man retains in nothing so much a desire to be like his Maker as in that he would be Supreme and no wonder that this Crime should be incident to him in this laps'd condition when his will is crooked and his judgement blind since the very Angels in their purity and Man in his innocence were tempted by it so that since men have subjected themselves to Government we may easily conclude they found a great convenience in this submission else they had never offered so much violence to their own inclination To Societies and Laws we owe every moment the preservation of our lives and fortunes which nothing but Discipline does secure and without an intire submission these Societies would be but Companies of Robbers and Laws but meer toyes How many dangers do Governours incurr And by how many cares and fears are they disquieted Wherefore it is most just that those who govern should be more secure against their Subjects then against their enemies since they may be most easily wrong'd by those who live in their own bosome and who have easie and open access to them In other Crimes one or at most few are wrong'd whereas in rebellion and Laese Majestie the whole Society is offended And therefore it was most just that those who design the ruine of the Common-wealth or the Supreme Governour which Crime we call Treason should of all others be most severely punished And the Basilicks l. 1. h. 1. observes well that Treason is a kind of Sacriledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Treason was by the Civil Law divided in Perduellionem Laesam Majestatem Perduellion was that Treason which was committed against the Prince or Common-wealth immediatly Adversus populum Romanum vel securitatem ejus Laese Majestie as opposed to Perduellion was committed by speaking against the Prince revealing his secrets c. This Crime was punish'd per legem juliam the branches whereof are the raising of Arms against the State the being in accession to the flight of such as were Hostages to the Common-wealth or to the killing of any Magistrat of the Common-wealth the keeping correspondence with the enemies the continuing to govern a Province after a a Successor was named the Levying of an Army and running in to the Enemies All which are expresly enumerat ff ad leg Iul. Majestat II. Betwixt these two Hottoman assignes these four differences 1. That Perduellion was that whereby the Common-wealth was in general wrong'd qui summam rei publicae lube factare conati sunt Laesa Majestas was that whereby the Common-wealth was only wronged in a part or by consequence as to suffer the enemies of the Common-wealth to escape or to conceal them c. The 2. is the Crime of Laese Majestie might have been pursued before the ordinary Judge in foro but Perduellion could not be pursued but in the great Meetings of the People à populo Romano comitiis centuriatis in campo martio Whence probably did arise the judging Treason by Parliaments with us The 3. was that the Crime of ordinary Laese Majestie was not punished with death as Perduellion was but with banâ—shment The 4. was that the ordinary Laese Majestie was punish'd by death but Perduellion was punishable after death III. Treason may be with us divided in Perduellion which we call High Treason called by the English Law alta proditio or rebellion which is only with us a rising in Arms against the King and in ordinary Treason and Laese Majestie such as to conceal and not reveal Treason And in Statutory Treason which is not Treason properly of its own nature but is declared to be so by a particular Statute as is that of Murder under trust Theft in Landed-men c. IV. Perduellion in the Civil Law is that which we call Rebellion in our Acts of Parliament and it was so called extravagan Hen. 7. qui sunt rebelles And there it is Statute that rebelles infideles imperii qui quom docunque aliquid machinantur contra prosperitatem imperii But I find not the word Rebellion used in the Law before that time Yet sometimes Rebellion is in our Law taken for that which is committed against the Kings Person as in the 3. Act 1. Parl. K. Ia. 1. where it is said No man shall rebell against the Kings Person openly nor notourly But the Adverb there used openly and notourly in that and the subsequent Acts interprets sufficiently the word rising against the Kings person to be the same with us that is called Perduellion in the Civil Law viz. Siquis hostili animo adversus principem vel rempublicam animatus sit To raise Arms against the King then or to rise in open rebellion is the first and highest degree of Treason Ia. 2. Par. 6. Act 25. where it is called a raising in fear of War against the King which Act comprehends all the kinds of Treason like lex prima ff ad L. Iul. Majest And therefore I will follow that method And though it be added in that Act that it shall be Treason to rise in fear of War against his Person or Majesty of what ever age he be of without the consent of the three Estates Yet the consent of the three Estates will not defend the rising in Arms against the King as was found in the case of the Marquiss of Argyle being pursued upon this Act in Anno 1662. for rising in Arms against the Marquiss of Montrose then the Kings Commissioner For the Analysis of that Act must run run so as that these words Without consent of the three Estates cannot be added to all the former treasons committed against the Kings Person which are contained in that Act For many things in that Act could not be justified by the Authority of the three Estates for else the three Estates and not the King would be Soveraign for they only are Soveraign against whom Treason can be committed But these words must only be taken as added to the last Crime prohibit which is the assailing of the Castles or Houses where the Kings Person is which may be lawfully done by Authority of the Estates For if the King being very young were taken prisoner as our Kings oft-times were in their minority it had been absurd to think that these who went to assail by the authority of the three Estates that Castle where the Kings Person was should be punish'd as Traitors because of their obedience But to suppress all pretext that might arise from that Act it is declared by the 5 Act 1. Parl. 1. Sess. Ch. 2. That the King hath the only power of making War and Peace And that it shall be Treason for any number of men less or more upon any ground or pretext whatsoever to rise or continue in Arms to maintain any Forts Strengths or Garisons or to make Leagues or Treaties amongst themselves or with forraign Princes without his Majesties authority and approbation first interponed thereto or to attempt any of these things under
expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
she knew she would starve for no person thereafter would either give her meat or lodging and that all men would beat her and hound Dogs at her and that therefore she desired to be out of the World whereupon she wept most bitterly and upon her knees call'd God to witness to what she said Another told me that she was afraid the Devil would challenge a right to her after she was said to be his servant and would haunt her as the Minister said when he was desiring her to confess and therefore she desired to die And really Ministers are oft-times indiscreet in their zeal to have poor creatures to confess in this And I recommend to Judges that the wisest Ministers should be sent to them and those who are sent should be cautious in this VI. Many of them confess things which all Divines conclude impossible as transmutation of their bodies into beasts and money into stones and their going through walls and closs doors and a thousand other ridiculous things which have no truth nor existence but in their fancy VII The Accusers here are Masters or Neighbours who had their Children dead and are engaged by grief to suspect these poor creatures I knew one likewise burnt because the Lady was jealous of her with her Husband And the Crime is so odious that they are never assisted or defended by their relations VIII The Witnesses and Assysers are afraid that if they escape that they will die for it and therefore they take an unwarrantable latitude And I have observed that scarce ever any who were accused before a Countrey Assize of Neighbours did escape that tryal IX Commissions are granted ordinarily to Gentlemen and others in the Countrey who are suspect upon this account and who are not exactly enough acquaint with the nature of this Crime which is so debateable amongst the most learned Nor have the Pannels any to plead for them and to take notice who are led as Witnesses so that many are admitted who are testes inhabiles and suspect And albeit their confessions are sent to and advised by the Council before such Commissions be granted yet the Council cannot know how these confessions were emitted nor all the circumstances which are necessary and cannot be known at a distance Very many of these poor silly Women do reseal at the Stake from the confâ—ssions they emitted at the Bar and yet have died very penitent And as it is presumeable that few will accuse themselves or confesse against their own life yet very many confess this Crime 3. The method I shall use in treating of this Crime shall be 1. Upon what suspicion Witches may be apprehended 2. What Judges are competent 3. What Ditty 's are relevant 4. What probation is sufficient 5. What is the ordinary punishment As to the first I know it is ordinary in Scotland not only that Magistrats do apprehend Witches almost upon any dilation but even Gentlemen and such as are Masters of the Ground do likewise make them prisoners and keep them so till they transmit them at their pleasure to Justices of Peace Magistrats or to some open Prisons But all this procedor is most unwarrantable for Gentlemen and such as are vested with no authority should upon no account without a special warrand apprehend any upon suspicion that they are Witches since to apprehend is an act of jurisdiction and theâ—efore I think no prison should receive any as suspect of Witch-craft until they know that the person offered to them be apprehended by lawful Authority 2. Since imprisonment is a punishment and constantly attended with much infamy to the name and detriment to the affairs of him who is imprisoned especially in Witch-craft I do conclude that there must some presumption preceed all inquisition For the meanest degrees of inquisition though without captour does somewhat defame And that the person should not be apprehended except it appear by the event of the inquisition that she lyes under either many or pregnant suspicions such as that she is defamed by other Witches that she hath been her self of an evil fame that she hath been found Charming or that the ordinary Instruments of Charming be found in her House And according to Delrio's opinion lib. 5. Sect. 2. ad assumendas informationes sufficiunt levia judicia sed gravia requiruntur ad hoc ut citetur reus ut judex specialiter inquirat IV. Witch-craft was crimen utriusque fori by the Canon Law and with us the Kirk-sessions use to inquire into it in order to the Scandal and to take the confession of the Parties to receive Witnesses against them as is clear by the Process of Ianet Barker and Margaret Lawder Decemb 9. 1643. But since so much weight is laid upon the depositions there emitted Kirk-sessions should be very cautious in their procedors By the Act of Parliament Q. M. 9. Parl. 73. Act. All Sheriffs Lords of Regalities and their Deputes and all other Judges having power to execute the same are ordained to execute that Act against Witch-craft which can import no more but that they should concur to the punishment of the Crime by apprehending or imprisoning the party suspect But it doth not follow that because they may concur that therefore they are Judges competent to the cognition of the Crime since the relevancy in it is oft-times so intricat and the procedor requires necessarily so much arbitrariness and the punishment is so severe that these considerations joyntly should appropriat the cognition thereof solely to the Justice Court Nor find I any instances wherein these Inferior Courts have tryed this Crime And albeit the Council do oft-times grant Commissions to Countrey-men yet that seems dangerous nor can I see why by express Act of Parliament it should have been appointed that no Commission should be granted for trying Murder and yet Witch-craft should be so tryed by Commissions The Justices â—hen are the proper Judges in Witch-craft V. As to the relevancy in this Crime the first Article useth to be paction to serve the Devil which is certainly relevant per se without any addition as is to be seen in all the inditements especially in that of Margaret Hutchison August 10. 1661. And by Delrio Carpz p. 1. quest 49. and others but because the Devil useth to appear in the similitude of a man when he desireth these poor creatures to serve him therefore they should be interrogat if they knew him to be the Devil when they condescended to his service Paction with the Devil is divided by Lawyers in expressum tacitum an expresse and tacit paction Expresse paction is performed either by a formal promise given to the Devil then present or by presenting a supplication to him or by giving the promise to a Proxie or Commissioner impowered by the Devil for that effect which is used by some who dare not see himself The formula set down by Delrio is I deny God Creator of Heaven and Earth and I adhere to
concurrers kill any of the Robbers they are declared free upon which it may be doubted if such as kill Robbers without acquainting the Sheriff or Justices of Peace are punishable and it seems they are seing this Act explains the other and modifies somewhat the indefinite power given to private persons who upon pretence of such invasions which might prove very dangerous and therefore the last did wisely require the concourse of the Magistrate and upon this consideration I know that it was consulted that notwithstanding of this such as had not acquainted the Sheriff or Justices could not be exculpat And yet it may be argued that this Act narrates not the other nor bears expresly a rectification of it but without lessening the priviledge therein granted adds a new one and so being introduced in favours of possessors should not be interpret to their disadvantage By the Civil Law licebat nocturnum furum occidere And by the 227. Act 14. Par. Ia. 6. it is declared lawful for the Leidges to conveen and execute Thieves and they are all made Justices for that effect upon which Act a defence was propon'd for the inhabitants of Kintail who took a Robber and execute him by their own authority in a formal Court But by the Civil Law and Doctors it was not lawful furem vel predatorem diurnum occidere except the thing stoln was of great value and could not be otherwayes recovered or that he defended himself and resisted his being apprehended all which defences may be proved by the assertion of the killer Farin 125. part 4. And if any other Probation were requisite the benefit of these Acts were a snare rather then an advantage and necessity legittimats many things which are otherwayes hard XIV By the Civil Law it was lawful for the Father to kill his own Daughter if he found her committing adultery and to kill also her adulterer l. part 1. ff de Adult which was allowed rather in hatred to adultery then because the Law considered it was too hard for a Father to restrain his passion in that case for if it had been allowed to the father only upon this last accompt it had been allowed much more to the Husband to kill his wife if he found her committing adultery for his relation beeing nearer and his honour more concerned then the Fathers his passion behov'd to be also more violent and yet the Law being jealous of the Husbands violence does only allow the Husband to kill the adulterer if he be a mean person but if the adulterer be a person of quality or if the adulterer be found elsewhere then in the Husbands own house it it not lawful to kill them for the injury is hightned by polluting the Husbands own house and becomes a kind of adulterous Hamsuckin And yet if the Husband kill in either of these cases that Law ordained the husband only to be punished by some arbitrary punishment but not by death l. Marito ff de Adulter But this last determination doth not satisfie justice for it seems reasonable that it should be rather lawful to kill a person of quality committing adultery then a mean person both because adultery is more ordinar amongst them as having more ease and being more luxoriously fed and because the husband cannot be so easily presumed to have had former quarrels with a person above his rank and so should be believed to have killed him meerly to satisfie his just revenge As also since they can sooner prevail they ought to be more rigidly punished The Law has deny'd this priviledge to women who may not kill their Daughters or Husbands the reason whereof I conceive to have been that the Law considered that Husbands were more prejudged then the Wives by adultery since thereby not only was their bed defiled but their estate carryed away to another mans children or else it thought women too passionat to be intrusted with such a licence or that it was undecent to allow women the use of Armes And yet I believe their just grief would secure them against the ordinar punishment and though some prerogative be due to the man over his wife but not è contra yet women may complain that men being the only Legislators have taken too great a measure of favour to themselves in this Law I have not observed any decision of this in our Law and since our statutes have secuted murderers in other cases as in self-defence killing of thieves c. And yet have not priviledged this case it may seem that the husband nor rather cannot kill by our Law and the most that they could expect were that after they were found guilty by the Law the Council might either change the doom of death into an arbitrary punishment or might recomend the party to his Majesties clemency for a remission But it were hard to punish with death amongst us what almost all Nations allow as lawful and what may be yet a further check to that growing vice And this seems juster then to allow with the Civil Law that the Husband or Father who are persons interessed should be judges in their own concern and should be judges when they are in passion and because they are in passion Nor can I see why the Law should punish even him who possesses by his own authority what is truly his own and yet should allow here the parties interessed to punish with death by their own authority or that passion which only infers mitigation of the pain elsewhere should here infer absolute impunity for this were to make one irregular Act legittimat another since passion is a transgression against reason as Adultry is against Law But since this indulgence is personal and only granted to the Father and Husband because of their just passion and near relation it is not reasonable that it should be extended to such as kâ—ll by the Fathers or Husbands Command which command none ought to obey being contrair to Law Nor ought this indulgence to extend to the Father or Husband when they kill ex intervallo and not when they find the Committers in the very transgression for the Law allows no passion to continue therefore what ever revenge is allowed to it is only allowed if it be executed immediatly ex in continenti And though in civil cases that is said to be done ex in continenti or immediatly which is done before the doer go about any thing else Yet I conceive that interpretation would be too lax in this case and that the killer could not plead this priviledge except he killed them in the very Act or rising from it Homicidium deliberatum or upon fore-thought Fellony is still punishable by death and confiscation of the movables of the Defunct for His Majesties use Stat. Rob. 3. cap. 43. And albeit Lawyers say that it is still rather presumable to be casual then deliberat and that by our Law and custome designe is still libelled yet because it is impossible to
dead and dye of the falling Sicknesse 17. May 1615. but in this the words were maliciously spoken for the speaker utterred them because he had lost a Plea But sometimes the speaker is only Scourged and Banished as Tweedy was 13. March 1612. for abusing Constables and bidding the King the Council and them kiss his arse and swearing he cared not a fart for them which words appeared both by the speaker and the contexture of the words to have rather flowed from folly then design And Spotswood in his History relats that the School-master of Edinburgh was hanged for dispersing Libels against the Regent wherein he charged him with being guilty of capital Crimes Leasing makers VI. Like to this Crime if not the same with it is Leasing making whereby hatred and discord may be raised betwixt the King and his people which was punished with tinsel of life and goods by the 43. Act Parliament 2. King Iames the 1. Likeas any misrepresentation or evil information as our Law calls it of the King to his people is punishable in the same way by the 83. Act Parliament 6. King Iames the 5. And though the slandering of His Majesty might have been punished by the reason of the first Act yet we see that our Predecessors did not think paritas rationis sufficient in punishing Crimes Upon which Acts a great person was found guilty of death for writing a Letter wherein the Parliament was slandered Anno 1662. But this was thereafter rescinded by his Majesty Likeas by the 20. A. of the 14. P. KI 6. the hearing and not revealing and not apprehending of such Leasing makers if it be in the hearers power is equally punished with the Leasing making but because these Acts could not reach to slanderers of His Majesty to His people in England or misrepresenting them to the King or abusing any Privy Counseller of that Kingdom therefore the misrepresenting them is declared punishable at His Majesties pleasure by the 9. Act 20. Par. K. Ia. 6. By the same last Act dispersing or making Cockalands or other infamous Libels against Counsellours of England is punished as Leasing making TITLE XXXI Poinding of Oxen in time of labouring 1. How this Crime is punished by our Law 2. How by the Civil Law 3. The explication of our Act of Parliament in this case 4. How the Civil Law and ours differs in this point BY the 98. Act 6. Parl. Ia. 4. it is Statute that no Sheriff or Officer shall poind or distreinzie the Oxen Horse or other goods pertaining to the Plough and that labours the ground the time of the labouring of the same where any other Goods or Lands are to be Apprized or Poinded according to the Common Law II. The Common Law to which this relates is l. 8. C. quae res pig oblig possunt pignorum gratia aliquid quod ad culturam agri pertinet auferri non convenit and by the subsequent authent ibid. agricultores terrarum securi sunt ita ut nullus inveniatur tam audax ut personas boves agrorum instrumenta aut si quid aliud quod ad agrorum rusticorum operam pertineat invadere aut capere praesumat siquis hoc statutum violare praesumpserit in quadruplum ablata restituat infamiae notam ipso jure jucurrat imperiali animadversione nihilominus puniendus and Maranta de ordine jud part 6. Act 3. num 31. relates that this Law is confirmed in Sicilie by an expresse Statute and all these Laws seem to be founded on Deut. 24. vers 6. No man shall take the upper nor nether milstone to pledge for he taketh a mans life to pledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Grotius observes out of Philo. which are called mola catillus l. cum de lanionis § idem consultus ff de instructo vel instrumento legato III. By the foresaid Act of Parliament the Poinding of such Goods is forbid in the time of labouring but it is not declared to be a Crime and the Lord Renton haveing in Ianuary 1666. pursued the Officer of the Court of Coldinghame for poinding one of his Plough Oxen when they were labouring before the Criminal Court is was alledged that no criminal pursuit could be founded upon this Act seing nothing could be criminally pursued but that which was made a Crime by a special Statute and to which a special sanction was annex'd Likeas by the constant custome many actions of Spoilzie were founded upon this Act but no criminal pursuit was ever thereupon intented To which it was replyed that the contempt of a Law was in it self a Crime seing disobedience to Authority was in effect the basis of all Crimes 2. Illegal intrometring with another mans Goods was a Crime especially ubi lex non solum non assistebat sed restistebat for theft is nothing else but an unwarrantable intromission and as the taking of His Majestie 's free Liedges is a Crime where the same is not warranted by Law so the poinding of these Goods should infer a Crime that being another species of unlawful execution 3. This Act discharges such executions conform to the Common Law And by the Common or Civil Law this is a Crime as is clear by the Law above cited and whereas it was alledged that no sanction was annex'd It was replyed that where the Law annexes no sanction the punishment is there arbitrary and there are many Crimes both in the Civil Law and outs to which no sanction is annext The Justices sustain'd the Libel and ordained the Pannel to go to the knowledge of an Inquest The expresse words of the Interloquutor were that the poinding an Oxe in the time of labouring is an injury and wrong punishable by the Law paena aplicanda filco And thereafter the three Pannels were found guilty though it was not expresly proved that the Oxe was labouring actually the time of the poinding but only that he used to labour and was in the Plough the week before and the Countrey was then labouring all which are necessary qualifications of this Crime and so are necessary interrogators after pronouncing of which doom the Justices fined each of the three Pannels in fourty Pound Scots And yet in Iune 1674. a reply against lawfully poinded being proponed in a pursuit for theft the case was by the Justices referred to be first civily pursued It was here also alledged that by the 34. Act. 4. Parl. I. 5. where Crimes may be criminally and civily pursued the civil pursuit ought first to be discus'd which was repelled because though a civil pursuit of spoilzie were intented there could no defence such as lawfully poinded authore praetore c. which are usual in other cases be proponed here seing though the executions were formal and the Decreet whereupon they proceeded irreduceable yet to poind a labouring Oxe in labouring time is in all cases unlawful itacessat hoc casu ratio legis 2. The defender could not plead the benefite of this
it was answered that the words of the Act of Parliament are conceived disjunctively Likeas it seems that if the Parliament had designed to add the word common to Receipt and Stouthreif they would have added the same to prevent this objection and it seems indeed that Stouthreif which is that species of Theft that we call Robery deserves to be punished as Treason in landed men though they do not commonly commit the same because it being easier for landed men to commit Robbery and it being more probable that they would Rob than steal this crime ought to be as severely punished in them as common Theft and accordingly the foresaid alledgiance being proponed for Iames Wood the 21. May 1601. it was repelled III. In this process likewise the said Iames having been pursued for robbing the writs and evidents belonging to Bonitown It was alledged that the pursuer ought to condescend upon the Lands to which these evidents belonged because if that were condescended on the Pannel would prove that the said Lands and consequently the evidents did belong to himself which alledgiance was likewise repelled nor was it found necessary that a Civil precognition should proceed in this case and in Iune 1668. it was found that a Libel was relevant bearing in general that Jewels or Pearls were stolne without condescending upon the particular number of them and it being alledged for the Macgibbons Decemb. 8. 1676. that the Libel was not relevant not condescending upon the persons from whom the goods were robbed nor what goods were robbed but only in the general that the Pannels did frequently rob the houses of Garntilly and Strathurds tennents To this it was answered that though where privat parties pursue ad interesse privatum such a condescendance is nessary because the informers may know nor can the private damnage be repaired except his losse be liquidly proved yet when the pursuit is at His Majesties instance and that an habitual and constant trade of robbing and sorning is libelled It is sufficient to libel in general and if the speciality be not proved the Pannels have no prejudice for they will not be found guilty nor will the probation be concâ—uding but it is all one to His Majesty which of His subjects be robbed or what be taken away it being His Majesties interest that no constant and habitual Robbery be committed in his Kingdoms nor is there any thing more ordinary then to sustain Libels against such as are guilty of open rebellion without condescending upon the particular persons who were killed or robbed in that Rebellion And whereas it was urged that if the particular goods alledged to be robbed were condescended on the Libel might be elided by this suitable defence viz. that they had a right to the goods or had the consent of the owner It might have been answered that they were not precluded from such defenses by the generality of the Libel for the Pannels might alledge that the taking away of such and such goods could not inferr Robbery because they had a right to these goods or were warranted to take them away by the consent of the owner The Justices sustained this Libel notwithstanding of the generality foresaid Alexander Steil being pursued in August 1669. for stealing and Robbing evidents writs and cloaths out of Captain Barclays house who was his Master at that time It was found that the pursuer behoved to prove that the saids evidents were taken away by force or breaking up of doors and that the servants having of them was not sufficient to infer Theft though he had delivered them to a third party and albeit this should be proved yet the Justices found this alledgeance relevant viz. that this deposition alledged to be stollen being given to the Pannel that he might counterfeit the subscription and he having no freedome to comply therewith he did run away to the Lord Fyvie and delivered up the same to him without any reward which alledgeance was found relevant as said is though it seems to be contrary to the Libel and as to the wearing cloaths the Libel was not found relevant except it had been proved that they belonged to Captain Barclay and were under his locks at the time since it was offered to be proved that the servant had worn these cloaths publickly in his Masters service which purged the presumption of Theft It may be doubted what a poor servant could do if he had broken up the doors really at his Masters desire who had sent him home to bring papers though he could not prove the command otherwayes then by his masters oath for his master might alwayes easily prove the breaking up of the doors IV. So odious is this crime and so frequent was it that by the 21. Act Parl. 1. Ia. 6. all such as recept fortifie maintain or give meat harbour or assistance to any such Robbers are declared art and part but it would appear that this Act strikes only where there are Letters of Intercommuning and that because the Act it self bears to the effect it should be known to what purpose they Intercommuned and because it were too severe to punish men as thieves except they were put in mala fide so to do by publick Proclamation or Letters of Intercommuning V. By the 227. Act Parl. 14. I. 6. It is declared for the same hatred against Robbers lawfull to all his Majesties Leidges to concur and joyn against Clann and Border Thieves and to take and execute them all Magistrats and Free-holders being made Justices for that effect by the said Act. But this part of the Act is now in desuetude and it appears to have been but temporary quo ad the power of executing but Robbers may be lawfully seized on without authority VI. Oppression is ordinarly but a quality of other crimes but yet there are sometimes special dittayes founded thereupon per se and there are some particular Acts declaring several species of it to be punishable as reif or by other specifick punishments mentioned in the saids Acts and thus it is oppression to compel the Kings proper Tennents to ride or do service of Avarage Carriage Shearing Leading c. and should be punished accordingly Act 21. P. 2. I. 4. It is oppression to take Caups that is to say a duty for protection to be given by privat men to such as thieves and other great men Acts 18. and 19. Parl. 2. Ia. 4. vid. de verb. signif It is oppression for a Crafts-man to take custome or any other taxation from another of that same Craft or for them to make privat Acts among themselves prejudicial to the people Acts. 42. and 43. Parl. 4. Iames. 4. Act. 111. Parl. 7. I. 5. and Act. 4. Par. 19. Ia. 6. It is oppression for Customers to exact more then their due Act. 46. P. 4. I. 4. It is oppression to molest Magistrats of Burghs and other Merchands to use their priviledges and liberties Act. 26. Parl. 4. Ia. 5. It is a kind of
Causes in the first instance And of old if a person accused for treason did absent himself the Criminal Court not no other Inferiour Court could proceed to take tryal by probation against him and so all they could do was only to denounce him fugitive for his absence upon which denounciation his escheat did only fall but he could not be forefeited and therefore since it was unjust that he should by his own absence procure to himsâ—lf an impunity and exemption from forefeiture the Parliament did by their supream power cite the person guilty to appear before them and did lead probation in absence against him and forefeit him in absence though guilty But it being found inconvenient that Parliaments behooved either to be called or such Delinquents pass unpunished therefore by the 11. Act 2. Parl. Ch. 1. It is Statuted that the Justices may proceed to try Crimes by probation even when the person cited is absent in cases of treasonable rising in Arms and open and manifest rebellion against his Majesty or his Successours and their Authority so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents except only Perduellion oâ— open and manifest treason And albeit it may seem strange that the Justices should have been allowed to lead probation against absents in this which is the greatest of Crimes and not in Crimes of lesser importance yet this proceeded from the just detestation which the Parliament had of this Crime and that the punishment thereof might not be delayed where the delay might prove so dangerous II. If the Parliament forefeit any person after cognition of the Cause their sentence cannot be quarrelled by any Inferiour Judge Act 39. Parl. 11. K. I. 6. And though it be added to that Act that no forefeiture lawâ—ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicatory for these words Lawfully and orderly led seem unnecessary since after cognition of the cause by the Parliament no Inferiour Judicatory can quarrel a Decreet of Parliament even though it be pretended that the said Decreet was not lawful and orderly yet if a person be only denounced Fugitive by the Parliament the Lords of the Session may suspend in that case if the Process was not orderly led but whether they can reduce even in that case est altioris indaginis And some think that though it were very inconvenient that such a â—ecreet should receive present execution where possibly the party was not lawfully cited yet that such respect is to be payed to the Parliament as that the illegality of that procedure before them though not objected before sentence should remain undecided till the next Session of Parliament III. If the Parliament should remit any such Process for Crimes to any of their own number to be decided finally before them it hath been doubted whether their decisions could be reduced by the Session And this Act of Parliament reaches only to decisions in Parliament But yet since Decreets pronounced by Commissioners of Parliament are reputed with us Decreets of Parliament and since Decreets pronounced by Commissioners for valuation of Teinds are not reduceable because these Decreets are repute Decreets of Parliament as being pronounced by such Commissioners of Parliament it seems that Decreets pronounced by such Commissioners in Crimes after probation could not be quarrelled and reduced by the Session or other Inferiour Judicatories TITLE IV. The Jurisdiction of the High-Constable in Crminals 1. The Original of the word Constable and his power 2. The Office of petty Constables 3. The Iurisdiction of those who are Constables of His Majesties Castles I. SOme describe the word Constable from the word Coning which signifies a King and Staple which signifies a Stay or Hold in the Saxon language because Constabularies were only erected in those places where the King keeped House and thus the Constable was judge of old to all crimes committed within twelve Leagues of the Kings House and Habitation l. Malcol c. 6. Though Skeen there observes that the best Manuscripts bear only two Leagues or four Scots Miles Our Craig and other Authors derive the word Constable from the Comes stabuli under the Roman Empire nam Constabularius sayes he nihil aliud est nisi praefectus aequitum since the Reign of King Robert the Bruce this Office of High-constable stands heretably in the noble Family of Errol and their being some debates concerning his Iurisdiction Francis Earle of Errol obtained Commission under the great Seal dated the 23. of Iun 1630. Seal'd penult March 1631. to the Persons therein specified or any nine of them impowering them to search the Acts of Parliament consuetude Monuments and Registers of the Kingdom and all Evidents that the Earl of Errol or the Lord Hay his Son should produce concerning their Honours Hostilogies Priviledges and Immmunities belonging or which had belonged to the Office of Constabulary from the first institution thereof This Commission I have seen with the report thereof dated the 27 of Iuly 1631. bearing the Commissioners to have met with the Earle of Errol and his said Son and to have considered their Instructions Warrands and Customes of other Countreys anent the Constables Priviledge and in the third Article of the report which relates to the Criminal Jurisdiction only here treated of they set down these words The Constable is Supream in all matters of Ryot Disorder Blood and Slaughter committed within four Myles of the Kings Person or of the Parliament or Council representing the Royal Authority in his absence and that alse well within the Court as outwith the same And the tryal and punishment of such crimes and offences is proper and due to the Constable and his Deputs and the Provost and Bailies of that Centre or Burgh and all other Judges within the bounds where the said facts are committed are obliedged to ride concurr fortifie and assist the Constable and his Deputs in taking the saids Malefactors and to make their Tolbooth patent for receiving them therein As was clearly evident by production of Warrands granted by His Majesties Predecessors to that effect and which likewise appeared by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable for the time concerning that purpose the King having seen this report did approve it in a Letter directed to His Secret Council of this Kingdom from the Court at Theobals the 11. of May 1633. Registrat in the Books of Secret Council the 15. day of that Moneth and in the Commission report and Letter foresaid the Constable is designed High-constable and his Office the High-office of Constabulary The Constable is still in use since that time to judge Riots within the bounds foresaids and to interrupt the Town of Edinburgh when he knows of their medling providing the Riots be committed in time of Parliament and I was told that in time of Parliament holden at Edinburgh Anno 1640. and 1641. the Earle of Errol was found
And thus an Assithment modified by the Justices being exorbitant the Lords by way of Suspension did lessen the sum The reason of which Decision was because they found this case to be but of the nature of damnage and interest and not to concern corporal punishment the 16. of December 1664. Innes contra Forbes VII By Act of Parliament 1555. such as kill or wound to the effusion of blood or any other way one another during the dependence of a criminal Process which dependance is declared to continue from the execution of the Summonds till the compleat execution of the Decreet that the pursuer committing the said crime shall for ever loss the cause and the defender being guilty is to be condemned in the plea. The pursuer or defender being convict before any competent Judge in criminals without any probation except summar cognition to be taken by conviction or putting the committer to the Horn and denouncing him fugitâ—ve By this Act the committer losses his life-rent Escheat immediatly after denounciation without being Year and Day at the Horn and giving of counsel is art and part in this crime This Act was to continue only for three Years and is prorogat for seven Years by the 138. Act Parl. 8. Ia. 6. and is thereafter made perpertual by the 219. Act 14. Parl. Ia. 6. I have oft seen Process intented upon this Act before the Lords But it is necessar albeit not observ'd that cognition be first taken by the Justices or other criminal and competent Judge Yet without this Process was sustain'd by the Lords in prima instantià but this defence was not there alledg'd and Process was sustain'd albeit no effusion of blood followed the 29. of Iuly 1662. Harper against Hamiltoun where it was debated whether the Lords might summarly receive probation of it themselves or remit the tryal to the Justices for which doubt I thought there was no great ground because by the Act foresaid the Justice is only Judge in prima instantia And yet in Sleiches case 1673. It was found that no previous tryal before the Justices was necessar The Earle of Niddisdale pursuing the Tennents of Duncow February 1672. they alledged absolvitur because the Earl had beat some of them who were sent to execute a Summonds at their instance against him at least he had given order to beat them or ratihabited the beating of them To which it was answered that 1. The beating some of them could only found an exception to such as were beat and this the Lords found relevant though the Summonds execuâ—â—d was for a common Cause and so in effect those who were beat represented all the pursuers 2. It was alledged that order to beat them was only probable scripto vel juramento for though a crime ordinarly in a criminal Court be probable pro ut de jure yet here quo ad civilem effectum it could not be so proved for else a Noble-mans whole and ancient Heritage might oft-times be taken away by Witnesses since Processes depending might extend to a Noble-mans whole Estate 3. It was alledged that ratihabition or any deed ex post facto did not infer the contravention of this Act which required explicit deeds as beating bleeding c. The Lords before answer to these two last alledgiances ordained Witnesses to be led before answer for clearing the nature of the Act and violence committed against them but in this case as in all others if the one party beat the other being forced thereto by self-defence the striker will not eo casu fall under the certification of the Act of Parliament as was found the last of Ianuary 1673. Iohn Sliech against Swintoun In which case the Lords also found that the certification of this Act did reach such as wounded one another during the dependence of a pursuit before an Inferiour Court though it was alledged that this respect was only due to the Lords of the Session and that the Act should only reach such as pursued Actions before them for to lose the whole Pley was too great a punishment for an incident Riot before an Inferiour Court I find likewise that one Weir having been pursued for slaughter the 15. of Iune 1591. he alledged he was absolved by a Rolment of Court at Aberdene To which it was replyed that the King had given a warrand for a further tryal which reply founded upon His Majesties Warrand was repelled as contrary to Law and because it was but a privat Rescript not subscribed by the Chancellour nor past Council And in respect the Lords of Session had given a Warrand to proceed notwithstanding of the Kings privat Warrand It is also observable though I think it irregular that Ludwharn having raised in Anno 1596. a pursuit against Momat and others for taking him out of his House without a lawful Warrand gave in a Bill to the Lords complaining that the Duke of Lennox as Leivtennent of the North intended to repledge wheras that Jurisdiction was only cumulative with the power of the Justices and that he had a Letter from His Majesty ordaining the Justices to proceed wherefore he craved that the Justices might be commanded to proceed which Petition was granted VIII Albeit regulariter the Parliament or Council grant Warrands to Advocats to appear for such as are Pannell'd before the Justices yet I find that the Lords granted a Warrand in Balmerinochs case to Advocats to compear for him And seing Advocats are subject to the Jurisdiction of the Lords it is most reasonable that the application be made to them for the same reason likewise I find that when any of the Lords are appointed Assessors in Criminal cases by the Council that they must have a Warrand also from the Lords for sitting there as in Toshes case 1637. TITLE IX The Admirals Jurisdiction in Criminals 1. The Iurisdiction of the Admiral extends to all Crimes committed within Flood-mark 2. Our Admiral has execute Pirats 3. Whether it be lawful for such as apprehend Pirats to execute them by their own Authority in the Ocean or when Iudges refuse 4. Any Nation may Iudge Pirats 5. Whether the Iustices have a cumulative Iurisdiction with the admiral 1. THe Lord high Aâ—miral and his Deputs are by the Laws of all Nations Judges competent to the tryal of all crimes committed at Sea and by an unprinted Statute with us the Admiral is competent in all controversies actions and quarrels concerning crimes faults and trespasses upon Sea or so far as the same flows or ebbs vid. Ship-laws corrected by Balfour tit Admiral c. cap. 2. Our Learned Countrey-man King in his Treatise which I have sayes Admirans habet merum imperium mixium jurisdictionem simplicem potest enim non solum jus dicere quod est jurisdictionis simplicis exequi imperare judices dane coercere quae sunt meri imperii sed est in facinerosos animadvertere quod est meri imperii de omnibus igitur contraversiis marinis cognoscere
are only Judges to the relevancy and Assizers to the Probation yet to distinguish the limits of their different cognitions becomes very oft difficult upon these two accounts 1. By express act of Parliament Ia. 6. Par. 12. cap. 151. it is Statute that because parties were oft-times frustrat of Justice by alledging irrelevancy against criminal Libels therefore when the persons complained upon are libelled to be art and part no exception or objection shall take away that part of the Libel in time coming so that albeit the greatest debate concerning relevancy amongst Lawyers in criminal cases did arise upon these common places cujus ope auxilio assistentia mandato c. ea crimina erant commissa and from what circumstances these could be inferred yet now the debate upon all this falls not by that act under the cognition of the Assise all these being branches and qualifications of art and part 2. The Probation requires oft-times in it somewhat of relevancy to be previously debated as for instance whether an extrajudicial confession is binding or what Witnesses in Law are receiveable or not all which cases do oft-times confound the cognition of the Justices and Assisers but for clearing of these limits thir following conclusions are to be observed 1. That in Dubio all that concerns Law is to be judged by the Justices and what concerns fact by the Assise 2. Regulariter all that is in the Libel falls under the Cognition of the Justices and therefore I will recommend it as a caution to Advocats that when they are jealous of the ignorance of Assisers and find the case intricat that they do not simply libel that such persons were art and part but that they libel them to be art and part in so far as they rescu'd the malefactors c. For when the qualifications from which art and part are inferr'd are expresly libelled the Justices are Judges to the relevancy of the inference but if these condescend not that they are art and part in so far as c. then the Assizers are only Judges competent thereto though the same be in apicibus juris because of the former act as was found in Captain Barclays case November 1668. where they refused to force the pursuer to condescend quo modo art and part albeit this be very dangerous seing Assizers are oft-times ignorant persons and yet they forced the Pannel to condescend upon the particular qualification of self-defence and would not refer to the Assise to consider the qualities of self-defence which would arise from the Probation as to which I could never find any reason of disparity but that by the act of Parliament the one case is appointed to be decided by Assisers whereas there is no Statute as to the other but to speak ingeniously I find no act of Parliament more unreasonable then this for the Statutoâ—y part of that act committing the tryal of art and part to Assisers seems most unjust seing as has been said before in committing the greatest questions of the Law to the most ignorant of the Subjects is to put a sharp Sword in the hands of blind men and the reason â—â—nductive of this act specified in the narrative is likewise most inept and no ways illative of what is thereby Statuted since debates upon the relevancy could very litle have hindred and never have hindred justice for the relevancy is debated now as copiously as before that act with this only difierence that it was then debated before Judges who could have kept Advocats at the point whereas now it is debated before Assisers who know not how to bound or how to stop them But a better reason for this Law had been this viz. That the pursuer is not allowed to examine the witnesses and so is not presumed to know what they can say and therefore he cannot exactly know al the circumstances which are necessar for founding a clear condescendency in Art and Part untill he hear the Witnesses depon And seing the Assizers are only Judges to the deposition of the Witnesses therefore they ought likewise to be Judges to the qualification of Art and Part but I think that after the Witnesses have deponed the Justices should still determin what is Art and Part and should not leave the same to the Assizers and as they are founded quo ad this upon the former principle that they are only Judges to the matter of relevancy so they are not excluded therefrae by the foresaid act of Parliament for it only ordains that Art and Part being libelled no objection shall take away that part thereof And thus if a man be pursued as Art and Part of Murder the Libel should doubtlesse go to the knowledge of an inquest But when the probation is led the Judge when he heares the Probation to run upon rescue mandat or ratihabition should tell the inquest what Acts in Law do infer either of these and then to leave it to them to judge if these Acts which he declares to be relevant be proved And it is much fitter then to leave poor ignorant Assizers to the impression of Advocats who may byasse them by their repute authority or confidence 3. Albeit the Assize be Judges of the Probation yet what manner of probation is requisit belongs to the cognition of the Justices and thus the Justices determined in Balcanquels case in Anno 1665. That witnesses could not be proved to have perjured themselves by the depositions of other witnesses but only by writ or reexamination And in the Action of Usury pursued against witherspoon March 1666. They found that Usurary pactions being extrinsick to the writ could be proved by other witnesses then the Witnesses insert And in the case of Wilson November 1667. they found that the receiving more then the ordinary Rent was not probable by the Oath of the payer and yet if any of the Assizers pleases he may desire ad informandam conscientiam judicis any probation whatsoever to be taken and thus often times in the criminal Registers Assizers have caused read Testificats from Chirurgians and others licet regulariter testibus non testimoniis est credendum The last rule is that before the Assize be sworn all the cognition belongs to the Justice but after they are sworn the Justices functi sunt officio and all thereafter falls under the cognition of the Assizers as is clear by the very words of the Justice Interloquutor which runs thus the Justices finds the Libel relevant notwithstanding of the defences and ordains the Pannel to passe thereupon to the knowledge of an inquest But to prevent all thir difficulties I wish that the Justices were Judges both to relevancy and probation which overture seems most fit and advantagious for these subsequent reasons 1. That there is such a contingency betwixt relevancy and probation that they should not be disjoyned and sure they must best understand what probation is requisit who have considered the relevancy upon which it depends and for
the Law for satisfying either publick or privat revenge 3. Since our Law doth punish Perjury and poinding of Oxen Usury Stellionatus and others according to the Civil Law it seems to be most agreeable to reason that as these crimes are punished according to the Civil Law so they should be extinguished by the Civil Law nam nihil est tam naturale quam unumquodque eo modo dissolvi quo colligatum est quem sequitur incommodum enim sequt debent commoda And the Act 1617. did introduce prescription with us as the Act it self bears because it was allowed by the Civil Law and the Laws of other Nations 4. It were absurd that in the case of Treason which may be inquired into after the defenders death there should be no period of time whereby Families might be secure and that it should be lawful after two or three hundred yeares to vex Families of great Honour and Interest upon pretext of crimes committed by their Predecessoâ—s 5 This prescription is very justly introduced to punish the negligence of such as will not puâ—sue crimes and it is most presumeable that if they pursue after they have delayed for so long a time that any pursuit thereafter intented is rather intented upon some supervenient quarrel and picque then upon the account of the crime 6. The fear of punishment and conscience of the guilt for so long a time is in it self a sufficient punishment And so GOD Almighty himself thought in the case of Cain and therefore to punish after so long a time were to punish twice By our Law recent crimes are more severely punisht then others as murder with red hand and the thief taken with the fang and by how much the crime grows older by so much it should be the less punished 7 The necessity of example which is the reason inductive of punishment fails in old crimes so the punishment should then also be remitted as unnecessary To the contrary arguments it may be answered to the first that our criminal law being much more founded upon the Civil Law then any other part of our Law is as shall be clearly proved there needed no particular statute in this case with us especially seing this prescription of twenty years in crimes has in effect become the Law of Nations and several other Nations who have many Statutes in other cases have yet allowed of this prescription without any particular Statute 2. There seems to be greater reason that an Act should have been necessary for prescription in civiltbus then in crimes because in civil cases the Roman Law was very various and quoad the particular periods of time was altered by all Nations according to the particular state of their affairs but in criminals their prescription was exactly observed by all Nations and was very reasonable and there being expâ—esly jus quaesitum incivilibus to every privat person it was necessary that should have been taken away by an expresse Statute but it is not so in crimes where in effect At first there was no express jus quaesitum either to the King or any privat party but only à â—otestas acquirendi for the jus qu situm is only by the sentence for before sentence the Fisk could not dispon upon and so had no right to the Malefactors goods and this answers likewise the second reason To the second third fourth and fifth it is answered that doubtless the wise Romans and other Nations could not but have these inconveniencies under consideration when they introduced the foresaid prescription in crimes and to the third it is particularly answered that if privat parties will not pursue their revenge they justly lose the capacity by their negligence and His Majesty having so many sworn Officers in every corner of the Land it is not presumeable that any inconvenience will arise through want of information but if there do it is much more reasonable that these negligent Judges should be punished especially seing there are express Laws appointing negligent Officers in such cases to be punished To the fourth it is answered that negative Arguments brought from the not being of a Law or a custome is not concluding for as in many other cases so this might have been argued as strongly as here against His Majesties Advocat when he of old crav'd that the Heirs of Traitoâ—s might be forefaulted for their Predecessors guilt And when he of late crav'd that probation might be led against Traitors in absence in either of which cases there was neither Act nor Practique nor could any thing have been alledged but the Authority of the Civil Law and the consent of other Nations To the fifth the crime being taken away by so long a time it were unjust to take away a mans life upon the former prescriptions and the fear of punishment is a sufficient punishment for all the malice arising from that prescription neither is it presumed but that if a Malefactor continue to be ill he will be pursued within twenty years and if he did for twenty years live so soberly and discreetly as that the Law thought not fit to take notice of his former crime there is little hazard of any future malice And to this opinion I rather encline because Carpzov relates that albeit by the Statutes of Saxonie prescription is only introduced by expresse Statute in moveables and heritage and that there is no express Statute as to prescription in criminals yet these prescribe also in twenty years because that prescription introduced by the Civil Law is not expresly abrogated amongst them nam non praesumendum est totam praescriptionum observationem tantis vigiliis excogitatam Saxoniae legislatorem evertere voluisse ut in simili casu dicit Imperator l. 34. C. de in offic test Petr. Heig part 1. quest 26. num 47. vid Carpzov part 3. quest 141. TITLE XXX Of Punishments de paenis 1. The design of punishment 2. Whether crucifying or banishment be lawful punishments 3. Whether a man can bind himself under the pain of death 4. Whether arbitrary punishment can extend to death 5. The loss of life is still followed by loss of moveables 6. How far can ignorance anger drunkenness or command either excuse from punishments or lessen them 7. How far doth Nobility or great Merit excuse or mitigat punishment 8. How far doth the inconsiderableness of the transgression mitigat or lessen the punishment I. PUnishments are inflicted not only to satisfy either the publick revenge of the Law or the privat revenge of the party but rather to deter others for the future and yet they are rather inflicted upon either of these designs then to punish the offender and make him insensible for what is done can no more be helped Some crimes are so horrid and so unknown to the world that it is not fit the Malefactor should be punisht publickly thus some crimes have been tryed in Scotland at midnight and the Malefactor immediatly drowned in the North-loch