the Chamberland Heirs, whose Jurisdiction was over the Burrows, the Justice Heirs, whose circuits took in the rest of the Kingdom the Sheriffs, whose duty consisted Chiefly in publishing the Laws, maintaining the quiet, and seeing these Laws with the sentence of the Justice Heirs put in Execution, and he had a Jurisdiction Civil and Criminal for these effects; but still it appears that that Office was but personal; and therefore by the Statutes of Robert the Third they might be removed from their Office, and another might be put in in their place, and the last day of the Justice Heir the Sheriff was to those an assise for tryal, if he had used and done his office truely. 5. The Rights of the Sheriffships coming in the hands of considerable persons, by a­buse were perpetuat, and at last it seems, that although there is no Precedent for such a jurisdiction, whereby a person and his Heirs comes for ever to be interposed betwixt his Majesty and his Subjects, who are no other way subject to the Sheriff either as Vassals or Tenents; yet the Office insensibly came to be Heretable. 6. It is probable that these incroachments did oblige the greater Barrons to secure themselves in their Ancient priviledges and Rights by obtaining Chartors asserting these priviledges, which gave the rise to formal Erection of Regalities.

This being premised, it is easie to take off the Pursuers reply, and first there is a manifest Disparity betwixt the case of Regalitys and Sheriffships, for the Sheriffship is but a naked Office and Commission: which the King can never so absolutly grant, as to divest himself of the Royal and Supereminent Jurisdiction which is lodg­ed in His Majesty for the Execution of the Laws and publick Good, and of grant­ing of Fews with the full extent of all priviledges which have a Name in our Law, and are clear by constant custom, and such are Regalitys which are a part of the Fie and Property of His Majestys Vassalls, over their own proper Tennnets, or their S [...]b-vassalls, and the King can alse litle be divested of that Power, as he can be of the Priviledge of erecting Barrons, which is but a les­ser instance of the same Authority: And hence it is evident, That though the King can erect a Regality, which is a Quality of a Mans own Property within the Sheriffship, yet he cannot erect a Jurisdiction within the Regality, because that were indeed to Impare a proper Right of Fie.

2do. From the same Reason it is evident, That all these Instances of transmit­ting to Heirs. Gifting, Selling, Apprising, which are now established by Custom, have been at first introduced by Abuse, and are really contrary to the Nature of a personal Office: But whatever Custom may have established as to these instan­ces; yet there is no instance which is or can be condescended upon, wherever it was pretended, that the granting of an Heretable Shireffship did hinder the King to erect a Man's own Lands with special Priviledges of Jurisdiction; as to that Point we have no such Custom; and all these Transmissions are always understood to be under the Burden; and but prejudice to his Majesty's Right, for the good of his other Subjects: And albeit King Charles l. did purchase the Right of several Heretable Shireffships; yet that was not so directly an Acknowledgement of their Property, as it was a Measure of Government, to which his Majesty condeseen­ded, to avoid the Discontent of Great Men.

3tio. And as to the pretence, That the King might as well evacuat the whole Right of the Sheriffship, by erecting New Shires within Old ones, as erecting Regalities; or [Page 4]the King might evacuate the Sheriffs Heretable Right, by erecting the whole Lands within the Bounds of the Shire into Regalities. It is Duplied, 1mo. It is a vain Supposition, which probably cannot take effect. 2do. The erecting of a Shire within a Shire, were indeed to evacuat the Sihreffs Right; but there is no con­sequence to be drawn from the present Case, that may infer such a Power: For it does not follow, the King may erect Regalitys within a Shire, ergo he may erect a a Shire within a Shire, for the interest and power of Sheriffs and Baillies of Regali­tys are of quite different Natures, the Right of regalitys is a Right of Fie and property, as has been said, and has several other Priviledges in it which does not belong to a Sheriff, such as the Rights to Escheats and Replegiation with several others, all which are granted with express regaird and consideration, that the Lords of Regality are Proprietors and Superiors of the Lands contiained in the Rega [...]ity. 3tio. The granting of a Regality does not evacuat or exhaust the She­riffs Jurisdiction for several other Rights and Priviledges both of Jurisdiction and Dignity, which belong to the Sheriffs notwithstanding the Erection of Regalities, such as, The publishing of Laws, Seeing the same put to Execution, The calling together the Shire upon certain occasions, The raising the Posse comitatus, And by the 97 Act Parl. 7. Ja: 5. in some Cases if the Officers of Regality be found ne­gligent, being required thereto, it is Leisum for the King's Sheriff to put the Acts in Execution, even within the Regality, and if the Shireff shall attatch any party within the Regalities, the Lord of Regality cannot repledge without finding Caution to do Justice, and if he does not Justice within Year and Day, the Sheriff may proceed. Whereby it is evident, that notwithstanding the Feudal Jurisdiction of the Regality, with the Priviledges granted to it; yet there remains very considerable Power and Authority to the Sheriffs. And the Defender needs not plead, That the King may evacuat obsolutely the Right of Heretable Sheriff­ships, but that the granting of Heretable Offices to Shireffs, does not divest the King of erecting Fews with the Priviledges of less or more of the Regalia, to his other well deserving Subjects, as his Majesty sees just.

As to the Pretence, That the Sheriff has a particular Reddendo in his Chartor for his Office with a particular duety for which he Compts yearly, and consequently that his Right is of Fie and not of naked office. It is Duplied, That the Sheriff and his Predecessors might have obtained their Chartors expede in what form they pleased periculo pe­tentium: But that can never change the Nature of the thing, & there can never be a Fie without a Tenement either in Property or Superiority, or which does not in some manner affect Lands and Heretages: And therefore the Office of Sheriff is a naked Office, as has been said: Nor can the Sheriff by any constitution of Fie, be interposed betwixthis Majesty and his other Vassals.

5to. As to the pretence. That the Act of Parliament 1681, asserting the Kings cumulative jurisdiction and power by himself, or any Commissionat by him to take cogniz­ance of whatsomever case or Causes, notwithstanding of Heretable Offices being reschinded by the Act 1690. It does exclude his Majesties power of erecting Regalities within the bounds of Heritable Sheriffships.

It is Duplyed, that the recission of the foresaid Act 1681, does not at all con­cern this Case; for the reason why that Act was declared a grievance, and after­ward rescinded, is explained by the Eight Article of the claim of Right, whereby it is declared, that the imploying the Officers of the Army as Judges thorow the Kingdom, or the imposing of them, where there were Heritable Offices and juris­dictions, and the puting the Leiges to death summarly, and without legal Tryal, Jury or Record, are contrary to Law. Whence it is evident, that as that Act was calculate to serve the design of granting Commissions to Officers of the Army, with powers which had no determined name of Office or jurisdiction in Law, but was to be exercised against all Law, and the common Principles of Humanity; so it was only a grievance, and was rescinded upon that account; but the jurisdi­ction of Regalities has a name, and certain limits and form of procedor prescrived and to be found in our law, and they have been granted since alse well as before, [Page 5]and did neither arise nor depend upon that Law; and consequently neither the Re­galities themselves, nor the Power to grant them can fall with it.

It was further Replied for Westfield, That whereas it is pretended, That the King has been in use to erect Regalities within Heretable Sheriffships; The said Use and Power is Consuetudo facti, which has no binding Power or Warrand in it; because, First, these Erections are but recent, and have not as yet attained to Prescription. 2do. The Custom is not General or Universal, which is another Character of a Binding Custom. 3tio. Such a Custom can never be a Rule; because it is both contrary to Law, viz. the 43 Act Par. 11. Ja. ll. and private Right; which though it were not a sufficient Reason to reduce all the Regalities that are granted long since, yet it is sufficient to hinder such an Incroach­ment to be established by a Custom and Rule; especially seing no such Grant has ever been confirmed by a Sentence in judicio contradictorio. 4to. Such Regalities have not been acquiesced in, but there has Protestations been taken at their passing in Exchequer; as particularly at the passing of the Regality in Athole, Protestations were taken by the E. of Argile and Broadalbin: And if it were necessar, it would be found, that these Erecti­ons owe their firmest Establishments to particular Transactions.

It is duplyed, that the Establishment of a Custom, does neither require that length of time which is necessary for Prescription nor Universality of Acts: Nay, nor judicial Sentences for Custom is defined to be diuturni mores consensu utentium comprobati, and is alse sufficiently established by a frequency of Acts, whether Judicial or extra-judicial in Ten Years as in Forty, provided that these Acts be not Clandistine and of small moment, but be so publick, so frequent, and so importent as to inferr a Presumption of the Knowledge and Approbation of the People and supream Authority, and it will not be contraverted, that in the matter of erecting of Regalitys, all these have concurred in the most eminent de­gree, not for the course of 10, 20, or 40 Years, but in every Kings Reign alse far we have records, not in one corner of the Countrey, but thorow the whole King­dom, and particularly in the Shire of Murray, in favours of the Duke of Gordon and the Earl of Murray, nor in smaller and inconsiderable cases, great Lordships and Baro­nys have been erected and indued with these Priviledges, nor Clandestinly, be­ing granted by His Majesty and his Predecessors past in the Courts of Thesaury and Exchequer, ratified in the high Court of Parliaments; and the Sentences of the Baillies of the Regality have, and are daily brought under Consideration of the Lor [...]s of Session in processes, in the same manner as the Sentences of other ordinary Judges, besides many other instances which might be given for clearing how publictly and constantly such erections are granted and exerced: So that to deny custom, in this Case is against all Reason, and plain Conviction.

And as to the pretence, That somtimes Protestations have been used and trasac­tions betwixt Lords of Regality and heretable Shireffs. It is duplyed, That these in­stances are very few, nor are the Reasons of these Protestations known, Regali­tys have been granted sometimes irregularly, as when there are Lands contained in the Grant, which do not belong to the Lord of Regality, either in Pro­perty, or Superiority, in which case Protestations may be interposed, without weakening the general Custom; and however, a few Protestations taken some­times officiously, and upon Reasons which we do not know now, but whereof never one was prosecut to this day, cannot overturn His Majestys prerogative so clear­ly established by the general Acquiescence and implyed Approbation of the whole Kingdom.

And whereas it was further pretended, That custom could not be established contrary to Law and privat Right, and that Regalitys are discharged by the 43 Act Par: 11: Ja. 2. It is answered, That heretable Sheriffships are much more against Law, as shall afterwards appear, and Regalitys are not simply discharged, but discharged without deliverance of Parliament, and the present Regality has obtained a delive­rance of Parliament. Viz. A Ratification, which by constant Custom appears to be [Page 6]all the deliverance requisite, seing no Regality ever obtained more, and though Ratifications do fall under the Act salvo; Yet that cannot take place in this Case. 1mo. Because this Ratification is all that the Law requires, being a deliverance of the Parliament, as said is. 2do. The Sheriff can have no benefit by the Act salvo, because the Parliament could not have considered his Right, suppose he had compeared, se­ing his heretable Office was against Law, and therefore the Parliament could only have confidered the Kings, or the publick, interest, and neither the King, nor the publick are here complaining of Grants Regality.

It was furder replyed for Westfield, That there is no evidence either from the opinion of Lawyers or custome to Fortifie the Defenders alledgeance of Custome, and no regard ought to be had to the decision, cited from Hope, because the Parties are not mentioned, nor the ratio decidendi, nor is that Book of equal Authority with the Book called Hopes Minor Practiques. It is Duplyed, that that Decision is marked in Hope as seve­ral other Decisions are that are incontroverted, and although that work did not receive the last hand to persite it; yet what he asserts in matter of Fact, being a person of undoubted integrity, ought to be believed not only as true in Fact, but to be our practice, which seems to be the design of the Observations, and Sir George M [...]kenzie in the forecited place does not only give his judgement in the terms of the Defenders alledgeance, but gives a practique of his time.

It was yet furder replyed for the Pursuer, That whereas Grant did alledge, that the Kings Priviledge of erecting of Baronies within Heretable Shireffships was a fur­der evidence of his Power to erect Regalities, that the difference betwixt Baronies and Regalities is vast, in alse far as the Barons had nothing but a small Right of pretensi­on, which did not prejudge the Shireff, nor deminish his Territorium, but the Right of Baronies was co-ordinate and subordinat to the Jurisdiction of the Sheriffs, and owned by all our Acts of Parliament as such, and in effect the Sheriff is a superior Officer to the Baron; So that the making of an Heretable Shireff doth no more hinder the making of a Barron, than the making of an superior Officer hinders the making of an inferior. And indeed the Barons had the most Ancient Fewdal dignitys and Jurisdiction, and the Shi­reffs were superinduced to them for better policy and Government of the Kingdom in their several districts, Therefore the Shireff is compared to the praeces provinciae amongst the Romans, and the Barons were the Suitors in his Court, so that the superinducing the Shireffs did not diminish the Barons Power, nor does the creating of Barons, being co­ordinat with and subordinat to the Shireff, diminish his Territory or jurisdiction; and therefore there can be no Argument drawn from the creating of Barons to infer a Power of Erecting Regalities within the districts of Heretable Sheriffs, for in Regalities all things are just contrarie, the Right of Regalitie is privative of the Sheriffs jurisdiction. 2do. The Right of Regalities is so far from being owned by the Law, or as Co [...]ordinat or subordinat to the Sheriff that they are against Law, and particularly the foresaid Act Ja: 2d. and are revocked by all our Kings. 3tio. The Regalities was an incroachment upon the Shireffs, introduced first by the arogance and ambition of the Popish Clergy, who would at any rate be independent, even in matter of Jurisdiction, and whose example was pro­bably Copyed by the greater Barons, nor is there any mention of Regalitys elder than the Reign of King Robert the 2d. although the Shireffs are of a much Ancienter date.

It is Duplied, 1mo. That the Reply does not at all answer or take off the De­fence, but avoids it, and mis-leads the Mind by a pleasant account of Things, which with some Probabilities, contains some evident Mistakes. The Objection is, That the creating of a Barron, who has a most Ancient and certain Fewdal Jurisdi­ction is to creat a new Jurisdiction within the Sheriffs Bounds, which necessarly must diminish the Sheriffs Jurisdiction in as far as he can prevent him, but the King can creat a Barron, Ergo he can diminish the Sheriffs Jurisdiction; which is inconsistent with Westfield's Alledgiance of Property: For it is equally against Law to take away any part of a Man's Property, as to take away the whole, although the Damnage be not equal: 2do. The terms of Co-ordination and Subordination, is meerly to evade in [Page 7]For it is certain, that the Jurisdiction competent to a Baron, is at least Cumulative; and he can prevent the Shireff in such things as are contained in his Right; & where he prevents, he is neither in Sub-ordination nor Co-ordination, but excludes: And the granting a Power to Prevent, does certainly diminish the Interest of him who could not be prevented before. 3tio. Westfield's Information given in to the Lords, does plainly acknowledge, That the Office of Sheriff was no right of Fie, but was a meer Office with Jurisdiction for better Government and Policy, like the Praeses Provinciae amongst the Romans, which was but a temporary Juris­diction. 4to. As to the Pretence, That Regalities differ from Barronies, and are not mentioned till the Reign of Robert III. and were at first introduced by Church­men, as an Incroachment upon Sheriffs. It is Duplied, That the great Barronies did anciently contain all, or the far greatest part of the Priviledges of Regalities, as can be cleared from the Statutes of K Malcom II. and K. William, as is above mentioned: There was indeed a Distinction betwixt the Greater and Lesler Bar­rons, as they had Priviledge More or Less in their Chartors: And when the Sheriffs began to incroatch upon the Barrons, it is probable they did assertain and establish their Rights by express Chartors, which gave rise to the Name and formal Ere­ction of Regalities: But this was not to introduce a new Right, but to assert Pri­viledges anciently belonging to the Barons, contained in our oldest Laws: And the Caput 14. of the Statutes of King Rob: which Westfield alledges is the first expres­ly mentioning Regalities, does not speak of Regalities as a N [...]w Invention, but as a Jurisdiction that was then, and had been in use: So that it is most probable, that the Sheriff in several Points of his Office, and indeed in as far as he pretends to make his Office Heretage, does incroach upon the Barons, who had, as is acknow­ledged, the most ancient Jurisdiction, and that the Rights of Regalities is but as­serting the Rights of the great Barons in the Kingdom of Scotland.

The Kings erecting of Stewarties within the Bounds of heretable Sheriffships, is a further evidence that the granting of such heretable Offices does not prelimit the King from erecting other sewdal Jurisdictions: And it does not import, that Stewartries were anciently of the Kings Property; for it is evident that Stewartries comprehends the Kings Vassalls as well as Shires, and by ceasing to be in the Kings Property, they do not return to fall under the lieretable Jurisdict­ion of the Sheriff.

The erecting of a Burgh Royal within the bounds of an heretable Sheriff, is a further evident proof of His Majestys power notwithstanding of such Offices; and Westfield is forced to recur to this shifting alledgance, viz The erecting a Burgh Royal, which makes the 3d. State of the Kingdom is peculiarly His Majesty's Prorogative, which must still be understood to be excepted in the Grant of any heretable Sheriffship; whereas Regalitys derogat from the Kings Power and Casu­alitys.

But this is easily taken off, for Grant does alledge, that it is just alse evidently the Kings peculiar Prerogative, and must be understood excepted from the Grants of heretable Sheriffships, to erect Regalitys or which is the same thing, to creat Borrons with more or less of the regalia in their Chartors.

And as to The prejudice of the Kings Casualitys. It is jus tertii to the Sheriff, nor does the King grant any Casualitys to the Lords of Regalitys, but such as are dis­posed of every day.

In all this Debate Westfield does not adduce any good Reason to take off the Act 44: Par. 11. Ja: 2. Whereby Offices given in Fie and Heretage are discharged, and declared void, nor is there a Latitude that they may be granted with delive­rance in Parliament, nor indeed can there be any answer given, and this being an exception of Nullity against Westfield's Title, his pretensions fall.

It is further alledged for Grant, That his Regality cannot be simply quarrelled by the Sheriff, because his Right of Regality does comprehend a greater power than is competent to the Sheriff, and likewise the benefit of the Escheats and other-Casualitys [Page 8]to which the Sheriff had no Right, and therefore could not be allowed to re­duce Grants Right simply.

It was Answered for Westfield, 1mo. That the right of Regality being jus individuum, he had good Right to quarrel it; nor was he bound to divide and distinguish it. 2do. If the Defender should divide his Right of Regality, and maintain it only as to such Ca­sualities and Powers as did not belong to the Sheriff; Then this Gift would not only import a New kind of Office, but be a manifest Impingement upon the Act of Parliament, dis­charging the Kings Casualitys to be given away in Great, as of a Shire or Countrey-side.

It is Replied, That here again Westfield endeavours to escape in Words: For the Right of Regality is not so jus individuum, as that it has no parts, and may be quarrelled in part, and sustained in part, as if there were any new Priviledge contained in it, not usual in Regalities, or Lands not belonging to the Lord of Ere­ction. 2do. The pretence that the Regality would be a new Office, if it were re­stricted by the Sheriffs private interest, is a meer Nicety, and it is no better pre­tence, that the granting of such Regalities would be a disposing of the Casualities in great, contrary to the Act of Parliament; seeing it is evident that, that Act of Parliament does not exclude the Erection of Regalities, but concerns only such Cases where the Casualities are directly and immediatly disponed, not as the Consequen­ces of any other Right or Erection: Fot as such the Casualities have been and are constantly disponed; and they are not the Casualities in the Terms of the Act 1670. Parl: 11. Ja: VI. which Act discharges the giving away the King's Casuali­ties in great, indeed, but the Examples are a whole Countrey-side, the hail Fews of a Prelacy, or the Casualities of any special Crimes, but not the Casualities of any Mans own Lands in property or superiority, which is not general or in gross but special, and conform to custome.

Westfield does urge as a considerable Argument, That this erection is of a High­land Regality, which he incinuats, is of more dangerous consequence than other Rega­lities.

To which it is Answered for Grant, that this deserves no manner of regard, be­ing an alledgeance meerly injurious, and to plead favour. But 2. The Highland Landlords and Superiors being more rigorously tyed by the Laws of the Nation for their Vassals Tenents and Servants to present them to Justice, and to repair dammages done by them, it is most just and reasonable that they should have greater tyes upon them, and Jurisdiction over them, and on the other hand, the puting of a whole Country too absolutely under the Power of a Shireff, and that too, such a Shireff as Nature may turn up at hazard, may not only be unfit for the Country occasion, intestine disorders, but in many events may be unsafe for the publick Government, so that this Argument does rather conclude for the necessity of such Regalities.

It is therefore humbly expected, That seeing his Majesties undoubted Prero­gative to erect Regalities, notwithstanding of the Hetetable Office of Shi­reffship, and that the saids Grants of Regalities do by the Interpretation of our Law, contain a Fewdal Jurisdiction with several other casualities; where­as the Right of Sherriffship is a meer personal Jurisdiction, introduced not to overturn the Ancient Rights of the Barrons, who enjoyed several of the Re­galia by the Law, and their Chartors, nor the Kings priviledge to grant them, but for better Government and policie. And seeing his Majestie has been in constant use to grant the same, or like Rights of Barronies, Stewartries or Burghs Royal, and that the said custom has been approven by a long con­stant and general acquiescence, and confirmed by the opinion of our Lawyers, and decisions without contradiction, till this Process: And also seeing that the drawing of this matter would make a strange couvulsion in the Nation, by exposing the many Rights granted by his Majesty and his Predecessors of this kind, and that Westfields Tittle and Right to the Heretable Office is ma­nifestly against Law, and consequently null, To assoilzie Grant from the fore­said Process, and to reduce Westfields Tittle to the Shireffship, in so far as concerns the Lands contained in the Regality: