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
by imprisonment during life forfeiting of goods and of the profit of Lands during life For this Crime the Earl of Morton was execute by King Iames 6. for having conceal'd the design'd death of King Henry his Father And it may be doubted whether concealing be Treason where the King is not in a condition to repress or punish the Treason that is intended for there the end of revealing seems to cease which is information in order to resistance It hath been likewise doubted whether the not revealing Treason was punishable where the Treason was design'd by the Prince or Queen But since they are likewise Subjects and may commit Treason therefore there can be no doubt but it is Treason in any others to conceal their treasonable designes XIV The eleventh point of Treason is to flee from his Majesty or his Lievtenant which is not extended only to such as are sworn to Collours but even to such as are warned to and do attend the King's Host vid. tit the jurisdiction over Souldiers XV. The twelfth point of Treason is to deny his Majesties having the only power of calling and dissolving of Parliaments Act 3.1 Parl. Ch. 2. XVI By the common Law it is Treason to kill any of the Princes Counsellors because they are a part of the Princes own body l. quisquis C. h. t. But with us the pursuing or invading any of the Session Secret Council or any of his Majesties Officers for doing his Majesties service is only punishable by death but not as Treason Act 4. Parl. 16. Ia. 6. By Officers here are meant only Officers of State else it might be extended to Messengers And I heard it resolved that this Act extended not to such as invaded the Lyon And these words Any of the Session are not extended to Advocats Clerks Macers or any else besides the Lords as is clear by the narrative of the Act. But I think the quality adjected that they were invaded for doing his Majesties service may be proved by circumstances and presumptions as if a pursuer who had lost a Cause should invade the next day a Lord who had voted against him And the words This being verified and tryed import so much But the Stat. Edward 3. is much more clear making it Treason to kill the Officers therein mentioned only viz. Chancellor Thesaurer chief Justice of either Bench or any Judge of either Bench sitting in Judgement only and from this Statute of our Neighbouring Nation we may argue that the killing none below a Lord of Session should infer the punishment of this Act. The killing a Member of Parliament is not in England Treason though the Parliament be a higher Judicatory then any exprest in the Act. And Cook tells us that they allow not argumentum à fortiori to infer Crimes And with us the killing a Member of Parliament would not infer death by this Act since they fall under no qualification therein specified In England killing Officers falls only under the Statute but with us invading or pursuing them is death though it take no effect Quaritur If to invade them when they are out of the Kingdom would fall under the Statute since they are not under that character elsewhere Or if he who invaded them during their being suspended would fall under this Act since during that time they retained the character and the exercise is only suspended And it is resolved by the Doctors that a Statute punishing such as invade Magistrats is only to be extended to such Magistrats as are once admitted but not to such as are only named or elected for such Statutes are extended in gratiosis yet they are restricted in such odious points as thir Cabal cas 148. Treasonable words vid. t. Injuries and Libells XVII The third branch of the division is Statutory Treason which comprehends under it several other points of Treason which because they relate to other Crimes therefore I shall also refer the Reader to these Titles wherein these Crimes are principally treated of But it will appear by these Acts that these Crimes are not declared to be Treason but only to be punishable as Treason and therefore these Statutory Treasons have not at all the other priviledges competent to Treason as that they may be proved by Women alios testes inhabiles or that he who accuses in these will commit Treason if he prove not his accusation Thus wilful Fire raising is Treason Ia. 5. Parl. 3. cap. ultimo Theft in Landed-men is Treason Ia. 6. Parl. 11. cap. 50. vid. tit Theft Murder under trust is treason Ia. 6. Parl. 11. cap. 51. vid. tit Murder sayers of Mass Jesuits trafficking Papists and their resetters commit Treason Ia. 6. Parl. 12. cap. 120. vid. tit Heresie To buy or bring home poyson is treason Ia. 2. Parl. 7. c. 31. vid. Poyson Thieves who take leill men upon Bond to re-enter them commit treason Ia. 6. Parl. 1. cap. 21. But though this Act speaks generally of the taking of any Scottish-man yet it may clearly appear by the narrative and the whole strain of the Act that the same strikes only against such Thieves as kept correspondence with the English and took Scottish-men prisoners into England But custom hath interpret this otherwise for Duncan Macgrigor was 15. Iuly 1643. convict and hang'd as a traitor for arte and part of taking Iames Anderson and Iohn Mackie and the taking of Captain Cairns found relevant as an Article of Treason against Assint To usurp any Prelats place after his decease is likewise treason Ia. 5. Parl. 7. cap. 125. XVIII This Crime hath in it many specialities wherein it differs from other Crimes As first He who accuses any man for treason doth incur the pain of treason if the defenders be acquit which is occasioned as the Act bears because of the odiousness of treason But since the the Act sayes expresly that this shall take place where the party calumniat is called accused and quit of the Crime of Treason therefore it may be inferred that though the pursuer raise Summonds of treason and should pass from the same before the Pannel go to the knowledge of an Inquest that eo casu though the pursuer might be punished poena extraordinaria yet he could not be punished as a traitor It may be likewise doubted if this holds in Statutory Tâ—eason as Theft in Landed men c. And since the reason inductive of that Act is the odiousness of treason it would appear that this rigid Law should not take place in these points of treason which are not so odious of their own nature Another speciality in treason is that it can only be tryed by the Justices Reg. Maj. lib. 1. e. 1. v. 1. and that because of the Kings immediat interest since it is not presumable that the Fiscal in Inferiour Courts would be as careful as his Majesties Advocat who cannot appear there and because of the intricacies and great consequence of that Crime but it may be
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
sum and so was no more debitor and could expect no advantage and so the fear of perjury ceased And as to the foresaid seventh Act It was answered that it was only made not to exclude the debitor absolutely but to correct the 257. Act 15. P. K. I. 6. whereby the Oath of Party was declared to be receivable as decisive of the cause As to other witnesses our ordinary distinction is that pactions in Usury are either extrinsick to the Bond or writ as are the taking Bud or Bribe for continuing a Sum and these may be proved by any witnesses albeit by the foresaid 7. Act. It is said that Usury shall be proved by the Oath of the Party and witnesses insert But pactions which concern the writ it self as that whereby more is promised then is contained in the bond these cannnot be proven but by the Witnesses insert for else writ might be taken away by Witnesses As to oath of Party it is ordained to be taken by the former acts against the common rules of Law by which nemo tenetur jurare in suam turpitudinem And the Justices accordingly do force the Pannels to swear as in the case of Wilson above cited But it may be doubted if this act should not extend only to Civil and not Criminal cases For that act sayes that litis-contestation being made it shall be lawful to receive But so it is that there is no litis-contestation in Criminals go This Act cannot be extended to these cases VII Usury was allowed by the Civil Law as the proper product or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecuniae but by the Canon Law it was punished and most Lawyers think it may be punished criminally Decius Consil. 130. And it is called crimen utriusque fori because it is punishable Civilly and Ecclesiastically The pain of Usury with us is That the debitor shall be free from his obligation or have back his pledge or if the debitor conceal then the revealer shall have right to the sums Act 222. K. I. 6. Par. 14. And by the 248 Act P. 15. K. I. 6. It is appointed that the Usurary Bond or Contract shall be reduced and being reduced the sums shall belong to His Majesty or his Donator and the Party to have repetition of the unlawful Annualrent payed by him in case only he concur with the Donator in the reduction TITLE XXV The Dribing Partiality and Negligence of Judges 1. What is bribing by the Civil Law 2. What by our Law and how our Law punisheth it 3. Crimen repecundarum Barratriae 4. Whether Arbiters Deligats or Assessors be punishable for taking Bribes 5. How negligent Iudges are punishable IT is to no purpose to make good Laws if the execution of them be not committed to just and diligent persons as it is to no purpose to have an exact ballance if that ballance be not put in a good hand and therefore as the Law hath been very liberal of its priviledges to just Judges and severe in punishing such as offended them so it hath punish'd with the same rigour such Judges as transgress either by bribing negligence or partiality which are three distinct species forbidden by the common Law and ours I. Bribing is the taking of money or other good deed either for doing of justice or committing of unjustice There are indeed some Lawyers who think that a Judge taking money in a Civil Cause to do justice doth not thereby commit a Crime but is only lyable to restitution Menoch 2. Arb. 342. n. 6. but this is expresly contrary to sound reason since if taking upon any terms be allowed the Law may be eluded and Judges will be thereby tempted not only to take bribes but to take pains to justifie what they have done but yet I think that this opinion is neither proved per l. 4. ff de l. jul repetund For there it is not only said non excipiet quo magis aut minus quid ex officio suo fecerit which prohibits only an excess in justice and not the doing justice for money nor perl 3. c. eod since that Law doth only in the general forbid the taking of money but this is expresly forbidden l. 2. § 2 ff de condict obturp caus where it is declared a Crime but the punishment there seems only to be litem suam facere and Skeen ad Stat. 25. Wil. says that non licet judici vendere judicium justum II. By our Law the Kings Judges were to those an Assize upon what they had done as Judges and if they were convict they were to be punished by the King and his Council according to the measure of their fault Cap. 13. Stat. Rob. 2. and the Judges of inferior Courts such as Regalities were to those an Assize before the Justices and if they were found either culpable or remiss they were to escheat their moveables and their life to be in the Kings will or in the will of the Lords of the Regality cap. 14. ibid. And by the 26. Act Ia. 3. Parl. 5. a Sheriff or any other Officer of Fee that is to say any Heritable Officer is to be put from his Office for three years if he be found partial and an ordinary Judge if he be found partial loseth his Office forever And though his person 's being punished at the King's will and the paying of the expence of the party injured be only added to the punâ—shment expressed against a Judge who is not Heritable yet I conceive that being added in the last place it is applicable both to the Heritable Judges and others Likeas it is observable that though by all these Acts the King and His Council are only exprest to be the Judges competent yet de practica the Justices are Judges competent if partiality be committed in any criminal cause as for instance if a Sheriff should execute any Pannel upon a Crime proved only against him by the pursuers brothers or other inhabile witnesses or upon a Libel which were palpably irrelevant in these and in such other criminal cases the Justices and not the Council would be only Judges competent nor is partiality in civil cases a Crime by our Law though it be punishable by this Act paena arbitraria and by resounding of the dammage sustained by the pursuer The foresaid Laws strike only against partiality in general but bribing is expresly discharged by the 25. Chap. Stat. K. William but there is no punishment there exprest and therefore Skeen adds in his observations the punishment of l. 1. cum aut hent c. de paen judic And thereafter by the 22. Chap. 1. Stat. Rob. 1. all Judges are forbidden to take Land or any thing else to Champart either for giving deferring or prolonging of justice and the offenders are to be in the Kings will and to lose their office for all their life Champart is a French word signifying part du champs a part of any Land so that by a Metaphor the taking any part of the
the Realm during his lifetime 1. Novem. 1597. The prosecution of this crime concerns only his Majestie 's interest And therefore the dyet was deserted because His Majesties Advocat nor none to represent him did not concur nor was the Libel raised at his instance 20. Iuly 1596. Mr. Iames Leask against Andrew Red. TITLE XXXIII Beggars and Vagabonds 1. How Beggars and Vagabonds are to be punished by our Law 2. How by the Civil Law OUr Law hath been so charitable as to provide for Beggars by special Statutes Ia. 1. Parl. 1. cap. 25. Ia. 1. Parl. 1. cap. 42. Ia. 4. P. 6. Parl. cap. 70. Ia. 5. Parl. 4. cap. 21. But sturdy Beggars our Law calls them Egyptians oftimes as the French calls them Bohemians and Vagabonds should be proceeded against by the Sheriffs and other Judges and they may exact caution of them and if they find none they should be denounced fugitives Ia. 6. Parl. 1. cap. 97. and may be sent to publick Work-houses or put in the Stocks Ia. 6. Parl. 12. cap. 124.144 and 147. Item Ia. 6. Par. 15. cap. 268. and if they be recept after they are denounced fugitives their receptors are lyable for the prejudice sustained and the parties damnified will have action against the Magistrates within whose bounds or jurisdiction these Vagabounds are recept wittingly Ia. 6. Parl. 11. cap. 97. But this Act determines not whether this wittingly relates to the receptor or Magistrat yet by the common Law the adverb scienter is still applicable to the person against whom the penal Statute runs so that except the Magistrat know that the Vagabond was harboured within his bounds it were severe to sustain action of damnage and interest against him though the receptor knew the Vagabond and did wittingly recept him But I think that if the Magistrate did either omit his duty he will be liable nam scire scire debere aequiparantar or if he was willingly ignorant I find that A. B. being pursued criminally for general recepting Vagabonds this action was not sustained but he was referred to the Kirk Session which it seems was done because of the 147. Act Parl. 12. Ia. 6. whereby Ministers Elders and Deacons may nominâ—t any two of their number to enquire into this crime and whom His Majesty makes and constitutes Justices as to that effect It appears by a Proclamation emitted by the Council in Anno 1603. these Egyptians were ordered to leave the Kingdom upon pain of death which is ratified by the 13. Act Parl. 20. Ja. 6. and upon that Act of Parliament Moses shaw and other Egyptians Sorners and Vagabonds were hanged the last of Iuly 1611. II. Our Law has in this followed exactly the Civil for there is a title in the Codex de mendicantibus validis our sturdy Beggars and the novel 80. this Crime was also called by the Athenians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive otii ignavi de quo vide heigium l. 2. quest 27. TITLE XXXIV Robery Oppression vis publica privata 1. The several Epithets given to Robbery and how it is distinguished from other Crimes 2. Common Theft and Stouthrief how punished by our Law 3. Several decisions as to this Crime 4. How the assisting of Robbers is punished by our Law 5. In what cases is it lawful to joyn against Robbers 6. The punishment of oppression by our Law 7. In what cases the civil right is to be discussed before the violence can be criminally punished 8. How Oppression was termed by the Civil Law and how it was thereby punished 9. What Concussion is and how punished 10. Black mail how punished MEn may by dilligence and circumspection defend themselves against Theft and these who steal clandestinely shew a reverence even to that Law which they transgress but Robbery and Oppression are Crimes against which there can be no fence and in which these who violat the Law contemn the Legislators To defend them against these men did associat themselves under Government and renounced their native liberty for the protection of Law nor can Law justifie the severity of its punishments and the great exactions it requires but by returning to these it commands a sweet and pleasant security against all rapine and violence I. When Theft is aggraged by violence it is called Robbery from the Germane word Raube and is with us called Stouthrieff Stouth signifying Theft and Rieff signifying violence In which Crime our Persons are endangered as well as our Estates and so is ordinarily punished by death even in these Countreys where Theft is only punishable by pecunial mulcts or whipping and thus it was punished with death amongst the Jews as is clear by Davids answer to Nathans Parable though Theft was only punished by restitution and though Calistratus l. 28. § grassatores ff de paenis seems to make such only punishable if they Robb frequently and in high wayes and with Arms grassatores qui praedae causa id faciunt proximi latronibus habentur si cum ferro aggredi spoliare instituerunt capite puniuntur Utique si saepius atque in itineribus hoc admiserunt caeteri in metallum dantur aut in insulas relegantur Yet by the custome of all Nations Robbery is punished with death though it be not reiterated and I think that Law must be only understood of such as designed to Robb qui instituerunt who are punishable though they actually Robb'd nothing and had no design to kill but to plunder predae causae if they went out frequently and to high wayes with that design for if they actually Robb'd or had a design to kill though they killed not yet they are still punishable by death by all Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 II. The quality of frequent and common committing Theft and Robberies is not only a quality that raises the Crime of Theft alone from being punishable by restitution to be punishable by death in other nations but by the 51. Act 11. Parl. I. 6. It is declared that landed men who are convict of common Theft Recept of Theft or Stouthreif shall incur the crime and pain of treason upon which Act it was contraverted whether the word common was a quality and adjunct to be added to the Recept of Theft and Stouthreif as well as Theft since the Act sayes but only common Theft not common Recept of Theft nor common Stouthreif and it was urged that it was reasonable that this should be understood of all seing it was that quality which rendered them Treason For simple Recept would not have been declared treasonable of it self and by the foresaid l. 28. the reiterating this crime aggraged it from banishment to death and in the oâ—dinary way of speaking men cease not to repeat such words Likeas it was just that as the crimes were in Landlesse men punishable only by restitution or death if repeated so in Landed men the punishment should grow proportionally and infer death or Treason if commonly committed To which
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
inflicting of such punishments was only proper to Kirk Sessions the 15. of February 1669. But though they be the only Judges competent to verbal Injuries where they are Scandals yet in verbal Injuries done to persons of quality which are called in Law scandala magnatum the Council sustains it self Judge competent the King being as the Author so the Protector of all the priviledges of the Peerage and in verbal Injuries likewise done to Magistrats the Council are also Judges Magistrats representing the King and being his Instruments in the Government When verbal Injuries are done by Members of a Court to one another that Court is likewise Judge competent all Courts how inferiour soever having an innat Power to chastise its own Members and to preserve the esteem due to it self and therefore if any stranger who has a Process depending before any other Court as the Session Sheriff c. do abuse contumeliously any third Party though no Member yet these respective Courts may punish the same if the injury be done in face of Judgement and if it be done to any Inferiour Judge extrajudicially that Judge if he be in the actual exercise of his Office he may likewise punish the same except the offender be a Member of the Colledge of Justice for in that case the Judge extrajudicially injured must complain to the Lords but cannot imprison them summarly because if this were allowed these Members might be abstracted from serving the Liedges as an Advocat when he is to plead a Cause or a Clerk when he is to give out a Decreet and this last has been frequently so decided Though verbal Injuries amounting to Scandals are only to be punished by the Commissars yet where they have nothing in them of Scandal but are rather reflections upon the Honour of the party injured as to call a Gentle-man a Puppy or an Ass it may be the Privy Council and not the Commissars are Judges competent The Commissars are also Judges competent to Adultery in so far as concerns Divorce vid. tit adulterii III. How far the Commissars and Inferiour Judges are Judges competent to the improving of Writs and declaring them false has been variously decided but they may be reduced to these conclusions 1. No Inferiour Judge is competent to try the falshood of Writs by the indirect manner of improbation that is to say by presumptions for that way of tryal being in effect nobilis officii is only competent to the Lords of the Session 2. Commissars and other Inferiour Judges are only competent to improbations even where the direct manner is extant if improbation be propon'd by way of exception or reply for then the tryal of Falshood falls in necessarily as a part of the Process and without this were allowed to these Inferiour Judges they could proceed in no case for if a pursuit were intented before them upon a Bond they behoved to sist if the Bond were alledged to be false or to stop if the defender should offer to improve the execution of the Summonds but yet they are not competent by way of Action even where the direct manner is extant as was decided the last of November 1630. Williamson contra Cushney 3. If the Commissar or other Inferiour Judge pronounce once a Decreet he cannot thereafter reduce his own Decreet as having proceeded upon false executions though the executions were given by his own Officer since they are only Judges competent to such forgeries incidenter but after sentence they are functi as was found the 29. of Ianuary 1677. Cowan contra the Commissar of Glasgows Phiscal and according to these conclusions the late instructions given to the Commissars are to be interpreted TITLE XI The Jurisdiction of Regalities in Criminals 1. The Origine of Regalities 2. They are accounted Inferiour Iudicaturs 3. Why the Heritor of a Regality is called a Lord of Regality 4. Whether His Majesty may erect Regalities within the bounds of Heritable Iurisdictions 5. They cannot repledge in case of Treason nor from Iustice Airs 6. The difference betwixt Ecclesiastick and Laick Regalities and from whom they may repledge 7. The form of a Repledgiation 8. Regalities must have a Burgh of Regality and to what that Burgh is tyed 9. The effects of a Lord of Regalities power I. BY the Feudal Law to which Regalities owe their origine alia erant regalia alia erant feuda regalem dignitatem habentia which is the same difference in our Law betwixt Regalia and Regalities Regalia are such priviledges as immediatly belong to the Crown and do not originally belong to nor can be communicat by any else such as to Coin Money to open Mines of Silver Gold c. But Regalities are Fews which are granted by the King to a Subject they have as large a Jurisdiction as the Sheriffs have in Civils or the Justices in criminals the habilis modus of granting which Rights is by Signator wherupon a Charter follows which passes the great Seal II. Regalities are accounted inferiour Judicaturs cap 76. quon attach by which it is Statute that no inferiour Judge shall judge the Pleys of the Crown and Regalities are expresly numbered amongst inferiour Courts Act 173. Parl. 13. K. Ia. 6. By which it is likewise Statute that he who strikes any person in presence of the Justices shall incurr the pain of death but he who strikes any before the Sheriffs Lords of Regality or other inferiour Judge shall only pay a hundred Pounds but though they be accounted inferiour Judges when compared with the Justices or Commissioners of Justiciary yet they have greater power in the way of their procedor and in the proportioning of their fines then Sheriffs or other inferiour Judges have for they may fine in a hundreth Pounds though Sheriffs and others cannot as was found the 30 of Ianuary 1663. Stewart against Bogle And generally they have the same power and the same allowance with the Justices except when an express Law makes a difference betwixt them The 43. Act 11. Parl. K. Ia. 2. appoints that no Regalities should be granted without deliverance of Parliament which nullity of old could not have been received opt exceptionis if it was clad with possession Hadd 1610. and they were still subject to Revocation by the King if they were otherwise granted as may be seen by the Revocation 1633. and all preceeding III. He in whose favours the Regality is granted is still called the Lord of Regality though he be otherwise but a Barron the reason of which I take to be because by the Feudal Law tria erant tantum feuda regalem dignitatem habentia quibus inerat jurisdictio regalis viz Ducatus Marchionatus Comitatus and by the same reason it is that no Lands can be comprehended under this jurisdiction by our Law but such as belong to him in whose favours that jurisdiction was granted either in Property or Superiority and therefore it was found that His Majesties Palaces though situated in Burghs of
Regality were in Law no part of the Regality but off the Royalty and that such as lived in these Palaces could not be cited at the Head Burgh of the Regality but at the Head Burgh of the Shire the 11. of Ianuary 1662. L. Carnegie against the Lord Cranburn IV. Whether His Majesty may erect Regalities within the bounds of Heritable Sheriff-ships is controverted with us and if he may certainly he may thereby evacuat the Office of Sheriff-ships though bought with real Money which is hard And yet the Exchequer past a Signator of Drumlanrigs albeit Niddisdale within the bounds of which Sheriff-ship it is erected be an Heritable Sheriff-ship and the like decision is related by Hop M. h. t. and the reason seems to be that His Majesty by granting an Heritable Sheriff-ship alters not its nature and the nature of a Sheriff-ship is that His Majesty is not thereby divested of Jurisdiction and the Sheriff appointed being but His Majesties Deput his Creation cannot hinder His Majesty to erect a new Jurisdiction within its bounds as he may erect a Burgh-royal therein or a Justiciary c. When Lands are dispon'd in Conjunctsee the Heritor retains still the Office of Regality Hop hoc tit V. Albeit it be regularly true that Lords of Regality have the same jurisdiction with His Majesties Justices yet this rule suffers two exceptions 1. In the case of Treason to which the justices are only judges competent and that not only where the Treason libelled amounts to the crime of Perduellion but even in Statutory Treasons such as firing of Coal-heughs theft in landed men c. And some Lawyers are likewise of opinion that these crimes which are declared to be the four Points of the Crown viz. Robbery Murder Fire-raising and Ravishing of Women should not be liable to their jurisdiction which opinion is founded upon the 2. cap. leg Malcolm 2. By which it is Statute that all Robbers Forces of Women Murderers of Men and Burners of Houses shall answer before the Kings Justiciar and are therefore called Pleys of the Crown And by the 14. cap. Stat. Alex. 2. it is ordained that in all the Courts of Bishops Abbots and the Lords whatsomever these four Pleys shall be reserved from their Court to the Kings own Court because they belong to the Crown which is confirmed by the 76. cap. quon Attach Likeas Skeen de verb. signif Upon the Word Placitum is clear that these four Pleys of the Crown belong only to the Crowns jurisdiction or Justice-general in the same manner with Treason he there likewise observes that they are called placita from the French Word placitare which signifies Litigare as Mollineus observes Sup. cur Parl. parti Primo cap. Sexto And yet de facto Lords of Regality do ordinarly judge upon these crimes without any Commission And I find that the 22. of Iuly Brown is assoilzied from a pursuit of Fire-raising because he had been formerly pursued before the Marquess of Hamiltoun and assoilzied Actions of Deforcement also in my opinion being intented before the Iustices cannot be repledged for the Kings Messenger being then Deforced it is not fit that His Majesty should be oblieged to seek justice from inferiour Judges where His Officers of State cannot attend to pursue and cap. 27. l. 4. Reg. Maj. it is said that ad solam curiam Regis pertinet placitum de namo vetito and this the Justices sustain'd the 23. of November 1675. in the case of William Crighton though the debate was not allow'd to be booked The 2. exception is that no Bailie of Regality can repledge from Justice Airs Act 29. Parl. 11. Ia. 6. which was likewise Statute formerly by the 26. Act Ia. 2. Parl. 6. But in this case the Bailie of Regality may sit with the Justice-general yet seing the forsaid Act of the 11. Parl. King Ia. 6 allowes only no Repledgiation to be from Justice Airs holden by the Justice-general it may be doubted if when Justices Airs are holden by the Justice Deputs or others by vertue of particular Commissions there may not be Repledgiation allowed in that case but I think there cannot seing the Act of Parl. Ia. 2. is general and Skeen remarks this as a priviledge of the Justice Air qua talis VI. Regalities are divided with us in Ecclesiastick and Laick Ecclesiastick Regalities were such as were erected in favours of Bishops Abbots c. And there are but very few Abbacies in Scotland which were not erected in Regalities and when these were annexed to the Crown by the foresaid 29. Act Parl. 11. K. Ia. 6. It is declared that the Bailie or Stewart of the Regality shall have the same power he had before to Repledge from the Sheriff or Justice-general in case he have prevented the Justice-general by apprehending or citing the Person before he be apprehended or cited by the Justice but if the Justice have prevented as said is then the Bailie or Stewart of the Regality shall not have power to Repledge but he may sit with the Justice-general if he pleases so that in effect by this act there is difference betwixt Ecclesiastick and Laick Regalities that in Laick Regalities there is a Right of Repledging still as said is wheras Ecclesiastick Regalities have not this priviledge except they preveen the Justices but otherwise the Bailie of Regality may only sit with them Which difference seems to â—e acknowledged in the debate at His Majesties Advocats instance against several Fore-stallers upon the 26. of Iune 1596. And thus Mr. Iohn Prestoun then Depute to the Regality of Musselburgh was not allowed to Repledge but to sit with the Justices in the tryal of some Witches upon the 29. of Iuly 1661. The reason of this difference was that the Regalities having been only granted in favours of the Religious Houses which were supprest The Regalities became extinguisht with them and His Majesty having ex gratia only renewed their Offices to the Lords of Erection he thought that they were abundantly gratified by this new concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Liedges in not troubling them with two Courts Nor were the Lords of Regality much prejudged for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices And therefore the Lords found that the Lord of Regality had right to the Escheats of such as were condemned by the Justices or Justices of Peace the 22. of Iuly 1664. Elizabeth Sutherland contra Conradge so that this holds not only where the Justices sit with the Lord of Regality but likewise where the Justices condemn without the others concourse and yet it may be urged that since the Lord of Regality serves not in that case he ought not to get these Casualities which are the reward due to these who do justice and the Lord of Regality has himself only to
blame who did not either preveen or repledge Bailies of Regalities may likewise repledge from the Kings Lievtenent as was found the 19. of August 1596. And as is clear by the foresaid Act of Annexation and likewise from any Commissioners appointed by the Council as was found in May 1568. And from the Justices of Peace in Riots and Bloods as was found by the Lords of Session Iuly 1617. though these causes being of small moment and requiring summar and unexpensive cognitions seem to require easier and less solemn tryals in the procedor then repledgiations will allow And yet by c. 11. de appell I find that licebat in remimina appellare nor can the parties injured complain since they might have made their application to the Lord of Regality Nor should their errour prejudge his jurisdiction VII The manner of repledgiation from any Court is that either the party himself who hath the power of repledging or some other having a Procurator from him compears and produces his Charter of Erection from the production of the Seasing is not sufficient seing that is but assertio Notarii yet sometimes without production of the Charter repledgiation will be sustain'd because it is notour that the repledger hath a Regality as in the Duke of Lennox case 1637. As also repledgiation will be sustain'd upon production of the criminal Register bearing that it was formerly sustain'd to the same persons May 1668. Arducaple against the Commissioners of the High-lands Yet it may be doubted whether the production of a Lord of Regalities retour will be sufficient to instruct that he hath a Regality and it appears it should since a retour is a sentence and so is a sufficient instruction till it be reduced He who offers to repledge must find Caution of Culrach to do justice within year and day upon the person whom he repledges and if the Judge to whom he is repledged doth not justice within year and day he tines his Court as we call it for year and day and the Culrach for so the Cautioner is called who hath upon his becoming Cautioner borrowed the Defender is in an unlaw and the Judge from whom he was borrowed or repledged may proceed to do justice as formerly Skeen de verb. sig The Pannel likewise who is repledged must find Caution for his own appearance before the Lord of Regality to underly the Law for the crimes laid to his charge the 16. of May 1599. Patrick M ckalla against the Regality of Lennox No person can be repledged except he be present at the Court from which he is desired to be repledged for a party who is absent cannot find Caution to sist himself before the Court to which he is repledged as was found in the case of Armstrong who being pursued for murdering some Customers was desired to be repledged by the Earl of Annandale Anno 1666. Nor can a person be repledged after defences are proponed for him for this being recusatio judicis it must be ante omnia propon'd dum res est integra VIII When Regalities are erected there is a Burgh of Regality expressed therein and though that Burgh may choose Bailies yet the Bailie of Regality hath still a cumulative jurisdiction with those Bailies of the Burgh of Regality in that same way that other Superiours retain still a cumulative jurisdiction with their Regality as was found the 24. of Ianuary 1668. betwixt the Bailie of Killimure and the Burgh thereof This Burgh is oblig'd to maintain a sufficient Prison not only for Criminals but for Debitors by the 273. Act 15. Parl. Ia. 6. And all Captions bear the Letters to be direct to Bailies of Regalities c. And yet by that Act these Burghs seem only to be oblig'd to intertain Prisoners where there are Provost Bailies and Common-good Nota that these words of that Act by the Sheriff to Stewarts and Bailies of Regalities are ill printed for the word to should be or The Lords likewise decided thus against the Bailies of Regalities the 7. of Iuly 1668. Hamiltoun contra Callender In this Burgh all Courts must be holden Yet defenders are oblidg'd to compear at any other place within the Regality to which they were expresly cited As Had observes in a case the 16. of March 1622. Or if the Lord of Regality was in use to hold his Court else where for a considerable time without interruption the Vassals or any other Defender is oblidg'd to appear thereat though it be not the place design'd in the Charter of Erection as Had. observes December 1624. And if the party who is desired to be Repledged dwelt within the Regality the time of the committing of the Crime the Repledgiation will be sustain'd though at the time of his being accused he be removed without the Regality as was found the 21. of November 1632. in the case of one Weems who was desired to be Repledged to the Regality of Methwen Lords of Regality are oblidged to hold Justice-Courts twice a Year 3. Parl. K. Ia. 2. Act. 5. and if they be negligent in causing rest and stolen Goods be restored the Sheriff may fulfil their place Act 11. Parl. 15. Ia. 2. And when Erections fall into the Kings hand the Inhabitants thereof may be justified id est judged by the Justices Act 26. Par. 6. K. I. 6 but this Act can only take place till a Stewart or Bailie be appointed For Regulariter the Kings own Stewarts of Regalities may repledge from the Justices A Lord of Regality cannot fit himself in his own Court but must administer by a Bailie who is sometimes admitted by a simple Commission during his life or otherwise he is admitted to be Heritable Bailie which Right passes by Infestment but this Bailie is in Lands belonging to the King and is properly call'd the Stewart of the Regality though sometimes the Kings Deputs in Regalities are likewise call'd Bailies as in the 5. Act. 3. Parl. K I. 2. IX Lords of Regality cannot cite Witnesses without their own jurisdiction but they must have Letters of Supplement for that Office though generally they may proceed in the same way that the Justice-General doth but they may exact Caution to enter as Law-will from the defenders after sentence is given as was found the 7. of October 1668. betwixt Mr. Iohn Prestoun and Mr. Iohn Pape which seems to be a greater priviledge then the Justices have who cannot presently exact Caution of any person for paying an unlaw but can only raise Letters of Horning upon the Act of Adjournal The Lords of Regalities have right to the single Escheat of rebels living within their jurisdiction as also to the Escheats of all persons condemned for crimes committed by the Inhabitants within their jurisdiction albeit condemned by the Justices from which general rule Hope in his lesser Practiques excepts only the case of Treason but it may be doubted whether exception may not be likewise made of all other Pleys of the Crown seeing the Lord
and the power of giving of quarter is naturally inherent in all Souldiers as such and as the Council without expresse remission from the King upon submission might have secured their lives so might Souldiers by quarter for they have as much power in the field as the others at the Council Table 2. Lawyers are very clear that quarter should be kept though given to subjects who are Rebels Grotius lib. 3. Cap. 19. where after he hath fully treated that question de fide servanda concludes that sides data etiam persidis rebellibus subditis est servanda And this hath been observed in the civil Wars in Holland and France and by his Majesty and his Father at home during the late troubles 3. Quarâ—er is advantagious to the King and so should be kept for these who were taken might have killed his Majesties General or Officers and by giving quarter to his enemies he redeemed his Servants and if the only effect of quarter were to be reserved to a publick tryal none would accept quarter Notwithstanding of which reply the defence was repelled and the Pannels condemned and thereafter execute The second question was that which was debated in Haddo's case 16. March 1642. At which time that Loyal Gentleman Haddo being pursued for killing Mr. Iames Stalker Servitor to the Lord Frazer he alledged that the said Mr. Iames was killed in the open field in a conflict betwixt the Convenanters and Ante-Covenanters All which Acts of ostility were remitted by the pacification To which 〈◊〉 was replyed that the Pacification did only secure against acts of hostility which were done in furore belli but this was a privat murder for the said Mr. Iames having been taken a Prisoner Haddo did come up to him and asked whose servant he was and hearing that he was servant to the Lord Frazer he said your masters man is the person that I am seeking and thereupon ordered to kill him which was accordingly done by which it clearly appears that this was a privat murder done in cold blood and upon premeditat malice and Mr. Iames Stalker being a Prisoner any who killed him was liable for his murder ex jure militari and the pacification could no more defend the committer then if he had gone into a prison and killed a prisoner or if he had committed a Rapt upon a woman likeas Murderers are expresly excepted from the pacification 2. Haddo was no general person and so could not give order for his execution and so the killing of the defunct was not warrantable by the Law of Armes To which it was duplyed that the pacification did secure against all deeds whatsoever done upon the field by persons engaged in either party without debating whether the deed was lawfully or unlawfully done and the occasion and not the manner of killing is to be considered And as to the manner it is answered that Mr. Iames had never got any quarter and so was not a Prisoner in War and therefore might have been killed by any engaged in the quarrel whether general person or other But the truth is the said Haddo did command that party which was equivalent to his being a general person and albeit the pacification did expresly except murders yet that behoved only to be interpret of such murders as had no contingency with the troubles nor were occasioned by them this debate was not decided but was remitted to the Parliament and that worthy Gentle-man executed for rising in arms against the Estates of Parliament III. I find that there was a Commission granted by the Parliament in Anno 1644. to two Bailies of Edinburgh to sit and hold justice Courts upon such Souldiers as were runaways and that upon this Commission Iames French was condemned by them for running away from his Collours contrary to the Act of Parliament 1644. and was hanged accordingly From which these observations may be made 1. That the Justices are not Judges competent to crimes that are meerly Military 2. That we have no standing Law for executing runaways beside the Martial Law nor was there any Law founded upon this inditement except the Act of Parliament 1644. which is now abrogat 3. It is observeable that one Mr. Alexander Henderson as Procurator Fiscal and not His Majesties Advocat was here pursuer From all which it seems somewhat strange that this Process should have been insert in the Adjournal Books IV. But albeit deserters were here punisht with death yet regulariter milites gregarij or listed Souldiers are only punishable in time of Peace with degredation and in time of War with death because the hazard is then greater l. 5. § 1. ff de remilit and by that Law they may be killed by any man lib. 2. Cod. quando liciat unic c. But this arbitrary killing is not now in use as Voet de jur militat very well observes if superiour Officers leave their charges they commit Treason l. 2. ff ad leg jul majest vid. tit Treason V. Constantine having extinguisht the Office of praefectus Praetorio who was the Supream Judge in all Military cases The Magistri militum succeeded and were sole Judges of all crimes committed by Souldiers both in Civil and in Military cases and if Souldiers had offended the Civil Magistrat might have secured but he was obledged to remit them cum elogio to their own Officers l. 9. ff de custod reor vid. tit C. de remilit TITLE XVII Advocations of Criminal Causes 1. Advocations defined 2. No Advocation from the Iustices 3. How Advocations are raised from inferiour Courts and the forms thereto relating 4. The ordinary Reasons of Advocations examined 5. Whether the Iustices are proper Iudges to their own competency I. ADvocation is the away calling of an intended cause or pursuit from an inferiour incompetent judicatory to a higher and more competent and is the same thing with us that recusatio judicis was with the Romans and is by the Doctors call'd advocatio or evocatio which is by them defined to be litis pendentis coram inferiore ad superiorem absque provocatione facta translatio Gail lib. 1. obs 41 num 7. and is founded upon cap. ut nostrum de appell l. jud solvitur ff de jud II. Their is no Advocation raised of pursuits intented before the Justices but if ther be any design of stopping a pursuit depending before them there useth to be a Petition given in to the Lords of Secret Council who if they find the desire of the Petition just will ordain the Justices to stop all further procedor or will remit the inquiry to any other Court as they did in a pursuit intented at the instance of the Earl of Caithness against some Vassals of the Earl of Sutherland which they stopt as to the Earl himself and ordained his Vassals to be pursued before his own Regality Court sometimes also they ordain Assessors to be Justices so that there is never a cause formally Advocat from before the Justices
or otherwise the pain is Arbitrary and there the pursuer cannot by his petition determine the same but must leave it to the Judge l. 1. § quorum ff ad S. C. turpil l. ff de privat delicti l. ordine ff ad unicipalem and in the form set down l. 3. ff de accusatio by Paulus there is no conclusion exprest but yet with us there is alwayes a conclusion in every Libel though it be general and I perceive that most of the practitioners are of opinion that at least a general conclusion should be added III. Whether a Libel being libelled qualificate the pursuer may passe from the quality has been thus determined by Lawyers that if the quality amount to another different crime it cannot be past from but if the quality amount only to an aggraging circumstance it may be past from As for instance if the pursuer Libel upon the Act of Parliament whereby murder under trust is Treason and subsume that the Pannel is guilty of murder under trust in so far as the person murdered was father to the murderer if when the case is to be tryed the pursuer should declare that he insists against him as a Murderer simply because he is not sure to prove that the person killed was father I think eo casu the pursuer could not so reform or declare his Libel for that makes the crimes to differ the one being Murder the other Treason and the defender was only obliedged to prepare him to defend against Treason and finding that he was secure as to the crime libelled he needed not prepare other defences or raise exculpations for that effect but these qualities which amount only to aggravations may be past from as was decided 11. November 1672. For Aikma◠having pursued Carnegy of Newgate for oppression conform to the 25. Act 4. Parl. K. I 5. because he had beat him who was a Magistrat in the exercise of his Office the Justices having found that the pursuer could not in the construction of Law be repute a Magistrat because he had not taken the Declaration it was thereafter alledged that the Libel being only founded upon the foresaid Statute conceived in favours of Magistrats and the conclusion being against oppression and not against beating the pursuer could no more insist upon that Libel which was repelled for the Justices found that the beating any man was a crime and the pursuer might insist against the defender for beating him since his being a Magistrat was only an aggraging circumstance Yet this seems a hard decision since the proposition of the Libel did not bear that beating was punishable nor did the conclusion bear that at least the Panel was punishable for beating a free Liedge if this were universaly allowed alternative Libels were unnecessary and this would occasion much looseness in Criminal Libels whereas Lawyers treating of Criminal Libels have laid it down as a principle that in criminalibus non licet vagare and the crimes of oppression and beating are different Nor can it be denyed but that a privat person differs from a Magistrat so that this quality made the persons the crimes and the medium concludendi to differ IV. For the better clearing of our custom in these cases I have set down the form both of the Criminal Letters and Criminal Indictment now in use with us A Criminal Summonds CHARLES c. humbly mean'd and complain'd to Us by Our Lovits A. the relict B. sister daughter and nearest kins-woman C. as Mr. with the remanent kin of Umquhile Main Servant to the said C. and Our right trusty and well beloved Councellor our Advocat for our interest in the matter underwritten upon Listoun without any just cause offence or injury done to him by the said umquhile Man having conceived a deadly hatred and evil will against him with an settled purpose and resolution to bereave him of his life one way or another lately upon the last day of 〈…〉 where the said Main was in quiet and sober manner for the time expecting no harme injury nor pursuite of any person but to have lived under Gods peace and ours And the said Listoun being bodden with a great Batton or rung in his hand and with knives and other invasive weapons first upbraided the said Main with words alledging that he was a common Thief and had stollen c. And thereafter because the said Main had purged himself of that calumny and said he was as honest a man as himself he thereupon ran and rushed the said Main being an aged man of 74. years of age to the ground under his feet struck him in the head craig shoulders and side with the said Batton lap upon his breast and belly with his feet and knees beat him upon the heart and thereby broke and bruised his whole intrals and noble parts thereafter heased and drew him by the heels off the saids lands by the space of a quarter of a mile to a low Vault in c. and imprisoned him therein tanquam in privato carcere he being in the dead thraw Likeas within three hours after his imprisoning in the said Vault the poor aged man dyed of the saids stroaks and hurts likeas to suppresse the Murder the said Listoun with his complices buried him in an obscure place in the night time and swa the said Main was shamefully and cruelly murdered and slain and secretly buried by the said Listoun and his complices and he is Art and Part thereof committed upon set purpose and provision and forethought Fellony in high and manifest contempt of our Authority and Laws in evil example of others to commit the like if swa be OUR WILL IS herefore c. and in Our name and authority command and charge the said Listoun committer of the said Barbarous murder in manner foresaid to come and find sufficient Caution surety to Our Iustice Clerk and his deputs acted in our books of Adjournal that he shall compear before the Iustice or his deputs to underlye the Law for the samen in our Tolbuith in Edinburgh on the Day 〈…〉 of 〈…〉 in the hour of Cause under the pain contained in Our Acts of Parliament and that ye charge him personally if that he can be apprehended and failzing thereof at his dwelling house and by open proclamation at the Mercat Crosse of the head Burgh of the Shyre Stewatry or Regality where he dwels to come and find the said soverty acted in manner foresaid with in six dayes next after he bees charged be you thereto under the pain of Rebellion and putting of him to the Horn the whilk six dayes being by past and the surety not being found that ye immediatly thereafter denounce him Rebel and put him to our Horn and escheat and in bring all his moveable goods to our use for his contemption and cause Registrat thir our Letters with the executions thereof in the books of Adjournal within fifteen dayes thereafter conform to our Act of Parliament
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
knowledge yet the truth of that principle may be doubted upon these reasons 1. Because by the foresaid Act of Parliament par 11. K. Ia. 6. All Probation should be led in presence of an Assise and Pannel but so it is that the privat knowledge of Assisers cannot be laid to be led before them 2. If Probation were led publictly defenders might propon interrogators whereby the matter of Fact might be more fully cleared and even the Witnesses own mistakes might be removed of all which just advantages he is precludit by that principle 3. The great reason why by the act Probation should be led in presence of the Pannel is because in Law it s presum'd a Witness will stand more in aw to depon falsly in presence of the Pannel then otherwise for which cause confronting of Parties and Witnesses amongst themselves when they are contrary is much used and treated of by the Doctors 4. If assisers may give their verdict upon privat knowledge then they could never be pursued for error because if privat knowledge be the rule I can hardly understand how men can be convict as having transgressed against that rule seing albeit it be easier to judge what a man should know yet it is impossible to judge what a man doth know 5. By the Civil Law and the opinion of almost all Divines and Nations judices debent judicare secundum allegata probata IX From the foresaid Act Parl. 11. ordaining all Probation to be received and used in the presence of the Assisers and Pannel it may be deduced by a necessary consequence that no Witness should be examined in criminals ad futuram rei memoriam and that no witnesses should be examined by Commission and albeit it may be objected that in crimine falsi the Probation led before the Lords is not repeated before the Justice and Assisers before whom nothing is used to instruct the falshood but the Decreet of improbation pronounced by the Lords for in that case the Lords being by Act of Parliament declared Judges competent to the cognition of Falshood their sentence habetur pro veritate and is probatio probata so thaâ— the producing of it is the leading of Probation before the Assise This priviledge that no Probation should be led but in presence of the Pannel and Assise may be past from by the Pannel seing it is introduced in his favours and therefore it was found the 9. of March 1671. that the diet could not be continued against Charles Robertson because of the absence of the Witnesses seing he was content to stand to the Depositions formerly taken but they caused him subscribe his consent After the Probation is closed the Pannels Advocats makes a speech to the Assise wherein the termes they use to them is good men of inquest and after they have ended His Majesties Advocat speaks but there are no Duplys or Triplys used and it was the priviledge of His Majesties Advocat to be the last speaker which priviledge was assumed likewise by all other Advocats for the pursuer but by the tenth article of the Regulations 1670. the defenders Advocat is now the last speaker except in the case of Treason and Rebellion so that this priviledge holds only in Perduellion but not in ordinary Treason X. When both these discourses are ended then the Assize are inclosed but before they be inclosed they should endeavour to be satisfied of any doubt for if after inclosing any person speak to them or if any of them come out of the place where they are inclosed until the verdict be pronounced the Pannel is eo ipso clean and innocent Act 91. Parl 11. Ia. 6. the reason inductive of which act seems to be fear of impressing or suborning the Assize and therefore the practice allows Assizers sometimes to send out some of their number to the Justices to receive informations in matters of fact and finds that in so doing they transgress not this act as in Kennedies case August 1662. And after a full debate upon the 24. of December 1672. It was found that any of the Assizers disclosing and coming out of the house after they had past a vott though the verdict was not subscribed be the Chancellour was not sufficient to annul the verdict albeit it was here alledged that there might be great debate upon the wording of the verdict and so the Assize should not have disclosed until the verdict was subscribed By this act likewise the Assizers and not the Justices are Judges competent to this exception against the verdict as was found in the foresaid decision 1672. wherein the Justices found that themselves were Judges competent to the relevancy of any such alledgeance but that it belonged to the Assize to judge the Probation of that exception though it was alledged that the Assizers could not at all be Judges thereto seing they were the delinquents in that case and if most part of the Assize had disclosed it were absurd that they should be Judges to their own Delinquency At that time the Lords did likewise declare that if any Assizer should disclose before the vots were compleat so that the vrdict might be thereupon anulled they were punishable by the Justices and should be obliged to repair the loss which either the King or Party incurred So that Assizers are allowed to speak to Judges or Advocats but are not allowed to make any address to them after inclosure as said is It is likewise observable from this act that albeit the Clerk be discharged to enter in where the Assize sits after they have chosen their Chancellour yet defacto the Clerk sits still with them and it was thought fit he should do so because they being oft ignorant and unaquanted with the forms and procedure of that Court they should have some person to regulat them and none so fit to do it as the Clerk yet by the late Regulation 1670. it is appointed that the Clerk shall not be present and sure the Clerk was worth ten and did influence too much XI After the Assize are inclosed they choose a President who is called Chancellour of the Assize and proceed to read and thereafter to reason upon what is debate and their determination is called the verdict of the Assize which is subscribed by the Chancellour it is called verdict quasi vere dictum and sometimes it is called warda curiae quon Attach cap. ubi aliqua thereafter the Assizers enter again into the Court and there the verdict is read and the Chancellour stands up and owns the same after the verdict is read it should and is by the 9. Act of Regulations 1670. closed and sealed with the Seals of the Court of the Chancellour of the Assize and of so many of their number as the Chancelour shall think fit never to be opened but by orders from the Judge of which verdict the Clerk is to have the keeping and if he open the same he is to be deposed and further punished as the
that these who Blaspheme in jest are to be less severly punished and that Rusticity mitigats the ordinary punishment in this case but Gothofredus is as to the last of a contrary opinion because Rusticity excuses not from the knowledge of the Law of Nature much less of God but they may be reconciled thus that open gross Blasphemy is equally punishable in both but not consequential and indirect Blasphemy as if a Countrey-man should erre in the Persons of the Trinity which some remot High-landers are so ignorant of as not to know those should rather be pitied then punished except they add obstinacy to Blasphemy vid. Cabal cas 296. IV. The punishment of Blasphemy is Death by the Law Nov. 77. by the Canon Law Publick repentance for the first fault and the standing at the Church Door with an infamous Mitre or Paper Hat for a relapse V. By our Act 21. Sess. 1. Par. 1. C. 2. Blasphemy Railers against God or any of the Persons of the blessed Trinity shall be likewise punishable by death if they obstinatly continue therein From which Act it is observable 1. That this Crime can only be tryed before the Justices and therefore not before the Lord of a Regality though they have equal power as hath been formerly observed 2. Distraction is only excepted here so Ignorance Passion Rusticity or Railery excuses not nam exceptio firmat regulam in non exceptis and yet these may excuse from the ordinar punishment in some circumstances but are never defences against the relevancy 3. It may be doubted why the denying God or any of the Persons of the Holy Trinity is only punishable by death if they continue obstinat therein And yet the railing upon or cursing God or the Trinity is simply punishable without obstinacy and the difference seems to be that cursing or railing against God cannot proceed from Ignorance but argues Malice whereas the denying Gods Attributes or the Trinity may proceed from Ignorance It may be doubted if with us a person who should call himself the Son of God or the Messias could be punished as a blasphemer and it is said that the Parliament of England thought he could not and therefore Iames Nailor was only scourged for this Crime Yet I think he could be reached by our foresaid Act as a person who rail'd upon God and the Trinity For to make our selves equal with them is to rail against and vilifie them VI. Cursing of Parents viz. Father or Mother but no others is punishable by death if they be past sixteen or arbitrarly if they be below sixteen and above punishable vid tit parricid Act 20. Par. 1. Sess. 1. Ch. 2. Justices of Peace are by the 38. Act 1. Par. Ch. 2. to punish such as curse and swear profanely and exact from a Noble man twenty merks a Barron twenty merks a Gentle man Heretor or Burges ten merks a Yeoman fourty shilling a Servant twenty shilling a Minister the fifth part of his Steipend and the Husband must pay his Wifes fine ergo regulariter the Husband is not liable for the Wifes fine if there be no warrant therefore by Statute By the 16. Act 5. Par. Q. M. the swearing abominable Oaths are to be fin'd but that Act is only temporary By the 103. Act Par. 7. I. swearers and blasphemers ar to be punished by the Magistrats and if they fail by the Privie Council Notà by this Act that Women are to be punished in penal Statutes conform to their Blood and their Husbands quality that is to say conform to their Blood if unmaried or to their Husbands quality if maried and therefore may be doubted whether these Women who have precedency according to their Birth though maried as an Earles Daughter when maried to a Gentle man or those who have precedency by a Patent above their Husbands quality should not be punished according to their precedency though maried The Justices did in May 1671. fine a Woman in Dumfreis in 500 merks for drinking the Devils health but did not find it Blasphemy TITLE IV. Haeresy 1 The definition of Heresy 2 Whether Invocation of Spirits be heresy 3 The punishment of Heresy 4 Iesuits and trafficquing Priests how punished 5 The specialities ontroduced in punishing this Crime HEresy is committed when a Christian owns pertinatiously errors condemned by the Church I said when a christian own'd them because Pagans and Mahumetans are not punish'd as Hereticks Simancas de haereti cap. 31. num 3. for these are enemies to our faith in general and erre not in particular points of it I said who err'd pertinatiously because such as erre ignorantly or as having err'd perversly do not pertinatiously adhere to their error are not to be esteem'd haereticks And this repentance is to be receiv'd any time even after sentence to stop the execution Carer fol. 642. except they have relaps'd in their Heresy for their second fall is not to be taken off by repentance but though their repentance secures them against death in the first fall yet the are to be punished by perpetual Imprisonment Igneus in l. ff ad Sillan Cook hoc tit II. Though some make the adoration and invocation of Spirits to be Heresy yet others do more judiciously determine that if these devils be invocked to reveal things to come then that invocation is of the nature of Heresy for that is to attribute omniscience to the Devil which is one of Gods attributes but if the Devil be invocked for a particular end or interest such as that he may learn the invocker how to prevail with a mistriss or how to gain a Princes favour in these cases the invocker is not to be call'd a Heretick Clarus § Haeresis num 25. but neither do's that distinction please me for such as invock the Devil are not properly Hereticks especially if they have renounced their Baptism for there is no reason to call them Hereticks who not only erre in the faith but have renounced the faith intirely and as Pagans are not Hereticks because they worship false Gods so neither should they who worship the Devil and these who have renounced their Baptism for they are in the same condition with these who were never baptized III. The punishment of Heresie in the opinion of the Doctors is to be burnt and confiscation of the Delinquents Moveables Clar. num 13. But by the Law of England Hereticks are only to be burnt if they will not abjure By our Law Heresie was in the first instance try'd by the Church and the Secular power did not meddle to condemn Hereticks till they were first condemned by the Church Ia. 1. Par. 2. Act. 28. In which it is ordain'd that the Bishops shall inquire into Heresie and if they be found that they be punished as the Law of the Holy Kirk requires and if it misters that Secular power be called in support and helping of holy Kirk From which Act it is observable first that the Kirk was Judge to Heresie in
is probable 3 The nature and punishment of it in Scotland 4 Baratry Ecclesiastick 5 Baratry Civil SImony is the selling or buying any Church Office cupiditas emendi aut vendendi aliquid spirituale aut spirituali annexum So called from Simon Magus who offered to buy the Grace of God And the Canonists teach that it is Simony to paction for any advantage in administrating the Sacraments but not to take reward after they have administrate them II. In this Crime infamous persons whoors and other witnesses who are not habiles or at least who are not omni exceptione majores are here receivable cap. sicut de Simon because it is ordinarly carried on with much privacy and clandestine dealing for which reason likewise Lawyers conclude that it may be proved by presumptions It is crimen mere ecclesiasticum and cannot be punished by Laicks the punishment is depravation III. With us Simony is once mentioned and that is Act 1. Par. 21. Ia. 6. Wherein it is Statute that if the Arch-Bishop or Bishop deprehend that the person who is presented hath made any Simonaical paction with the Patron whereby he hath so hurt the Benefice as that he hath not reserved a sufficient maintenance for himself and his successors suitable to the value of the Benefice that the Bishop may refuse the presentation and the Lords of Session are declared to be Judges to any debates arising betwixt the Bishop Patron and Person upon that account From which Act it is observable 1. That it is implyed and tacitly acknowledged that Simony is a Crime by our Law seing this is punished as a Branch thereof and therefore I conceive that what ever is punisht as Simony by the Canon Law is punishable with us and that a Minister or other Benefic'd Person who bargains or transacts with any to get them a Church or Benefice and gives or promises Money therefore is punishable even by our Law 2. That by this Act a paction whereby the incumbent reserves to himself a competencie suitable to the Benefice is not Simony and what this conpetencie is is left arbitrary to the Judge because it is not determined 3. That this Crime is probable with us by Oath because of its clandestine convoyance as said is By the Stat. Eliz. 31. the person committing Simony is declared uncapable to enjoy that Ecclesiastick Office IV. Baratry is a kind of Simony Socinus reg 55. Bald. part 5. Consil. 21. which with us is committed by these who go to Rome to buy Benefices without licences from the Chancellor or their ordinar I. 1. P. 7. cap. 106. the pain of it is banishment and never to bruik honour or imployment for the future within the Kingdom This word comes from the Italian word Baratry which signifies corrupting of Judges for our Law presumed that these who went to Rome to get a Benefice designed to get it by corruption But though Baraters are called canpones beneficiorum by the Doctors as Craig observes pag. 371. Yet our Kings being of old very submissive to the See of Rome durst not directly at first forbid application to Rome but did only forbid the carrying abroad Money out of the Kingdom knowing that nothing could be done there without Money But thereafter this Crime growing greater the Parliament did by the 84. cap. P. 6. I. 3. forbid expresly the going to Rome to purchase Benefices or to be its collectors under the pain of being demean'd as Traitors and never to bruik Benefice or use Worship which is ratified by the 53. Act 5. P. I. 4. But though the punishment is that of Treason by these Acts yet by the 2. Act 1 P. I. 6. the punishment of Baratry is declared to be prescription banishment and never to bruik Honour nor Office within the Kingdom and all applications to Rome are punishable as Baratry This Act being after the Reformation And by this last Act it is declared that Baratry may be punisht either by the Justices or Lords of Session And upon this Act Iames Arch-Bishop of Glasgow was exauctorated after the Reformation for going to Rome V. The Sons of Noble Men and others passing to Schools beyond Sea's without the Kings Licence are also said to commit Baratry I. 6. P. 6. cap. 71. And the Council uses to ordain Noble Men who breed their Children abroad in Popish Schools to bring them home under a great fine as they did lately to the Lords of Mordingtoun and Semple in anno 1668. Before which Act also all Laicks going out of the Kingdom without consent of the King or Licence from the Chancellor committed Baratry I. 4. P. 5. cap. 53. And though Craig debates pag. 371. whether the punishment of this be the same with Treason because it is said to be punishable as Treason cap. 84. Pa. 6. I. 3. Yet it is clear that this punishment is restricted by the Act 2. P. 1. I. 1. To the being declared incapable of Trust and Banishment This Prohibition of Laicks going abroad was first at Carthage and is now in vigour at Naples and many other places And though it be now in desuetude at least is not punisht except in Privy Councellours Yet I see no reason why any should say that this Crime takes only place in Vassals holding immediatly of the King for the Act is general And yet Merchants are warranted by divers Acts of Parliament to Traffique abroad and so fall not under this Prohibition TITLE VI. Treason Laesa Majestas 1 Treason is divided by the Civil Law in Perduellion and Laese-Majestie 2 The differences betwixt Perduellion and Laese-Majestie 3 Treason with us may be divided in Perduellion Laese-Majestie and Statutory Treason 4 The nature of Perduellion or rising in Arms which is the first species of Treason 5 The second species of Treason is committed against the Kings Person 6 The third is the recepting such as have committed Treason 7 The fourth is to hold out Houses against the King 8 The fifth is to assail Castles where the King resides 9 The sixth is to raise a fray in the Kings Host. 10 The seventh is to trouble any who kills a declared Traitor 11 The eighth is to impugn the Authority of the three Estates 12 The ninth is to decline the King or Councils Authority 13 The tenth is to conceal and not reveal Treason 14 The eleventh is to desert the Kings Host. 15 The twelfth is to deny the Kings Prerogative in having the sole power in calling and dissolving Parliaments 16 How the killing Counsellors is punishable 17 The several branches of Statutory Treason 18 To accuse any man for Treason if the accused be assoilzied is Treason 19 Treason is not Baleable 20 Summonds of Treason ought to be execute by Heraulds 21 Whether less probation be sufficient in Treason then in other Crimes 22 Treason may be pursued after the Committers death 23 Traitors may be forefaulted in absence 24 How disobeying the King is punishable 25 The punishment of Treason in general UNhappy
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
causam dederit there is a Civil Action by the Civil Law allow'd ex lege aquilia But for the further understanding incendii culpas the more exact Doctors do distinguish betwixt incendium ex culpa lata ex culpa levi ex culpa levissima commissum And since culpa lata aequi paratur dolo therefore they make it to be corporeally punishable though in that case the punishment is not extended to death but if the same be committed only ex culpa levi then it is to be punished by a Fine but if the committer have not wherewith to pay his Fine he may Subsidiarly be punished in his person But if the Fire be raised per culpam levissimam then the committer can never be punished corporeally even though he want Money wherewith to pay his Fine dicunt tamen aliqui culpam levissimam in faciendo aequiparari culpae levi in committendo Alex. con 55. IX By our Law he who burns a House in a Town by misgovernance and not of set purpose as the Act sayes he shall be punished at the sight of the Magistrats of the Town and his Goods shall be given to him who suffers the prejudice and shall likewise be banished for three years and if he have no Goods he shall be scourged at the Mercat Cross and thorow the Town and shall be banished for seven years but if he who owes the House do either by himself his Wife or Bairns id est negligently burn his own House albeit no Neighbour be thereby prejudged yet he shall be banish'd the Town for three years And if he to whom the House is set burn the same negligently he shall repair the dammage and be baninished for three years Or if a Stranger or Traveller burn as said is he shall be Arrested and repair the skaith which if he be not able to do he shall abide in Sickerness id est in Prison at the King's will And if the Governours of the Town be negligent in the execution of their Office they are to be unlawed in ten pounds And if Fire happens in Husband-Towns in Barronies they are to be punished by the Lords id est Barrons in like-manner as Magistrats do within Burgh Ia. 1. Parl. 4. cap. 75. By this Act likewise no Fire is to be carried from on House to another but in a covered Vessel under the pain of an Un-law but since this Un-law is not exprest it is therefore Arbitrary to the Judge to raise it as high as his Jurisdiction will suffer though in justice he should proportion it to the Crime especially since it is not tax'd here of design that it may be proportioned as said is Upon this Act there may be several doubts raised as first What is meant by the word misgovernance for clearing whereof the common distinction made by the Doctors and related by Alexander Consilio 55. would be considered And it appears that misgovernance in this case does include culpam levissimam the meanest fault because the Act bears misgovernance and not of set purpose so that whatever is not of set purpose or designed is punishable by this Act. Likeas the word recklesly which is likewise used in this Act as exegetick of the former may be properly enough extended to culpa levissima but yet it may be argued upon the other hand that since the punishment of Servants raising Fire by misgovernance is to be Scourged publickly and then Banished and that Masters are punished if they burn their own Houses after that manner it were hard to extend this punishment ad culpam levissimam and as the Law interprets obligations to give Wine or Corn neither to be extended to the best nor worst of that species so in this case misgovernance should be interpret as that it may properly neither be meant of culpa lata nor levissima but of culpa levis which is media and the word misgovernance properly doth imply a fault that is considerable verba poenam imponentia sunt strictissime interpretanda as Lawyers observe 2. It may be doubted whether if Children who are not come to that age at which they are only punishable themselves should burn the Fathers House if the Father be punishable by this Act eo casu and albeit it would seem that he is seing accident without judgement is punished in this case by repairing the dammage done yet it is more suitable to reason to conclude that he is not because 1. He who hath no government by Law of himself or any thing else cannot be said to do any thing by misgovernance 2. Children in Law are equiparat to fuâ—ious persons or Idiots and as the Father could not be punishable for what is done by his Children being furious and Idiots so neither can he be punishable for what is done by them whilst they are impuberes 3. Quia accessorium sequitur naturam sui principalis subsidiarium naturam ejus cui est subsidiarum and therefore where the Child himself cannot be punished we ought to conclude that the Father ought not to be punished for him XI The Doctors do conclude that the Master of the Family is bound not only for his own but likewise for the fault of any of the Family who raiseth Fire for having choos'd them himself he ought to be lyable for their fault and he ought to blame himself for not choosing of better Servants But this is to be restricted to the injuries done by the Servants in their respective imployments to which they were made overseers by Masters As for instance if the Cook should leave the Fire securely at night in the Kitchin but a Laquie belonging to the House should thereafter come in to the Kitchin and scatter it so as that both their Masters and the Neighbours House were burnt they conclude that the Master would not be lyable to make up his Neighbours dammage since the Master was not to be blamed the person choos'd by him having done his duty Carpz part 1. quest 39. num 51 52. But this seems unreasonable for it may be alledged that the Master should not have choosed any such Servants And it is all one to the Neighbours by whom the prejudice is done or whether it was done without the committers office or not And therefore it were fit to consider whether the person who did the injury was known to be a profligat or vicious person before he was imploy'd And it seems that this may be the interest of the Common-wealth because it would secure Neighbours and be advantagious for the Common-wealth that none should imploy Servants who are not sufficient TITLE X. Witch-craft 1. Wierus arguments against the punishing of Witches with the answers thereto 2. Some observations which may perswade a Iudge to be cautious in judging this Crime 3. Upon what presumptions Witches may be apprehended 4. Who are Iudges competent thereto 5. Paction with the Devil 6. Renouncing of Baptism 7. The Devils mark 8. Threatning to do mischief how
killer should not be capitally punisht albeit he was in no hazard of his life I likewise think that the fear of imprisonment by the defender may excuse from capital punishment seing Liberty is as dear as Life and no man can be secure of his Life if he be unjustly imprisoned sibi imputet aggressor qui occasionem praebuit It is likewise lawful to kill such as would murder our Friend or fellow-traveller which is accounted lawful though not self-defence which is extended also to the defence of all others because we should love our Neighbour as our selves And it is lawful to kill a Thief who in the night offers to break our Houses or steal our Goods even though he defend not himself because we know not but he designs against our Life and Murder may be easily committed upon us in the night but it is not lawful to kill a Thief who steals in the day time except he resist us when we offer to take him and present him to Justice IV. This exception of self-defence must be propon'd against the revelancy and must be condescended upon thus the Pannal no ways acknowledging the killing yet if he killed it was done in his own defence in swa far as the Defunct drew a Sword and thrust or offer'd a Pistol c. And the Justices will not allow that it should be propon'd to the Assize as I have oft heard this press'd but very unreasonably for this concerns the relevancy to which the Justices and not the Assizers are only Judges competent And it were very dangerous to refer to ignorant Assizers Matters of such importance and which are oft so intricat in Iure And whereas it may be urg'd that Art and Part is referred to the Assize and is not condescended upon and made relevant It is answered that the accuser cannot know the accession of the Pannel till the Witnesses first condescend upon it but the Pannel cannot but know all the circumstances of his own self-defence and is not to learn that from others But yet though the proponer of a defence do's in civilibus acknowledge eo ipso the Lybel yet in criminalibus though the defender or Pannel prove not his exception of self-defence he will not be condemned except the pursuer prove the Lybel V. The way of proving this self-defence was by raising a precept of exculpation but is now only by a summonds which expresses not so particularly the defence in all its circumstances but that it may be hereafter help'd which it seems is unjust for the Pannel should know what himself did nor should a Judge grant a precept for exculpation till he see that there be some ground for craving it This exception of self-defence is so favourable that it may be prov'd by presumtions by Witnesses otherways declinable as Cousens Servants and Witnesses who depone only upon credulity and the Defence it self being once prov'd it is presumed that it was done necessarily and lawfully potius ad defensionem quam ad vindictam Far. quest 115. part 7. § 1. And yet our Law allows no Witnesses to be receiv'd in defence but such as it allows pursuits and witnesses led in defence are more to be suspected for men are naturally enclined to go all lengths in bringing off the Pannel and for this cause it is that we have Assizes of Error against such as absolve a Pannel but none against those who condemn him Before this Act of Parliament self-defence was still sustain'd by the Justices to elide the Lybel of Murder but it was oft ineffectual seing there were no precepts of Exculpation then us'd and consequently except either the Pannel could have prov'd the inculpata tutela by the accusers own witnesses who were led to prove the Murder which was not secure seing these who saw the beginning of the scuffle and first aggression might have been absent when the aggressor was killed or that the witnesses would have voluntarly appeared which was a probable reason to set them they being eo casu testes ultronii the defence could not have been proved Whether self-defence will defend or is lawful in Paricid See more of this Title Exculpation VI Homicidium casuale is when a man is kill'd casually without either the fault or design of the killer as if an Axe head should fall off and kill a by stander or a Rider should kill with his Horses feet In which case our Law appoints that if the prejudice be done by the Horses formest feet then the Ryder shall be forc'd to satisfy for the prejudice done and these satisfactions are called Croo or Galnes but where it is there said that he shall give Croo or Galnes as if he had killed him himself it is to be interpret not as if the Rider should be punishable in that case as if he had killed him with his own hand but that the Assythment shall be the same But the Rider is not lyable at all for what prejudice is done by the Horses hinder feet lib. 4. Reg. Maj. C. 24. Casual Slaughter or homicide then is that which is occasioned by mistake and just ignorance for if it proceed from affected ignorance as for instance if a man will not know what he may know his ignorance in that case will not make the Murder following upon it to be constructed casual homicide but if it proceed from gross and supina ignorantia it may be punishable by an extraordinary or arbitrary punishment but not by death And since such ignorance is a fault the Murder occasioned by it becomes culposum or faulty homicide as seems to me clear by C. continebatur c. lator de homicid It is then necessary that the committer us'd all exact diligence to evite the Crime else he is not in the case of casual homicide Further instances whereof are if a Mason before he throw down Stones advertise all below though in throwing he kill he is to be cleared as innocent Or if a Hunter shoot at a Beast but a man come in the way and be killed and yet if either the Mason cry not or if the Hunter did shoot in a place where people use to be he is guilty of faulty Murder in these cases which shews clearly the difference betwixt these two kinds of Murder VII If the killer be imployed about a thing unlawful either in it self or unlawful to the actor the murder ensuing is thought still casual Murder since Murder was not design'd if the committer did exact dilligence to shun all Murder as for instance to cary Guns is unlawful with us and to hunt is unlawful to Priests by the Canon Law If then a man having a Gun illegally should lay it up securely or a Church-man should kill a man whilst he did shoot at a Beast in a remote place these Acts would not infer Murder because there was no Act done there with relation to Murder Covar ad clement si furiosus and yet the committer versatur in actu illicito But
proportionable to the violence offered by the Aggressor and so exceeded not moderamen inculpatae tutelae for the said Pannel struck not him with any mortal Weapon but only gave him a thrust with his hand which was necessary to throw the Defunct off him Upon which debate the Justices sustain'd the Libel only to infer paenam extraordinariam and remitted also the Pannels defences of casual Homicide self-defence and that the Wound was not mortal to the knowledge of the Inquest XI It is here controverted whether he who intended to kill one by a mistake killed not him but another be punishable as a Murderer seing as to the person killed the Murderer had no design yet I think he should die seing the design of killing a man and not any one particular man is Murder and the killer intended to deface God Almighties Image and to take from the King a Subject And I find that this is determined to be Murder by Bolton cap. 11. num 24. by whom likewise it is given as a rule nihil interest utrum quis occidat an acausam mortis prabeat And thus a Son for having caryed his Father being sick in a frosty night from one Town to another was executed as a Murderer because the Father died And a Harlot having exposed her Child in an Orchard where a Kite killed it was execute as a Murderer also ibi volunt as reputatur pro facto And if this were not Murder this Crime might be Palliated under other shapes This Defence viz. that the killer had no design to Murder is a Negative and so can only be proved by presumptions as if there was no deadly fead formerly amongst the Parties 2. If the Parties were Kins-men or intimats 3. If the killer struck with a Staff having a Sword or Pistol or having these struck only with the hilts of his Sword or with the head of his Pistol and generally it is rather presumed to be homicidium culposom then dolosum premeditatum nam nunquam praesumitur dolus By our Law Slaughter and Murder did of old differ as homicidium simplex premeditatum in the Civil Law and Murder only committed as we call it upon fore-thought fellony was only properly called Murder and punished as such K. Ia. Par. 3. cap. 1. where it is Statute that Murder is to be capitally punished but Chaudmella or Slaughter committed upon suddenly shall only be punishable according to the old Laws vid. Acts 95.96 Par. 6. Ia. 1. 22. Par. 4 I. 5 35. Par. 5. Ia. 3. Act 31. Par. 6. Q M. The old Laws to which these Acts relate are Statute William c. 5. Stat. Allexander c. 6. Stat. Rob. 2. c. 9. in which it is declared that Muâ—derers who are guilty of fore-thought fellony shall not have the priviledge and advantage of refuge in the Girthâ— but that such as are guilty of Chaudmella or casual Slaughter shall be sheltered in the Girth Yet I find that none of these are in any other old Statute to determine punishment of casual Slaughter but that it was not punishable as Murder is clear by the opposition and in all our Laws betwixt single Slaughter and fore-thought-fellony all casual Slaughter was of old comprehended under the word Chaudmella which is a French word Chaud signifying Hot and Mesler signifying to mix But in effect this Melletum answers properly to rixa homicidium in rixa commissum which is but one species homicidii non dolosi XII By the late 22. Act Parl. 1. Ch. 2. Sess. 1. It is Statute that casual Homicide Homicide committed in self-defence and Homicide committed upon Thieves shall not be punished by death And seing this Act mentions not Homicide committed in rixa or homicidum culposum and seing homicidium culposum differs from casual Homicide it may be doubted if under the one the other may be comprehended and it may be urged that casual Homicide is in this Act a general term comprehending all Homicide which is not committed by fore-thought fellony because what is not designed is casual and what is not fore-thought is casual and the Doctors do use the Word Casual oftentimes in this general sense as is clear by Gothofred prax crim hoc tit And by the rubrick of this Act which bears an Act concerning the several degres of casual Homicide It appears that the word Casual is taken there in a Lax Signification albeit I confess that the inscription is most improper seing Homicide in self-defence and Homicide committed upon Robbers are not Species of casual Homicide but whether Homicide in rixa be comprehended under that Act was contraverted in William Dowglas case and by that Decision it is clear that in in our Law though Murder was not at first designed yet if it was designed the time the stroak was given the killer is guilty of Murder that premeditation is requisit to make Murder Capital being only such as antecedit actum licet non congressum The Civilians in the case of Homicidium per plures commissum state three questions The first is where the Murder was committed upon fore-thought fellony and then indefinitly all the assisters are punishable by death The second is when it is not certain but it is only suspected and presumeable that it was deliberatly committed and then all may be tortured but if they deny the design they are all only punishable by an arbitrary punishment because of the uncertainty The third is when the Murder was certainly committed in rixa or tuilzie and then either the author of the Pley is certainly known and he is punishable by death in the rigour of the Law Albeit many Lawyers are positive that no Countrey uses this rigour I remember that in William Dowglas's case this was urged for there several Gentle-men having made a quarrel which was only proved by one witness they went to the Fields of Lieth and Hoom of Eccles was killed but it was not proved who was the killer and the quarrel was only proved by one witness who likewise proved that Spot had the quarrel with Eccles and that William Dowglas had none and yet the Assise found William guilty and he thereupon died because present XIII Homicide likewise committed upon Thieves and Robbers breaking houses in the night or committed in time of masterful depradations are free from punishment by the foresaid Act 22. And albeit it be declared lawful to the Justices to fine such as are assoilzied from Murder upon the defences of casual Homicid and Homicide in defence yet such as kill Robbers or night Thieves are free from all arbitrary punishment By this Act likewise it is lawful to kill such as assist or defend the depredators or oppose their pursuit by force and by the 6. Act of the second Session of that Parliament it is Statuted that the Parties whose goods are robbed shall acquaint the Sheriff or Justices of Peace of the Paroch who shall require all Parties to concurr and if any of the
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
Stouthreif with us and Roboria by the Doctors then it deseâ—ves to be capitally punished but of this afterwards Theft is likewise aggraged from the time as stealing in the night is punishable by death if the theif defend himself and be armed l. furem ff ad l. Corn. de sicar but with us generally a thief breaking houses in the night may be killed by the person invaded Act 22. Ch. 2 p. 1. loss 1. which may be extended also to such thieves as are preparing to break the house of who have done it already and to steal any thing in the time a house is burning or when a Ship is wrackt or in time of tumults or general desolation were highly punishable by the Civil Law either paena fustium cum relegatione vel in metallum And with us I think such thieves should dye for both they add affliction to the afflicted and so shew very much malice As also the committing Theft is then very easy and to these cases I may adde theft committed in time of Pestilence XIV As theft is aggraged by these so it is extenuat by other circumstances as 1. In case of necessity as said is 2. A wife stealing from her own husband is not so severely to be punished as in other cases for in effect she hath some interest and therefore by the Common Law this was not pursuable as theft sed actione renum amotarum l. qui servo § item placuit ff de furt but with us the Kings Advocat may pursue either wife or husband stealing from one another though the parties cannot For it is to be presumed that there is too much malice in such pursuites and that the pursuer designs in that case rather to be free from the marriage then to have the Crime punisht 3. He who steals from his debitor who will not pay him or steals what was robbed from him is punishable but not by death Clar. num 20. de furt 4. He who steals a thing of small value de minimis non curat lex of which formerly 5. If the party from whom the thing was stoln declare that it was not away-taken without his consent some Lawyers think the crime is thereby purged Which opinion others allow not except it be also proven that there were presumptions of a prior consent as the stealers good fame his friendship to the party accused the relation by affinity or consanguinity c. but with us if the informer swear not the Libel and depon that the thing was stoln for ought he knows the Libel will not be sustained 6. If the taker had probable reasons to presume the things taken by him to be his own then he is excused from Criminal punishment 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad civilem questionem transmittitur l. 1. § ult 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 XV. There are with us other statutory thefts which are not so of their own nature but are to be punisht as such as the breaking of Milnes c. Act. 82. p. 11. I. 6 A Salter or Coalyer also leaving his master without a sufficient Testimonial or at least a sufficient reason given for his removal and attested by the Bailie or Magistrat of the place are to be repute and punished as thieves Act. 11. p. 18. I. 6. but it would appear that such only as receive fee and wages from others are only punishable as such but not otherwayes and really it were unreasonable that a poor Coalyer or Salter might not leave that trade either to take another trade or for sickness or any other cause and that act seems only to hinder their going from one master to another Stealers of Pyks out of stanks breakers of Dove-coats Orchards or Yards stealers and destroyers of Hives are punishable as thieves and this is ordained to be a point of dittay and the unlaw to be ten Pound and mends to the party conform to the skaith Act. 69. P. 6. I. 4. but by the 33. Act. 2. P. I. 1. stealing of green wood by night or peilers of barks of trees should pay fourty shillings to the King and assyth the Party Act. 33.2 P.I. 1. But thereafter by the 12 Act. 4. P. I. 5. the breaking of Dove-coats Coney-gairs Parks or stanks i. e. Ponds is declared to be punisht as theft but seing that appoints not that it shall be theft it may be doubted if it should be repute as theft as to the other disadvantages I find that upon the 25. of Iuly 1623. two fellows called Raith and Deane are ordained to be hanged for breaking of Yards stealing of Bee-skeps and stealing of Sybows By the 84. Act 6. P.I. 6. the destroyers of Planting haining-broom pollicie are for the first appointed to pay to the owner the avail and ten pound for the second the avail and twenty pound for the third the avail and fourty pound and if they be not responsal to be put in Prison and in the Irons for eight dayes for the second fifteen dayes for the third a Moneth and to be scourged at the end of the Moneth By which Act likewise the breakers of Dove-coats Conyingairs and Parks are to be punished the same way if they be not responsal they are to hanged for the third fault It is observable that though these persons abovenamed were hanged for breaking of Yards yet there is no warrant therefore by that Act though there be for breaking of Dove-coats and Parks and so we may perceive that the former act is not abrogated by this Act And this Act declares that the punishment here prescribed shall be without prejudice to call the defenders at Justice Courts and all the innovation introduced by this act is that the offender may be tryed in thir cases by the Barron or Lands-lord within whose Lands the wrong was committed if the offender be taken reid hand whereas Land-lords are not Judges competent and by the Sheriff if they be not taken reid hand 2. There is allowed by this Act a power to Land-lords to Judge in the case of wrongs done to their own Tennants which regulariter was not lawful It is likewise observable that this and the 12 Act I. 5. p. 4. adds still without the good-will of the owner So that I think that albeit the owners declaration be not sufficient to absolve the thief in other cases yet I think it is in this case and that for these two reasons because this statutory theft is only introduced in favours of the owners and this Clause had else been uncnecessar 2. It is presumable that the owner would not refuse his consent to kill a Deer or Coney and this we may observe that the words invito domino in the definition of theft are not absolutly â—â—â—ecessary as many Lawyers carpingly observe and that in some cases the consent of the owner may defend the Party 8. It may be observed from this Act that theft should be proved by confession or witnesses and though other crimes may be proved by presumptions yet this
should not seing death is so exorbitant a punishment 4. It is observable that the Sheriff-depute or other Deputs may sit in cases belonging to the Sheriff himself and that the Declinatur which is sufficient against the one excludes not the other To take Doves also which belongs to their Dove-coats or to kill them is repute theft l. Pomponius § Pomponius ff fam erisc and by the Doctors Chass fol. 1484. for seing these creatures are ordinarly tame now and that by the custome especially of the low Countries there are few or no wild Doves it follows that it should be unlawful to kill or shoot them as it is to shoot or hunt other wild beasts The stealing likewise of Bees which are kept in hives was accompted theft l. Pomponius § Pomponius ff fam erisc and by the Law of Germanie Berlich conclus 50. For which though an arbitrary punishment should be regularly inflicted yet if the Bees stoln be of great value or if the committer has been frequently deprehended in the like guilt then the Doctors are of opinion that even stealing of Bees may be punished by death Iac. de Bellovis pract crim Cap. 20. num 32. but I think our Law juster which considers more the habit of the offender then the greatnesse of the offence Stealers likewise of Pyks out of stanks was forbidden but not punished by the Civil Law but by the custom of all Nations it is now punished arbitrarly according to the differing circumstances Berlich conclus 51. XVI Art and part depends in this as in other crimes upon circumstances but the ordinary rules prescribed by Farinaicius quest 168. are 1. That he who gives counsel or perswades to steal â—â—â—unishable as the Thief 2. He who assists especiall◠〈◊〉 partake of the Theft is guilty though he be not actually present 3. He who recepts the thing stoln by the Civil Law conatus or a designe and essay to steal if no theft was committed was not punishable as Theft l. vulgaris ff de furt where it is said that he who entred another mans Closet upon designe to steal if he touched nothing is only punishable actione injuriarum si sine vi vel de visi vi intravit And with us I think that essaying to steal should not be punished with death seing the essayer might have repented and seing furtum est contrectatio rei alienae so before he touch any thing I think he cannot be called nor conscionably punished as a Thief He who shews the way to a Thief is not a Thief 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But with us this might be esteemed art and part by that Law likewise if one broke the gate upon revenge and another entered and stole the breaker of the gate would not be lyable for Theft 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 53. Basil. h. t. and yet I think that he who brake the gate would be lyable for the price of the things so stoln because he occasioned by unlawfull means the things to be stoln Law has determined generally that ut furtum nemo facit sine dolo malo ita nec opem consilium fert sine dolo malo is consilium dat qui furtum persuadet is opem fert qui ministerium furto praebet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I conceive that there is in Law and reason a great difference to be put betwixt these crimes which are only committed against our fortunes and in cases which may be repaired wherein actual loss should be more considered then attempts and these which are irrepairable when committed and are attrocious and concern the safety of our persons wherein attempts should be highly punished If he whose goods are stoln does require the master of the Thief or him in whose obeisance he is or with whom he is found to deliver him up to him thaâ—â—â—â—tice may be done upon him the master or sustainer of the Thief should either deliver him up or present him to justice else he is guilty of the crime and art and part thereof I. 5. p. 2. Act. 2. And albeit the word obeisance here used would seem to include vassals yet it should not extend to these seing it is restricted by the act to masters and sustainers and by sustainers are meant such as entertain the Thief at bed and board TITLE XX. Theft-boot and Recept 1. What is Theft-boot and by whom committed 2. What is recept of Theft 3. How recept of Theft is punished 4. The principal Thief ought to be discust before the Receptor 5. How the husband is to be punished for what is found with the wife è contra 6. How Servants are punishable for the Masters theft 7. How buyers of stoln goods are lyable THeft-boot is committed by securing a Thief against the punishment due by Law and properly it is when Sheriffs and other Judges who sell a Thief or fyne with him in Theftdome committed or to be committed P. 13. I. 6. Act 137. and the Lord of regality committing this crime losses his Regalities and Barronies id est his Offices and Jurisdictions as Lord of Regality and as Barron and the Justices and the Sheriffs loss life and goods Theft-boot is also committed by any other person who takes a ransome from a Thief when he finds him with the fang 3. When a party who was leas'd transacts with the Thief and passing from the pursuite which is punishable because the publick being by the crime wronged as well as he and his Majesty having jus quaesitum to the moveables of the offender it is unjust that any private Party should have it in his power to indemnify the transgressor and albeit thir two last species of Theft be not expresly contained in the Act yet seeing the act bears that Lords of regalities Sherriffs nor others shall not sell c. under the word others generally all transgressors are comprehended and by the 2. Act 1. P. I. 5. it is declared that he who transacts with a Thief for Theft committed against himself shall be guilty of Theft-boot and shall be punishable as the principal Thief from which it appears that the punishment of Theft-boot in private persons is the same with the punishment of the thief whereas in the first Act. P. 13. I. 6. there is no punishment statuted against private persons who are guilty of Theft-boot only against Judges transacting or ransoming and Skeen verb. Bote. defines Theft-boot to be when any person agrees with a Thief or puts him from the Law And yet I remember that in Ian. 1665. Angus Mackintosh being pursued by the Sheriffe Depute of Inverness for Theft-boot as he who had componed with a Thief who had stoln some meal from him the Lords of Session did Advocat this pursuite to themselves because they thought this crime of Theft-boot in desuetude and therefore they resolved to hear it themselves that they might clearly determine what Theft-boot was and how far it was to be extended II. The Civil Law knew not such distinct
bought and presently sold or within four Miles of the place where they were bought for the crime in this case is inferred from the speciality of time and place It was alledged that confiscation of Moveables could not be inferred though for the third and fourth fault except the Pannel had been convict for the first two Which was spelled likewise because the King could not be prejudged in his interest quo ad the confiscation by the negligence of his Advocat or any privat informer by not pursuing Nor could that negligence purge their guilt or procure them an impunity And it were absurd seing crimes and punishments are to be commensurat that these who had continued in that guilt for many years should be no more punished then these who had but once incurred the same TITLE XXIV Usury 1. In what Contracts Usury may be committed 2. The taking of more annualrent then the quota stated by Law is the first branch of Usury 3. The second is to take annualrents before the term of payment 4. The third is to take Wodsets in defraud of the Law 5. Whether a Clause not to redeem for a long time be Usury 6. The probation of this Crime 7. The punishment of it USury is that Crime which is committed by taking more annualrent for any sum lent then what is allowed by the Law of the Kingdom I. This Crime is committed properly in Money in mutuo but yet it is both by our Law and the Civil and Canon Laws extended to other Contracts for with us it is committed in bargains of Victual or Tacks as shall be cleared by the subsequent Acts and therefore Lawyers divide Usury into that which they call direct Usury quae obtinet tantum in mutuo and indirect Usury which takes place in other Contracts Usury is also divided in usuram manifestam velatam which co-incides almost with the former distinction By our old Law Usury could not have been pursued in the Usurers own life but he might have repented him of it at any time before his death so that it was not the commission of the Crime but the continuance in it which was punishable but if he repented not his Heirs might be forefaulted l. 2. Reg. Maj. cap. 24. And this Skeen observes to be consonant to the Law of England whereby the penalty of a living Usurer belongs to the King but of a dead Usurer to the Church II. The true method in this Title is to clear the several kinds of Usury determined by our Statutes The first Species thereof is Whoever receives more annualrent then ten for each hundred shall be punished as Ockerers or Usurers conform to the Laws of the Realm already made Par. 11. K. Ia. 6. cap. 52. And yet I find no prior Law to this expressing the punishment of Usury only it is said Par. 6. Ia. 2. Act 23. that keepers of Victual to a dearth shall be punished as Ockerers and this is properly Usury By Act of Parliament 1649. it is appointed that the annualrent of Money should be at six per cent conform to which Act all annualrents were payed in Scotland till 1661. At which time the Parliament 1649. was rescinded whereupon it was debated in Hugh Roxburghs case March 23. 1668. whether the taking of more annualrent then six per cent after the year 1649. could infer Usury and that it could not was urged from these reasons 1. That where there was no Law there could be no contempt but so it was that the Acts of Parliament 1649. were no Laws that Parliament being rescinded ob defectum authoritatis and without any salvo as to what was past 2. The Liedges might as well be punisht now for transgressing the penal Statutes made by the usurpers seing these were binding the time of the transgression and both want authority equally 3. By the Act betwixt Debitor and Creditor 1. Session 1. Parl. K. Ch. 2. Such pactions are only declared usurious quo ad futura inclusio unius est exclusio altetius To this it was answered that the Parliament 1649. was in vigor till the year 1661. Ergo before that time it was Usury to take more then the annualrent therein prohibited and albeit the defect of Authority might be pleaded where the Crime committed depended meerly upon the Authority contraverted Yet in this case it could not seing Usury was a Crime which was prohibited by all Laws And as to the quota which was all that was determined by the Parliament 1649. It was no such thing as concerned the Rebellion for which that Parliament was rescinded but was a reasonable and universal good for the Kingdom and approved by the present Parliament And those who took annualrent during that time at more then six per cent did in so far oppresse their Debitors beyond others and so should be punished 2. By the Act anent penal Statutes 1661. Usury is excepted from the penal Statutes therein abridged which needed not if the taking more then six per cent for the years immediatly preceeding had not been Usury 3. The Lords of Session did still restrict the annualrents even during these years to six per cent which they could not have done if that Law had not warranted them as in the case betwixt Wauchop and Lawder 1665. for if that Act was in force then it was a Crime to take more then was therein commanded if it was not abrogated then the former Act 1648. appointing eight per cent was in vigour and so the Lords could not restrict the annualrent to six against an expresse Law This case was not decided but the Justices inclined to think that though the Act 1649. was abrogated yet it was a sufficient warrand to regulat the Decision of civil cases because all bargains were then made with respect to the quota thereby determined erat lex habita reputata but that being abrogated it could not found sufficiently a criminal Action to infer so severe a punishment as that of Usury for a Crime is mainly such because Authority is contemned and contempt is the essence of a Crime but so it is there could be no contempt where there was no Authority But it may be doubted if a Merchant who was to imploy his stock upon Merchandize whereby he might have got far more then the annualrent of his stock should at the desire of his friend then in great straits lend him his Money for more then the ordinar profit if in that case he could be punishable as an Usurer And albeit our Law be general yet here ab est animus faenerandi and there was no advantage taken of the Debitors necessity for which Usury is mainly punishable And I find that Abbas c. Naviganti de usur num 13. Socin tract de usur num 75. do conclude this to be no Usury Yet I know that some judicious Lawyers with us did at a consultation upon this same case conclude that the Justices could not receive this exception seeing
they were tyed to strict Law but they thought that the Council might allow some mitigation III. Another Species of Usury by our Law is to take annualrent before hand that is to say before the term of payment which was ordinarly done by retaining a years annualrent when the Money was first lent and this is determined to be Usury by the 222. Act Parl. 14. K. Ia. 6. and thereafter by the 28. Act. Parl. 23. K. Ia. 6. by which last it was likewise Statute that whosoever shall detain the time of the lending or shall exict crave or receive from the Debitors annualrent at the time of the lending or add the same to their principal summes or whosoever shall exact or crave annualrent shall commit Usury And this seems to be founded upon that principal of the Civil Law whereby puniebantur qui plus petebant plus tempore petere dicebatur qui petebas ante tempus debito constitutum Upon these last words of the Act of Parliament forbidding the exacting or craving annualrents before the term of payment there was a dittay founded against Purdie in the year 1666. for taking ten pounds Scots as the annualrents of fifty merks upon the 18. of Iuly whereas no annualrents was due till Martimas that year Against which dittay it was alledged 1. That this Species of the dittay was meerly Statutoâ—y and so was not to be extended either beyond the interest of the Leidges to salve which it was inferred or beyond the expresse words of the Act but so it is that it was only the interest of the Leidges that they should not be forced to pay interest before hand but that they might voluntarly pay their annualrents without any danger to the receiver which may sometimes be for the advantage of the payer as for instance if a person who were lyable for annualrents at Martimas might be for his own advantage desirous that his Creditor might receive his annualrents in September because he would not have the conveniency of paying them at Martimas and might be either at expences or in hazard to send them And therefore seeing the receiver here had raised no charge of Horning nor used no other diligence for compelling the Debitors to pay the annualrents his voluntar offer of them should not prejudge the receiver especially seeing by the narrative of the Act it will appear that the eviting of oppression in exacting Money before the term was that against which the Act of Parliament intended only to guard 2. Though by the first part of the Act exacting craving or receiving annualrents at the time of the lending be expresly forbidden Yet when the craving annualrents before the term of payment which is the clause founded upon in this dittay the Act speaks only thereof craving or exacting but doth not forbid simply receiving 3. Consuetudo etiam mala injusta excusat usurarium à pena Bar. in lege siquis fugitivus ff edil edict Socinus consilio 170. And it was very notour that in this caise there was nothing more ordinar then for honest and just men in Scotland to take annualrent before the term from willing Debitors either to supplie their own necessity or to gratify their Debitor upon occasions And it were very unjust that the Pannel who was a poor Merchant should ensnare himself in apicibus juris thinking himself warranted in what he did by the practice of the countrey and of the most intelligent persons therein 4. De minimis non curat praetor nor should severe and statutory punishment be inflicted for errours where no person is any way considerably prejudged And in which it cannot be presumed there was any guilt seeing the advantage was so small for the only share the Pannel reapt of this was the annualrent of ten pound from Iuly to Martimas which could not exceed three shilling scots so that to conclude an honest sincere Merchant who was otherwise intigerrimae famae guilty of Usury and to infer confiscation of all his Moveables and Infamy which is the punishment of Usury is against all sense and reason who are not as the justices tied to strict Law Notwithstanding of all which the Justices did find the dittay relevant as founded upon the above-written clause of the foresaid Act but the grounds above related being represented to the Council they rescinded the Justices Interloquutor and yet the Justice did again condemn Hugh Roxburgh 28. of November 1668. upon the same Act and like dittay but that Interloquutor was likewise stopt by the Council IV. The third Species of Statutory Usury with us is committed by these who to cheat the Law colour their fraud by taking not more anualrent directly then that is prescribed by the Lew but taking wodsets of Land from the borrower for more then their annualrent can extend to and set back-tacks to them for payment of what is agreed upon To prevent which and all such Usury which is called by the Law usura velata it is statute by the 247. Act Parl. 15. K. Ia. 6. that whoever receives such wodsets or enters into any such bargains for which more is taken either in Money or by any other transactions whereby any thing that is taken may be reduced in Money to more then the ordinar annualrent upon whatsoever colour or pretext shall be guilty of Usury And by the 62. Act Par. 1. K. Ch. 2. It is declared that for the future it shall be Usury to receive proper wodsets of Lands and others exceeding the annualrents of the sums and bearing by expresse provision that the lender shall not be lyable to any hazards of the Fruits Tennents Warr or Trouble for clearing of which Act it is necessar to know that wodsets with us are either proper or improper proper are these wherein the wodsetter runs all hazard of the Lands wodset to him and is to expect no more annualrent for his Money then what Fruits of the Lands remains after all hazards Improper wodsets are these wherein the wodsetter is only countable for what rent he receives from the lender nor is he lyable to the hazard of Bankrupt-tennents Warrand Pestilence which distinction founded upon these hazards is very agreable to reason and the common Law for Usury being a certain gain he who gets for his Money but a hazard of gain commits not Usury for that is emptio jactus retis as if I should lend Money and get for my security the hazard of what rent could be collected from a loading of Timber coming from Norway c. And upon this ground the Law allowed fenus nauticus to be much greater then all others seeing the lender run the risk therein of all Sea hazards But if the hazard be not so great as may compense the excess of the annualrent taken beyond what the Law allows eo casu it excuses not from Usury as if a wodset be granted of a Miln or Salmond fishing if the said rents do ordinarly exceed the annualrents by any considerable excess
then the receivers of the wodset commit Usury notwithstanding of the hazard And this brings to my memory a case debated upon the 22. of Ianuary 1672. wherein a Gentleman being pursued as an Usurer in so far as he had taken his Debitor obliedged to pay him a Boll for the annualrent of every hundred Merk which according to the feir of the year did for the two years of his wodset extended to five Pound the Boll and so exceeded the annualrent by twenty Shilling every Boll yet this was found no Usury because he in that case took his hazard of the feir of the year which might have been much lower and because that the price of Victual varies much according to the several Shires and Years And lest the people should be at an uncertainty in criminal cases which were dangerous therefore by the 122. Act Ia. 6. Par. 14. it is appointed that no man shall take more profite then according to ten Pound for the hundred Pound or five Bolls of Victual which the annualrent being then at ten of the hundred and now at six doth allow according to that probation two Bolls for the hundred Merks whereas there was but only one Boll taken here for the annualrent for the hundred Merk nor was this Act abrogat by the Act 247. Par. 15. because though that be posterior yet it doth not expresly abrogat this Act nor ought it to have been abrogat for avoiding of uncertainty as said is And for the same reason the undertaking of hazard hinders the taking of advantagious Tacks to infer Usury as was decided September 1668. wherein Robert Lawder was pursued as an Usurer because he had taken a tack of two Buts of Land and a Dovecoat for four years which payed fifty Merks yearly communibus annis and that for satisfaction of the annuulrents of an hundred Merks which Tack did bear this clause that if the first year Robert were payed he should defalck so much of the annualrent proportionally notwithstanding of which clause he refused to compt It was alledged for the defender that the Tacks-man had run a hazard because he might have been disappointed of all duty quo casu he would have got no releif To which it was duplyed that the same hazard was in wodsets and yet the taking a wodset for more then the ordinary annualrent made the wodsetter incur the Crime of Usury Nor could this hazard defend because it was not great and there was scarce any hazard in it not could the danger be here objected seing after expiring of the years the receiver offered to compt with the lender and to allow him both principal sum and annualrents to which it was triplyed that the Act of Parliament discharging Usurary wodsets doth not discharge Tacks and there is a great difference as to Usury betwixt tacks and wodsets for wodsetters have the liberty to require their Money from the debitor so that they lose not the sum though they lose their rents but Tacksmen lose all if their tack duty be not payed and as to their offer of compting that being only competent after the first year it could not be objected thereafter and the danger was past before the offer The fourth degree of usury with us is to take budd or bribe for the loan of money or for continuing it when it is lent whereupon many debates do arise The cause why the debitor gives a gratuity to his Creditor being oft actus animi is hard to be proven But generally it is sustained that a proceeding Treatie must be proved or else it must be proved that the receiver is manifestus that is an ordinar Usurer for else to receive a gratuity is no crime And it were against reason that by lending money to my friend I should become uncapable of a donation from him V. The common Law also sustains it to be Usury if a man Wodset his Lands and in the Wodset provide that it shall not be lawful to Redeem betwixt and a definit time for in that case it presumes that the wodset granter adjects this because of some known advantage and this is to take more advantage for money then the Annualrent Molm. de Censu But this the Lords would not sustain to be Usury Nor did they find it an unlawful paction in the Action betwixt Sir Iohn Drummond and Achtertyr And in effect these pactions are allowed by Act 62. P. 1. K. C. 1. S. 1. By the Civil Law it was Usury to take Annualrent for Annualrent at least it was declared unlawful l. ult C. de usur And I conceive that to swell up Annualrents thus beyond what the Law allows would infer Usury with us for else the Law might be thus cheated But though by the Civil Law it was unlawful and Usury to accumulat Annualrents with the principal sums and to make both bear Annualrent which was called Anatocismus and is discharged l. 28. C. de usur yet with us such pactions are most lawful for since if the Annuals had been payed they had born Annuals why may they not be lent out to the debitor as well as to others VI. The probation of Usury is either by writ witnesses or Oath as to writ it may be doubted how the pursuer may recover it for instructing his Libel the writs being ordinarily in the Usurers own hand and nemo tenetur edere instrumenta contra se. And yet I find Lawyers very clear that hoc casu tenetur edere contra se Bartol doctores ad l. praetor § Is etiam ff de edendo Arelat de heretic notabil 21. and seing with us Usurers are obliedged to swear against the common Criminal rules because of the obscurity of the crime why should they not be oblieged to produce ther writs for the same reason and as to the former maxime that nemo tenetur edere c. It may be answered that it holds not in criminalibus for we see that in improbations the Pursuer will force the Defender upon an alledgeance of falshood to produce all his writs and why not in Usury Yet I know that it is ordinarily advised in such cases to raise an exhibition As to the probation by witnesses It is doubted if the Debitor who lent the money may be received as witnesse seing he is socius criminis it being unlawful to take as well as to give upon Usury but with us these are received as Hissleside in Somervel's case 18. Ian. 1667. But thereafter the Justices declared that they would not sustain the Debitor to be a witnesse 11. November 1667. His Majesties Advocat contra Wilson And that because by the 7. Act P. 16. K. I. 6. It is appointed that usury shall be proved by the Oath of the party receiver of the unlawful Annualrent and witnesses insert without receiving the Oath of the giver of the unlawful Annualrent for eviting perjury Nor will the Justices sustain as a reply that the giver of the unlawful Annualrent in this case had payed the
qualitate gravissime puniendus est And by the Basilicks there is no punishment exprest to that special kind of Falshood and so it is left only punishable tanquam falsum And though Matheus doth infer this to be capitally punished from l. 3. l. jul Majest Yet I think there is a great difference betwixt a mans pretending falsly that he is a Souldier which is that Crime which is punished l. 27. h. t. and the taking up Arms against the State which is punished dicta l. 3. IV. Because the Crime of Falshood doth oftimes arise upon Papers produced before the Lords of Session and because the tryal thereof requires an exact and long and a much more tedious search then the forms of the Justice Court can allow whose dyet is peremptor therefore by the Acts foresaid it is declared that the Lords of Session are Judges competent to the tryal of Falshood And albeit that Act doth not expresse their jurisdiction to be exclusive of the Justices yet I remember that in an accumulat accusation of Theft and Falshood pursued by the Lord Blantire against M cculloch his servant it was found by the justices that they would not proceed to judge the Falshood but remitted the same to be tryed before the Lords in an improbation and I believe that the tryal of Falshood in prima instantia doth only belong to the Lords as that of divorce doth to the Commissaries for else most of all Falshoods would be only pursued before the Justices seing the tryal there is much shorter and lesse expensive than before the Lords whereas I find not any action of Falshood in prima instantia recorded in all the Books of Adjournal V. The Lords do sometimes proceed to the tryal of Falshood summarie per modum simplicis quaerelae upon a Bill without any formal Summonds and thus they found Binnie a falsary for counterfeiting the Signet Iun 1666. But this they do only in two cases 1. When the Falshood is committed by a Member of the Colledge of Justice 2. When the Signet or any part of a Proâ—esse is ex recenti falsified The way of procedor in this Crime before the Lords is this a Summonds of Improbation is raised and continued and three terms of old but now two only are by the regulations given to the defender to produce the writ called for to be improved If the Papers called for be not produced certification is granted against them whereby they are declared such as can never be made use of as true Papers in any time coming but upon this presumptive Improbation whereby the Writs are only perfictionem juris declared null the party who is called to produce them is not repute a forger or punished as such for non constat eo casu de corpore de licti or that ever there were any such Paper as is called for nor was there ever certification granted or any further inquiry made into the Falshood it self till November 1669. at which time certification having been granted against some Papers made by the Tutor of Towie to Captain Barclay the Lords found they might proceed a little further by examining the Witnesses albeit it was alledged that this had never been done 2. That non constabat de corpore de licti 3. That by the certification res erat judicata and so the Lords functierant officio 4. That the Writs being improved were no longer dangerous non erat amplius nociva nullus potest puniri defalso ubi falsum non erat nocivum and albeit it was alledged that it would be very prejudicial to the Common-wealth if a person who falsified Writs might destroy them when he found they could not be advantagious and so escape it was answered that there was no hazard in this because if the forger used them not the Common-wealth nor no Person could be prejudged but if he did the party injured might force him to leave it in the Clerks hands and intent and Improbation By the 62. Act. 7. Parl. Q. M. the Judge is allow'd to exact caution from such as propon Improbation and though some doubt whether this caution may be exacted as well when Improbation is proponed by way of exception as when it is pursued by way of action yet since the danger is the same it both and that by the Act this is declared to extend as well at the raising of the Summonds as at the proponing of the objection and that lex non distinguit I see no reason for this doubt and this it was decided the 25. of Iun 1675. The Sums for which caution is to be found in this case is left to the arbitrement of the Judge and though this Statute appoints only caution to be found yet the Lords doth ordain the Money oftimes to be consigned VI. There are two ways of improving a Writ viz. the direct and indirect manner the direct manner of improbation is by the Writer and Witnesses insert the indirect manner is by Witnesses not insert but by presumptions and other extrinsick arguments But it is a rule in our Law that whilst the direct manner of improbation is extant that is to say whilst Writer and Witnesses insert are alive no tryal can be taken by the indirect manner As to the direct manner we have this general Maxime viz. that such Witnesses as are dead are proving Witnesses But this holds only presumptive for if of five Witnesses insert two should improve the other three being dead the writ will be declared false whereas if these three were alive and did formally approve the writ would subsist though improven by two To prevent Falshood in all manner of Evidents our Law in place of Seals which were used of old and which might have been easily counterfeited did by the 117. Act 7. Parl. I. â— require that all Evidents should be subscribed by the Party and Witnesses and by the 80. Act Parl. 6. Ia. 6. all writs of Importance are ordained to be subscribed by the principal Parties if they can subscribe or by two famous Notars before four famous Witnesses denominat by thâ—â— special dwellings or by some evident token by which the Witnesses may be known and though usually men take writs of the â—reatest importance subscribed before any Witnesses yet there is nothing more imprudent for if I take a Gentlemans two Servants or a Fathers two Sons when the master or father are disponers witnesses to their Disposition or Bond of the greatest importance and one of these should deny his subscription the writ would be null as was found in Commissar Fleemings case and if both denyed their subscriptions the writ ought in strict Law to be declared false but yet if there were pregnant circumstances and adminicles to astruct the truth of the subscriptions I conceive the writ could not be improven even though these interested witnesses should deny their subscriptions From the foresaid Acts of Parliament it is clear that the witnesses should be specially designed to the end
to swear Before any debate upon the indirect manner the Lords use to ordain the pursuer to give in his articles of improbation and to ordain the defender to give in his articles of approbation And albeit there be not publicatio testimoniorum in our Law in Civil Cases yet because improbations have a criminal effect and tend to take away the life of the defender therefore the Lords use in this case to ordain the depositions of the witnesses to be seen by both parties and both parties being fully heard to debate in praesentia the Lords do either improve or Assoylzie If the Lords improve they have by the foresaid acts of Parliament power to impose an arbitrary punishment suitable to the crime And therefore they do sometimes ordain the forget to be taken to the Crosse with a paper Hat if the cheat was but small or the person in great necessity And sometimes they only ordain the forger to be imprisoned and rebuke him without discovering the falshood as they did lately to a Gentleman who being otherwayes very discreet was by his poverty driven to counterfit the subscription of his friend to a bond of Suspension Sometimes likewise they refer the forgers to the Council who upon that reference use either to condemn the forger to perpetual imprisonment as they did Captain Barclay or else they use to send them to the Mercat Crosse with a paper hat as they did Tulloch a Nottar for forging a charter 4. Iuly 1638. but this mitigation is only allowed when the forger hath been induced to commit that crime by the perswasion of others or by his own simplicity and hath ingeniously confest VII The ordinary way of procedor taken by the Lords when they have improven the papers and found them to be false is to remit the forger to the Justices against whom an indictment being drawn up and the Assize sworn the Lords Decreet is read without repeating any further probation and the Assize must condemn thereupon else they will be pursued for errour And therfore the verdict eo casu bears finds the Pannel guilty in respect of the Decreet of the Lords of Session Upon this verdict the Justices are tyed expresly to condemn the defender to be hanged as Halyday for counterfeiting a Discharge 8. February 1597. Iames Tarbet for being art and part of counterfeiting a false Charter 16. February 1600. And if the falshood be atrocious they sometimes before the execution ordain the right hand to be cut off If the Lords remit not the case to the Justices when they find the Papers to be false they ordain the Papers improven to be cancelled in their own presence but if they remit the forgers to the Justices then the Papers are carried to the Justice court and when the sentence is pronounced there against the Pannel the papers are likewise cancelled at the command of the Justices VIII The second species of Falshood is that which is committed by witnesses in their depositions which may be many wayes commâ—tted as 1. By taking money to depon or not depon Si quis pecuniam ad dicendum vel non dicendum testimonium acceperit l. 20. ff h. t. 20. by concealing the truth or expressing more then the truth though they received no money l. 16 § ult hoc tit 3. By deponing things expresly contradictory but in this case the contradiction must be palpable and not consequential nam omnis interpretatio praeferendo est ut dicta testium reconcilientur Witnesses either are such as were sworn and if they swear falsly eo casu they are guilty of perjury vid. tit perjury or else they are such as are false witnesses without an oath as witnesses in papers and these are punishable tanquam falsarii Bart. ad l. si quis ff ad l. Corn. Clar. hoc tit num 11. and of these I design to treat only at least principally in this Title He who depones falsly in one point is repute false in all his deposition whether the points be coherent or not But he who depones falsly only in extrinsick circumstances is not to be equally punish'd as if he had depon'd falsly upon the substantials of what is interrogat and yet in both cases he is falsarius And thus the Lords ordained one of Barclays Servants to be sent to the Cross with a Paper Hat because he prevaricat only in his deposition about the carrying of a Letter though that was extrinsick to the debate and was mainly used to try the Witnesses honesty Oblivion or forgetfulness excuseth sometimes à paena ordinaria falsi if it be invincibly or strongly founded but not otherwise Witnesses deponing falsly and such as induced Witnesses were by our Law punished according to the disposition of the common Law Act 80. Parl. 6. I. 5. but thereafter by piercing their tongues and escheating of their moveables to the Kings use and are never to brook honour office or dignity and are to be further punish'd in their persons at the sight of the Lords according to the quality of their fault Q. M. Parl. 6. Cap. 48. By the Lords in this Act are meant the Lords of Session who may punish Witnesses ex incontinenti during the dependence of the Process before themselves wherein the Witnesses depone falsly but if either the falshood was committed by deponing in another Court or if the Lords be functi officio as to the Process wherein the falshood was committed eo casu the Lords cannot judge the falshood or punish the false Witnesses Sometimes the Lords ordain the Witnesses to be remitted to the Council thus the Lords ordain'd the Witnesses who had confest that they subscribed Witnesses to a Disposition granted by the Tutor of Towie to his Nephew to be remitted to the Council who banâ—sh'd them And sometimes they themselves ordain them to be banish'd or to have their tongues pierc'd or to be set upon the Cock-stool with a Paper Hat yet they cannot ordain them to die because the arbitrary power granted by this Act cannot in Law be extended ad infligendam paenam mortis as is fully cleared else-where and therefore the Lords use to remit the falsarie to the Justices if the Crime deserve death But it may be questioned if the Justices can inflict the pain of death in any case upon false Witnesses since that Crime is not declared capital by any Act But to this the answer is that they may and do inflâ—ct capital punishment upon the committers of this Crime in some cases And by the foresaid Act Ia. 5. it is declared punishable according to the disposition of the Common Law by which is meant the Civil Law de practica Witâ—esses have been hang'd for bearing false witness as Croy and for suborning others to bear false Witness as Cheyn March 15. 1605. And Grahame March 8. 1615. At which time also Dunlop and some others were hang'd for offering themselves to be false Witnesses albeit they did not actually depon because they were not received
Act except he first acknowledged that the wrong here committed was a Crime for the Act runs only in such cases as may be civilly or criminally pursued IV. It is observable that albeit this Act relate to the Common Law yet they differ in many points as 1. The persons of labourers could not be apprehended by that Law but by ours they may 2. By that Law no distinction is made whether there were other poindable Goods or not but by ours these particulars may be poinded or Lands may be apprized and therefore such as raise Criminal Letters upon this Act should libel that such Goods were poinded in labouring time and that the owner or debitor had other Goods and Lands against which the creditor could have had execution Albeit I think he is not obliedged to prove this but that this is ex eorum numero quae allegari sed non probari debent yet if the Messengers execution be produced bearing that he searched and could find no other Moveables I think that eo casu the Messengers execution should make Faith except the pursuer offer instantly to condescend upon these other Moveables that were extant and be ready to prove the same I find that if the Messengers executions bearing in an Apprizing that he searched but could find no Moveables they are so far believed that no contrary Probation will be received for else all Comprizngs might be reduced yet I think that the case is not alike here for the Act being so expresse it should be sufficient to defend against a crime though not to reduce a real diligence that other Moveables were extant Under the prohibition of this Act are comprehended not only the Goods that are in the Plough but these Horses which lead foggage for without these Land cannot be laboured and so the reason of the Law extends to them likeas the Act of Parliament expresses separatly and distinctly Goods pertaining to the Plough and that labours the ground nor are these words that labours the ground exegetick only By these words in time of labouring are mean'd not only when the beasts are actually labouring but the season of labouring and that from the time of strieking to upseed time and therefore Goods that had once tilled though in October seem not poindable for then labouring is as necessar as in the Spring and yet the contrary was found the 15. of November 1627. and the 22. of November 1628. because as is there alledged by Durie October is not the season of labouring It may be doubted whether Horse leading foggage in Iune and Iuly can be poinded for that is the season of that kind of labouring TITLE XXXII Bearing of unlawful Weapons 1. What is the punishment of this Crime by our Law 2. What by the Civil Law 3. Who are Iudges competent to it I. BEaring of Hagbuts Pistols and other Fire-works were punished of old by amputation of the right hand but by the 6. Act Parliament 16. Ia. 6. the bearing of such weapons is forbidden though no prejudice be done by the wearers who may be pursued either before the Council or Justice Court and the punishment by the Council is declared not to be corporal but only confiscation of their moveables or syning and imprisonment but prejudice of any pursuite before the Justice Court who it appears may inflict the former punishment of cutting off the right hand It would seem that by this act the Pannel is oblidged to give his oath before the Justices which is not usual in any crime except that of Usury for the probation by oath is indefinitly subjoyned to pursuits before the Justices or Council And albeit the Council does immediatly preceed yet that probation by oath seems not to relate solely to the procedure before the Council For when the procedure before the Council is repeated the probation by witnesses is only there mentioned Yet I think there is an errour in the printing of this Act for it is very unreasonable that when this Crime is proved before the Council by witnesses that no amputation shall be remitted and yet this priviledge should not be extended to those against whom it is proved by their own oath It is observable from this Act that the Council may force such as are pursued before them to give their oaths albeit it may be alledged that nemo tenetur crimen contra se probare By this Act likewise all licences to bear thir Weapons are ordained to be past in Council and to pay a composition to the Thesaurer and to passe his Register and all the Seals else to be null II. By the Civil Law the bearing of these Weapons was a crime also l. 11. C. ut armorum usus and by the Feudal Law c. 1. § si quis de pace tenenda tenebatur paena legis juliae de vi publica which was arbitrary And the Glosse observes that the carrying of such Arms was repute publick violence though no prejudice was done which is consonant to the Act of Parliament But it is strange that only Fire-works or ingines should be forbidden by that Act. Nor can the carrying Pikes Swords or any other weapons be punished by that Act. By the Civil Law likewise the prohibit Arms were confiscat and Marsil in prac § pro complemento N. 12. Carerius Clar. declared that by the custom both of Spain and other places the Arms are confiscat albeit there be no expresse warrand for that confiscation by the Statute but it may be doubted if the true owner having lent them without being conscious to the crime will losse them and I think not But keeping of such Weapons at home is not punishable neither by the foresaid Act nor common Law by which likewise it is lawful for such as travel to bear such Weapons for their own preservation generaliter licet portare arma defensiva but our Law allows no such distinction And I remember that Iohn Macknaughton being pursued before the Council for bearing forbidden Weapons they repelled this defence viz. that he was travelling unlesse the journey could have been alledged necessary for else the Act might stil be eluded and that it was the custom of the Highlands to go still well attendded and armed which defence seemed to some ill repelled for self-defence and the custom of the Countrey excuses still from this crime Farinac de diver crim questi 108. By the common Law offensive Arms such as Swords and Pistols were forbidden and the bearers punished albeit no prejudice followed but the carrying Stones and Trees and such other things as were not ex sua natura offensiva was only punishable if violence was done by the bearers l. armorum ff de verb. sig III. Thir pursuits are more ordinarily before the Council than the Justice Court and is ordinary Libelled as an aggravation rather then a crime Thus I find William Hamiltoun pursued for wearing of Pistols and presenting one to the Provost of Edinburgh whereupon he came in will and was banished
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
Oppression to exact more fraught from Passengers or greater prices for Weavers and handy-work then what is allowed and usual Acts 21 and 23. Parl. 5. Q. M. It is oppression to stop or make impediment of common high ways to or from Burghs Act 54. Parl. 6. Q M. It is oppression for Officers to extort the Leidges Act 33. P. 5. I. 3. Act 83. Parl. 11. I. 6. or to put out or put in the Roll of Assizours given to him by the pursuer Act 88. Parl. 11. I. 6. In which last Act common oppressors are punishable by death Oppression is also punishable by death Act. 42. Parl. 4. Ia. 4. Act 88. Parl. 11. Ia. 6. VII Because oftimes in thir cases the Pannel pretends that what he did take by force was his own or that he had a right thereto therefore except the violence be very great the Justices use to ordain the matter of right to be first discussed before the Civil Judge as was found in Novemb. 1675 in the case of Inglis of East-sheilds and in many other cases and by the 33. Act. 4. Parl. I. 5. It is declared that as for depredation masterful reiffs and spoilzies particular dyets shall be set therefore at the discretion of the Lords the matter being first Civilly discussed before them Upon which Act it is oftimes alledged before the Justices that the cause must be civilly discussed before the Session in all masterful reiffs before they can proceed to cognosc thereupon but notwithstanding of this the Justices do constantly sustain Criminal processes for Reiffs and Robberies without any previous civil precognition and they find this Act to be now in desuetude as in the case of Monimusk 27. of November 1611. And I think that by Lords in that act are not meaned the Lords of Sâ—ssion for that Act is two Years prior to the institution of the Session but that by Lords there are meant the Justices themselves for there being no Session at that time the Justices were Judges competent to many Civil cases originally such as perambulations c. and to all Civil cases if they had a necessary connexion with or dependance upon criminal cases And therefore where the person who was alledged to have committed masterful reiffs or spuilzies could pretend that what he did was in prosecution of his own right The Justices had a latitude to try the matter of right first Civilly but this was never necessary for it is by the Act left to the discretion of the Judge It remains then to be considered how far the taking away by violence what is really a mans own can infer a guilt against him Which difficulty may be cleared in these few conclusions 1. That the thing violently possessed though by a common spuilzie and much more by a masterful reiff ought to be restored nam spoliatus est ante omnia restituendus and that though he who took away what was his own could instantly prove his right and since this holds where the violence was only committed by a simple Ryot it should by a stronger consequence hold where the thing was taken away by such violent means as amounted to a crime and so this should be no good defence either against a Criminal or Civil pursuit 2. Not only ought the thing to be restored but even the true Proprietar who intrometted with his own by open force violence is punishable for the Law will not allow that any man should be Judge to himself but much lesse that he should use violence force upon any accompt and this were to invade or assume Jurisdictions which is in it self a crime The third conclusion is that if any man do by force or violence extort from another a writ or obligation which he could have obliedged him in Law to grant that force is not only punishable Criminally but the deed so extorted is reducable by a Civil pursuit as was found in Ianuary 1675. Though it was alledged there that such force might be Criminally punished yet the deed so granted could not be reduced since such deeds were only reduceable where something might be restored but here nothing was to be restored since the deposition alledged to be extorted by force depended upon a former minut by vertue whereof the granter could have been compelled to have granted the same and this was the same case as if a Creditor should compel his Debitor by force to pay him what was his own in which though the force be punishable yet the Debitor could not repeat what he had justly payed as is clear not only by common sense and reason but l. 12. ff quod met caus Iulianus ait eum qui vim adhibuit ut debitori suo ut ei solverit hoc edicto non teneri propter naturam actionis metus causa quae damnum exegit quamvis negari non possit in Iuliam eum de vi incidisse jus crediti amisse To which it was answered that there could be nothing more disadvantagious to the interest of the Common-wealth nor a greater usurpation against authority then that every man should be his own Judge and force the Executioner and the Law justly presumed that he had no legal right who would not pursue iâ— in a legal way and if this were allowed every man would discusse his own Suspension himself by forcing his Debitor to pass from it and would force the Heir of his Debitor to give him Bond or his Debitor himself to fulfil all minuts without any regal pursuits every Master would thus thrust out his Tennents and every Creditor force his Debitor to pay by carrying him away Prisoner and when he were that length he would alledge that nihil illi deest and as to the former Law it was answered that the Civil Law in detestation of force and violence did allow three several remedies to the person violented viz. Edictum praetor is quod metus causa c. Lex julia which punisheth the force as a Crime decretum divi Marci all which three are expresly mentioned in that Title and though by the old edict and the Lex julia he who forced his debitor to pay what was justly due could not be by these remedies restored quia nihil decrat vim passo as the Law formerly cited does prove yet ex decreto divi Marci which was posterior to these remedies as Marcus Antoninus was long posterior to Iulius Caesar even he who took payment of his own could not defend himself by alledging upon his right which excellent Law is set down l. 13. ff quod motus causa Quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo judice tempore possidere vel accipisse isque sibi jus in eam rem dixisse jus crediti non habebit And Faber upon that Law doth excellently conclude that this was a just supplement of the former Law and Cujacius allows this remedy not only to
the publick but even to the privat party for qui sibi jus dicit jus crediti non habebit which implyes an annulling of the deed quo ad privatum interesse And Cujacius observes well that the party forced potest condicere and how can it be imagined that the Law would ordain the extorter to be punished and yet not restore that which was extorted the publicks interest resulting only from the privat injury done to the Party and as the Fisk uses not to pursue without an informer so the privat party injured would not inform nor concur since he could not expect any reparation and thus the Crime and injury would remain unpunished But even according to the l. 12. and 14. so much founded on it is most clear that they were not in the case of these Lawes but on the contrary that even by these Lawes the foresaid principle is just since restitution is still to be granted ubi actori aliquid abest ubi damnum intervenit but so it is that in this case the pursuer is extreamly prejudged by this disposition craved to be reduced ex capite metus since if it were reduced he would easily defend himself against the alledged minut upon many grounds then represented It was also urged that though in the restitution of Minors the Law restores them only when they are Leas'd since that remedy is mainly introduced for their advantage yet in reductions ex capite metus the Law designs mainly that no man should have advantage by his own oppression nor no man be obliedged without his own consent and so it rescinds the deed though the party be not leas'd and the edict it self sayes quod metus causa gestum erit ratum non habebo without considering laesion quod ratum non est irritandum est that is to say is reduceable And whereas it was pretended that the former brocard Spoliatus est ante omnia restituendus did only hold where the thing was taken away vi ablativa because that could be easily proved but not in deeds extorted vi compulsiva which force depending upon inward Acts of the mind could not so easily be discovered and could be easily mistaken To this it was answered that though those two differ in themselves yet either of them infer restitution as we see all alongs the Title quod metus causa and in the practice of our reductions ex capite metus In both which deeds extorted vi compulsiva are reduceable and the persons injured restored against them and since vis compulsiva can infer more prejudice then vis ablativa since vis ablativa can only robb us of moveables whereas vis compulsiva can robb us of our estates it were strange that the Law should not assist the injured persons most where they may be most injured nor can it be denyed but that compulsion falls as much under sense and so can be as easily proved as a spuilzie can For though it may be doubted whether some degrees of force should alwayes infer restitution yet the probation of these degrees if once admitted is alwayes easy The Crimes answering in the Civil Law to oppression were vis publica vis privata concussio Those were punishable l. julia de vi publicae who raised Arms or did violently eject men out of their houses or lands 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 4. Basil. h. t. these who assisted the Oppressors with men are guilty thereof and the punishment was aquae ignis interdictio These were guilty of vis privata who oppressed upon a privat account and the punishment was the confiscation of the third part of their goods with infamy Concussion was that Crime whereby money or any thing else was extorted by open force or who imployed their power and authority as the instrument of Oppression I have seen processes and remissions relating to this crime with us and the punishment of it is arbitrary both by the Civil Law and ours The taking of black-mail is a kind of Concussion in our Law and by black-mail is understood the paying of money or any gratuity to thieves for their protection and by our Law not only the takers but the payers of black-mail are punishable as thieves and Robbers by the 21. Act Par. 1. Ia. 6. and dittay is ordained to be taken up against them Act 102. Parl. 11. Ia. 6. and the reason why the givers are liable is because they maintain the Thieves and keep correspondance with them and do not dilate them But yet except there be something of complyance or a long tract of payment libelled the Justices do not use to sustain payment of black-mail by it self as a crime to infer any severe punishment much lesse to infer the pains of Theft and Robbery conform to the foreâ—aid Acts that payment being ordinarly more the effect of fear then of complyance TITLE XXXV Art and Part Ope Consilio 1. These words Art and Part explained 2. The Act of Parliament ordaining that Libels bearing Art and Part shall be relevant fully considered 3. How far advice and counsel do import accession 4. How far the giving order to commit a crime imports accession 5. How far the command of a Superior excuseth 6. How far the command of a Father excuseth 7. Who are constructed in Law to be assisters 8. How a Crime may be ratified and what is the import of Ratification 9. Whether accessories can be pursued till the principal actors be first discussed 10. Whether complices and accessories are to be punished by the punishment due to the principal Malefactor NOt only these who are the actual committers of crimes but these by whose counsel direction or assistance any crime is committed are likewise punishable else the Law might be easily eluded and the chief contrivers might escape I. These who are assisters by counsel or otherwayes are in our Law said to be Art and Part of the crime by Art is meant that the crime was contrived by their art or skill eorum arte by part is meant that they were sharers in the crime committed when it was committed quorum pars magna The Civilians used in place of Art and part ope consilio and these who assisted and are art and part are by our Law called Complices which word is borrowed from the Doctors for the call Consiliarios fautores instructores complices Carer pract crim § homicidium num 14. II. By the 151. Act 11. Parl. I. 6. It it ordained that nothing can be objected against the relevancy of that part of the Summonds which bears that the persons complain'd upon are art and part of the crimes Libelled by the relevancy of the Libel our Law means that the Libel is rite libellatus And I find the term relevant used by the Doctors themselves in the same sense that it is used by us and thus Gail l. 1. obs 86. judex debet tantum admittere articulos relevantes The reason of the former Act is there rendered to
Merks though she was found guilty of nottour adultery which is death by our Law Sometimes they ordain no sentence to follow upon the verdict of an inquest as in the case of Purdy who was condemned for Usury in so far as he had taken Anualrent a month before the term of payment upon his Debtors voluntar offer And sometimes they ordain some of their own number to revise the processe and verdict Which Assessors do ranverse the whole Process and ordain it to be torn out of the Criminal Registers as in the case of George Grahame who being pursued for theft it was alledged that the Assize had found him guilty of recept and so the verdict was found disconform to the Libel and consequently the whole process was null Yet when Mr. William Somervel was found guilty of Murder upon the deposition of one witnesse the Council refused to review the verdict as unwarrantable for they found that they could not quarrel an Assize which condemned seing Assizers can only be quarrelled for error when they assoilzie And when his Advocat cited to them the 47. Act. Par. 6. K. Ia. the 3. Whereby it is ordered that where a party finds himself grieved by an Assize by partial malice or ignorance it shall be lawful to him to cite them before the Council and if the error be proved the party shall be restored to the condition he was in before the sentence To this it was answered that this Act speaks only of Civil cases and that by the Council here is meant the Session To which it was replyed the Rubrick and Act are general and treats of all persons wronged qui totum dicit nihil excipit And the reason of the Law is comprehensive of both From all this some do conclude that if the Justices erre in judging the relevancy or if the Assize find that proved which was not remitted to them that in either of these cases the Council may review the sentence but that they cannot quarrel the sentence upon the accompt that the verdict is not sufficiently warranted by the probation Sometimes also the Justices are concluded by the Decreet of the Secret Council which is repeated to the Assize as full probation So that the Justices have only the execution of their sentence remitted to them Thus Fleeming was convict before the Council of having uttered most disdainful speeches against the King and therefore was remitted to the Justices to be examplarly punished and upon production of their Decreet which Decreet is still exprest in the dittay he was hanged 17. May 1615. VII If the Law cannot receive full execution and obedience via ordinaria by the Criminal sentence then the Council upon production of Letters of Horning following upon any Criminal sentence and duely execute and registrat use to grant Letters of Intercomuning whereby all His Majesties Liedges are prohibit to intercomune with any of the Rebels so denounced which Letters must be published at all the Mercat-crosses of the Shyrs and Jurisdictions within which such persons reside whose intercomuning is suspected and registrat there And if need be the Council will likewise grant a commission for Fire and Sword to such persons as they will name against the persons who are disobedient in the Criminal Letters as said is And ordinarly this commissions of Fire and Sword are given to the persons interested which occasions many great abuses And these commissions are sometimes granted against parties who were never cited but upon a naked complaint exhibit to the Council which is most irregular The Council do sometimes grant commission to bring in parties dead or alive and that upon naked Petitions without any previous tryal as they did against the Laird of Dinbaith upon a Petition wherein it was represented that he had run away with the publick money delivered to him by the Shire for paying their Cesse and Excise But this seems hard and it were to execute a free Subject before he be heard or sentence pronounced against him for these privat petitions may be most unwarrantably founded VIII If any person keep out his House in Garrison against his Majesty the Council first uses to issue out Letters against him to deliver up his house under pain of treason and they ordain a Herauld to go and summond him for that effect and if he refuse they ordain him to be processed before the Justice-general and do immediatly before any criminal sentence grant a commission of Fire and Sword against him as in the case of Burgie Iune 1668. They used likewise of old to ordain Noble-men and others who could not be apprehended by Captions for civil Debts to deliver up their persons in any of his Majesties Castles under the pain of treason which though it be now indesuetude yet it was most reasonable and of excellent use seing it is most absurd that any of his Majesties Liedges should contemn his Laws and that such poor persons as pay his Majesties Taxes and Impositions and who are obliedged to venture their lives for him should not likewise have the assistance as well as the protection of his Laws So that when the ordinarâ— remedies of Caption Comprysing and others fail these and other extraordinary remedies should be allowed untill his Majesties Laws be obeyed and the party so injured be fully and finally repaired TITLE VII Of the Exchequers Jurisdiction in Criminals THE Exchequer are only His Majesties Chamberlains and have no Jurisdiction in criminals and yet they fine and confiscat such as transgresse pecunial Statutes or wrong His Majesties Rents quo casu they do in effect judge crimes for it is a crime to abstract customes or cheat the publick and without this Jurisdiction they could not manage His Majesties Rents so that this is jurisdictio emanatâ— founded upon that rule quando aliquid conceditur omnia concessa videntur sine quibus hoc explicari nequit but is seems de jure they should not even eo casu cognosce for by the 89. Act 1. Parl. Ia. 6. It is statute that such as commit fraud in transporting forbidden Goods shall be punished at Justice Airs at least the Justice also have powers I remember that in Iuly 1668. the Exchequre did fine a very intilligent Person for filling up a blank Signature subscribed by the King and ordain'd to be filled up by the Exchequer which some thought irregular for either he had committed a Crime eo casu he should have been remitted to the Justices or if he had committed none he could not have been fined And albeit the Exchequer or any other Court may fine or imprison such as injure their Jurisdiction or may ordain dammage and interest to be repayed to the party injured in any thing before their Court yet no person having here been prejudged and the injury having gone no fuâ—ther then à simplex conatus there could be no damnage and interest incurred But it seems the Exchequer are still Judges in criminibus repetundarum de residuis The
Commissioners of the Thesaury did in Iune 1669. ordain two Skippers in Bruntistand to be scourged at that Mercat Cross because when a Customer came to enter a Boat wherein unfree Goods were were alledged to be they did put off the Boat from the Rock where it lay whereby the Customer fell into the Sea and had almost drowned TITLE VIII Of the Jurisdiction of the Lords of Session in Crimnials 1. The Lords of Session use to pass Bills for Criminal Letters 2. They Advocat Causes belonging to the Iustice Court 3. They are Iudges in crimine falsi 4. They have made Statutes for regulating the Iustice Court 5. Whether they can review the Sentences of the Iustice Court 6. They suspend the Sentences of the Iustice Court 7. They are Iudges to such as kill or wound one another during the dependence of a Processe before the Session 8. They grant Warrand to Advocats to compear for such as are pursued for Treason I. THE Lords of Session have regularly no jurisdiction in criminals and yet they pass the Bills whereupon all criminal Summonds are rais'd For all Summonds in criminals must have a Bill which must pass under the Hand of His Majesties Advocat and for which he gets ten Merks and his servant one therafter it is carried to the ordinar upon the Bills and is subscribed by him as a common Bill The reason why thir Bills are past by the Lords seems to be because the Justice-deputs were not ordinar residenters in Town their sallaries not being sufficient for defraying that charge or else because the Clerk of the Bâ—lls is a Member and Servant of the Colledge of Justice yet this was one of the grievances given in by the Justices to the Parliament Anno 1662. And it is very unreasonable that those whose imployment it is to understand criminal cases should not have the passing of these Bills and many of the Lords refuse to pass these Bills whereby the Liedges are prejuâ—ged And it is most unreasonable that the Justices should not know what they are to judge especially this warrand being a part of the Process and so falls naturally under the cognition of these who are Judges to it And it is probable that if any of the Justices would pass their own Bill it would sustain But now the Justices use ordinarly to pass their own Bills because the Justices are now of the Session but still other Lords who are not Justices may pass such Bills But albeit these Lores cannot judge crimes yet they may and do punish injuries committed against any of their own Members by fining or confining II. They likewise Advocat Cause from the inferiour Courts to the Justices thus in Anno 1664. Mackintosh being pursued before the Sheriff of Inverness for theft-boot they Advocated the cause to the Justices albeit it was alledged that they could not be Judges to the Cognition To which it was answered that the consequence was ill inferted for the Council did Advocat and could not cognosce and the Lords of Session did Advocat Breivs for serving Airs and yet they were not Judges themselves for both in this and that case an Inquest was necessar III. They are likewise Judges in crimine falsi and their sentence is a sufficient warrand to the Assize to condemn without repeating the probation and when the Inquest refuses to condemn upon that warrand they are of new inclosed as was done in Binnies case and will be liable to an Assize of error if they assioilzie and their Decreet bears the Lords remit him to the Justices to be punished tanquam falsarius and to underly the Law criminally and ordain'd that ordinance to be insert in their Books of Sederunt And that order is in the Justice Court call'd an Act of Sederunt the 2. of Iuly 1662. Albeit the Act of Parliament Ia. 6. Parl. 11. requires that all probation in criminals should be led in presence of the Assize yet the answer is that the Lords Decreet is only probation here and that is read in face of the Assize The Lords likewise determine the punishment in falshood and remit in their Decreet the party to the Justice to be only banisht or scourged or have his Tongue boar'd according to the quality of the guilt And I have seen a Gentle-man whom I will not name in Anno 1664. only imprisoned by the Lords for forging of a false Bond of suspension because he was ingenuous and in necessity And albeit this may seem irregular yet seing the Lords are only privy to the Depositions it is necessar they should have this allowance I find it one of the rules set down by the Doctors that ubi cunque iudex principaliter cognoscendo reperit incidenter crimen esse comissum potest de crimine illo cognoscere C. si adversus liber l. pen. And the example of this rule is instanced in Charta falsa l. pen. C. de probat And upon improving an Instrument or Writ they have ordained omnes testes instrumentarios falsi fabricatores to be fal sariâ—s and remitted them to the Justices the 16. of February 1660. Fern Innes and Tarbat hang'd But I remember not that they have in any other case cognosced upon crimes incidenter albeit the foresaid rule would give them an incident Jurisdiction in all cases IV. I find that the Lords have made Statutes to regulat the Justices Courts for upon the 1. of Iune 1593. they declared that all landed men should be esteemed pares curiae and might sit upon Noble-mens Assizes being pursued tanquaritemerè jurantes sup assisa and the Council uses to consult them in intricat cases which are referred to them by the Justices And thus in Anno 1667. they were consulted whether the West Countrey Rebels might be forefaulted in their absence V. But whether they be Judges competent to reduce or review what is done by the Justices or in the Justice Court in any case is not yet decided but I have seen a reduction of a Verdict of an Inquest pronounced against Mr. William Somervel whereby he was found guilty of Usury The reason of reduction was that the Inquest had erred in calculo and it was contended that the Lords were competent Judges to review errors in calculo for that was in effect but a civil Medium and where no criminal conclusion was craved nor could follow they were Judges as in the case of Reductions of Retours where the verdict may be reduce as past upon ignorance It was also urged that seeing the Lords made Statutes to regulate the Justice Courts and past their Bills they might cognosce upon palpable errors committed ignorantly by Assizes and it were hard that the Liedges should not be repon'd against Errours of such ignorant persons as Assizers ordinarly were VI. The Lords of Session do suspend the execution likewise of all sentences in the Justice Courts but these Suspentions when once raised are discust before the Justices They likewise sometimes discuss these Suspentions before the Session
therefore Act 89. Par. 6. Ia. 1. Ratified Act 28.3 Par. K. Ia. 4. with this addition that if any heretable Sheriff omit his duty in prosecuting of this crime after this manner he shall lose his heretable office for three years but if he have only that office for the time he shall lose it during all that time From which Acts it may be concluded that the Sheriffs is not only Judge competent to Slaughter but to murder and both to the one and to the other at any time if he has either apprehended the person or has ex in continenti done diligence for apprehending him but the Sheriff is not Judge competent to murder though committed within his jurisdiction except in either of these cases IV. The way of procedure before the Sheriff is by an Assize and the Procurator-Fiskal is pursuer in place of His Majesties Advocat Yet sometimes the Sheriff or Barron may condemn upon the Pannels confession without an Assize as Dur. observes penult Ianuary 1622. but if the party be present the Sheriff cannot condemn him as holden pro confesso though he refuse to depon but co casu he must put him to the knowledge of an Assize as was found 24. Iuly 1633. Dickson contra Halyday And albeit a blood proven by confession may be punished by an unlaw of fifty pounds yet when blood is punished upon contumacious refusal to swear the unlaw cannot exceed ten pounds 17. February 1624. V. The Sheriff may pursue when any person compears and insists with him in the pursuite but if the crime be pursued by way of inditement without the concurrence of any party the Justice general is only Judge competent thereto Skeen verbo Sheriff but that rule is too general and may admit of this distinction viz. that either the Thief is taken with fang and then the Sheriff may proceed to judge him though no privat pursuer insist against him Nor needs there three fangs for justifying that pursuit Albeit Sheriffs now never proceed but where three fangs are proved Or else no fang is found eo casu the Sheriff cannot judge the thief except there be a pursuite intended at the instance of a privat party VI. The Sheriff should assist in all Justice Aires holden by the Justice General or the Chamberlain and should produce the verifications of all the Summonds which is made to the Justice Air and should make provâ—sions at the Justice Air and his Clerks which should be allowed in the first end of his accompts to the Exchequer and he should arrest such persons as the Crowner cannot arrest and should those an Assize upon the last day of the Justice Air anent the execution of his office Ia. 3. Parl. 14. cap. 102. and if he be found culpable the Justice General may remove him from his office till the next Parliament and put another in his place to officiat in the interim St. Rob. Bruce ex lib. Sconen related by Skeen ibid. but much of this is antiquated by custome for the Thesaurer sends along with the Justice Air a person specially commissionated by them who defrayes the charges of the Justices and Justice Clerk VII If the Sheriff fail in his duty he was punished of old by the losse of his office during his life and imprisonment during His Majesties pleasure St. David Cap. 13. 69. but now for negligence in his office he tines the same for year and day and is punishable in his person and goods at his Majesties pleasure Ia. 2. Par. 14. cap. 37. And yet the Lord Yester having suffered two Thieves negligently to escape and his heretable office of Sheriffship being upon that accompt taken from him by King Iames the fifth that Decreet was reduced for it was found too small to infer the loss of an heretable office Stat. Sessionis pag. 34. which is observed by Hop likewise in his larger Practiques If the Sheriff absolutly refuse to do Justice he loses likewise his office and is punishable at his Majesties pleasure but if he do injustice he loses his office if it be heretable for three years but if it be not heretable he loses it during the time he was to enjoy it formerly and in both cases he is punishable arbitrary in his person and is obliedged to refound the damnage and interest sustained by the parties laes'd K. I. 3. P. 5. cap. 26. but if he bribe or give partial counsel he forefaults his fame honour and dignity and is likewise punishable in his person and goods K. I. 5. Par. 7. cap. 104. If the case be difficult the Lords of Session will sometâ—mes Advocat the cause from the Sheriff to the Justices as in the case of Theft-boot pursued by Connadge the Sheriff deput of Invernesse against Makintosh And sometimes the Council will discharge the Sheriff to proceed without Advocating the Cause if they find either the case to be difficult or the Sheriff and his Deputs to be suspected TITLE XIII The Criminal Jurisdiction of Barrons 1. In what cases Barrons may judge 2. The Clerk of that Court needs not be a Nottar 3. Whether he may punish Theft or Fire-raising I. A Barron in our Law is generally understood to be one who is Infest in any Lands though not erected in a Barrony in which sense he has no Jurisdiction but only that he can unlaw his own Tennent for Blood committed upon his own ground as was found the penult of Ianuary 1622. Iohnstoun against the Laird of West-nisbit but a Barron properly is he who is Infest with power of Pit and Gallows fossa furca A Barron Judges crimes in the same manner as they are judged by the Sheriff and may like him proceed in time of vacance to judge these crimes to which he is otherwise competent But it has been controverted whether Barrons have been Judges competent to Processes for penal Statutes since the penalty there was to be applyed to the Kings Fisk and so should be judged in his own Court but the Lords found the 3. of February 1674. that they were Judges competent to penal Statutes by the constant custome of this Nation Albeit in civil cases Barrons may appoint Bailies yet Balfour cap. 63. observes that in criminalibus no person below the degree of a Barron may sit upon Blood nam potestas gladii est meri imperii quae nullo modo delegari potest except there be an express power given by the Soveraign for that effect as in the case of Justices and Sheriffs who have power to Deput and that power of Deputation were unnecessar if it were otherwise competent II. The Clerks of all other Courts must be Notars but the Clerk of a Barron Court needs not be a Nottar and yet the Decreet of a Barron for an unlaw will be sustain'd founded upon a confession though the confession be not subscribed as is observed by Durie the penult of Ianuary 1622. But by an Act of Sederunt it is ordain'd that no sentence of any Inferiour Court
for above an hundreth Pounds shall be sustain'd except it be otherwise warranted then by the consent of the Clerk Albeit by the 75. Act Parl. 6. K. Ia. 5. the Barrons Precepts for Summonds in that Court is so called should be execute as Summonds before the Lords and Coppies should be left and they indorsed upon yet the 11. of Iuly 1634. Hay against Airth it was found that executions by a Barrons Officer are valid though not given in Writ and that the same are probable by Witnesses III. A Barron having power may judge of Theft if the Thief be taken in the fang quon attach cap. 100. where it is Statuted that baro qui libertatem habet de sock sack toll theam possunt judicare furem sasitum de aliquo furto manifesto sicut haud haebband back beirand de praxi Barrons do not punish Slaughter yet it may be urg'd that they have power to do so because 1. The power of Pit and Gallows would import the power of judging life and death 2. By the 77. cap. quon attach omnes Barrones qui habent furcam Fossam de latrocinio de hominis occissione habeant furcam id est curiam as the marginal note bears and by the 13. cap. Leg. Mal. 2. It is Statute that Malefactors who hold of Barrons may be condemned after the same manner that other Malefactors are except in the four Pleys of the Crown in which Barrons have no power from which it may be very clearly inferred that quo ad other crimes they have nam exceptio firmat regulam in non exceptis 3. By the 91. Act Parl. 1. I. 2. It is Statute if a man be slain in the Barrony if the Barron be Infest with such freedom he may proceed as the Sheriff doth And albeit Hope in his larger Practiques observes that these words of the Act if he be Infest with such freedom may receive various interpretations yet I see no interpretation they can properly receive except this that these words are meant if he have the Jurisdiction proper and competent to a Barron which is Pit and Gallows nam verba generabia interpretanda sunt secundum subjectam materiam Albeit wilful Fire-raising be one of the Pleys of the Crown yet a Barron may cognosce upon and punish the raisers of Fire rashly within Husband Towns in the Barrony I. 1. Parl. 4. cap. 75. The words of which Statutes are if Fire happen within Husband Towns of Barronies we leave them to be punished by their Lords in like manner as Bailiffs in Towns do within Burgh in which Act by the word Lords are meant Barrons for they are in several Acts of Parliament called Lords of their own Land or Barrony A Barron may unlaw for absence for ten Pounds but not above and for blood he may unlaw for fifty Pounds but not above VITLE XIV Of Justices of Peace OUr Justices of peace were called Irenarchae which signifies in the Greek the keeper of the peace irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam dicebantur etiam latrunculatores sen latronum expulsores Their Office was to apprehend Rebels and Thieves whom they could only examine and send to the President of the Province but could not judge them themselves their office is more fully described lib. 10. C. tit 75. but to speak properly latrunculatores were our Constables called by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justices of peace and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desuetude it was revived by 38. Act 1. Parl. 1. Sess. K. Ch. the 2. By this Act they are allowed to meet four times in the year and to adjudge of Servants fees and of mending the high wayes they have power to punish the cutters and destroyers of planting green wood slayers of red and black Fishes makers of moor-burn keepers of Crooves wilful Beggars Egyptians and their receptors Drunkards prophaners of the Sabbath as to all which His Majesty promises to give them ample commissions and to the end their power may not prejudge any other Court formerly erected it is appointed by that Act that fifteen dayes shall expire after the committing of the fact for which the committer is to be conveened Which interval is given to the Judge competent to do diligence and if he omit the same during that time then the Justices may judge the same and one Justice has power to bind the party complained upon to the peace under such pecunial Sums as he shall think fit and that either at the instance of a complainer who shall give his oath that he dreads harm or the Justice himself may exact the sum though none complain And if any person being charged to make his appearance before the Justice of peace shall refuse it he be a landed man whose rent exceeds a thousand Merks or ten Chalders of Victual then he shall inform any of his Majesties Privy Council or if he be a meaner person he may cause bring him by force before himself If the Sheriff or Bailiff condemn any person in blood-weit or any other pain but not proportionally to the offence then the Justices shall inform the Privy Council that they may take order therewith but if there be no satisfaction made by the Sheriff or Bailiff to the party the Justices may modify a reasonable satisfaction If the Sheriff or Bailiff do by collusion clear the Delinquent of an Assize the party once cleared is not to be further questioned but the Judges are to be punished by the Privy Council The Justices of peace are declared Judges competent to all Ryots and breaking of peace if the committeeâ—s be under the degree of Noblemen Prelats Councellours and Senators of the Colledge of Justice who may refer the Summonds to the parties oath if he be personally Summoned and thereupon hold him as confest but if the Summonds be not personally execute then the defender is to be summoned of new at his dwelling house and these two citations at his dwelling house shall be equivalent to one that is personal if the committers be above the foresaid quality then the Justices though they cannot judge them may for preventing of Ryots command them to find caution for keeping of the peace and to compear before the Privy Council and though they compear not yet whatever breach they commit in the interim shall be repute as great a contravention as if they had found caution At the end of every quarter Session the Justices of peace are to send to the Clerk of the Council a Catalogue of all such persons as they either have committed or have under surety with a short abreviat of the cause thereof which is that which the Civil Law in the former Title cals transmittere cum elogio to the end that the Council may determin betwixt and the quarter Session what shall be done with them
But I believe this invasion has been made by the Justice-clerk upon that Court after he was created an Officer of State but to solve this doubt my Lord Rentoun at his admission is found by Act of the Secret Council to be a Member and one of the Judges of the Justice Court and to have a Vote there the 10. of December 1663. and now he sits in the Justice-generals Chair when he is absent The Justice Court have a Seal which they append to publick Acts and is kept by the Justice-cleâ—k-deput This Deput is admitted by the Justice clerk by way of Commission giving him power to be Clerk to all Couâ—ts holden by His Majesties Justice-general or Deput or any having particular Commissions either at Edinburgh or else where and therefore no justice Court either in the border or elsewhere is lawful except it be served either by the Justice-clerk-deput or any having Commission from him It seems that of old the Writers to the Signet did use to write criminal Letters without receiving Caution but that is discharged by the 34. Act 4. Par. Ia. 5. And now though Writers to the Signet may subscribe the Letters yet the Justice-clerk-deput can only write the deliverance upon the Bill and receive caution And therefore he writes upon the Bill soverty is found and subscribes the famine Hâ—s receiving caution is likewise warranted by the 78. Act 6. Parl. Ia. 4. V. The Justices are only judges competent to these crimes which are call'd placita coronae the Pleys of the Crown which are four with us wilful Fire raising ravishing of Women Murther and Robbery or Reif l. Malcol 2. cap. 13. and the cognition of these belongs not to Burghs leg burg c. 6. nor to no other inferiour Courts Quon Attach c. 76. leguntur St. Alex. c. 14. faemina efforciata arsione rapina murdrum Molineus in stil. cur paris part 1. c. 13. observes that in France three crimes belong to the cognition of the High Justices wilful Fire ravishing of Women and Murder nor can any other Judge proceed to judge these Crimes except they be particularly warranted by a Gift from His Majesty to that effect Skeen verb. murder VI. The Justice Court has its Macers in which they are not stented to a particular number and though of old amongst the Romans a pursuer might be his privat authority and force draw the defender before the judge in jus rapere in jus trahi which they borrowed from the Grecians as they did most of their Law for Demosthenes their great Lawyer tells us in orat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Yet ordinarly even the Grecians had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Apparitors as the Romans call'd them who were the same with our Macers qui volentes vocabant recusantes urgebant The Mace used by these with us in the Justice Court is an Iron Rod which was the symbol of power as appears by the verse 2. Ps. The Coroner was an Officer who took inquisition of Murders in corona populi the Laird of Ednam was the heretable Coroner in Scotland but this Office is absolet now except at Justice Airs where the Coroner yet presents all Malefactors and takes them to and from Prison TITLE XVI The Jurisdiction of the Justices over Souldiers and of Militiary Crimes 1. When are the Iustices-Iudges to Souldiers 2. A debate concerning free quarter 3. Haddo's case 4. Sometimes Commissions are granted for trying Souldiers 5. How deserters are punished 6. Who were Iudges competent to Souldiers amongst the Romans I. ALbeit Souldiers should be tryed by a Court martial for crimes committed by them in a Military capacity as deserting their Colours resistâ—ng their Officers c. yet when they commâ—t other Crimes they are lyable to a tâ—yal before the Criminal Court. For as Voet. observes delicta militum sunt vel communia vel propria lib. 2. de remilit And thus French and two other Soulâ—iers under Morgan in the English Garison of Leith were put to the knowledge of an inquest for killing a Burgesse of Edinburgh albeit Morgan offered to repledge them Ianuary 1662. and yet in anno 1666. the Justices would not proceed against some Gentlemen for the slaughter because they were both Souldiers but it seems the Crime should have been tryed before the Justices seing the crime and not the persons determin the Jurisdictions and their Crimes was only a Combat which is no specifick crime to Souldiers and this is conform to a decision Novemb. 1627. Where Captain Bruce having been pursued for killing Captain Hamiltoun did petition the Council shewing them that this crime was committed in Flanders and that he was assoâ—lzied therefra by a Council of War upon which probation the Council commanded the Justices to desist But Sir William Bellenden being challenged before the Council for many Ryots and Crimes committed when he was in the West they would not remit him to a Council of War albeit that declinator was proponed August 1667. And Militia Souldiers were judged by the Justices for Murder committed by them in the execution of other Officers commands the 3. of February 1674. II. The most considerable Military questions which I remember in all the Adjournal books are first that which was debated 5. Decemb. 1666. the case wherof was some west countrey men had formed themselves in an Army and were declared Traitors by the Council and being thereafter beat at Pentland hills Captain Arnot Major Mackulloch and others were taken by some of his Majesties inferior Officers upon quarter but being pannelled before the Justices as Traitors it was alledged for them that they could not be put to the knowledge of an inquest before the Justices because they having been modelled in an army and taken in the field fighting as Souldiers they behoved to be judged by the Military Law and by that Law such as get quarter in the field are by that quarter secured therin for their lives and cannot be hereafter quâ—rrelled To which it was replyed that there can be no quarter but where there is a bellum justum and it is not the number nor form of the Army but the cause that makes bellum justum and publick insurrections of subjects against their Prince are rather Sedition then bellum and these insurrections being Treason none can remit Treason but the King and therefore quarter could not be equivalent to a remission but all the effect of quarter in this case is to secure these who get the same from present death To which it was duplyed that all who got quarter from any who are authorized to be Souldiers are by that quarter against that authority from whom these Souldiers derive their power and these who get the quarter are not to dispute whether these Souldiers had a sufficient power to give quarter or whether bellum be justum or injustum for that were in effect to destroy quarter in all cases and to make all such as take up Armes to be desperat and irreclaimable
thus forasmeikle as by such particular Acts of Parliament c. Murder c. is prohibit and the pain declared to c. yet you A. B. did upon the 27. day at least moneth c. And it is writ only by the Justice Clerk without a bill and passes not the Signet nor needs it be executed with the solemnities requisite in Libelled Summonds by Messengers in ordinary crimes and Heraulds in Treason but may be given by the Clerks servant as was found in a pursuit of Treason pursued by way of indictment against Mackulloch Gordoun and others 5. Decemb. 1666. it needs not likewise these inducias deliberatorias allowed to such as are at liberty and are pursued by a Libelled Summonds but a day or two is sufficient and sometimes they may be pursued without any time to be allowed for this procedure is in effect the same with that inquisition specially treated of by the Civilians There is likewise this difference betwixt an inditement and an accusation that an inditement properly is a Libel raised at the Kings instance and not at the instance of any privat person for in accusations or Libels raised at the instance of privat persons as pursuers there must be a formal libelled Summonds under the Signet so cap. 1. R. M. lib. 1. num 7. 8. it is said that Theft and Murder by inditement belongs to the justice because there the King or his Advocat pursues but where a certain accuser appears a pursuite upon these Crimes may be intented before the Sheriff and Skeen upon that Chapter and likewise upon the 2. cap. num 2. David Stat. 2. does observe that all Criminal accusations are either by an inditement or by a certain accuser and from this difference ariseth that other difference that crimen per indictamentum is only pursuable before the Justices which is clear both by the forecited places and the whole tract of the books of R. M. But this last difference is now absolet for of late before the Sheriff or at inferiour Courts malefactors may be pursued either by a libelled Summonds at the instance of any particular accuser or at the instance of the Procurator fiskal by way of indictment which practique is most reasonable for it were against the interest of the Common-wealth that Sheriffs and inferiour Judges whose great duty and chief imployment it is to advert to crimes should not have liberty to pursue without the concurse of an accuser It is indeed the interest of the Common-wealth ne crimina maneant impunita And therefore in Crimes which immediatly concern the welfare of the State such as Treason Sedition c. every man may be an accuser but it is likewise the advantage of every privat person that it shall not be lawful to every malicious enemy upon the pretence of a publick good to trouble and vex such against whom they carry malice upon a pretence of a criminal pursuit and therefore according to the the common Law in privatis delictis non admittebatur ad accusâ—ndum nisi qui suam aut suorum injuriam insequebatur and Farinac states suorum injuriam to extend ad quartum gradum and it seems to be extended with us within degrees defendant and that every person may not in our Law pursue any privat crime appears from the former Chapter III. A minor may not by the Civil Law accuse without the consent of his Tutors and Curators And where it is said l. 4. R. M. c. 2. that a Major being of lawful age he may accuse it insinuats that Minors regularly cannot accuse And suitable to this the Justices refused to grant processe at the instance of William Umphray against Iohn Meldrum because the said William was Minor and had no legal concurse 29. of Iuly 1597. which is founded upon most convincing reason for Minors may by ill governed youth and imprudence either pursuing injustly such as are most innocent or else by managing unwisely the Criminal pursuite if it were competent to them they might prejudge both themselves and the Common-wealth in suffering the defender to be cleansed by a verdict After which Absolvitour the defender could not be again brought to a tryal nor would the Minor be restored against the sentence and yet a Minor may crave at the Barr that the Justices would allow him Curatoâ—s ad lites which desire the Justices will grant 24. Iuly 1600. Spence contrae Bannatine IV. A woman according to the Civil Law could not accuse in no case except where she was revenging the injury done to her self husband or relations and in the former Chapter it is said that a woman can accuse none of fellony except in some particular cases which appears to be by the 5. chap. num 8. the Murder of her own husband quia una caro fuerunt vir uxir and N. 9. it is generally ordained that a woman may be allowed to pursue any injury done to her own body From which we may generally conclude that she may pursue suam sed non suorum injuriam wrongs done to her self but not wrongs done to her relations V. Whether a person at the horn or excommunicat may pursue appears to be debateable for the one opinion it may be alledged that it is for the advantage of the Common-wealth that crimes remain not unpunished 2. Civil Rebellion or excommunication non tollunt jura naturae amongst the chief whereof Lawyers esteem the liberty of pursuing the wrongs done to relations and much more the wrongs done to ones self in his person or good name 3. Such as are Rebels for Civil pursuites non possunt impunae offendi and therefore it appears most reasonable that they should not be debarred from pursuing wrongs done them for if a person at the Horn could not pursue the wrongs done him then any person might injure him at pleasure seing the fear of pursuit and the punishment depending thereupon is that which ordinarly overaws the pursuer but on the other hand it may be alledged that 1. By the 11. cap. Stat. Will. These who contemn the Statutes of the Church shall not be admitted to accuse 2. It is a Rule in Law that frustra legem implorat qui coptra legem peccat 3. A person at the horn is by the English Law alwayes and oftentimes in our Law said to be outlawed and to be outlawed imports the losing all the priviledges of Law and in our Law they are said non habere personam standi in judicio Nor puts our Law any distinction betwixt Civil and Criminal causes for reconciling which difficulty it may be alledged that there is a distinction betwixt the being outlawed for a Criminal or Civil cause and that these who are denounced Fugitives upon any Criminal accompt cannot be pursued till they be relaxt which is incontravertedly true in our Law seing if a person be denounced for not finding caution for his appearance to underly the Law he will not be admitted to propon any defence till he be relaxt
the Sheriff should still find Caution to insist but with us those ubi suam vel suarum injuriam prosequuntur etiam in anticategoriis the accuser must still find Caution wherein we do very reasonably differ from the Civil Law for the defender is as much prejudged and may be as easily troubled if these pretexts were allowed to palliat the pursuers malice as generally he could be in other cases in this likewise we differ from the Civil Law that the defender is oblidged to find Caution for his compearance which he is commanded to do by the Letters by which the Messenger is commanded to denounce him Rebel if within six dayes after the Summonds is execute against him he find not Caution in the Books of Adjournal to the effect foresaid which Caution though it be found yet if it be not intimat to the Messenger the Messenger may still denounce him Rebel for not finding of Caution And though by the Civil Law and ours the Advocat may pursue without consent of the privat party yet he is not oblidged to find Caution nam in eo non praesumitur calumnia yet the Advocat in our practique doth ordinarly oblidge his informer to find Caution else he refuses him his concourse If the accuser be found to have been calumnious or as our Law termes it in the wrong he is oblidged to pay to the party an unlaw of ten Pounds Ia. 3. Parl. 6. Act And if there be moe deeds then one he is liable in twenty Pounds and likewise to pay the defenders expence Act 78. Parl. 6. Ia. 6. Which Acts speaks only of not prevailing though there be no malice and though there be no probabilis causa litigandi but if their pursuit be found to be 〈◊〉 it is arbitrary to the Justices to inflict what punishment they please either in that same sentence wherein the defender is absolved or upon a separat Bill or pursuit as also he is by the Justice constantly ordained to pay what damnage and interest or expence the Justices pleases both to the parties and to the Assizers And albeit according to the Civil Law Procurator fisci non praesumebatur calumniosus yet si procurator fiscalis calumniose instigat judicem ad inquirendum tenetur in damna actione injuriarum concremari debet l. universi C. ubi causa fiscal c. And according to the opinion of the Doctors hodie judex procurator fisci affectate consequentes crimen extraordinarie sunt punendi Q. IX The Justices ordain that because many poor persons were maliciously or ignorantly imprisoned that the Magistrates of Edinburgh should imprison none but where one should find caution in the Books of Adjournal to insist against them and to aliment them and that they should appoint a Procurator dwelling within Edinburgh to whom the Justices might intimat when they desired the pursuer might insist the 5. of Iuly 1661. which should be done and exped very speedily and for this end the Bishop was appointed to visit the Prison every Friday and Wednesday 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 celeriter judicari Basil. l. 21. de custod reor TITLE XX. Of Advocats and Procurators 1. Whether a Procurator should be admitted for the pursuer in his absence 2. His Majesties Advocat may deput when he is pursuer he has also other priviledges 3. In what cases Procurators are admitted in defence 4. What Oath of Calumny is allowed in Criminals THe Doctors make a difference inter simplicem allegatorem who can only propon what is nottour as that the party cited is known to be sick procuratorem who must have a mandat and may propon declinators or dilators defensorem innocentiae who not only can propon dilators but may likewise defend et Advocatus semper neputatur defensor and needs no mandat but his Gown is his warrand and yet in Criminals he must have a Procuratory I. According to the Civil Law Procurators were neither admitted to pursue nor defend l. ult § ad crimen ff de publ jud but by the Law of most Nations a Procurator is admitted to pursue for paena talionis is now taken away which was the reason the pursuers personal presence was requisite Clar. fin quest 14. N. 22. the defender must still be present ne judicium reddatur elusorium With us Procurators are admitted for the pursuer and yet this appears not to want difficulty for if the defender should desire that the pursuer should swear the Libel the dyet would desert if this were refused by the Procurator and though in Civilibus a day may be taken to produce the pursuer to give his Oath of Calumny which Oath of Calumny is the same thing we call swearing the Libel in Criminals yet seing all Criminal dyets are peremptor so that there cannot be a day allowed to the pursuer to give his oath it were unreasonable but he should be present for else the defender is precluded from a very great advantage such as is the pursuers oath of Calumny which if the pursuer himself were present and refused no pursuit would be sustained at his instance likeas if the pursuer were present it might be referred to his oath that he gave the witnesse good deed or that he knew the defender to be alibi by all which it would seem the pursuer should still be present yet this was expresly repelled 4. August 1652. Where Ballindalloch was pursuing Iohn Grant but there it was answered that Ballindalloch was one of the pursuers himself and the remanent were his Servants II. Albeit the Kings Advocat be pursuer in most cases yet he uses ordinarily to constitute a deput who should produce a written warrand under his own hand else cannot be admitted and this deput can desert a dyet though his Procuratory do not instruct him with a particular power for that effect 29. November 1638. Mr. George Norvel Procurator for Mr. Iohn Rollo which is constantly the opinion of the Doctors His Majesties Advocat uses not to pursue a Summonds of Treason without a special warrand under his Majesties hand or a particular order from the Council which he uses to produce ante omnia and is still marked by the Clerk as may be seen in all adjournal Books but particularly in the cases of the Lords of Ochiltree and Balmerinoch His Majesties Advocat with us examines parties and witnesses before the Process be intented which he doth upon pretext that he may thereby know how to Libel exactly and to the end he may not vex parties if he find no ground for the pursuit but many learned Lawyers have alwayes thought this Procedur dangerous for his Majesties Advocat is still a party interested and so should not be allowed to deals with the witnesses for thereby he may strain from them what otherwise they would not depon And if in our last reformation of the Justice Court it was found that the Kings Advocat should not make the roll of Assizers because he is too much interested much
Probations should be led in presence of the Assizers 10. The Assize after inclosure can speak to no man 11. How the Assize ought to proceed after they are inclosed 12. Wilful errour in Assisers how punished and by whom I. ALL judgements were at first pronounced by neighbours and thus amongst the Romans were centum viralia judicia and amongst the Feudalists pares curie were only Judges in place of which last came our Assizes in France England and Scotland they are called a condign inquest because these should be pares â—uriae ita condigni The Word Assize is originally French and signifies properly siting or Session les assises sont les grands jours plaids solemnels Roy Charles Anno. 1413. vid. judicem Regean verb. assise where it will appear that Assize in French signifies a Judicator and in our Law it is often taken for a constitution or Statute which is made by that Session or sitting of the Judges and thus the Statutes of King David are called assisa regis Davidis and assisa terrae is called the Law of the Land Assisa is likewise sometimes called a measour and thus it is said Ia. 3. Pa. 14. cap. 110. that the Barrel should contain the Assize and measour of 14. gallons and the assisa halâ—cum or assize of Herring signifies a certain quantity and measure of Herring which pertains to the King as a part of his Customes Ia. 6. Pa. 15. cap. 237. And in the French Law it signifies a Tax also Regean ibid. But the proper acceptation of the Word Assize as it is now determined by custom is to signifie those who are chosen by our Law to determine either in civil or criminal cases the matter of Probation and are in effect neither properly Judges nor Witnesses but both II. For the more exact clearing of the Office of Assizers in criminal cases the Reader may take notice that the Libel alwayes beats that the pursuer shall Summond an Assize not exceeding fourty five persons which shall be given up in a Roll to the Messenger and should be subscribed by the pursuer which Roll shall be annexed to the end of his execution Ia. 6. Pa. 6. cap. â—6 But albeit this Act appoints that the Roll shall be subscribed by the pursuer yet it is sustained as valid though not subscribed by him if he homologat and ratifie the execution given in by the Messenger albeit it may be alledged that the Summonding of Assizes is eo casu not lawful seing it wants a warrand this subscribed list being by the foresaid Act of Parliament and Summonds it self appointed to be the warrand as also albeit by the Act the Messenger is prohibit to cite any more then fourty five under the pain of five hundred Merks yet the execution is not eo casu declared thereby to be unlawful and by that Act it is likewise declared that upon supplication the Lords may allow more persons to be cited then fourty five Why the pursuer should have had the choice of the Inquest may be doubted And if Assizers may judge ex propria scientia it would appear that to allow the pursuer the choice of the Assize were to put the defender absolutely in his will And I find that Gail l. 2. obs 34. concludes that the custom of some places allowing domino electionem parium pares apud nos signifies Assizers is most unreasonable quia dominus ita est quodam modo judex in propria causa nam est procul dubio eos electurus per quos se victoria potiturum sperat Alvarot ad cap. 1. de contrav send To which difficulty it may be answered in defence of our Law and Practique that 1. Where the Advocat is pursuer it is presumeable that he will be most just and that he will proceed without interest or malice 2. These Assizers are in effect either Judges or Witnesses and the pursuer hath still the choice of both Judges and Witnesses if they be otherwise competent 3. As the defender may decline them if there be any reason for it so they are sworn nor is it presumeable that any will be so impious to condemn a man to dy to please others Upon which presumption our Law leans so much that though Assizers condemn unjustly they are not liable to an Assize of error as is believed But by the third Article of the Regulation 1670. the list of the Assizers is to be made by a Quorum of the Justices and that list should express not only the names but the designation of the Assizers When the day of compearance is come and the Letters are called and the Assizers are likewise called and each absent Assizer is for his absence fin'd in an hundred Merks and their unlawes are to be taken up without any composition Ia. 6. Par. 12. cap. 126. by which act it is likewise appointed that an act is to be extracted upon their said absence and is to be delivered to the swearer or his Clerk within six dayes thereafter that Letters may be direct therupon for taking their unlawes but the pain of ilk absent Assizer at a Justice Air is to be fourty Pounds Ia. 6. Par. 11. cap. 81. If the Assizers Summond be not present others may be Summoned at the Bar or apudacta as we call it Ia. 4. Par. 6. cap. 94. When the Assizers are called fifteen of them are marked and then the dittay is read for the debate upon the relevancy must be in presence of the Assize Ia. 6. Par. 1. cap. 90. seing albeit they be not Judges to the relevancy yet since they are Judges to the Probation which depends much upon the relevancy and seing the Justices remit several defences which are propon'd against the relevancy to the Inquest it is most reasonable they should hear the debate III. The defence against the relevancy begins thus it is alledged by A. C. as Procurator for the Pannel that the Pannel should not go to the knowledge of an Inquest because c. And after all the defences are discust the words of the Interloquutor bear that the Justices either sustain or repel the defence and find or find not that the Pannel should go or not go to the knowledge of an Inquest and if the Justices find the Pannel should go to the knowledge of an Inquest either the Pannel confesses quia in confessum nullae sunt partes judicis therefore he may be banished or scourged without being put to the knowledge of an Assize as in Rutherfoords case the 9 of Iuly 1622 and in Iobs case who was scourged and banished for Bigamy without an Assize 19. Ianuary 1650. But if the crime be capital or the Pannel do not willingly acquiesce to the punishment it is still securer to put the Pannel to the knowledge of an Inquest because the Justices are only competent Judges to the relevancy and the Inquest only can find the Libel proved IV. Albeit it be a received principle in our Law that the Justices
a subvassal by a subvassal and a Burges by a Burges but a lower person may be judged by a higher and by the chap. 2. Stat. Alex. 2. A Knight should be judged by Knights or free holders but by an Act of Sederunt 1. Iune 1591. The Lords of Session declared all such as were landed men sufficient to passe upon Assizes of Error though the old Laws required noble men and Gentlemen only in such cases And albeit of old it was uncontravertedly received that none should passe upon the Assize of Noblemen except Noblemen Nor upon the Assize of Barrons except Barrons yet of late it hath been much debated and especially in the case of Douglasse of Spot 9. May 1667. at which time he being accused for killing Home of Ecles it was alledged that Spot was a Barron and so could not be judged but by Barrons holding of the King conform to the citations above duced It was replyed by His Majesties Advocat 1. Neither the books of quon attach or the Statutes of King Alexander are binding Laws but only books of Apocripha 2. Though they were Laws yet they are not in viridi observantia seing Burgesses and others are daily admitted by the late practique to passe upon Barrons Assizes and at the time of the making of these Laws Assizers were Judges both to the relevancy and probation whereas now in effect they are but witnesses and therefore since the Law reposes much lesse confidence in them now then formerly it should not now be so scrupulous in their election 3. Burgesses are in Parliament allowed to sit upon the Assize of and forefault Noblemen and it were against reason that they should be admitted to the more solemn Judicators and be rejected in Judicators where cases of less importance are ordinarily judged and in which the Sentence pronounced may be easier repealed 4. Dyets before the Justice-Courts being alwayes peremptor it is probable that dyets behoved very frequently to be deserted if only Noblemen were to be Judged by Noblemen Barrons by Barrons 5. By the state of King Alexander above cited it is only requisit that Knights be judged by Knights but it is not added there that Barrons should be judged by Barrons which shews that that priviledge was not allowed to them even in those dayes and lastly seing all mens lives are of extraordinary concernment it is not reasonable to think that he who can be judge of any mans life may not be Judge of the lives of all men To which it was duplyed as to the first That debate is opponed whereby it is evinced in the Title by what Laws Crimes are judged in Scotland and the Books of quon attach and Reg. Majes are our Law and the Act of Sederunt above-cited dispencing with that priviledge in some cases doth demonstrat that regularly this priviledge taketh place with us Likeas Skeen in his Treatise concerning the procedure before the Justice General cap. 4. sect 3. cites these Laws as binding and gives for a rule that no man can be judged in that Court but by his peers To the second it was duplyed that this being a declinatur and being arbitrary for parties to plead the benefite thereof it cannot be said to be antiquated unlesse it had been alledged that it had been pleaded and repelled But as this citation out of Skeen who is but a late Author did show the same to be in viridi observantia so Noblemen have lately had the same indulged to them as in the cases of the Earl of Traquair and Lord Ochiltree which was allowed to them upon the Laws here cited To the third founded upon Burgesses sitting upon forefaulters in Parliament the same doth not meet the case seing the Parliament may abrogat Laws and so are not in their procedure tyed to them and though Burgesses singlie be not Peers to Noblemen yet the collective body of the Parliament by which they are condemned are much more their Peers To the fourth it was duplyed that inconveniences are only to be looked to in the making of Laws but not after and the inconveniences of the other side are much more pressing it being very inconvenient that an Assize of 15. mean Tradsmen should be admitted to try a Duke or Marquesse and it was a vast mistake to think that Assizes are only witnesses and not Judges seing they vote and their verdict is called a Sentence and if Art and Part be Libelled the relevancy is in these cases which uses to be of all cases most intricat Simply referred to them without any debate To the fifth it was duplyed that the inference is meerly conjectural but if the Text be considered it will appear that by Knight there is meaned Vassal or free holder for the Latine translation renders the word Knight not eques but miles and it is said there that a Knight shal be judged by Knights or free holders So that the particle or is in that place exegetick and not disjunctive And to the Last it is duplyed that all mens lives are not equally precious in the eyes of the Law for even by the Roman Law mean people were judged to dye for many crimes which were not capitally to Noble Romans and though with us the punishment may be the same yet the way of procedure against Noblemen is justly allowed to be more solemn Upon which debate the Justices ordained a new Assize to be summonded whereof the most part should be Barrons and the remanent landed Gentleman It was thereafter doubted whether an apparent Heir of a Barron has the same priviledge so that none can passe upon his Assize who are not Barrons or Landed men and it was alledged that the apparent Heir had this priviledge and was a Barron in the construction of Law for his marriage or escheat would fall though not entered and as a Barron though denuded remained still a Barron or a Prelat though for age demitting would be still a prelat so the apparent Heir of a Barron though not entered should be still a Barron as was found 23. December 1674. To which it was answered that an appearent Heir was not nomen juris and priviledges ought to be strictly interpreted and the appearing Air of a Barron would not have an Heir as was lately found in Sir Allexander Seatons case quē sequitur in comodum c. Whereas in Law all Barrons may have Heirs nor did the instances adduced from the Casualities of marriage or escheat militat in this seing these proceeded ex natura feudi non ex vi privilegii and was introduced in favours of the superiour and not of the appearent Heir Upon which debate the Justices 19. of Iuly 1675. repelled the objection against the Assizers and found the priviledged extended not to the appearent Heirs of Barrons Mackintosh contra Frazer of Culbokie Not is this priviledge extended to Landed men though infest if their Lands be not erected in a Barrony VIII Albeit it be ordinarly received that Assisers may Judge upon their proper
originally emitted in presence of the Assize or at least adhered to before them and the testimony of two Nottars and four Witnesses was not equivalent to a verbal confession seing they could not thereby know all the circumstances which are necessary to be known such as whether the confession was voluntar or extorted or if it proceeded upon a mistake or if it was founded upon promise of life c. 2. The party who confessed might have emitted that Declaration upon a confidence that the same could not operat against him being extrajudicial as said is 3. That must be accounted an extrajudicial confession quae non emanavit in judicio and this is such because there was no Court fenced here nor yet an Assize sworn whereas that is only called a judicial confession which is emitted before those who are Judges and whilst they are sitting in Judgement Boss. tit de confessis 4. The confessor here was an ignorant person and did not understand the Scottish Language and so might be very subject to mistake upon which reasons the Assize having demured the Justices made application to the Council but the case being by the Council remitted intirely back to themselves they did find the foresaid confession sufficient and Macknab was thereupon convict accordingly and hang'd but if the confession had only been subscribed by a Judge I think it could not have been valid for that were to confound the Office of a Judge Witness and Clerk and would tend to make all Judges arbitrary so that the life of the Leidges should depend upon one single Testimony which were very dangerous especially in inferiour Courts where it is very well known that persons of very little integâ—ity sit as Judges and which Judges are oftentimes interested to get the Pannel condemned because thereby the Escheat at least a part of it falls to themselves So far doth our Law require judicial confessions that it hath been debated that even a confession taken by all the Justices sitting in Judgement was not a sufficient warrand for the Assize to proceed in condemning the party except the confession had been renewed before them though the confession it self was subscribed and the subscâ—iption acknowledged for the foresaid Act of Parliament requires that the hail Probation should be used before the Assize in presence of the party accused but so it is that the emiting of the confession is a chief part of the Probation since Law has laid great weight upon the way and manner how a confession is eliâ—ite measuring exactly the degrees of constancy or fear appearing in the Pannel as well as considering the motives by which he was induced to confess and what difference is there quo ad the Assize Whether the confession be emitted before the Justices or an inferiour Judge or why should not the deposition of Witnesses or confessions of Parties taken by way of precognition proved and yet thir confessions taken before the Justices prove But to this it is answered that confessions emitted in presence of a Judge competent prove in all Nations from which the foresaid Act should not be made to derogat except it designed the same clearly but so it is that it is clear by the foresaid Act that it was not intended that any Probation that was formerly good and Probative should be discharged but only that the way of using the same should be regulat and so subscribed Papers are not rejected for we daily see that Papers prove Treason and Usury though they be not subscribed before the Assize but that Act only discharges a former wicked custom of carrying in Papers claudistinely to the Inquest which had not been openly used before the Pannel Likeas Assizers do frequently condemn with us upon such confessions The second question which may be here debated is whether when a person confesses a crime with a quality and not simply if his confession may be devided so that he may be convict upon the confession notwithstanding of the quality except he can prove the quality this was debated the 13. of March 1668. At which time one Dumbar being pursued for wounding Collonel Innes confest that he wounded him but he did it in defence of his own life being assaulted by the said Collonel upon which confession it was alledged he could not have been found guilty since a confession can no more be divided then an Oath and it is a brocard in Law that quod approbas non reprobas As also seing the crime could never be proved but by the confession the confession being qualified was no confession without the qualification and therefore there was no Probation beyond the quality I know that the Doctors do in this case distinguish betwixt such qualified confessions as are omitted sub unico structu verborum as if the confession did bear I did kill in my own defence vel sub duplici as I did kill but I kill'd in my own defence in the first they think the quality cannot be disjoyned from the confession but in the second it may yet I think this but a subtilty for poor persons especially when they are tryed for their lives take not such pains to order their expressions and their design in both is the same but I approve more that other opinion of these who think that such qualified confessions may infer an arbitrary though less punishment paenam non ordinariam sed extraordinariam as is asserted by Decius in cap. cum venerabilis extra de except vid. Far. de reo confesso quest 87. cap. 4. And albeit I think that if there were strong presumptions against the confessor as there was in the above related case he behoved cocasu to prove that quality of self-defence otherwise then by adjecting a quality because Presumptions transfer the necessity of Probation upon him against whom the presumption is brought Cod. fab de sicar def 6. non scinditur confessio in criminalibus nisi adsint contraria indicia Yet I think that such qualified confessions as this is which imply a defence should either prove the defence or else they should not prove the Libel and either should be altogether believed or altogether reprobated for as it was not the design of the confessor to bind a guilt upon himself by the confession So it is to be presumed that he who is so ingenuous as to confess a guilt against himself would be likewise so ingenuous as to confess the Truth really and sincerely or if he omited this confession by a secret impulse of a Superiour Power forcing him to confess the Truth we may rationally conclude that the same impulse would likewise have inforced him to confess the Truth in its fulness and simplicity homicidium indubio non dolose sed ad defensionem factum praesumitur sic qualitas adjecta habet pro se presumptionem Mascard deprobat l. 2. concluss 867. I do likewise think if the quality was not annexed to the first Deposition that it should not afterwards be received since
in criminalibus as is allowed by the Civil Law and Doctors seing with us they are excluded from being witnesses even in Civil cases ergo à fortiori they ought to be rejected in Criminal cases for albeit the Doctors allow them sometimes to prove in Civil cases yet they reject them in the same causes when they are Criminally pursued as in Furto c. Farin quest 56. num 31. and by an expresse Act 1. Agust 1661. The Justices ordained that no women should be examined as witnesses in Theft for the future except ex officio cum nota and that same day they receâ—ved Elisabeth Watson as witness in Theft against Bruntfield 2. Women are sometimes received witnesses in some cases ob atrocitatem criminis as in Treason by an expresse act of Sederunt 1591. And in Witch-craft most ordinarily as is to be seen by the Books of Adjurnal and particularly in the Process of Margaret Wallace the 20. of March 1662. where Margaret Grahame and Marion Wear are received witnesses 3. They are admitted in criminibus domesticis because of scantness of probation and thus they were received against George Swintoun who was accused for murdering his own wife within his own house 21. Agust 1664. 4. Women are received witnesses where women use only to be present as in the being brought to bed murdering of Children in partu supposititio c. very many instances whereof are to be seen in the Adjurnal Books And yet Farin quest 59. sayes mulier non potest esse testis quo ad suppositionem partus si inde agitur criminaliter ad suppositionem corporaliter puniendam And by these we may conclude that women are not regulariter admitted witnesses in Scotland Likeas by the 34. cap. Rob. 1. These are expresly excluded from witnesse bearing yet Matheus concludes they may be received witnesses ex hoc quod mulier adubterii condemnata non admittatur ergo in aliis mulieres admitti debent But this opinion is contrary to all the Doctors vid. Farin quest 59. casu 1. where he gives it for a rule that mulier in criminalibus testis esse nequit which rule extends so far that according to his judgement three or moe women cannot prove a crime num 29. The reason why women are excluded from witnessing must be either that they are subject to too much compassion and so ought not to be more received in Criminal cases then in any Civil cases or else the Law was unwilling to trouble them and thought it might learn them too much confidence and make them subject to too much familiarity with men and strangers if they were necessitated to vague up and down at all Courts upon all occasions V. Minors if they be past fourteen years of age and no otherwise may be admitted to be witnesses by the foresaid Act of K. Robert and it being alledged in the Proces of Margaret Wallace 1622. That Margaret Graham could not be received a witness because she was not past eighteen years of age this was repelled because a Testificat bore that she was past fourteen years of age and might be man'd The reason of this objection is because Minors understand not to answer all circumstances which must be necessarily considered by the Judge nor yet the nature of that Oath which should over-aw them and they are very subject in their youth to corruption a clear instance whereof I saw my self in a little boy against Towie who after he was received did first depon mâ—ny improbabilities and sâ—emed terrified with every question and thereafter confest that he was bribed with a very small and childish bribe In many cases likewise witnesses are to depon upon that which requâ—res judgement as in proving self-defence ratihabition c. And in these cases it is repuisit that the deponer be of a more advanced age then fourteen VI. By that Act likewise of K. Rob. such as are Furious Adulterers Robbers Thieves Perjured Scourged and Servants cannot be received witnesses not yet Laiks against Church-men nor yet Church-men against Laiks whereas according to the Cannon Law cap. de cetero decret de testib Laiks are forbidden to be received against Church-men sed non contra The reasons of which constitution are given to be partly the reverence due to Church-men and partly the hatred whereby Laiks do persecute them but this objection is justly reprobat by our custome by which likewise Servants are received to be witnesses notwithstanding of the former Law against it but not for their Masters but whether he who hath redeemed himself from Justice by a Remission should be received a witness may be contraverted and that he should not be received may be argued 1. Because of this Law of K. Rob. which doth expresly repel him 2. A Remission takes not away the guilt but is only a defence against the punishment l. Fin. C. de gener abolit And semel malus semper praesumitur malus which wicked disposition cannot be altered by a Remission and since the King cannot make a man good it follows that he cannot make him a sufficient witness 3. It hath been found by several Decisions that a person convict and brought off by a Remission redemptus à justitia as this Law calls him hath been therefore set from being a witness as in the case of Tossoch who was condemned as a false Nottar and was thereupon set from being a witness in the Proces for burning the House of Frendraught and yet I my self have objected this against an English Captain in Argiles case it was repelled But to reconcile these two opinions I think we should distinguish betwixt such as make use of the Remission before they be convict and these who are convict and thereafter make use of the Remission for those who propon upon the Remission do eo ipso acknowledge the guilt yet that it is only fictione juris And therefore the foresaid Law sayes copulative that convicti redempti à justitia non possunt esses testes Guiltiness which casts a man from being witness must be proved by a sentence and it was not found relevant that the Theft was offered instantly to be proved the 10. of February 1673. in Ashintillies case but it would appear that sometimes the Theft is so recently committed that there could be no time for convicting him and yet it were hard that a person so guilty should be received The dependence also of a criminal pursuit against a witnesse should cast him if it was intented before his citation to be a witness else every witness might be cast by intenting a criminal pursuit against him VII These within degrees defendant by blood or affinity are likewise repelled by the foresaid Act. Degrees defendant are by our Law the fourth degree or Cousen Germans as is expressed in the foresaid Chapter and this term comes in my opinion from the French word defendre to forbid so that degree defendu is the true expression though we say defendent by
instance of the Fisk. 2. If the objections be such as tend to cast the witnesses meerly because of his relation to the party wrong'd as that he is Servant or within degrees defendant to the party wrong'd then though the party wrong'd insist not yet these witnesses cannot be received if any advantage may accress to the party wrong'd by their deposition and except he declare that he shall thereby reap no advantage and except the crime be such as did no affront to the party injured for eo casu it is still presum'd that his relations will retain a privat grudge or malice whereupon they may prejudge in their depositions both the truth and the defender and yet ordinarly with us the relations of the persons injured are received at the instance of the Kings Advocat Thus Neilson was received against Margaret Wallace for Witchcraft though he was brother in law to Nicol who gave information in the dittay because the Summonds was not raised at his instance the 20. of March 1622. and yet in that same Process Stirling was not admitted to be an Assizer because he was brother in law to Muir who was one of these who was alledged to be malificiat by her albeit the Libel was not raised at the instance of Muir nor none of his relations which I think both irregular and dangerous Albeit these be relevant objections against witnesses yet if the proponer of the objection cite them also at his own instance eo ipso he acknowledge the witnesses to be habiles testes but sometimes he may notwithstanding propon objections even against those himself cites v. g. though I cite a man to be witness for me yet I may set him from being witness for my adversary because he is brother or servant IV. The objections contradicta testium are singularity and contrariety and the not giving a sufficient causa scientiae Singularity is when the witnesse who depons hath no concurring witness and this singularity is divided in obstativam adminiculativam diversificativam Singularitas obstativa is in acta non reiterabili an instance whereof they give in Susanna and the two Elders who deponed upon the same Adultery but differed in the place and therefore did not prove And it is a general rule that where the crime is not reiterable or reiterated that two witnesses varying upon the time or place as if one should say a man were murdered at Edimburgh and the other at Haddingtoun these depositions could not be conjoyned for proving the murder Singularitas adminiculativa is where the witnesses do not concur in their depositions yet they are not contrary and the one assists the other as in the proving that a Horse was stoln one should depon that he saw the Thief go in without a Horse another saw him take the Horse but no more which singularity in depositions doth not hinder the witnesses to prove neither by our practiques nor in the opinion of the Doctors Singularitas diversificativa is when witnesses depon different Acts as in a crime which is reiterable and thus the Adultery against Iohn Maxwel was found by the Lords to be sufficiently proved though one of the witnesses deponed only upon an Adultery committed at one time and another of an Adultery committed at another time February 1666. for the Lords thought that if one witness should peep in through a hole and see Adultery committed and thereafter another witness should peep in and see the Adultery likewise committed yet they were contestes and did prove sufficiently etiam ad paenam mortis infligendam as was found in the probation of Adultery led against George Swintoun but in my opinion this case differs from the former for in George Swintouns case both the witnesses concurred in one Act but they did not so in the case of Iohn Maxwel and therefore though the depositions were conjoyned against him by the Lords for sustaining a Decreet of Divorce yet it were hard that these different Probations could have been conjoyned if the case had been criminally pursued as is clear by Farin quest 64. de oposition contra exam testium num 55. XV. Witnesses who depon things that are contrary do not prove if that contrariety be in things that are substantial but though they differ in some extrinsick circumstances yet they prove verba sunt improprianda nut testes concordentur etiam concordari debent aliquando à judice per interpretationem supletivam but though contrariety be a great defect in depositions yet too formal an agreement amongst the witnesses who depon all in the very same words per praemeditatum sermonem is suspect v. g. If two or more witnesses should tell over a long story in the very same words as Farin well observes quest 64. num 24. XVI Lawyers have taken so great pains to secure the lives of poor Pannels that they will not believe witnesses though concurring except they can render a sufficient causa scientiae if the thing deponed fall under sense as the seing a man killed if it fall not under a sense absolutely as that a person was drunk mad or repute a thief c. Betwixt which two there is likewise this difference that in these things that fall not under sense the ratio scientiae must be given whether it be asked or not because in effect it is the ratio scientiae and not the deposition which proves in that case Witnesses must in our Law be received in presence of the Pannel and Assize that the Pannels presence may over-aw the deponer and that the Assize may judge by the deponers countenance gestures and assurance how far he should be believed and Advocats are to be present that they may interrogat upon emergents and this is much juster than the Laws of other Nations are who allow neither Advocat nor party to be present whilst the witnesses depons Gomes de delict cap. 1. num 65. And in this also we agree with the Civil Law l. Custodias ff de publ judiciis XVII Witnesses are sometimes received in criminalibus ad futuram rei memoriam for the defender but never for the accuser and that because the accuser may blame himself for not pursuing sooner which is not in the defenders power and testibus non testimoniis creditur whereas depositions ad futuram rei memoriam are only testimonia And yet with us the Justices sometimes declare in Court when they continue dyets that they will receive the depositions of witnesses to lie in retentis but this form is not allowable in my opinion except both parties consent because by Act of Parliament all probation should be led in presence of the Assize XVIII It was a defect in our Law that albeit it allowed the Pannel to object against witnesses yet it did not allow him to cite witnesses to prove his objections as for instance if the pursuer adduced a witnesse who was convict of Theft by a sentence at Aberdene this would be relevant but the Pannel could not
dangerous to challenge a Remission and I am informed that one of the learnedest Lawyers of his time was sent to the Castle for quarrelling the Kings power in granting a remission for fire-raising yet I find a Remission produced by Iohn Bell quarelled as null because 1. It was given for murdering Cristopher Irving and so is null by the foresaid Act. 2. The remission should contain the greatest crime and Slaughter is not so great a crime as murder Nor was the quality of fore-thought-fellony exprest 3. It was not subscribed by the Thesaurer The Justices delayed to give answer but I find not the person was punished 1643. As also Mackie being convict for falsit and having enacted himself never to return under pain of death thereafter he returned and being pursued for his life alledged upon a Remission To which it was answered that the remission was null because he returned before it was obtained and past the Seals nor was it yet past Upon which the dyet was continued the 23. of Febr. 1622. But it is observeable that the pursuit was here at the Advocats instance only who could not quarrel his Majesties remission upon no account IV. If the party doth willingly grant a discharge of all grudge or revenge in the crime of murder this discharge is called a letter of Slants and is called by the Doctors litera pacis and thus Plot. consil 78. sayes that gratiafacta parti nocenti à principe non valet nisi fiat reparatio damnorum interesse vel nisi pax sit prius habita ab haeredibus offensi This rule hath some exceptions both by the Common Law and by ours for by ours exception is made of remissions granted for pacifying the Highlands and Borders which are valid though the party laesed be not satisfied Act 174. P. 13. I. 6. Which is introduced in favours of the publick quiet and is founded upon the same reason from which acts of indemnity are granted without gratifying or repairing these who were ruined by the persons indemnified And for that reason also rex potest gratiari nocentem sine pace privati interesse habenti quando damnandus laborasset pro bono reipublicae fecisset illud per quod multorum salus causata esset l. non omnes § fin ff de re militari By thir Remissions the party is not restored to his good fame l. 3. C. de gen abolit indulgentia patres conscripti quos liberat notat nec infamiam criminis tollit sed paenae gratiam facit And though I think this should hold in such as are remitted after they are condemned because they are known to have diffamed themselves by contracting that Criminal guilt yet it should not hold in such as secure only their own innocence by a remission and redeem themselves rather from hazards then from guilt V. The Kings Majesty sometimes restores the person condemned by way of Justice per modum justitiae which he doth by rescinding the sentence that stands against him as injust and this is done either in Parliament if the person was condemned by them or by a review in the Justice Court if he was condemned there and in this case the party is restored not only to his Fame but likewise to all his Estate even though it was bestowed upon a third party as was afte much debate found by the Parliament 1661. in the case betwixt the Marquiss of Montrose and the Marquiss of Argile TITLE XXIX Of Prescription in Crimes 1. How crimes did prescrive by the Civil Law 2. Whether do crimes prescrive by our Law I. ACcording to the Civil Law crimes did prescrive in twenty years L. querela C. defals And Clarius doth assert that generally all the Doctors are of opinion that all criminal pursuits prescribe in that time but this prescription did not run in some atrocious crimes such as Sodomy Paricide Apostacy c. Wherein they erre for where the Law sayes that either semper paricidii accusatio permittitur as l. ult ff de leg Pompei ad paricid or that nullus temporibus arcetur apostotarum accusatio that must be interpret de prescriptione vigniti annorum which is in Law called longissum tempus but the crimes of Adultery and peculatus prescribe in five years II. It may be doubted with us if prescription has place at all and that it has not may be urged from these grounds 1. That prescription has no place with us except where it is warranted by a particular Statute and there is no Statute warranting prescription in criminals And if prescriptions founded upon the Civil Law had been sufficient in Scotland there needed not any particular Acts to have been made in civil cases but since our Law thought necessary to make Laws as to prescâ—iptionâ— in civil causes they had much more determined this poâ—nt by Law in criminal cases if they had thought it fit to extinguish crimes by prescription but on the contrair our Act of prescription in heritage 1617. hath excepted the crime of Falshood from prescription 2. There being jus quaesitum to the King by the committing of the crime both quoad vindictam et bonafisco applicanda that Right cannot be taken away from him but by a publick Law or His own privat Remission 3. It seems unreasonable that because a privat party will not inform being either affraid or negligent that the publick should therefore suffer 4. There is no instance in all our Practiques where prescription hath been sustained but one the contrair crimes of an old date even after fourty years have been punished 5. â—emel malus semper praesumitur esse malus in eodem genere malitiae and therefore it is unjust to suffer a person to live in the Common-wealth who will be both doing wrong himself and inciting others to do so by his example Yet for the other part it may be urg'd 1. That the only end of punishment is that the crime committed may be punished to preveen the errour of others but so it is that after a long time both the publick is presumed to have forgot that any such crime was committed and the parties injured or presumed to have forgot and remitted their privat revenge for satisfying whereof punishments are inflicted 2. After so long a time any probation that could be led against the Malefactor either fails or the witnesses after so long a time may have forgot the exact circumstances and it were very hard upon testimonies that have so unclear a causa scientiae as these witnesses can give to take away a mans life Likeas the witnesses and other probation will probably perish whereby the defender might have exculpat himself and mantained his innocenc so that the Fisk or any privat party may by their negligence or upon design prejudge the Pannel of his defences against the common rules of the Law whereby mens negligence can only wrong themselves and they have only themselves to blame that did not make use sooner of the remedy appointed by
discover their Complices and to confess the Crimes which others have denyed in a rage or confusion occasioned by the shortnesse of their respite With us a Sentence may be presently put to Execution and the Judge is confined by nothing but by his own discretion yet where pecuniary Mulcts are inflicted either the Pannel is returned to Prison till he pay his fine or the Act of Adjournal bears ordinarly that payment should be made within six dayes and though Barrons cannot poynd in Civil Cases upon lesse then fifteen dayes yet it was found that they might presently poynd sine ullisindiciis legalibus upon Criminal Sentences VII Sentences were execute of old amongst the Romans either by the Common Executioner or by Souldiers l. 7. C. de Cohort an instance whereof is clearly to be seen in Our Saviours Passion and these Souldiers were called optiones speculatores l. 6. ff de bon damnat And yet I rather think that the Souldiers were only Guards and never Executioners and were called Speculatores because they were appointed to oversee the Execution and to restrain Tumults Especially seing common Executioners were so infamous that they could not be advanced ever thereafter to any sacred orders C. clericum distinct 50. And I remember to have seen the Executioner of St. Iohnstoun repelled by the Lords of Session from being a witnesse That the Justice may force any of the Magistrats of a Town to supplie the place of an Executioner if they want one is I think without all warrand seing officium nemini debet esse damnosum And no man would be a Magistrat if that were allowed but I think that the Magistrats may be fined for negligence if they omit to appoint one and for the same reason I think that the Magistrat cannot force any mean person who leads an honest life to be an Executioner albeit Clar. § Fin. quest 99. num 4. And Gomes lib. 3. cap. ult num 5. do assert that the Judge may force any ex infima plebe to officiat in that employment and yet their opinion agrees with our custome The Executioner hath right to the Cloathes pannicularia of the person executed by our custome And per. l. D. Hadrianus ff de bon dam. But by the Civil Law the Bodies of the persons executed could not of old be buried without the permission of the Prince ff de cadav punitor which is antiquated per. l. obnoxius C. de relig sumpt fun And by our custome wherein the persons execute may be buried in all cases though the friends of the person condemned for Treason cannot assist on the Scaffold or wear mourning by our customes except the Council give expresse consent VIII If the defender be absent then upon an Act of Adjournal he is to be denounced rebel or outlawed as the English and our old Statutes call it and though if the punishment be capital or the fine be for His Majesties use the Clerk of the Justice Court can only write the Letters yet if the fine be to be payed to any privat person any Writer to the Signet may write the Letters and though the 126. Act 1. Parl. Ia. 6. appoints that all Criminal Letters should not be registrat as other Letters but returned to the Adjournal yet de praxi such Hornings are sometimes Registrat in the ordinary Register of Horning likeas albeit the Escheat of him who is denunced cannot fall upon a denounciation at the Mercat Crosse of Edinburgh though Caption may be raised upon such an Execution yet Criminal Letters may be execute at Edinburgh or any Mercat Crosse where the Justice Court did sit in which the Sentence was pronounced Act 140. Parl. 8. K. Ia. 6. upon production of the Regâ—strat Hoâ—ning Letters of intercommuning are granted upon a common Bill past by the Lords of Session by which all the Leidges are discharged to intercommune with the Rebel which must be execute at the Mercat Crosse of the respective Shires and Registrat there or in the general Register Upon the denunciation immediatly the single escheat fals and after remaining at the Horn for year and day the life-rent escheat falls which custom we have borrowed from Saxonie with most of our other forms for with them si reus fugitivus in primum sive simplex bannum sit declaratus nec intra annum diem se purgaverit sed annum diem prorogare passus sit in bannum superuis incidit vid. Carpz pract crim part 3. quest 140. num 80. From whom also we have our stile of declaring escheats Upon the registrat Horning Caption is raised and if the Messeâ—ger be deforced in the execution thereof then the Council grants commission of fire and sword which is But a Caption for inbringing the Malefactor who resists the ordinary course of Law And in my opinion Letters of fire and sword may be granted though the Malefactor hath not deforced if it be not our that the Malefactor be not to be reduced in the ordinar way for it is unreasonable to expose His Majesties Laws to contempt and His Officers to certain hazard as in the case where a person is denounced fugitive for deforcing Messengers or hath convocat loose men and lives in open rapine it were against sense that a new deforcement were necessar But thir commissions are never granted but in criminal cases and yet I remember that one was granted to Mackintosh against Lochiel after that Mackintosh had obtained Decreets of removeing and had raised Letters of ejection but the Sheriff had declared that he durst not eject for the Council thought ti not just to expose the Sheriff to certain hazard And yet the ordinar course is that the Sheriff should offer to eject and if he be deforced then the case becomes criminal and some think that the execution of deforcement is not sufficient in that case without a sentence ensuing on it and that the deforcers be registrat at the Horn thereupon But others think that as in civil cases Letters of second Caption are granted where the first Caption cannot take effect so in cases of extraordinar opposition to authority Letters of fire and sword are granted upon a meer execution that the ordinar course of Law cannot take effect IX It may be doubted what a Judge ought to do if after sentence the innocence of the person condemned should be convincingly cleared in which case the answer is that the Judge cannot rescind his own sentence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 56. Basil. de paen but he ought to acquaint the Council and they may interceed for his Remission l. 27. de paen l. 1. § ult ff de quest the Council may prorogat also the dyets appointed for execution but I think the Justices and much less inferiour Judges cannot prorogat dyets appointed for execution even by themselves since they are functi by the pronouncing of the doom though some ignorant Judges de facto prorogat executions and as they cannot even before sentence remit so neither can they prorogat for any long time for else prorogations may be lengthened so as to become Remissions upon the the matter The other side of the doubt viz. whether a person once absolved may be thereafter pursued for the same crime is more intricat but may be somewhat cleared by these positions 1. The same party cannot upon new probation much less upon the old probation accuse a person once assoilzied by an Assize though he may accuse the Assize who assoilzied him of wilful errour and that even though he should thereafter willingly confess the crime for which he was formerly accused though Farin quest 4. num 43. thinks that he may be again pursued and I should think that confession savoured too much of madness to be the foundation of a criminal sentence 2. Though the pursuit was at the instance of the party injured yet His Majesties Advocat cannot again pursue upon the pretence of res inter alias acta for that were to keep people in a constant suspense 3. If the pursuer did collude with the defender so that the defender was assoilzied by a white Assize in abstracting the necessary probation I think in that case his own fraud should not secure him Reg. Maj. lib. 4. cap. 28. si per calumniam procedat vid. cap. 2. de collus de teg but though the defender was assoilzied by collusion betwixt the defenders friends and the pursuer yet I think the defender cannot again be reconveened for the same crime since he was innocent though the collusion was advantagious to him X. By the death of the offender all punishment ceased except in Treason crimine repetundarum or missimployment of publick Money in ceteris vero criminibus ita demum pro delictis paena ab haerede incipere potest si vivo reo accusatio mota est l. ex judiciorum ff de accus so that by that Law if the pursuit was intented against the Father it might have continued against the Son to infer a pecunial Mulct but this last holds not with us amongst whom no Probation can be led in absence except in Treason but yet I think that a Civil pursuit may be sustained for damnage and interest and expences of a Criminâ—l pursuit even against the Malefactors Heir as was also decided by the Senat of Savoy Cod. Fab. tit de accusat def 15. FINIS
be because diverse exceptions were formerly propounded against the relevancy of the Summonds whereby parties were frustrat of justice and it appears by that Act that the pursuer was before the making of that Act oblieged to Libel that the defender was accessory to the committing and so guilty of the crime in swa far as c. and so was forced to condescend upon the manner of the accession which seemed unjust to the Parliament because as I conjecture the accuser could not know all the accession before the examination of the witnesses for it is not lawful to witnesses prodere testimonium to declare what they will depon and this made it impossible for the pursuer to condescend exactly whereas if he erred in exact Libelling the Pannel or defender was assoilzied because the probation did not quadrat with the Libel As for instance if a person was accused for accession to the murder of one in swa far as he gave direction to A. B. to kill him possibly the defender was guilty of accession though not by giving direction yet by counselling A. B. or by directing P. or any other to commit murder In these and the like cases the Pannel was guilty and yet could not be condemned because the Libel was not proved Yet upon the other hand it seems hard that such a general Libel as this should be relevant since it were as reasonable to Libel in general that a person is guilty of murder which generality would not be allowed Likeas the defender seems by this precluded of many defences which would be competent to him if the Libel were more special And by the practice of other Nations the Libel must condescend specially upon the manner and nature of the accession But that which seems to me most inconvenient is that the Assizers are Judges to the relevancy of the condescendency which infers art part Albeit many questions in jure are there started which are very intricat and which have troubled the greatest and most accurate Doctors for by our practique the pursuer who Libels art and part will not be oblieged to condescend how the defender is art and part or accessory to the Crime committed as was found in the pursuit at Sinclars instance against Captain Barclay But the Libel being relevant when art and part is Libelled the defender must go to the knowledge of an Inquest and probation is thereupon led in which many impertinent and irrelevant Interrogators are propounded whereas if the Justices were Judges to the relevancy no impertinent Interrogator would be allowed since nothing could be interrogated but what were found to depend necessarily upon the accession which was found relevant As also after the probation is closed the Advocats upon both sides are forced to debate the relevancy of the probation and how far the accession is relevant and here Laws decisions and Doctors are alledg'd to Assizers who understand neither As for instance if art and part of murder be Libelled probably the pursuer will interrogat if the witnesses heard the defender say that it were no fault though the person who is killed were stab'd or approve the murder after it was committed upon which much debate might arise for the defenders Procurators would contend that the Article was not relevant And though the Justices did allow or the Assizers did desire that the witnesses should answer to these Interrogators as they usually allow all Interrogators reserving the relevancy to be debated after probation is concluded then a learned debate would ensue before the Assizers after closing of the probation upon these points So that the Assizers are against the intention even of our Law Judges to the relevancy and to the points of Law by whose ignorance also the Liedges are oft-times much prejudged But when the pursuer designs to have the relevancy of his condescendency judged by the Justices he uses to Libel that the defenders are art and part of the Crime Libelled in so far as they gave order or advised the committing of it c. quo casu the relevancy of art and part being specially condescended upon is decided by the Justices who are Judges to all that is in the Libel Though it be sufficient to Libel generally that the complices are art and part yet the Libel must bear expresly who are complices for it is not sufficient to Libel who are complices generally but their names and designations must be specified K. Ia. 6. Parl. 6. Act 76. Because the Assizers are Judges to the relevancy of Art and part and that the debates made to the Assize are not upon record being only delivered viva voce therefore it is that there are but few decisions here adduced for clearing the relevancy of this part of the dittay To the end that all the Leidges who may be assizers may understand what accession is relevant to infer a guilt they will be pleased to understand that one may be art and part by deeds preceeding the crime either by counsel or command consilio aut mandato by deeds concomitating the Crime as by help or by countenancing ope assistentia or by deeds subsequent to the committing of the crime as by ratihabiting or recepting all which I shall treat separatly III. How far the advising and counselling a man to commit a crime is punishable as an accession and art and part of that crime is thus resolved by the Doctors if say they the committer of the crime would have committed it however and though he had not been advised thereto then the adviser is not liable so as to suffer the same punishment with the committer but it is to be less severely punished whereas if the committer of the crime would not have committed and perpetrate the crime if he had not received that advice then the adviser and committer are equally to be punished Clar. quest 89. But I am not satisfied with this opinion for since the adviser did all that in him lay to have the crime committed and that the effect followed he is surely as guilty as if he had committed it seing in crimes we look to the design and not to the event in maleficiis spectatur voluntas non exitus maleficia propositum distingut at least the adviser is equally guilty whether it had been committed with or without his advice even as he had been guilty in case of assistance though the crime would have been committed without his assistance nor is guilt spared by lessening And it is impossible to know whether the committer would have committed it without the advice and counsel given Other Doctors are of opinion that in atrocious crimes the adviser and committer are equally punishable which certainly holds in Treason but that in lesser crimes the adviser is to be lesse severely punished then the actor and this distinction I like better and is more consonant to our Practique In our Law advice and counsel comes under art for advice is a species of contrivance and art and