Scottish Court of Session Decisions

Subject_1 ABBEY of HOLYROODHOUSE.

James Dunlop of Garnkirk,
v.
the Royal Bank of Scotland and James Christie, Esq

Date: 11 July 1799
Case No. No 9.

Incarceration in the Abbey jail found not to be such imprisonment as to entitle the party to commence a process of cessio bonorum.

Dyvour's habit.

20th Geo. II. ch. 43.

p. 147.

Maitland's History, page 149.

Page 151.

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James Dunlop, whole estate had been sequestrated in 1793, having retired to the sanctuary of Holyroodhouse in 1798, was incarcerated in February 1799, in the Abbey jail, upon an act of warding of the bailie of the Abbey, obtained for recovery of a debt contracted during his residence there. He brought a process of cessio bonorum.

The Royal Bank and Mr Christie, objected, That incarceration in the Abbey jail, was not such imprisonment as was required by law, particularly by the act of sederunt 1688, in which it is enacted, “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 magistrates of the burgh where he is incarcerate, bearing, That he hath been for the space of a month in prison, without which certificate the process is not to be sustained; and when he shall obtain a decreet, ordains the magistrates of the burgh, before his liberation out of prison, to cause him take on and wear upon his head a bonnet, partly of a brown and partly of a yellow colour, with uppermost hose or stockings on his legs, half brown and half yellow coloured, conform to a pattern delivered to the magistrates of Edinburgh, to be keeped in their tolbooth; and that they cause take the dyvour to the market-cross between ten and twelve o'clock of the forenoon with the foresaid habit, where he is to sit upon the dyvour-stone the space of an hour, and then to be dismissed; and ordains the said dyvour to wear the said habit in all time thereafter; and in case he be found either wanting or disgusting the same, he shall lose the benefit of the cessio bonorum; and in case the magistrates certificate aforesaid shall be redargued, or that they shall not observe the said order in the liberation of dyvours, they shall be liable in the debt for which the dyvour is incarcerate. And the Lords declare they will observe this act in time coming, and will not dispense with the foresaid habit, except in cases of innocent misfortune liquidly libelled and proven; and appoints this act to be printed, and the agent for the royal burrows to transmit a printed copy thereof to the magistrates of each burgh”

Pleaded for the pursuer, The protection of the sanctuary, denied to criminals, is allowed to unfortunate debtors, as a gentler species of confinement. The privilege is at least co-eval with our earliest judicial records, and has been esteemed by the wisest men, to be honourable to the law, and useful in its consequences. It is a humane provision for misfortune against one of the severest punishments, which can be inflicted on guilt. Creditors, for the gratification of resentment, might otherwise push legal measures to an excessive severity; an evil, which, without violating salutary general rules, could not be corrected by any special interposition of authority. A debtor availing himself of this refuge, does no injury to the interests of his creditors, since his property can be effectually attached, although his person be not previously seized. The gratification of resentment, which alone is frustrated, constitutes no interest which a court of justice will recognise. There is nothing, therefore, unfavourable in the case of a debtor, whose application for the benefit of cessio proceeds from the sanctuary; on the contrary, the necessity for allowing a cessio to an innocent debtor, who, imprisoned even in the sanctuary, has, in a great degree, lost the benefit of that last miserable refuge, is more urgent than in any other case.

Previous to the introduction of the process of sequestration, actual incarceration of an insolvent debtor had been thought necessary, before he could obtain the cessio, as conducive to a full discovery. A certificate of imprisonment was accordingly required, by the act of sederunt 1688. But, since the process of sequestration, with the relative procedure for the ranking of creditors, and division of bankrupt estates, has been brought to the perfection it has now attained; the reason at least, for requiring any imprisonment, previous to a cessio, has ceased, though the form may remain. The pursuer has the authority of the Court itself for affirming, that neither reason not justice require any imprisonment at all, in order to a cessio, where there has been a previous sequestration. A temporary act of sederunt, passed on 29th July 1735, entitled ‘an act for the security of creditors,’ &c. concludes with this remarkable clause, as one consequence of the new regulations then adopted, “and lastly, the Lords declare they will sustain processes bonorum, although the pursuers thereof shall not actually be in prison.” This act is not now in force; but it affords a presumption, that the same clause has not been continued in the bankrupt statutes, only from accident or oversight. After sequestration, there can be little need for the imprisonment of a bankrupt, unless in modum pænæ. His affairs must undergo a complete judicial security. His effects must be judicially collected and divided.

The object of the act of sederunt 1688, in requiring, as a preliminary to a process of cessio, that the bankrupt should have been incarcerated for a month, was, that the creditors might have time to inquire into the affairs and conduct of the debtor; and that the confinement might operate to produce, more easily, a full disclosure from him. The ceremony, no doubt, still remains as a matter of form; but it is a form certainly not so essential, in the case of an insolvent trader, at the close of the 18th century; as it might have been a hundred years before, when the bankrupt laws, which now regulate such affairs, did not exist.

By the law of Scotland, from the earliest period, personal liberty was respected. In the Roman law, the cessio bonorum was introduced only after civilization had made some progress; but, in Scotland, it was never an encroachment on the common law; it was a part of the common law, and a consequence of the principles on which it was founded. Thus, in the Quoniam Attachiamenta, cap, 7. sec. 3. the ancient rule is stated in these terms:

“Gif the debtour confeffes the debt, and is not valliable in gudes and geir to pay the famine, he sal acquyte himself be his awin eath, that he has not, in frie gudes and geir, above the valour of five shillengs and ane plack: and alswa he sall sware that he sall pay the debt thereafter, as he may wone and purches it, reservand to himself his necessare fuftentation quhereby he may live.”

And in the statutes of King William, cap. 17. under the title of Cession of Gudes, it is enacted, “That he quha sould be made bairman, fall swere in court, that he has na gudes nor gere attour five shillings and ane plak; and that he sall nocht retene to himself, of all his wonning and profite, fra that day in ainie time coming, bot twa pennies for his meat and claith; and he sall give ilk third pennie for payment of his debt.” So averse was the genius of the law of Scotland from indulging creditors in wanton severities, and from suffering unfortunate debtors, who were willing to give up all they had, towards payment of their debts, to languish in perpetual confinement! It is beyond a doubt, then, that after the introduction, and completion of the enactments, for the transference of the property of traders who become insolvent, to their creditors, and for the complete discovery and division of their estates, the necessity of imprisonment for debt, in cases of sequestration, almost entirely ceased, unless on account of fraud, and in modum pænæ.

But whether the form of imprisonment be essential or not, it has here been sufficiently complied with. The regality of Holyroodhouse comprehends, inter alia, a burgh of regality; which extends from the old chapel to the boundary of the royal burgh of Edinburgh at the Nether-bow port, including the whole length of the street, at the eastern end of which the prison of Holyroodhouse is at present kept. The boundaries of the sanctuary are distinctly pointed out in Maitland's History of Edinburgh, p. 153.; and, from that author, it appears, that before the present Canongate church was built, the chapel of Holyroodhouse, after the Reformation, was the common parish church of that burgh of regality. According, then, to the very words of the act of sederunt, the prison of the Abbey, in which the pursuer was incarcerated, is a prison belonging to a burgh of regality.

It would, however, have been sufficient, on this point, to observe, that prisons ‘of burghs,’ are mentioned in the act of sederunt 1688, only exempli gratia, and as the most common case; without being exclusive of any prison whatever, in which a debtor may be lawfully confined. The prisons of burghs are not more highly privileged than any other regular prisons. The warrant for incarceration, in captions and other diligences, requires magistrates to imprison the parties in any ‘tolbooth, or others their warding places,’ without distinction, whether these be in burghs, royal castles, forts, or any other buildings, within which prisoners may be confined, existing in the sheriffdoms, stewartries, or other jurisdictions of the kingdom. A debtor so incarcerated, in virtue of the diligence of the law itself, must have equal right to found upon his imprisonment, as a circumstance entitling him to commence a process of cessio, wherever his place of confinement may be. It is true, indeed, that captions cannot be executed within the sanctuary; but, with regard to the right to commence a process of cessio, it is surely altogether immaterial upon what warrant the pursuer may have been incarcerated, provided only the warrant has been legal.

The jurisdiction of the bailie of the Abbey of Holyroodhouse, is understood to be derived, both from the heritable regality of that Abbey; and also from the right of jurisdiction inherent in the Crown; to which, on the suppression of the Abbey, at the Reformation, the Abbey itself, and every right and privilege annexed to it, reverted. Even before that period there was a royal residence within the precincts of the Abbey. Consequently, as a jurisdiction belonging to his Majesty, it was in no respect affected by the act abolishing the heritable jurisdictions of subjects. Besides, being the jurisdiction of a burgh of regality, it was particularly excepted in the statute. In a case reported by Lord Fountainhall, 26th February 1695, vol. 1. p. 673. (See Inhibition.) James Watson of Saughton against Sir Robert Baird of Saughtonhall, an inhibition was reduced, because it affected lands within the regality of the abbot of Holyroodhouse; and yet was not published at the market cross of Canongate. In mutual declarators of rights and privileges, between the taylors of Cannongate and the taylors of Edinburgh, mentioned by Lord Fountainhall, vol. a. p. 388 and 443. (See Burgh.); the taylors of Canongate produced their real of cause from the abbots of Holyroodhouse and barons of Broughton, which was sustained. In the case, No 2. h. t. from Fountainhall, Cockburn supplicant, a suspension of a decree of the bailie of the Abbey was repelled. Since the act of 20th Geo. II. was passed, the bailie of the Abbey has pronounced many decrees without objection, in matters which, after the date of that statute, would not have been cognizable by the baron bailies of subjects. Since the abolition of heritable jurisdictions, various cases have occurred where the jurisdiction of the bailie of the Abbey has been recognised, See No. 5. and No 7. h. t. From practice alone, then, there could be no question now respecting the jurisdiction of this magistrate, so often sustained and exercised.

It is next to be considered, whether the mere concurrence of the privilege of sanctuary, can have any effect to exclude, from the common-law right of cessio bonorum, competent to all debtors, a debtor who happens to be lawfully incarcerated for debt, within the sanctuary, by a decree of the magistrate of that jurisdiction. The privilege of sanctuary itself is a legal one, and has always been recognised as such; nor, till now, was it ever imagined, that residence within the Abbey grounds had the smallest tendency, except as to the mere legal privilege of sanctuary, to place those who dwell there, in a different situation from the other subjects of this country. It will be a surprising discovery indeed, if it should turn out, that residence within this territory, which has been supposed to afford a humane immunity to debtors, does in fact deprive them of one of their most valuable privileges, that of pursuing a cessio bonorum. Within the territory of the Abbey there are, and always have been, many residents who do not retire there on account of debt, but for conveniency or choice. Are these to be excluded, if they should be incarcerated in the prison of the jurisdiction where they live, from the benefit of cessio bonorum, which the law has hitherto been understood to extend to every honest debtor without distinction?

The pursuer has been asked, whether he would be satisfied with a decree in his action against the incarcerating creditor alone? But that would be utterly inconsistent with the nature and object of the process of cessio, which embraces an accounting by the bankrupt with all his creditors. The creditors, as a body, are the opposing party; and the pursuer can neither litigate his cause with a part of them, without affecting the whole, nor cede his goods to one or more, instead of the whole.

From all these considerations combined, it follows, that the objection taken to the process of cessio, upon the ground, that a debtor imprisoned only in the Abbey jail, is not entitled to pursue it, is without foundation.—There have been various precedents favourable to the pursuer's plea. In the case of William Linley, decided very lately, upon printed papers, the only certificate of imprisonment, was one by the bailie of the Abbey; which bore likewise that Linley had been liberated, on account of bad health, the third day. In the answers for the creditors, it was urged, “that the pursuer, so far from being obnoxious to personal diligence, had secured himself by residence in the Abbey; and told the Court that he was lately imprisoned, in the jail within the Abbey, for a trilling debt. This incarceration must have been purely voluntary and collusive; for, if it had been otherwise, he could not have been confined for a civil debt alone; and, besides, he only continued in prison for a few hours to enable him to say he had been there.”—The objection to the mode of imprisonment was never waved or passed from; yet, upon 2d June 1798, the following interlocutor was pronounced:

“The Lords having advised the state of the process, and writs produced, and whole procedings in the cause, and heard parties procurators thereon, Find the pursuer entitled to the benefit of this action.”

—Nothing but an express minute, waving the objection, could place it out of the consideration of the Court; even if the plea had involved merely the interest of the objecting creditors, and had not at all affected the public law, and the regularity of judicial procedure. The case of Linley, therefore, where the objection to the mode of imprisonment was particularly stated, and disregarded, fixes the point now at issue, in favour of the pursuer.—It appears likewise, that James Donaldson, late factor to Lord Perth, was, on 19th June 1798, found entitled to the benefit of cessio, although incarcerated only in the Abbey jail. And, on 9th March 1799, the same thing occurred in the case of Kenneth M'Kenzie, factor to Sir Alexander M'Kenzie.

In applications upon the act of grace, the objection, that the place of confinement was the jail of Holyroodhouse, would have been equally applicable, as in processes of cessio, if it were not to be considered as a common prison. Yet there are numerous instances of persons, confined in the jail of the Abbey, who have obtained the benefit of this act.

Pleaded for the defenders: Though the law of Scotland is certainly more lenient to bankrupts, than that of the sister kingdom, or perhaps that of any other country in the world; yet it admits, to the stillest extent, of personal execution for debt, and entitles the creditor, squalore carceris, to compel his debtor to pay, if in his power. Nor does it, in any degree, recognise the idea, that the bankrupt has a right, merely by surrendering his effects to his creditors, to tie up their hands from incarcerating him. On the contrary, the various acts that have been passed, particularly of later years, for rendering the payment of creditors more easy and expeditious, put it in the power of creditors to divest the bankrupt, by a sequestration, of the administration, and even the right of property of his own effects, for the behoof of all his creditors: yet they afford him, though thus totally deprived of the power of paying a single farthing of his debt, no protection against imprisonment; except in the special case, where his assistance is necessary for extricating his affairs. There the Court are authorised, on the application of the factor, or trustee, to grant the bankrupt a personal protection for a limited time: a regulation, which has in view the interest of the creditors alone, and in no degree the situation of the debtor. Nay, after the fullest surrender has been made, and the debtor's whole estate applied to the payment of the creditors; unless the debtor shall obtain a discharge, which is made to depend on the mere will of four-fifths of the creditors in number and value, the law, though it must be presumed the debtor has no longer any funds to pay his debts, leaves him liable, to imprisonment as much as before.—The principle upon which the miserabile remedium of the cessio, was introduced, was not the debtor's inability to pay his debts; his willingness to surrender his estates; or the fairness of that surrender. If it had, it would have been competent for him to bring his action, without being incarcerated at all. The sole foundation of the remedy is, to relieve the debtor, after a certain length of suffering, from actual imprisonment, that, if he can prove his insolvency to have arisen from innocent misfortune, and that he has made a fair surrender, he may be freed from the personal diligence of all his creditors in time coming. From the very nature of the thing, therefore, he must be actually in prison at the time he brings the action, and that, in such a situation, that all his creditors may have a right to arrest him, and keep him confined, in the event of his failing in the process of cessio. Indeed, the very idea of a process, at the instance of a debtor, to have it found that creditors, whom he has deprived of the power of incarcerating him, shall be prohibited and discharged from putting him in prison, would be a solecism of the very grossest nature.

The defenders then maintain; 1 mo, That, though the pursuer were truly and bona fide incarcerated, in what is called the prison of the Abbey, and though that prison were not, as it is, within a legal sanctuary, whereby he stands protected from the diligence of all his former creditors, he would not be in prison in the eye of the law; what is called the prison of the Abbey being; quoad the process of cessio, no legal prison for debtors; 2dly, That, were it such a prison, the circumstance of its being within a sanctuary, would, per so, prevent a debtor imprisoned in it, from insisting in an action of cessio bonorum against creditors, from whole diligence he is secure.—In considering the first point, let the terms of the act of sederunt 1688, he attended to, (see p. 8.) From them it is clear, that the Court had in view the prisons of burghs only, where there were regular magistrates having a proper jurisdiction, not only entitling them to receive and detain prisoners for debt, but to carry into execution the sentence against the bankrupt obtaining the cessio; and accordingly, a copy of the act is ordained to be font to the magistrates of each burgh. There is no necessity to enquire whether the act extends to burghs of regality, where such burghs, have regular prisons for debtors, in which may be incarcerated persons arrested for debt by homing and caption. The words and spirit of the act may include burghs of regality; but the Abbey prison is not the prison of a burgh of regality; nor is the bailie of the Abbey a magistrate of a burgh of regality: nay he is no magistrate of any kind or description, whatever. The prison of the regality, within which the Abbey lies, is the tolbooth of Canongate. The bailies of Canongate are the magistrates of the regality; and the person called the bailie of the Abbey, is a mere servant appointed by the Noble Peer who holds the office of Keeper of the King's palace of Holyroodhouse; an office, to which there neither is, nor could be, any jurisdiction attached; nor any power except that of executing the ordinary police within the bounds of this royal palace.—This will be evident from the following deduction.

The Abbey of Holyroodhouse appears to have been founded by King David the first, in the year 1128, as a house for Canons Regular. The original charter is to be found in Maitland's History of Edinburgh, book II. chap. 2. It grants to the abbot, the church of the castle of Edinburgh with the appurtenances and rights thereof; trial by duel, water and fire ordeal, so far as appertains to the ecclesiastical dignity. It conveys a variety of lands; such as the town of Saughton and its several divisions; the church and parish of St Cuthberts with all things thereto belonging; the church-town, &c. 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 Inverlieth in the neighbourhood of the harbour; the towns of Pittendriech, Hammar, and Forden; certain pensions out of the tithes of merchandize at Perth, and out of the King's revenues at Edinburgh and Stirling; houses in Berwick and in Renfrew, with a certain right of fishing there; and a variety of other things of the same fort, which it is unnecessary to recite. It appears by the Cartulary of Edinburgh, vol. 4. p. 323. that in this charter are these words, (which do not appear in the copy published by Maitland,) “And his Majesty granted to them to build a burgh between the said church and the King's burgh of Edinburgh,” &c. *And by

* The clause run thus:

“And his Majesty granted to them to build a burgh betwixt the said church, and the King's burgh of Edinburgh, and that the burgesses should have liberty of buying and felling in his Majesty's markets freely, and without any hazard or custom, as his Majesty's own burgesses: and his Majesty discharged that no person in their burgh, should take bread, ale or cloth, or any other saleable thing by force, or without their consent: And his Majesty also granted to the said Canons, that they should be free from all toll and custom in all royal burghs, and throughthe whole land, of all things which they should happen to buy or fell, and that none should poind upon the said lands of Holycross, unless the abbot refused to do justice. And his Majesty willed, that all the above written should be held as fully and quietly as the King held his own proper lands, and that the abbot should have courts as freely, fully, and honourably as the bishop of St Andrew's, the abbot of Dunfermline, and abbot of Kelso had theirs.”

—The burgh which was accordingly built, was called Canongate, after the canons or monks.

This charter, which is without date, is confirmed by a charter of William, surnamed the Lyon, also without date, which confirms the foundation charter with some small variations, particularly giving the ground on which the Abbey was situated.

The foundation charter was again confirmed by another charter of Robert the Bruce, also without date.

In this charter the foundation charter is verbatim engrossed: and it then proceeds, “Ratifying, approving, and confirming the same in all things, and strictly charging and commanding the justiciars, sheriffs, provosts, and their bailies, to whole knowledge the said charter should come, that they should noways presume to trouble or molest the said abbot and canons, anent the foresaid charter, and confirmation thereof, under his Majesty's highest displeasure.”

Another charter was granted by David II. dated at Ayr the 6th of June, and 14th year of the King's reign, which is the year 1343.

In this charter is engrossed the said charter of confirmation by Robert the Bruce, “which is thereby ratified, approved, and confirmed, in the whole points and articles thereof, and his Majesty willed that they hold and possess the whole foresaid lands therein narrated, in a free regality, with full administration of the said regality in all things, as freely and quietly as any other regality was held within the kingdom by any person whatever.” Then follows a grant to the abbot and convent of the chaplainry of his Majesty's chapel.

the charter the abbots were authorised to hold courts. What was the nature of these courts; and particularly, whether there was a civil jurisdiction, including the power of decerning and imprisoning for civil debts, or of having a prison in which debtors, attached by legal diligence, could be imprisoned; it is unnecessary to enquire; because, the civil jurisdiction, if any, was afterwards given away by the abbots. Maitland mentions, “That Besides the privileges mentioned in the

Another charter of confirmation of the same date and tenor, was granted by the same King David II. signed at the Monastery of Dunfermline, the 30th December 1343.

These charters were again confirmed by a charter of James II. dated at Edinburgh, the 20th April 1450, and by another charter of the same King, of the same date.

A charter or grant was given by Robert, commendator of the Monastery of Holycross, and convent thereof, dated 23d August 1565,—Appointing Sir John Bellenden of Achnowl, and his heirs male, therein mentioned, “heritable justiciars and bailies of their hail barony and regality of Broughton, as well of their burgh and town of the Canongate, and their lands of Leith, as of all their lands and farms lying within the shire of Edinburgh principal, constabulary of Haddington, Peebles, Lanark, Stirling, Linlithgow, and stewartry of Kirkcudbright, and all their other lands wherever they lye within Scotland;” giving to him and his heirs full power and command “to ordain, hold, begin, and fence justiciar and bailie courts of the said barony and regality, and of all their other lands and farms, as well in criminal as in civil cases.”—Infeftment followed upon this gift.

A precept was granted by Adam, bishop of Orkney and Zetland, perpetual commendator of the Monastery of Holycross, for infefting Ludwick Bellenden, as heir to Sir John, in the said offices of justiciar and bailie, dated 13th May 1577.

In July 1587, Sir Lewis Bellenden of Auchnoul, Lord Justice Clerk, and who was also heritable bailie of the regality of Holyroodhouse, prevailed upon the commendator and convent of Holyroodhouse to resign the lands and barony of Broughton, with the burgh of regality of Canongate in the King's hands, for new infeftments in favour of Sir Lewis, and a charter from the King passed upon their resignation, narrating the services done by the family of Bellenden, and “that it was known to his Majesty that the heritable office of bailiery of the lands, baronies, and others underwritten, and a great part of the said lands, did then belong heritably to the said Sir Lewis:” Therefore his Majesty gave, granted, and confirmed, to Sir Lewis Bellenden and his heirs, “all and hail the lands and barony of Broughton, containing the particular burgh of regality, towns, lands, and others underwritten, viz. The burgh of regality of the Canongate, lying between the burgh of Edinburgh and Monastery of Holyroodhouse, and that part of the town of Leith which lyes on the north side of the water and bridge of Leith;” a variety of other lands, but which does not include the abbacy or Monastery of Holyroodhouse, or the district immediately adjoining to it. And in the quæquidem of the charter, the lands “and privilege of regality,” are described ‘as a part of the patrimony of the benefice’ of Holyroodhouse. Cartulary of Edinburgh, vol. 4.

The family of Bellenden of Auchnoul, were the predecessors of the family of Roxburgh; and it appears, that Robert Earl of Roxburgh succeeded to the lands and jurisdiction mentioned in the above charter.

This Earl of Roxburgh conveyed the above lands and jurisdiction to King Charles I. and his Majesty then wadsetted them to the Earl. The reason of this does not now appear; although it is probable that the grant, proceeding from the commendator and convent, had not been deemed a sufficient title, after the different acts of annexation of church lands to the crown; and as it is narrated in the charter 1587, that the Earl had acquired certain heritable rights to the lands, prior to the resignation by the commendator and convent, it is not improbable, that the wadset sums came in place of these rights. In order, however, to validate, as it should seem, the King's own title, and the transaction that had been entered into, an exception was inserted in the act of annexation 1633. c. 13. of “the lands and barony of Broughton, comprehending the towns, lands, burgh of barony, mills, and others mentioned in the infeftments granted by his Majesty under his highness' great seal, to his highness right trusty cousin and counsellor Robert Earl of Roxburgh.”

While the rights stood upon this footing, an agreement was entered into betwixt Robert Earl of Roxburgh, with consent of Charles I. the foefees in trust of Herriot's hospital, and the Magistrates of Edinburgh, as represending the community of the city, in the form of a minute of contract,

above recited charter, Robert abbot of Holyroodhouse, granted to the inhabitants of the Canongate divers other privileges, which were not only confirmed by the Kings David II. Robert III. and James II. and III.; but the said Kings granted to the bailies, consuls, and community of the burgh of Canongate, the several annuities payable at the Exchequer by the said burgh; the common muir lying between the lands of Broughton on the west, those of Pilrig on the east, and the way leading from Edinburgh to Leith on the south, with all the rights and customs thereunto belonging; together with all the liberties, commodities, privileges, and immunities, appertaining to a burgh of regality: and that it shall be lawful for the burgesses of the said burgh, to fell wax, salt, iron, wool, skins, hides, bread, ale, cloth, and other staple commodities; with a right to have bakers, cloth workers, and a number of other artificers, sufficient to supply the market, and to carry on commerce; with a power to elect annually, at Michaelmas, two or three bailies, a treasurer, with a proper number of officers, for the administration of justice within the said burgh, who shall continue in office during the space of one year, and shall yearly account, for the administration of their respective offices, to a committee of burgesses, to be chosen for that

dated 8th August 1636; and in which it was stipulated, that the Earl of Roxburgh, with consent of his Majesty, should sell and dispone to the magistrates and council, and their successors, as representing the body and community of the city of Edinburgh, “All and haill the particular lands, superiorities, regalities, and others following, viz. The burgh of regality of the Canongate,” and that part of the town of Leith, on the south side of the water, which belonged to the abbacy of Holyroodhouse, with the village, houses, and yards, called Dearaneuch, or Pleasants, without any other subjects or jurisdiction whatever. And by the same minute, it was also agreed, that the Earl, with consent of his Majesty, should dispone to the foefees in trust for Herriot's hospital “the lands, mills, superiorities, feu-duties, and others following, viz. The town and lands of Broughton,” and a variety of other lands, among which are not included the abbacy or Monastery of Holyroodhouse, the grounds adjoining, or the jurisdiction belonging thereto. Cartulary of Edinburgh, vol. 4.

A contract followed upon this minute of agreement, and in consequence the barony of Broughton still remains with Heriot's hospital; but the jurisdiction was sold to the crown; and the superiority of Canongate and Pleasants, and jurisdiction of Canongate, still remain with the town of Edinburgh.

Robert Stewart, the commendator of Holyroodhouse, natural son of King James V. made an exchange with Adam Bothwell, bishop of Orkney, of the abbacy of Holyroodhouse for the bishoprick of Orkney, about the year 1569.

In the year 1581, the whole remaining part of the regality was, by a charter under the great real, dated the 24th of February that year, upon the demission of Adam bishop of Orkney, granted and disponed to John Bothwell his son; and by the terms of the charter there was conveyed to him “totum et integrum benesicium, et abaciam abbaciæ de Holyroodhouse, cum jurisdictione regalitatis ejusdem, pro omnibus fuæ vitæ diebus.”

And the same person was afterwards, by patent, dated 20th December 1607, raised to the peerage, by the title of Lord Holyroodhouse, and got the lands that formerly belonged to the Abbey and convent of that name, and which were by this time reduced to the lands over which the bailie of Holyroodhouse now exercises his jurisdiction, to be called the Lordship of Holyroodhouse.

The grant to John Bothwell, of the abbacy, with the jurisdiction of regality, being only for his life, it reverted to the crown upon his decease.

On the 10th of August 1646, a charter was granted to James Duke of Hamilton, appointing him heritable Keeper of Holyroodhouse, and the gardens, orchards, &c. “Cum omnibus privilegiis feodis casualitatibus et divoriis quibuscunque ad eadem pertinen.” The office has remained in the family of Hamilton ever since.

purpose: And the said burgesses are likewise empowered to hold courts, both civil and criminal, for the administration of justice; and the fines arising therefrom to be employed in the service of the town; provided always, that the acts and statutes for preserving the peace within the said burgh, be conform to the laws and statutes of the kingdom. And the said burgesses were to have, and hold all their rights, privileges, and immunities foresaid, in free burgage, as fully, freely, and honourably, as any other burgh of regality within the kingdom, rendering yearly at the Exchequer, for the same, the sum of 4d. Scottish money.”

Thus, from a period co-eval almost with the erection of the Monastery itself, the civil jurisdiction conferred by the charter was completely vested in the magistrates of the burgh of Canongate, (the burgh which was built by the abbots, under the power given them by the foundation charter,) as bailies of regality, where it has ever since remained: Here, accordingly, there has always been a regular jail for imprisoning, not only such persons as are attached by acts of warding from the bailies, but such as are apprehended upon letters of caption for civil debts.

At the Reformation, the abbacy of Holyroodhouse returned to the Crown. That part of it, which had been erected into a burgh of regality, appears to have been gifted to the family of Ballenden; from whom it descended to that of Roxburgh; and, on the 18th August 1636, the magistrates and council of Edinburgh, bought of the Earl of Roxburgh, the superiority of the Canongate; together with the town of North Leith, part of the barony of Broughton adjoining to the water or river of Leith; and part of the village called the Pleasance, for the sum of 42,100 merks; which was confirmed by a charter of King Charles I. This charter confirms to the magistrates of Edinburgh, “All the several lands, burgh of regality, superiority, and right of regality, with other things hereafter mentioned, viz. The whole burgh of regality of the Canongate, &c. with the right and privilege of serving brieves, making returns, and administring justice in all causes and actions, both civil and criminal, belonging to a free regality, within the jurisdiction foresaid; with a right and liberty to elect, constitute, and qualify, one or more bailies, with their deputies, assessors, clerks, serjeants, and other necessary officers for holding a court; with a power of holding courts of regality and justiciary, as often as shall be found necessary for the trial of actions, both civil and criminal, according to the laws of this our kingdom of Scotland; with a right of judging and determining as fully and freely as any other lord of regality within our said kingdom.”

The result of this jurisdiction is thus summed up by Maitland:

“This regality, in subordination to the Edinburghers, is governed by a baron and a bailie; the former, who is one of the late bailies of Edinburgh, and the latter, his deputy, are appointed by the common council of Edinburgh. The bailie presides in the court of the regality held in this place; wherein are tried all causes, both civil and criminal, other than in capital cases. The officers in this town are the baron and his baillie, a treasurer, town-clerk, and fiscal, eight constables, and five officers, belonging to the magistracy. The companies, or incorporations of trades, are seven in number; namely, the wrights and masons, hammermen, bakers, taylors, cordiners or shoemakers, weavers, fishers or butchers, and candlemakers; to whom belong a convenery. To this regality, as mentioned in the above charter, appertains the town of North Leith, that part of South Leith called the Coalhill, and that part of Saint Leonards denominated Dearenough or the Pleasance, adjoining to the south-western part of the Canongate; and the baron and bailie of this burgh are justices of the peace in the county of Mid-Lothian.”

It is evident, then, that whatever civil jurisdiction was vested in the abbot of Holyroodhouse, was completely transferred, and now subsists, in the magistrates of the Canongate. The jurisdiction, being in its nature indivisible, was clearly annexed to the burgh, the abbot was authorised to build, and could not be divided; but must have passed entire, with that burgh, to the family of Roxburgh; in whose power the regality-jurisdiction was accordingly confirmed by the Crown.

What then is the jurisdiction, vested, or supposed to be vested, in the person called the bailie of the Abbey?—Although the Crown, after the Reformation, granted to the family of Roxburgh, those parts of the domains of the Abbacy, which now form the regality of the Canongate; it retained the Abbey church, and the palace, as a royal residence; together with what is called the King's Park; the management of which was, as is usual in other royal domains, committed to some nobleman about the court; and appears, by a charter in 1646, to have been vested, as an hereditary office, in the noble family of Hamilton.

The charter runs in the following words:

“Carolus, &c. Sciatis nos fecisse et constituisse, tenoreque præsentium facere, et constituere prædilectum nostrum consanguineum et conciliarium Jacobum Ducem Hamiltoun, &c. ejusque hæredes masculos de corpore suo legitime procreat feu procreand quibus deficien hæredes suos talliæ, hæreditarios custodes Palatii nostri de Holyroodhouse, cum omnibus hortis, hortulis, pomariis et sphæristeriis, lie bowling greens, eidem spectan; et dedisse, tenoreque præfentis cartæ nostræ dare, dict. Duci, hæreditarium officium et custodiam earund. cum omnibus privilegiis feodis casualitatibus et divoriis quibuscunque ad easd pertinen.; cum plena potestate præfato Duci ejusque præscript faciendi et constituendi sub-custodes dicti nostri Palatii, hortorum, aliorumque prædict unum vel plures pro eorum arbitrio; ac nominandi et designandi hortularios, aliosque servos, pro colendis et custodiendis dict. hortis et pomariis, dict Palatii, tum borealibus tum australibus; ac parvo horto infra idem Palatium, sphæeristerio, lie bowling green, aliisque ad ejusmodi spectan; omniaque alia præstandi adeo libere in omnibus respectibus, sicuti quovis tempore præterito fieri folebant.”

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, viridariorum, et pomarioram, quæ de eisdem annuatim lucrari poterint cumque omnibus aliis divoriis quibuscunque, quæ pro colendis et custodiendis eisd, perprius persolvi solebant; cum potestate similiter dict. Duci, ejusque præscript, per semet ipsos aliosque eorum nomihibus, haben. eorum warrantum, levandi prædict annua feoda, particulariter et generaliter suprascript. omni tempore futuro; et de omnibus annis præteritis debit. et nondum folut. &c.”

The bailie's commission flows from the Duke of Hamilton, as Keeper of the Palace. His Grace “makes, nominates, constitutes, and appoints the said Henry Home, to be our bailie of his Majesty's Palace of Holyroodhouse, and of the whole bounds and precincts thereof, or belonging thereto, giving and granting to him all the sees, casualties, profits, duties, and emoluments whatsoever, pertaining, or anywise known to pertain and belong to the said office, and that during pleasure allenarly, and until these presents are recalled by us: With power to the said Henry Home, or any substitute to be named by him, to exerce 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 dempsters, and all other necessary members of court, excepting the clerk, (the nomination of whom is reserved,) the said Henry Home being always answerable for his sustitutes; to proceed and administer justice in all actions and causes competent to be pursued before him; decreets and sentences to give forth and pronounce; 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 exerce, during the continuing in office, as fully and freely in all respects as any other bailie of said palace have done, or lawfully may do; promising to hold firm and stable, all and whatever things the said Henry Home, or his substitute, shall lawfully do in the premises.”

It is evident, that however apparently extensive the powers granted by this commission may be, they can never legally exceed the powers conferred on the Duke himself; by a charter, which appoints his Grace the Keeper of the Palace, park, and gardens; with no other authority than that of appointing sub-keepers of the Palace and gardens, and of naming sub-gardeners, and other servants for cultivating and keeping the same. Nothing, then, can be clearer, than that Mr Home, though dignified with the title of bailie, and vested with something resembling a jurisdiction, can be considered as nothing else, than a mere under-keeper or gardener of the Palace. Though, then, it were allowed, that, in a royal garden, practice might introduce, or might sanction, the exercise of a sort of police, for preserving order; and even for extricating the privileges of a sanctuary; yet it seems impossible to consider the under-keeper, as a civil judge or magistrate; and, to hold to be a prison, in the sense of the act of sederunt, any lock-up place, which he may use, for punishing petty delinquencies, committed within the Abbey; or even, (as a matter of police,) for enforcing payment of debts contracted there.

The legality, even of this paultry jurisdiction, might, perhaps, if necessary, be successfully disputed; but it matters not whether it be legal or illegal. It cannot be considered, as more than a mere exercise of authority, in the way of police; a method of correcting the delinquencies of debtors, taking the benefit of the sanctuary, and refusing to pay for their aliment; a practice originating in the necessity of the case; as no ordinary diligence of the law could there affect debtors, even for such debts. To hold this to be imprisonment, in the sense of the act of sederunt; to consider the place of this confinement as a prison; or the certificate of this bailie, the mere deputy of the keeper of the palace, as the certificate of a magistrate of a burgh, entitling the debtor to insist in an action of cessio, would be an absurdity; although the place were not within the bounds of a sanctuary. But let it be next considered, whether a person locked up, upon such a warrant, within the precincts of a sanctuary, for a debt there contracted; and being, while in this state of supposed imprisonment, protected from the diligence of his creditors at large; is entitled to insist against those creditors in an action of cessio. If he prevail, he will be secured from diligence in all time coming. If he fail, he may remain in the sanctuary and defy diligence as securely as if he had been successful in the action. The bare statement of such a proposition, would almost seem enough to confute it; if the least regard be due to the observations, already made, on the nature and object of the action.—The pursuer's summons contains, and every such summons must contain, these words:

“The pursuer is likewise continually oppressed, and in danger of being arrested in prison, at the instance of the following persons, his real or pretended creditors.”

Is it possible to read this subsumption, without being satisfied, that a man, confined in what is called the prison of the Abbey, cannot maintain an action upon that summons? The proposition it contains, is completely contradicted by the statement itself. With the same breath, that the party asserts he is in danger of being arrested in prison, he sets forth, that that prison is in the sanctuary; where it would be impossible for any creditor to arrest him.—The Supreme Court of a great commercial country, cannot give way to such a proceeding as this, with their own act of sederunt before their eyes; which declares, that no person shall be heard in such an action, unless he shall produce the certificate of his incarceration, by one of the magistrates of the burgh in which he is incarcerated.

The defenders would disdain to dispute with the pursuer, in his unfortunate situation, on a point of form: But this is not a question of form, but of substantial justice. They are entitled to be on equal terms with the pursuer; and this they cannot be, while he shelters himself in the sanctuary, whether his incarceration there be legal or illegal, real or fictitious; for while, on the one hand, if he shall succeed in his action, he would be free from their diligence forever; so they are entitled, on the other hand, if he sail, to find him in a situation liable to their diligence; and this he cannot be, whether imprisoned in the sanctuary, or going at large within its bounds.—In listening, therefore, to this action, the Court would cut up, by the roots, the just rights of creditors, without any necessity; for the pursuer would have the full benefit of the humane principle, which dictated the process of cessio, by leaving the sanctuary, and exposing himself to the diligence of his creditors. If they should not incarcerate him, he would have no occasion for the benefit of the cessio, being in full possession of his personal liberty; if they should incarcerate him, he would then be entitled to say, that he was incarcerated in terms of the act of sederunt; and he, would be enabled to produce the certificate required. His summons, which is now false, inasmuch as it asserts, that he is in danger of being arrested in prison, would then be true; and he would meet his creditors on equal terms.

It has been alleged, that the pursuer cannot leave the Abbey for this purpose, being there incarcerated; or, what is the same thing, being under caution to the amount of L. 10, to return to the Abbey prison when his health will permit. But let it be considered, 1 st, That it was his own choice to retire to the sanctuary, rather than fairly to meet the diligence of his creditors; 2dly, That he can found no argument on the consequence of his own unwarrantable act, in contracting a debt in the Abbey, which, being already insolvent, he could not pay; and 3dly, That were he to come out of the Abbey, and be laid up in a legal jail by any of his creditors; neither the Abbey bailie, nor his pretended Abbey creditor, could take him out of that legal prison, and compel him to return to the sanctuary.—If the pursuer were truly in a prison in the Abbey, he might apply to be removed to the Canongate jail. There he can be arrested and detained by all his creditors; and there he might commence a process of cessio in a regular manner, after having been a month in that prison. This, let it be particularly noticed, is a sufficient answer to the pursuer's argument—that if a debtor, in his situation, be not allowed to insist in an action of cessio, he may be perpetually imprisoned in the Abbey for a debt contracted there.

The pursuer has mentioned a list of persons, imprisoned in the jail of the Abbey, who have been liberated upon the act of grace. It is perfectly obvious, that whether such imprisonments are legal or not, it cannot, in the least, affect the questions, whether the Abbey prison is a prison in the sense of the act of sederunt; or whether, though it were, the debtor being confined within the bounds of the sanctuary, where the diligence of his creditors cannot reach him, is entitled to pursue an action of cessio.

The same observation applies to the case of Cockburn of Clerkington, which has been mentioned. The question there was not, whether Cockburn being imprisoned in the Abbey jail, for a debt there contracted, was entitled to pursue a process of cessio; but whether the imprisonment itself was legal? Had the first been the question, it seems pretty evident, from the reasoning of the Court, as mentioned in the case, that the striking objection made here, would not have escaped the Court. It is stated, that “some doubted of their having a prison, and thought he should have been transported to the Canongate or Edinburgh tolbooth; but then his other creditors might have arrested him, which they cannot so well do in the Abbey, which is a sanctuary.” This consideration, though it might operate as a reason for sustaining imprisonment in the Abbey, for a debt contracted there, would have occurred to the Court as an invincible reason against allowing the party to pursue a cessio, without being removed to the Canongate or Edinburgh tolbooth.

As to the case of Linley, had the point now at issue been expressly decided, the judgment must have been considered as erroneous; and ought not to stand as a precedent; but the question was not argued; nor was the bailie's commission, or the source from which it flows, explained as it has now been.

In the cases of Donaldson and M'Kenzie, the objection to the mode of imprisonment was not at all stated.

On 1st June 1799, the following interlocutor was pronounced on a pleading:

“The Lords having heard parties procurators, sustain the defences, and dismiss the action.”

—A reclaiming petition was presented, which was followed by answers. The Court, upon full deliberation, in which the argument for the defenders had much weight, adhered to their judgment*. (See Jurisdiction.)

Act. Mat. Ross. Alt. H. Erskine. D. Wemyss, W. S. Agent. Jas. Marshall, W. S. Agent. Clerk, Pringle.

(See Sanctuary.)

* This case, which was reported by Lord Hermand, as a part of his probationary trials, appears to have been most properly decided. The process of sequestration ought to have no effect on the law of cessio bonorum. Sequestration relates exclusively to commercial affairs. The extension of commerce, and liberality of opinion, always accompany one another with equal steps. And it is scarcely to be supposed, that, in the present advanced state of both, a bankrupt, who deserves to be discharged, will be refused the requisite consent. Should it, in any extraordinary case, be otherwise; the man, by being a trader, is not excluded from the benefit of cessio, common to all. But why should any man, while unmolested in his person, be entitled to convene all his creditors in an action, in order to make a judicial surrender of his effects, and to demand a discharge of his debts? To admit of this, would be to allow the consequence, without the cause. The process of cessio bonorum, is the remedy humanely provided by the legislature; for the hard situation of the man, who is imprisoned for debts; which misfortune has equally occasioned him to incur, and prevented him from discharging. The regulation, therefore, of the act of sederunt 1688; requiring evidence of the fact, that the party has actually been imprisoned; flows naturally and necessarily from the principle of the law.

It is equally obvious, that incarceration in the Abbey jail, ought not to be understood, to amount to the requisite imprisonment; for, whatever was the origin, or may be the extent, of the bailie's jurisdiction; there is sufficient ground for deciding; that it ought not be held to exceed the necessity of the case; but ought to be precisely commensurated with it. It is necessary, that as there is a sanctuary there, there should be a superintending officer. It is necessary, that he should have some mode of enforcing his authority. Without this, order could not be preserved. A species of confinement, is the engine. But it is not necessary, that this instrument should possess one iota of power, more than sufficient for performing the operation, for which it was primarily intended.

The Court of Session, therefore, will not allow a bankrupt, who by retiring to the sanctuary, has already obtained shelter from the diligence of his creditors, to demand the benefit of cessio bonorum; although, in that sanctuary, he has done something, which has occasioned its bailie to put him under some kind of confinement, confessedly of a very slight nature.

*** What is strictly the law of this case, might have been compressed within much narrower limits; but it is within the scope of the Editor's design, to insert whatever naturally falls in his way, which is curious in the history or antiquities of the country.