Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Duke of Argyle
v.
Sir Alexander Murray, &c

Date: 8 December 1739

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[Elch., No. 1, Regalia; Kilk., ibid. No. 1.]

The question here was, about the property of mines found in Sir Alexander’s ground, whether they belonged to the Duke, the superior, or to Sir Alexander, the vassal?

Both of them had grants from the crown of all mines within their lands and heritages; but, as the extent of these grants was to be regulated by the Act of Parliament 1592, about mines, the whole question turned upon the meaning of that Act. By this Act, (which is among the unprinted Acts,) the mines, which, by the Act of James I., were the property of the crown, were dissolved from it, and the king was empowered to set in feu-farm to every earl, lord, baron, and other freeholder, all and whatsomever mines found, or to be found, within their own lands and heritages, with this proviso, that, if the lord of the ground, being advertised of mines in his lands, refused to work them, then it should be lawful to the king to set them to any body else.

For the Duke, it was argued that the word freeholder denoted the immediate vassal of the crown, not the sub-vassal of the crown: that this was the uniform language of our statutes: that, in the Acts imposing taxations, freeholders are expressly distinguished from feuars and sub-vassals,—Act 281, anno 1597; Act 2, anno 1621: that, not only in the Acts relating to levying of taxes and the constitution of Parliament, does freeholder denote an immediate tenant of the crown, but likewise in other Acts which have no concern with either of these two things; e. g. 71 Act. p. 14, Ja. II., whereby lords, barons, and freeholders are allowed to set their lands in feu-farm; and even in the year 1593, which was the year immediately after the Act in question was made, the word freeholder denotes the immediate vassal of the crown, and is used in contradistinction to a great baron. And lastly, as, by the Act 12th Ja. I., the mines were taken from the Lords of Parliament and given to the king, so it is most probable, and ought in dubio to be presumed, that, by the Act 1592, they were given back to those from whom they were taken, viz. the Lords of Parliament, i. e. the immediate tenants of the crown.

To this it was answered, That freeholder signified the same with heritor or proprietor of lands; which signification is established both by the authority of our most ancient law-books and lawyers; [see Skene (who lived at that time,) his annotation upon the word Baro, in cap. 1, b. 3, of Malcolm II. statutes. See likewise those statutes, cap. 8, § 7, and cap. 9, (with the Quoniam Attach., cap. 45 and 46,) ] and by the constant style of our statutes, Act 54, p. 8, Ja. III.; Act 19, Parl. 1641; Act 35, Parl. 1, c. 2.* 2do, Were there any ambiguity in the word freeholder, it is sufficiently explained by other words in the statute, wherein mention is made of mines found within their own lands and heritages, and within the lands pertaining to any subject of this realm; of the Lord† of the ground, (which, by Skene, under the word Feodum, is rendered proprietor of the ground,) and Owner of the ground. So that the question comes to be, Whether Sir Alexander Murray’s lands belong to himself, or to the Duke, his superior? 3tio, By the preamble of the Act, it appears to have been intended for the benefit of all the lieges who should undertake to discover and work mines within their grounds, and is not alone calculated for the benefit of superiors.

* In the inscription of Parliament 7th, Ja. I., there are mentioned libere tenentes, qui de rege tenent in capite.

*This is the meaning of the word Lord in several statutes, Act 126, Ja. I., Act 18, Ja. II.

The Lords found that the word freeholder denotes any proprietor of lands. Dissent. Preside.

N.B. The narrative of the Act 1592 bears, That all mines belong to his Majesty; which contradicts Act 12, Ja. I., and is either erroneous or relates to ancient times, before Malcolm II, feued out the lands of Scotland.