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
Statute in France anno 1560. but we have no such Statute and one colleague with us may be witnesse for another and why not then Judge A third reason of Advocation is that the Judge is suspect as if he had given partial counsel or if he has repelled a just defence or as being severe above what the Law allows 4. That he is incompetent the case pursued being only proper to be tryed by the Justices as being one of the four Pleys of the Crown viz. Treason Murder Fire-raising and Ravishing of Women but sometimes though the first Libel have inferred Treason as in the case of Peddies Ianuary 1667. yet if the pursuer will restrict his action to damnage and interest but will desert the dyet as to the criminal pursuit it may be sustain'd 5. That the case is very intricat as in a pursuit of Theft-boot which was Advocat from the Sheriff-deput of Invernesse eo ex capite Members of the Colledge of Justice also pretend that they cannot be pursued before any other Court because this would draw them from attending the Session but the Act 39. Pa. 6. Q. M. whereon this is founded seems only to hold in Removings so that no Action concerning Removings should be Advocat but in these cases viz. deadly fead where the Judge ordinary is party or the defender a member of the Session and yet de praxi that part of the Statute is extended to all Advocations But they cannot Advocat from the Justice Court If the cause be Advocated the pursuer of the first Libel which is Advocated must find caution de novo to insist in the pursuit else the Justices will desert the dyet which caution is necessary because the Judicature before which the caution was found is altered and neither the pursuer nor his cautioner are bound to insist before any other court The defender likewise of the first cause and who raised the Advocation is obliedged to renew his caution that he will underly the Law else the Justices will imprison him The taiser of the Advocation must intimat to the pursuer of the principal cause that he has raised an Advocation to the end that the said pursuer may be ready to insist at the day to which the advocation is raised and when the Procurator-fiskal is the pursuer before the Court from which the cause is Advocated the raiser of the Advocation should intimat to His Majesties Advocat to the end he may be ready to insist for His Majesties Advocat is in the justice-Justice-Court what the Procurator fiskal is in inferiour Courts The office of both being to pursue vindictam publicam V. The old custome was as some alledge that the Lords of Session judged all the Advocations which were raised in Criminal causes from inferiour Judges even to the Justice Court and very judicious Lawyers do yet hold that the Justices cannot judge whether they be competent Judges in causes Advocated from inferiour Criminal Courts but that the Lords of Session should cognosce whether the cause should be Advocat and if they sustain the reason of Advocation that they should remit the cause to be tryed by the Justices or remit the tryal to the Court from which it was Advocated if the reason of Advocation be not relevant for they think it unreasonable that the Justices should be Judges of their own competency but since the Justices are supream and soverain Judges as well as the Lords of Session and since the Justices are now many and are Lords of the Session also it seems reasonable that they should be Judges to their own competency especially since these reasons of Advocation do very frequently did upon Subtilties of the Criminal Law and cannot be well judged but by such as understand that Law exactly as for instance I have seen an Advocation raised of a Libel in the case of Treason from before a Lord of Regalities Court upon this reason viz. that the ground of the accusation was for drowning a Coal-heugh which was Treason in our Law to the which crime of Treason none but the Justices were Judges competent In which Advocation these points were necessarily debated 1. Whether Lords of Regality were Judges to Treason 2. Whether though they were Judges competent to Treason founded upon the common Law yet if they were Judges to Statutory Treason 3. Whether though burning a Coal-heugh was Treason by Statute yet if drowning of it fell under that Statute all which poâ—nts were indagationis criminalis and these who could judge such points might judge any criminal case Likeas both by the old and new stile of Advocations raised either by the Council or Criminal Court the Letters bear that the reasons are to be seen and considered by the Justices and immediatly upon the Advocation caution is found in the books of adjournal and to answer before the Justices and the Justices have been in constant possession of judging such reasons And whereas it may be alledged that though the Lords of Session are not Judges to crimes yet the case of competency in the matter of Jurisdiction is meerly Civil and so it would seem proper to be judged by the Lords especially since it is nor just that the Justices should be Judges in their own cause To which it may be answered that though this case be civil yet it has so necessary a contingency with what is criminal as I have observed that they ought not to be divided since the Lords of Session are judges competent to Advocations wherein their own â—urisdiction is controverted why should this be denyed to the Justices who are a part of themselves and such supream Judges are above suspition especially since they can gain nothing by their Jurisdiction TITLE XVIII Of Inquisition 1. The nature of Inquisition and when it is competent 2. The King and Party may pursue separatly 3. Citations super inquirendis when competent I. WHen a crime is committed the Council or the Justices did of old take a previous Inquisition of it by examining Witnesses and taking such other information as they thought fit And these depositions and exâ—minations are called informationes by the Doctors but though they may examine Witnesses before the intenting of a criminal pursuit yet after it is once intented the Justices found the 8. of Ianuary 1672. that they could not examine Witnesses for the Inquisition ends by the intenting of the pursuit ubi incipit accusatio desinit inquisitio The Doctors are very profuse on this subject but I shall only excerpt from them what is most suitable to our forms and practice they define Inquisition to be an information of the crime taken by the Judges own authority ex officio and they divide it in a general Inquisition which is taken of the crime in general without taking notice of any particular informer or defender And a special Inquisition which is taken against a particular person of whose guilt they are informed By the Civil Law no Judge could proceed against any privat
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
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
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
TITLE XV. The Jurisdiction of the Justices and of the several imployments of the Officers of that Court. 1. Who were Iudges to crimes in Greece and at Rome 2. The jurisdiction of the Iustice Court with us 3. The power of the Iustice-general and Iustice-deputs 4. The Office of Iustice-clerk 5. What Actions are peculiar to the Iustice-court 6. The Macers and Crowners of the Iustice-court I. ALL Nations have committed the cognition of crimes to the wisest of their Judges because our lives are our greatest concern and if the Judge erre there his errour can seldom be repair'd The Athenians had the Areopage for their Criminal Court which was the most famous Court then in the World of whom the Grecians us'd to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And they judged Homicide in a particular place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was very numerous and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 institute by Solon for judging crimes were likewise 50. At Rome Praefectus Urbis judged all the crimes that were committed within the Town intra centesimum lapidem and the Proconsuls and Presidents judged crimes in the Countrey But the praefectus praetorio praefectus augustalis Comes Orientis vicarius praefecti praetorio had also a criminal jurisdiction The Justice Court with us had for its Members the Justice-General the Justice-Clerk the Justice-Deputs the Clerk-Depute the Dempster the Officer and the Macers II. The Justice-General is constitute by a Gift under the great Seal either ad vitam or by a temporary Commission but still under the great Seal his Sallary of old was five Pounds for every day of the Justice Air leg Malcol cap. 2. num 3.1 but now it is arbitrary and the ordinary Sallary by his Gift is two hundreth Pound Sterling to be uplifted by himself out of the Fines of Courts and if he cannot attain to payment that way out of the Exchequer The Justice-Court of old was the only Soveraign Court of the Nation and had then a great part of that Jurisdiction which the Session hath now for they were Judges to Recognitions Brieves of Mortancestrie Dissasine Purpresture and districtions for debts Reg. Maj. lib. 1. cap 5. num 2. lib. 2. cap. 74. quon att cap. 52. 53. lib. 3. cap. 28. And after the constitution of the Session they remain'd still Judges to Perambulations and Brieves were directed in Latine for tryal thereof and the reason hereof seems to be because as the Civil Law observes ad armacurritur in sinibus regundis and the fittest person for compeseing such tumults was the Justice-general but now the Sheâ—â—ffs and Lords of Session cognosce such cases and I having caused raise an Advocation from the Sheriff of Tividale at the instance of some Iedburgh men to the Justice-general ex hoc capite the Lords would not sustain the Advocation but remitted the case back to the Sheriff whom they found also competent so that such Brievs may yet be directed to the Justice general though he have not a privative jurisdiction therein III. I find the Justice-general call'd the chief Justice in all the Registers Annis 1637. and 1638. and the principal Justiciar Anno 1503. The Justice-Deputs were not limitted to any definit number but usually they were two and have each a pension from His Majesty when they were constitute by a Gift from him which passes the Privy Seal only and these were still call'd His Majesties Justice-Deputs and are not Deputs to the Justice-general for else they could not sit in judgement with him as they do and in effect they have an equal power and voice with him but when he makes a Deput he should not sit with him nam delegatus non simul concurrit And I find Mr. Alexander Colvil call'd in his Gift General-justice-deput which is done to denotat the universality of the Jurisdiction and to distinguish them from Justices in that part such as are these Noble-men and others who have the power of Justiciary over their own Lands And in Binnies case the Lords having remitted him to be tryed by the Justice-general and his Deputs the Justice-deputs declar'd that they accepted only of the remit as meaning they were His Majesties Justice-deputs and when His Majesty directs any Letter to them he directs it to our trusty and well beloved Cozen and Councellour to our trusty and well beloved our Justice-general and Justice-deputs Of old I find there were eight Justice-deputs The Justice-deputs had formerly the priviledge of being Present at the Council which was very fit because many criminal cases comes in before them and they retain still the priviledge of being Present at Parliaments they were call'd attornati justiciarii quon attach c. 61. assis R. David c. nullus By the 1. Article of the Regulation 3. Session 2. Par. Ch. 2. the Office of Justice-deputs is supprest and five of the Lords of Session are adjoined to the Justice-general and Justice-clerk four of the number being a Quorum except at Justice Courts because then the Justices are divided and two may be a Quorum their present Habit is Scarlet adorned with white and this I find the Kings of old had vestem purpuream sed albi habens non nihil admixtam Perion de magistr Rom. pag. 574. IV. The Justice-Clerk has his place from His Majesty by a Gift under the great Seal with power to appoint Deputs for whom he shall be answerable and is call'd in his Gift clericus nostrae justiciariae but whether the Justice-clerk be a Judge or a Clerk only has been doubted and that he is a Judge appears not only from our inviolable present custome wherein he sits and presides when the Justice-general is not present and takes precedency from the other Justice-deputs but likewise by the 87. Act 11. Parl. I. 6. expences are ordained to be modified to the party cleansed by the â—ustice Justice-clerk and their Deputs sed ita est that modification of expences is a judicial sentence at least is actus jurisdictionis jurisdictio tantum explicaâ—i potest per judicem non peractuarium vel referendarium As to the reason of the name of justice-clerk it is received by Tradition that because clerici or Church-men of old could not sit in Criminal Courts seing the Law gives them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bloodless jurisdiction therefore they were allow'd to nominat a Clerk who might represent them who was therefore called non clericus justiciarii the Clerk of the Justice Court but justiciarius clericus yet this seems a groundless conjecture for in no Municipal Law could Church-men sit upon blood and therefore could not Deput qui facit per alium facit per se and what necessity was there for their having an interest in the criminal jurisdiction and to evidence that he was Clerk of the Court the Clerk who officiats hath his place by Deputation from him and is called Deput to my Lord Justice-clerk nor could he deput Clerks except he were principal Clerk
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
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
alledgeances proponed be the Pannel 〈◊〉 and their Procurators and writes produced for instructing thereof that the said matter should not passe to the knowledge of an Assize and answers made thereto be Our Soveraign Lords Advocat and writes produced be him for veryfying thereof The Iustice fand the dittay relevant and did put the samen to the knowledge of an Assize of persons following they are to say 〈◊〉 whilks persons of Assize being chosen sworn and admitted and the said 〈◊〉 being accused of the dittay of the crimes above-writen which were verrified be their own depositions and confession in Iudgement they removed alâ—ogether furth of Court to the Assize house where they be plurality of vots elected and chosed the said C. reasoned and voted upon the points of the said dittay and being ripely and at length advised therewith togither with the depositions 〈◊〉 and other writes produced be His Majesties Advocat for the verification thereof entered again in Court where they all with one vot be the report of the said Chancellour fand pronunced and declared the said D. to be filed culpable and convict of the crimes respective above-writen contained in their said dittay for the whilks cause the Iustice be the mouth of 〈◊〉 dempster of Court decern'd ordain'd and adjudg'd the said 〈◊〉 to be taken to the Castle-hill of Edimburgh or Mercat Crosse and there to be hanged till he be dead and his hail moveable goods to be escheat to His Majesti's use or their heads to be stricken from their bodies and the said 〈◊〉 to be taken to the Mercat Crosse of Edimburgh and there his Tongue to be pierced with an hot botkin and thereafter banisht this Realm not to be found thereintil under the pain of death Or to be scourged and all their moveable-goods to be escheat which was pronunced for doom extracted Act of Conviction THe whilk day 〈◊〉 entered upon Pannel dilated accused and pursued be 〈◊〉 be vertue of Crimes purchast be him against them of Art and Part of demembring of 〈◊〉 of the midle finger of his left hand nearest his little finger committed the 〈◊〉 day of 〈◊〉 upon the Street of 〈◊〉 which was put to the knowledge of an Assize of the persons following they are to say 〈◊〉 whilks-persons of Assize being chosen sworn and admitted after accusation of the A. of the crimes foresaid removed altogither furth of Court to the Assize house where they be plurality of vots elected and choosed the said in Chancellour reasoned and votted upon the points of the said dittay above-specified and being advised re-entered again in Court where they all in voice be the mouth of the said Chancellour fand pronunced and declared the said 〈◊〉 to be filed culpable and convict of Art and Part of demembring the said 〈◊〉 of his midle finger nearest his little finger of his left hand committed the time foresaid whereupon the said 〈◊〉 asked Instruments Extractum c. Doom for Demembring THe whilk day c. being entered on Pannel to hear doom pronunced against them as they that were convict be an Assize in a Court of Iusticiar holden within the Tolbooth of Edimburgh the 〈◊〉 day of 〈◊〉 instant for Art and Part of he demembration of 〈◊〉 ut supra the Iustices be mouth of 〈◊〉 dempster decerned and ordained the said 〈◊〉 to content and pay to 〈◊〉 the sum of three hundred Merks in full satisfaction and assithment of the demembration of him of the said finger and to find caution for payment of the said sum to the said 〈◊〉 upon condition that the said 〈◊〉 should deliver to the said 〈◊〉 sufficient Letters of slaynes for demembring him of his little finger who fand 〈◊〉 with themselves conjunctly and severally soverty and cautioner fore-payed of the said three hundred Merks to the said 〈◊〉 in full satisfaction and assithment of demembering him of his midle finger he grant and and giving a sufficient Letter of slaynes as said is and al 's decern'd all the saids 〈◊〉 their moveable goods and geir to be escheat and in-brought to Our Soveraign Lords use as being convict of the said crime whilk was pronunced for doom and ordains Letters of Horning upon a simple charge of ten dayes and poynding to be direct hereupon Dempster our countrey-man hist. eclest pag. 235. relates this solemnity which is now in desuetude lapidem tollit magistratus signatumque quaerenti tradit ille adversarium testes citat si quid ambiguum majoris momenti ad 12. quos claves appellant refertur atque ita sine scriptis aut impensis lites dirimi sunt solitae II. By the former stiles it will appear that the debate is not insert in the Criminal Sentence as it is in Civil Process with us but it contains oft-times the whole Summonds which Decreets for Civil Causes do not These Criminal Sentences likewise express still the manner of the Probation which is the because of the Decreet as we speak in civil causes and this the Doctors confess to be the custome in other Kingdoms inferitur enim causa in sententia ut quod talis accusatus est de tali malificio quod constat per tefles vel per ejus confessionem quod illud maleficium commisit ideo condemnatus est c. Clar. 93. num 21. After the Sentence is pronunced by the Judge it is writen by the Clerk who reads to the dempster the manner of punishment and it is by him repeated and the manner of punishment is called the doom because it is pronunced by the dempster who adds after he has pronunced the punâ—shment and this I give for Doom And I find that by the custome of Italy the Clerk reads the Sentence and the Judges adds ita absolvo vel ita condemno Clar. ibid. III. Albeit the Sentence bear a punishment less then what the Statute irrogats eo casu the Sentence is not by our Law null but the Fisk hath by vertue of the convâ—ction contain'd in the Sentence â—ight to put in execution or to exact what the Law appoints though the Sentence doth not And thus Iohn Wauch in Selkirk being found guilty of theft by the Sheriff of that Shire he was ordained to pay two thousand Merks or to go to Barbodoes in obedience to which Decreet he payed the two thousand Merks Notwithstanding whereof the Exchequer gifted his liferent-escheat to Mr. Andrew Hedderweik who puâ—sued a declarature in which the Lords found that Wauch being once found guilty of Theft there was jus quesitum Regi which the Sheriff could not prejudge by any Sentence no more then he could remit the punishment altogether for in so far as he did mitigat the punishment in so far he remitted it To which it was answered that Theft was arbitrarly punished by our custome sometimes by death sometimes by fyning according to the several degrees of the guilt which was punishable and custome had in this prorogat the power of inferiour Judges 2. If the Sheriff had done wrong he
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
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
bona non tamen de delicto habetur pro confesso Divi fratres rescripserunt l. 1. ne quis absens puniatur hoc jure utimur ne absens damnetur And that no probation can be received against absents in Treason is clear by Matheus hoc tit and albeit per extrav constitutionem Hen. 7. It is ordained that probation may be received in absence yet this is repute no part of the Civil Law and is followed by no Nation and by that extravagant constitution this priviledge is allowed to all species of Treason which we find to be unjust And albeit Treason may be in some cases punished after death yet it cannot be from that inferred that it may be punished in absence since after death the malice of unjust pursuers ordinarily ceases and the hazard of Death is then over so that the event of the pursuit is not so terrible nor dangerous And in these Processes the nearest of Kin are called who may propound against both relevancy and probation whatever was competent to the Defunct Whereas when a person is pursued in absence for Treason no man can in our Law be admitted to propound any thing in his defence And albeit it seem unreasonable that a person guilty of Treason should be in a better condition by his contumacy then if he compeared To this it may be answered that this would prove too much for this absurdity may be as well press'd in absents for all other Crimes and against such as are absents in all the several inditements of Treason and yet the Justices are never allow'd even by the late Act to proceed to sentence against any but such as are pursued for rising in Arms against the King But the true answer to this seeming absurdity is that the Law is not so inhumane as to punish equally presum'd and real guilt what may be a Crime as what is found one And it hath been oft found that men have been absent rather out of fear of a prevailing Faction or corrupt Witnesses or by inadvertence or not being truly cited or by being violently detained then out of a consciousness of guilt yet since so judicious a person proposed this overture and since Council Session and Parliament have fortified it by their Authority I submit my judgment to their determinations XXIV It is ordinary for his Majesty to command or forbid by privat warrands under all highest pains or as you shall be answerable to us And the certification here being indefinit it may be doubted what the punishment may be in case of contravention And 1. It would appear that the contraveeners cannot be punish'd as guilty of Treason for only Laws can make Traitors in this Kingdom 2. It seems that this being a contempt of the chief and Supreme Magistrat it may be punish'd arbitrarily if the command be lawful and in case of importance since even inferiour Judges may punish such as contemn or disobey them in what is necessary for their jurisdiction Likeas Lawyers are of opinion that in obediens praecepto superioris sub paena indignationis est arbitrarie puniendus Cabal casu 30. Bald. in l. legis virtus ff de legib Menoch cas 365. But in that case they determine that the arbitrary punishment cannot extend to death And though some Doctors are of opinion that commissions are to be punish'd in this case more severely then omissions yet I conceive some omissions may infer greater contempt and be more dangerous then commissions Nor allow I the distinction used by Lucas de penna ad l. 1. C. ut dignit ord servet who sayes that if the contempt be of dangerous consequence as if one being commanded to take care of a Castle or to stop the passage of an enemy that then the contempt is to be severely punish'd by death but if the contempt be of things indifferent or mean then the contempt is only punishable arbitrarily And yet he is too severe in making it to be punishable by death except the person commanded were a Souldier or one who were obliged by acceptation of his Office to obey under that peril And therefore I would rather distinguish betwixt such commands as use to be punish'd by death if contemn'd such as Military commands and in these the contempt may be punish'd by death for Custom comes in place of Law sibi imputet who hath undertaken such an employment as requires such obedience But if the King should command any Country Gentle-man or Lawyer to fortifie or keep a Castle under all highest pains it is probable that their omission could not be punish'd by death and is only punishable by losing of the Princes favour quod Princeps non exhibebit se gratiosum which Bartol makes the punishment of that disobedience in all cases ad extrav qui sunt rebelles XXV The punishment of Laese Majestie was death l. 5. C. h. t. animae omissio as Iustinian calls it in his Institutions together with the Confiscation of all his Estate that lyes within the Territories of him against whom the Treason is committed but is not extended to his Estate lying else-where C. 2. de constil in 6. So that if a man commit Treason against the King of Britain his Estate in France does not forfeit With us the punishment of Treason is death and Confiscation likewise of all the Traitors Estate whether Heretable or Moveable Feudal or Allodial And the solemnity used in Parliament at the pronouncing of such sentences are that the Pannel receives his sentence kneeling and that after the Doom of the forefaulter is pronounced against him the Lyon and his Brethren Heraulds come in in their formalities and tear his Coat of Arms at the Throne and thereafter hang up his Escurchion revers'd upon the Cross Which had its rise from the old Roman customs for as Tacit observes lib. 5. deterrere omnes à simili culpa volebant non poenae modo sed ignominiae mâ—tu ut nomen è fastis deleretur effigies tolleretur Which is likewise clear l. 24. ff de poenis And that this is the custom of Flanders is clear by Perez h. t. moribus nostris insignia gentilia delentur destruuntur But this I think should only hold in the Crime of Perduellion but not in other Treasons Perez ibid. num 19. Another speciality introduced in the punishment of Perduellion by the common Law was that memoria damnabatur and that his Children were declared uncapable to bruik any Estate or Office which the Emperours Arcadius and Honorius l. 5. c. ad l. Iul. Maj. calls a mitigation of the punishment due to Children who as they say should have died for their Fathers Crime But this is so unjust that no Nation doth now use it as Matheus observes p. 352. And it is expresly against l. Crimen ff de poenis and the Scripture Deut. Chap. 24. Vers. 16. And the opinion of Plato lib. 9. de legibus And therefore Amazias 2 King 14.5 6. would not kill such
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
By the 219. Act Par. 14. Ia. 6. If either the pursuer or defender in civil pursuits kill one another during the dependence eo casu the killer being put to the Horn either for not compearance at the Dyet or for not finding Caution he loses his Life-rent Escheat immediatly upon the Denounciation XXI Murder is one of the four Plea's of the Crown Malcol 2. c. 11. and therefore the cognition thereof belongs to the Justices and Commissions cannot be granted for tryal thereof Act 74. Ia. 6. Par. 11. albeit it be now most ordinar to grant such Commissions and yet this Act being alleadged against one of those Commissioners before the Council they did recall the same but if the Murderer be taken red hand he may be judged by a Barron having power of Pit and Gallows by a Sheriff or any other Judge ordinar betwixt which there is likewise this difference that Murder is Bailable Ia. 3. Par. 6. c. 42. But Slaughter taken red hand is not Bailable but the committer thereof should be judged within that Sun Ia. 1. Par. 6. c. 89.95 And if the Barron or Sheriff proceed not within that time the Cognition belongs only to the Justices for they are Judges to Murder upon citation XXII By several old Acts I find that the Sheriff when a Murder is committed may raise the Kings Horn id est the hue and cry hoesium as the Latine translation calls it upon the Murder and follow him out of his Sheriffdom and send Letters to the next and he to a third and so till he be taken and that when he is taken Justice should be done upon him within fourty dayes and that he should be sent from Sheriff to Sheriff to the place where the Crime was committed which is now absolet for if he be not taken red hand the Sheriff cannot proceed against him albeit it would appear that he may if he be taken within fourty dayes Ia. 1. Par. 6. c. 89. which I find no where abrogated nor any thing to the contrair except only Hops assertion in his lesser Practiques and that may be interpret also of Cognitions after the fourty dayes are expired By the 50. Act of the 6. Par. Ia. 1. It is Statuted that Sheriffs in the former case may proclaim the Murderer fugitive and forbid all the Lieges to receipt him under the pain of losing Life and Goods but this power is also absolet And the receipting Murderers seems not any accession except other presumptions be adduced as if the Murder was committed upon the receipters account in which case receipting may be arbitrarlily punisht but of this I find no formal Decision only the Registers mention that Thomas Brice being accused for receipting his own Son who had Murdered Fairhop it was alledged that the receipting his own Son could be no Crime nam proximitas sanguinis tollit praesumptionem criminis hoc casu Clar. quest 110. num 54. l. 2. ff de recept And receipt could only be interpret to be a Crime In our Law after the committers are Denounced and Letters of intercommuning obtained against them which Defence was thought so relevant that the Justices demur'd upon it but this received no Decision XXIII When a man is killed by fore-thought fellony the King can by our Law grant no Remission for the Murder Ia. 4. Par. 6. cap. 63. and Ia. 6. cap. 13. cap. 169. But yet Remissions are daily granted for such Murderers and are admitted in the Justice Court notwithstanding of this objection as in the Earl of Caithnes case in anno 1668. And it is alledged that these Acts are by the Stile but temporary Acts. But all such Remissions are null except the offender offer to Assith the Party which Assithment is modified by the Council and the Party cannot propon upon his Remission till he find present Caution to satisfie what shall be modified within fourty dayes or else he must during these fourty dayes go to Prison and if payment be not made within fourty dayes his Remission is null Ia. 2. Par. 14. cap. 75. Assassinii crimen or to kill a man by Assassination is to Murder a man for Money and this Species was introduced first by the Canon Law cap. 1. de homicid cap. 6. and had its name from the Assassini who were a Tribe of the Phoenicians and who fain'd themselves to be Christians being truly Mahumetans that they might kill Christians and therefore and because the foresaid Canon speaks only of Christians it is still concluded that only such as kill Christians are to be repute Assassinats and the killer of a Jew was found no Assassinate Cavall h. t. num 475. And yet Matheus thinks that all killing for Money is Assassination for this Crime being founded upon Nature to kill a Jew is as far against Nature as to kill a Christian And it is a greater scandal upon our Religion to kill a Jew because it reproaches us amongst Infidels The Specialities introduced in this Crime are that the endeavour to kill for Money is a Crime though death follow not and that Assassination may be proved by presumptions and that they cannot enjoy the benefite of a Sanctuary or Girth Cabal num 501.515.526 And though the foresaid Canon run only against such as undertake to kill for Money yet the Conducers or such as intreat them to kill are also Assassinats Gomez 3. resol 3. num 10. Math. pag. 521. But these are not in observance with us except as to the Priviledge of a Sanctuary from which all such as committed Murder under Trust or per insidias which that Act calls Assassinium only are expresly excluded Act 35. part 5. I. 3. TITLE XII Of Duels 1. The several kinds of Duels allowed of old by other Nations 2. What Duels were allowed of old in Scotland 3. How the giving and receiving challenges is punishable though no Combat follow 4. The way of Libelling used in this case 5. Whether Duels for reparation of honour be lawful where no other reparation can be had 6. What must be proved in this Crime 7. Whether he be not punishable who kills in a rancounter only or he who tells the provooker that he is going to such a place 8. The punishment of Duels and who are accompted art and part DUels are but illustrious and honourable Murders And therefore I have subjoyned this Title to the Title of Homicide This is that imperious Crime which triumphs over both publick revenge and privat vertue and tramples proudly upon both the Law of the Nation and the life of our enemy Courage thinks Law here to be but pedantrie and honour perswades men that obedience here is cowardliness I. We find no such Crime as this among the Romans because that wise Nation employed their lives against their enemies and not against their fellow-Citizens And the true tryal of courage among them was fighting against the enemies of Rome Duels are either Judicial or Extrajudicial Judicial Duels were these which were allowed by
2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But if they went with arms they were punished with death as the Scolia of the Basilicks observe It may be usefully observed that those who drive away Herdships cum gladio with arms are punished by death because they are rather Robbers then Thieves 2. These who drive away great Cattle are more to be punished then these who drive away the lesser l. 1. ff de abige 3. These are to be most severely punished who live in a countrey where that crime is most frequent and therefore our Highlanders are most severely punished 4. These that drive away cattle from the fields are more to be punished then these who drive out of the houses because Cattle in the fields have no guard but the Law XI The stealing likewise of a thing consecrated to God aggrages so the Theft as to make it punishable by death and this was called Sacriledge by the Civil and Cannon Laws and was distinguished into several degrees as 1. If a thing Sacred was stoln out of a sacred place 2. If a thing sacred was stoln out of any place 3. If a thing not Sacred was stoln out of a Sacred place But thir two last are not properly Sacriledge With us there are no formal Consecrations used of Churches Vestments Cupps c. and so we have no such formal crime as Sacriledge nor have we any act against it Yet I think to steal any thing destinat to Gods service and even to steal any thing out of a Church deserves to be punished with death And this Theft is aggraged with us not only from the nature of the thing stoln but more from the place and thus also Murder or mutilation committed within the Church or Church-yaird is more severely punished then other Murders and with us these who steal out of Churches are still hanged or who steal what is dedicated to or serves the Church as Basons c. XII The next aggravation of Theft is from the person who commits it and thus Theft when committed by landed men is punished with us as Treason Act. 50. p. 11. I. 6. the words are that if it shall happen any landed man to be lawfully and orderly convict of common Theft recept of theft or Stouthreif he shall incur the crime and the pain of Treason The reason inductive of this act was because it was easier for landed men to commit theft then for any others and so it should be more severely punished and these also wanted all pretext of necessity or rusticity and must be presumed to be extreamly mean and malicious persons whom the Common-wealth might well want and whom they should not suffer but it may be here doubted who are these who are by this act to be accompted landed men And it would appear 1. That only such as have themselves or their Predecessors been Infest are only such for nulla sasina nulla terra and so a disposition or charter or a resignation in favorem makes not a thief to fall under the compasse of this Act. Yet some think an Heir served and retoured doth fall within this signification though he be not Infest because his lying out is his own fault and so should not defend him 2. I think that a person who was once a Barron if he be thereafter denuded falls not under it for albeit semel baro is semper baro in our Law Yet that maxime holds only presumptive and if it be proved that he was actually denuded that will liberat him from vitious intromission much more a crime that deserves forfaulter and statutory crimes are not to be extended By ordinary theft in this act is meant theft without any aggravation of violence herships c. by stouthreif is meant violent and masterful theft And as this kind of theft hath the disadvantage of being treason so it is just that it should participat of all the advantages which are allowed to those who are pursued as traitors quem sequuntur incommoda eum debent sequi commoda and therefore no inferiour Judge is Judge competent to a process founded upon this species of theft as was found in Iuly 1668. where a process intented against a landed man before the Sheriff of Wigtown was Advocat to the Justices upon this reason albeit it was alledged that this act being conceived in odium and for repressing of theft it was unreasonable that it should not be quarrellable before every Judge for thereby many would be deterred from pursuits against landed men And albeit the punishment was in this theft greater then in others yet the relevancy and probation was no more intricat here then in other cases 2. It was alledged that the pursuer restricted his Libel to ordinary theft which the Justices found he could not do because the relevance and probation would be eadem utrobique and albeit the pairty would restrict as said is yet the Kings Advocat might at any time thereafter found a Process of forefaulter and needed no more probation as in the case of Iohn Wauch though the Sheriff of Selkirk had only fyned the thief yet the Lords sustained a declarator of escheat upon that same verdict whereby the thief was found by them guilty of theft for the Lords thought that privat parties could by no declaration nor deed of theirs prejudge His Majestie 's interest so that from this ground it may be debared that when a landed man is pursued for theft the pursuer cannot restrict his pursuite to a pursuite of common theft As also that the pursuer failzieing to prove in this case commits Treason because he who pursues any man for treason if he be found calumnious commits treason It may be doubted also if the Council can mitigat the punishment here seing they cannot remit Treason Yet in thir Statutory Treasons the Council ordinarily mitigats or converts the punishment Nor see I any reason why it may not be alledged that theft in landed men is not made treason by this Act but is only declared punishable as treason and Theft that is not to be judged as treason though it should be punished as such for these two are differrent XIII This crime of Theft becomes sometimes atrocious and so should be punishable by death because of the irreclaimablenesse of the offender and triple theft is capital in inferiour Courts though the things stoln be very inconsiderable because this shews a habit or double these if the thing stoln be of great moment And by the first Statute Da 2. § 4. A thief banished being taken again in these Territories from which he was banished may be proceeded against with all severity and the breaking of pink Dove coats c. is punishable by death at the third rime Act. 84. I. 6. P. 6. The way likewise whereby the Theft is committed makes it oft deserve to be capital as the stealing by false keys or breaking houses and inchantments and if it be committed masterfully as we use to speak which is called
word may comprehend negligence is to be put from his office for three years if he be an Heritable Officer and if he be not Heritable he loses his office Which distinction I find also observed by Bald. ad l. manicipia ff de serv. fugit where he says that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo and Farin Q. 3. n. 423. is of opinion that majores officiales non removetur sed minores facile removeri possunt TITLE XXVI Deforcement 1. To whom was the execution of Law committed by the Romans and to whom by our Law 2. What is Dâ—forcement and what are the several degrees thereof 3. The Messenger must have his Blason and give an execution of Deforcement 4. Whether may a Messenger be deforced who wants his Caption or transgresses his power 5. What witnesses can prove a Deforcement or if the Messengers execution can prove it 6. These who deforce may be pursued Civilly for the debt LAws are only the idea or picture of Justice but execution is its life and though those who have the execution of Laws and Sentences committed to them be ranked but amongst the lowest servants of Justice yet they have the happinesse to be these who compleat that great work and amongst whose hands it becomes perfect and therefore the Laws having committed its most excellent part to them it should be and is in a most eminent way careful of them and in providing for their safty it secures its own honour I. The execution of sentences was committed amongst the Romans to the apparitors mention'd of the Codex in three several Titles and these were erected in a Colledge which was stiled collegium or familia apparitorum as our Heraulds are in a fraternity by the 125. Act. Parliament 12. K. I. 6. The Italian Doctors call them now Beroarii so that these who would know what the doctors hold in cases of deforcement must look to the Indexes at these words According to the Roman Law it was a species of laesae-majestie to resist the execution of sentences l quisquis ad l. Iub majest l. Iulianus ff de officio ejus cui mandata est jurisdictio and Guid. Pap. quest 557. observes that from these Laws does rise the practique of France qua puniuntur capitaliter verberantes apparitores in exe cutione officii nam qui mandata principum exaequuntur videntur vivae principium imagines ac adeo graviter puniri debent ac injuriantes Statuas principum With us the execution of sentences is committed to Heraulds Pursevants Messengers Macers and the execution of sentences of inferiour Courts to the respective officers of these Courts and the resisting beating or wounding of these in the execution of their office is in our Law that Crime which we call Deforcement Leg. Burgal cap. 135. II. Deforcement then is defined to be that Crime which is committed in opposing Macers Messengers or any others who use to execute sentences whilst they are executing their office And upon that accompt so that if either the Officer was not in execution of his office or if the Officer be beat upon any other accompt as if a scuffle should arise occasioned unjustly by himself this would not infer a deforcement as shall be said hereafter Though this crime be amongst the most attrocious because the King and Soveraign power is in their person despised and therefore this crime is called Dispectus Regis stat Williel cap. 4. verse 5. And Justice is after much pains taken by the Judges and expences layed out by the Parties disappointed yet it is only punished by confiscation of moveables and an arbitrary imprisonment and the one half of the Moveables so escheated falls to the King and the other half to the Party at whose instance the Letters were execute I. 6. P. 12. cap. 150. The words whereof are If an Officer of Armes or Sheriffs in that part or other person whatsoever be deforced molested invaded or pursued to the effusion of their blood by any person or persons whom they shall Summond or others of his causing and command the time he is executing of any Summonds Letters or Precept direct by His Highnesse or other Judges that he shall loss c. From which Act it is to be observed 1. That Deforcement is committed by troubling of any Officer belonging to any Court 2. That those words to effusion of their blood seem to be a quality put in a sentence by it self and so may be thought to relate to all the former words molested invaded or pursued yet the words of the Act are only wrong pointed and these words or pursued to the effusion of their blood should all be put in one sentence for de practica simple opposing or molesting the Messenger though without blood will infer a Deforcement 2. Though by the Act it would seem only these against whom Letters and Charges are raised or such as they hound out can be guilty of Deforcement yet if any others do deforce a Messenger though they be neither the parties interested themselves or hounded out by them yet they are likewise guilty of Deforcement As is clear by the 4. cap. stat Williell vers 1. And by the 84. Act 11. Parliament K. I. 6. And seeing the crime lies in the opposition to the Messenger whoever is guilty of that act commits this Crime 3. Though this act make only causing or commanding a crime yet certainly if any person interested does ratihabit the Deforcement committed by any other person by either giving him good deed or by receiving his Letters or Blason taken from him he is eo ipso guilty of Deforcement As the Council found in the case of the Earl of Seafort against the Lord Mackdonald anno 1669. upon full debate In which 〈…〉 lords in the Highlands should be lyable for deforcement committed upon the grounds if they did not deliver up the offenders 4. Though the execution be disappointed and stopped yet is declared by the Parliament to be as sufficient as perfected and it were unjust that the party having done all that in him say that the disappointment eo casu should be prejudicial to him 5. Seing the punishment of this act is only confiscation of Moveables and imprisonment whereas by the Act 84.11 Parl. K. I. 6. The lives and goods of the offenders were to be in the Kings will It may be doubted whether the Judge may punish by either of the Acts seing the last does not expresly abrogat the first or whether both should stand in vigour and force Concerning which question the general Lawyers have very many learned debates but the most solid and approven conclusions are that when a crime is punished by several pains in several Laws or Acts which Acts do not derogat one from another expresly that it is in the election of the Judge to punish the delinquent by either of the pains l. quoties ff de actionibus obligationibus But
the offer having before their examination come to light IX The third kind of falshood is committed by falsifying money falsum nummartum which is accounted so great a Crime that it is commonly excepted out of Remissions as may be seen in Crightouns Remission March 15. 1661. This Crime is committed 1. By forging true money without Authority 2. By Coyning false money and impressing Copper Lead or any base Mettal with the stamp of the Prince or of other currant money 2. By mixing and allying worset with nobler mettals in currant Coyns 4. By venting and passing or out-putting as our Law terms it the adulterat money coyned by others or intertaining the Forgers or being art and part redde or of the Council with the Coyners By the Civil Law qui probos nummos cudunt sed non in officina publica tenentur lege Cornelia nummaria l. 12. C. de falsa monet qui adulterinos cudunt qui veros adulterant radunt fingunt l. qui cunque l. seque ff hoc tit qui nammos probos lavant constant aut vultu principum signatos reprobant l. 1. C. de vet numis pot By our Law every Burgh should have a clipping-house which was a house for trying money for the tryal was by clipping and sworn men who should clip evil money who are to have a penny for ilk pound that is clipped and the haver was to tyne the false-money I. 6. p. 1. c. 19. and the clipped money if it be evil stuff or false coyn should be returned to the owners I. 4. P. 4. Act 4. They who falsifies money or counterfeits the Kings Irons are to be justified id est punished according to the old Law Act 124. P. 7. I. 5. By which Act though it be added according to the old Law yet we have no Law de falso nummario prior to this except Act 40. P. 5. I. 3. which punisheth only the home-bringers of black money with death By the Act 70. P. 9. Q. M. the home-bringers of false coyns or lay-money should be dilated and the dilater is to have the half of all his goods moveable and immoveable for his revealing And it seems by that Act that it is made treason for confiscation of Lands or moveable Goods is only in the case of treason and I find no other Act that can be the foundation of Drummonds conviction as a traitor Et de practica this Crime hath been diversly punish'd Reid was hang'd for forging false money with the Kings Irons Iuly 13. 1602. Drummond burnt for forging false money Novemb. 27. 1601. And his Brother Patrick Drummond buâ—nt also for art and part red counsel and concealing the treasonable forging coyning and out-putting for venting is still a Crime and is designed out-putting in our stiles of false money Meinzies also was hang'd for art and part as said is Iune 30. 1603. Thomson was hang'd and forefault for bringing home and out-putting false money Ianuary 19. 1603. X. The fourth species of Falshood is false weights and measures adulterinae staterae which are punish'd per l. Corneliam l. annonam ff de extraord crim falsae measurae which are punish'd per relegationem ibid. With us the using false measures or weights of old was punish'd by a Fine leg Burg. cap. 52. And the Bailies of the Burghs were declared Judges competent thereto for the first three faults but the fouâ—th was declared to be only punishable by the Justices because the committers life was to be in the Kings will cap. 74. ibid. But now such as use false measures or weights deceiving the people are to be indicted as falsars Act 47. P. 4. I. 4. By which Act havers cannot be punish'd except they use since the Act ordains users to be punish'd and mentions only such as deceive the people which is not done without using And by the 2. Act Parl. 19. Ia. 6. the users of false weights and measures are to tyne their hail goods and geir which punishments derogats not from the former Act inflicting the punishment of falsit as hath been debated more fully in the Title of Deforcement De practica I find that Brown was fyn'd for false measures by the Councils warrand in 100. merks pen. Iuly 1629. And that Porteus was found guilty though using was not proved since having of false weights in the Shop presumes using except this presumption be taken off as by alledging that the weâ—ghts were presently bought or borrowed or laid aside as light May 1671. By the foresaid last Act the Sheriffs Lords of Regalities and Stewarts are declared Judges competent to this Crime but their Commission there is only tempory for a year and therefore it may be concluded that these are not otherwayes Judges competent to this Crime else this Commission had been unnecessary The using also a longer Ell or Yard is also punishable though it would appear that here the Merchant himself is only prejudged for he may receive as well as give out by it nor doth the Law presume that a man would keep any measure to his own disadvantage I find also that there was a Merchant in Elgin puâ—sued before the Justices Iuly ult 1672. for false weights in swaâ— far as he going to a Mercat dragg'd his Tobacco after the Boat in the salt water which made it weigh more then otherwise it would have done and so the people were cheated But the dyet was deserted and though the defender alledg'd that this was done for keeping the Tobacco from drying too much and mouldering into pieces yet the Magistrats of Elgin had fyned him formerly for the same fault in 20. pound Scots even for the ill example paena falsi arbitraria tenetur qui in sua mercatura addit inutile ut pulverem arenam c. aut species aridas detinet in loco humido Carp pag. 375. XI Falshood is also committed by assuming a false name vid. Stellionatum and by presenting one person for another at the subscribing of Papers suppositio salsae personae which is punished tanquam partum sui positum by the Civil Law I find one David Donaldson hang'd for this imposture having made use of a false person who design'd himself to be the person who should by the agreement have subscribed the Assignation Decemb. 12. 1611. The svpposing a false birth that is to say the laying in one child for another is punishable as a false deed with the punishment of falshood since thereby men are cheated out of their Estates l. ad Corn. de fals the words whereof being periculum capitis subeat is found to extend to death Boer decis 82. And the Mid-wife who brought in such a false Child is punâ—shed by death Pegner decis 80. But I find that Farin relates that periculum capitis was in this case extended no further then scourging But yet since this was a great cheat and doth steal away an Estate from the righteous Heir and adulterats the off-spring it ought to be panish'd as severely
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
by the Lords of Secret Council to have the sole criminal Jurisdiction and did repledge servant to Sir Thomas Nâ—colson the Kings Advocat arraigned before the Magistrats of Edinburgh for a Slaughter and Assoilzied him upon production of a Remission And upon the 5. of September 1672. Gilbert Earle of Errol did repledge Iames Iohnstoun Violer arraigned before the Magistrats of Edinburgh as Sheriffs within themselves for stabbing of his Wife the day before Easter the Magistrats had taken his judicial confession and summonded the Assize there was no formal repledgiation because the Magistrats passed from him upon the Constables application and upon the 6. of that Moneth of September the Constables Deputs sentenced him to be hang'd and to have his right hand which gave the stroak cut off and affixed upon Lieth wind Port and ordained the Magistrats of Edinburgh to cause put the sentence to execution upon the 9. of that Moneth Likeas the Coach-man of a Noble-man having about the same time wounded a Child the Constable commanded the Towns Guards to apprehend the Delinquent which they accordingly did till he was freed by a Remission II. Out of this high Magistracy of Constable sayes Lambert an English Lawyer were drawn those inferiour Constables of hundreds which Office we borrowed from them and they are with us subservient to the Justices of Peace and are to be chosen by them two out of every Paroch and as many in Towns as may be proportional to the greatnesse thereof and they have power to apprehend all suspicious idle or guilty persons and may require the neighbours to assist them and if the guilty persons flee they may require the master of the house to make open doors all which with many other particulars are entrusted to them by the 38. Act. 1. Par. Ch. the 2. III. His Majesties Predecessors used of old to build Castles in the considerable Towns of the Kingdom and for preserving the Peace both in that Town and in the adjacent Countrey and the Governours of those Castles were called Constables though they were more properly Castellains or Chastellains as the English Lawyers observe these had the power of riding the Fairs and having had the Keys of the Tolbooth delivered to them they exercised a criminal jurisdiction during those Fairs but it was found that this jurisdiction did not extend to Fairs that were granted posterior to the Office of Constabulary nor to the customes thereof as was found the 18. of Iuly 1676. betwixt the Earl of Kinghorn and the Town of Forfar but these Offices depend absolutely upon prescription use or custome which either extinguisheth or limits them most variously but because those Constables use to extort customes at those Fairs it is therefore appointed by the 60. and 61. Acts 13. Parl. Ia. 2. that the Constable shall not exact any such customes except his Festment bear him thereto and that old use and custome shall not be sufficient Which Acts are ratified by the 33 Act 5. Parl. Ia. 3. But if the Infestment in the general bear cum feudis devoriis c. Possession by vertue of that general Right will be found sufficient though the particular Casualities be not exprest in the Infestment as was found in the former case betwixt the Earle of Kinghorn and the Town of Forfar This Officer was amongst the Athenians call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE V. The Jurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. THe Chamberlain was an office to whom belonged the judging of all Crimes committed within Burgh and he was in effect Justice-general over the Burrows and was to hold Chamberlain-Aus every year for that effect the form whereof is set down in Reg. Maj. in a Book intituled the Chamberlain-Air Iter Camerarii he was a Supream Judge nor could his Decreets be questioned by any Inferiour Judicatory Iter. Cam. cap. 35. and his sentences were to be put to execution by Bailiffs of Burghs ibid. cap. 37. he made the prices of all Victual within Burgh cap. 33. and of these who wrought in the Mint-house Statute Da. 2. cap. 38. He is called Camerarius à Camera id est testudine sive fornice quia custodit pecunias quae in Camer is praecipue reservantur This office belonged heretably to the Duke of Lennox but its priviledges are by his absence run in desuetude Magistrats of Burghs as such have no Jurisdiction but what is competent by their Charter of erection wherein ordinarily they have power of Pit and Gallows but sometimes they are Justices within themselves as Edinburgh who have right also to all escheats of their own Burgesses or other Criminals judged by them for crimes committed within their own Burgh Sometimes they are Sheriffs within themselves and ordinarily they are Justices of peace within their own Jurisdiction The King may erect a Burgh Royal within the bounds of another Jurisdiction as of a Regality but in that case though the Lord of Regality consent to the erection yet it will not prejudge the Bailie of Regality whose Right of Bailiery was constitute prior to the erection of the Casualities that were formerly due to him albeit it was alledged that the Lord of Regality might disolve and dismember that part from the Regality without the Bailies consent and so it not being in the Regality it could not be subject to the Bailiery the 27. of February 1666. Lord Colvil contra the Town of Culross TITLE VI. The Jurisdiction of His Majesties Privy Council in Criminals 1. In what consists the Iurisdiction of the Council their President and number 2. Their procedur in punishing Ryots 3. Whether a power to eject be a sufficient defence against a Ryot 4. The punishment of Riots 5. Precognitions fully considered 6. The Council name Assessors to the Iustices and sometimes review their Sentences 7. They grant Letters of Intercommuning and Commissions for Fire and Sword 8. They sometimes ordain Houses to be delivered under pain of Treason I. THe Affairs of this as of all other Nations are either such as concern the policy of the Kingdom in general or such as respect the distributing of Justice betwixt privat parties the policy or government of the Kingdom is regulated by His Majesties Privy Council in which the Chancelor is President if he be present but in his absence the President of the Council precedes This Office of Precedent of the Council is a distinct imployment and it gives him the precedency from all the Nobility The number of this Judicator is not definit depending upon His Majesties Commission but all the Officers of State are Members of it ratione officii it has its own Signet and its Letters past by a Bill subscribed by any one of the Council upon which warrand the Letters are in their several forms extended and subscribed by the Clerk of the Council and they bear also to be ex deliberatione Dominorum Secreti Consilii they must be execute at least upon six free dayes and a
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
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
of Regality is no more Judge competent to these then he is to Treason I was once consulted whether a Lord of Regality might place a Gallows upon any part of his Vassals Land lying within his Regality and at first it seem'd that he might for unaquaeque gleba servit and what was lawful in some part was where there is no restriction lawful in any part but if there was a former place fix'd upon by custome I think the Lord of Regality could not alter the same 2. If there were any apparent design of affronting the Vassal I believe he could not use this priviledge as if he did offer to place the Gallows at his Vassals Gate or at his Garden-door or any such places for where the Law sayes that quilibet potest uti jure suo it adds modo hoc non faciat principaliter in aemulationem alterius 3. Even in other places there is some moderamon decorum to be observed and I doubt not but upon application to the Council they would appoint some persons to choose an indifferent place for even in these servitudes ubi unaquequae gleba servit hoc accipiendum est â—iviliter sayes the Law non judaice for if a man should grant me a servitude of a way to my house through any part of his ground yet I could not compel him to throw down his Garden walls or to suffer me to go thorrow his Corns if there were or might be another passage found though it were not so near TITLE XII The Jurisdiction of Sheriffs in Criminals 1. The origine of this office and how it is conveyed in Scotland 2. He is the chief preserver of the peace and so many convocat the Liedges apprehend sayers of Masse false Coyners c. 3. He is not Iudge to the four Pleys of the Crown 4. The way of procedure before the Sheriffs 5. Whether he may judge where no privat party complains 6. He should attend the Iustice Aires 7. How he is to be punished if he transgress in his office ALluredus in the League made with Guntherus King of Denmark divided England in Satrapias centurias decurias and called Satrapiam a Shire that is to say a Section or division of Land from the word Shire which signifies to cut so that a Sherifdom is a Jurisdiction within the bounds of a particular limited Countrey It is called in our Latine stile vice comitatus and though most of the Shires in Scotland be erected in Sherifdomes by particular Acts of Parliament yet by an unprinted Act in Anno 1504. It is declared that His Majesty may erect unite or divide Sherifdoms without consent of Parliament And though his Majesty erect a Burgh-royal or Barrony within the Sherifdome yet they still continue to be under the Jurisdiction of the Sheriff and they have a cumulative Jurisdiction with him but not privative of him Sheriffs in Scotland are either during life and then the office passes by a signatour and passes the great Seal or otherwise it is conferred as an heretable right quo casu though it be transmitted in the same way and manner with other heretable rights yet because it is merum jus incorporeum it requires no seasing but albeit all these heretable offices were upon good reasons discharged by the 44 Act 11. Parl. K. I. 6. seing industria personae respicitur in judice And albeit K. I. 6. and King Charles the first did design to buy in all the heretable Sherifships and bought in many yet there are many of them to this day injoyed by Noble-men and others II. The Sheriffs of Scotland have a Civil and Criminal Jurisdiction but the last of these is that which we are only to consider as peculiar to this Treatise The Sheriff is in effect the supreme Justice of peace to whom is mainly entrusted by the Law the securing of the quiet and tranquility of that part of the Kingdom which is subject to his Jurisdiction and therefore though no other person be allowed to ride with gatherings of the Liedges yet the Sheriffs is nor can he be pursued for a convocation upon that account seing he may convocat at his pleasure for repressing of tumults and upon many other accounts as was found in February 1664 betwixt the Earl of Seaforth and the Laird of Ballingown for it doth belong to his office to discharge all convocations of the Liedges and if they refuse he should continue his Court and advertise the King K. Ia. 3. Parl. 14. Act. 104. Albeit in civilibus neither the Sheriff nor Barrons can hold Courts in feriat or close time of vacance Yet in Criminals he may hold Courts during the time of vacance quia periculum est in mora as is observed by Haddingtoun the 19. Ianuary 1623. And Sheriffs has not power to exact caution from a Malefactor to underly the Law for he cannot proceed except either the defender be cited or deprehensus inflagranti crimine 25. Mart. 1628. The Sheriff is Judge competent to the crime of Witch-craft Quen Mary her 9. Parl. Act. 37. albeit de praxi none used to judge Witch-craft but the Justices or such as have a particular commission from the Council They should apprehend the sayers and hearers of Masse Act 5. Pa. 1. K. I. 6. And the strikers of false Coyn I. 3. Pa. 3. cap. 18. but they are not allowed by the Law expresly to proceed in either of these cases from which it may be argued that they are not Judges competent thereto for else the Law had expresly allowed them the same inclusio unius est exclusio alterius They should apprehend punish and banish Sorners I. 2. P. 6. cap. 22. Egyptians I. 6. P. 12. cap. 124. Idle-men Ia. 1. P. 3. cap. 66. Shooters with fire-works Q. Mary Par. 4. cap. 9. Fore-stallers I. 5. P. 4. cap. 20. Transporters of Neat and Sheep and other Cattel Ia. 6. Par. 7. cap. 124. Ia. 6 Par. 12. cap. 129. The destroyers of Planting K. I. 6. P. 6. cap. 84. III. Sheriffs may at any time condemn for Blood-weits but the penalty cannot exceed fifty Pounds The Sheriff nor no other inferiour Judge can Judge the four Pleys of the Crown viz. open Robbery Fire raising and ravishing of Women and Murder Yet of old Sheriffs might sit upon Slaughter if the committers were attactht within fourty days thereafter cap. 59. quon attach And Act 89. Par. 6. I. 1. And if he be taken red hand he should be execute by the Sheriff within that Sun ibid. And yet by the 28 Act Parl. 3. K. I. 4. Three Suns are allowed conform to the old Laws and if the committer of the Slaughter flee the Sheriff shall acquaint the next Sheriff and so from one Judge to another until the committer be apprehended and when he is taken he is to be sent back to that Sheriff where the crime was committed where justice is to be done upon him and if he be found guilty of Fore-thought Fellony he shall dye
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
albeit those courses and Repledgiations be equivalent to Advocations III. Advocations may be rais'd from inferiour criminal Judges by the Lords of Session as in the case of Theft-boot before the Sheriff of Inverness and Advocat by the Lords because of the intricacy of the case albeit it was alledged there that the Lords were not Judges competent in such Advocations because they could not be Judges to the crimes pursued To which it was answered that though they could not be judges themselves yet they might remit the pursuit to these who were competent even as Brieves raised for serving a person Air may be Advocat to the Lords who may remit the case to another Inquest But Durhie observes the 9. of Ianuary 1629. that Kincaid of Waristoun craving that the Process against him for slaughter might be Advocat by the Lords to the Justices because of the ignorance of the Barron Bailie or else that they would grant Assessors the Lords continued the Diet till application should be made to the Council but if the Council would not interpose then they should do justice therein by remitting the same to the Justices or otherwise But Advocations in criminal cases are ordinarly raised by the Privy Council who have the most natural power in such cases Advocations are raised upon Bills and the Letters pass the Signet of the Session if the Bills be past by the Lords of Session or of the Council if the Bill be past by the Lords of Council This Advocation must be execute by a Messenger and a full Copy must be given of the Letters as in other Summonds for in effect an Advocation is a Summonds and the Diets in Advocations are peremptor as in all other criminal pursuits Neither is the Advocation given up to see as in other criminal pursuits at the day of compearance and therefore a full Coppy should be given to the end the defender may be ready to answer The pursuer of the Action must be cited and the Judge from whom the Action is to be Advocat must be also cited to the effect he may defend his own jurisdiction and if both these be not cited the Advocation will not be sustain'd When the day of compearance comes if the Advocation be raised before the Session it is called before the Session and if the reasons of Advocation be found relevant the cause is remitted to the Justices but if that Advocation be raised before the Council it is called before the Justices and they are Judges to the relevancy of the reasons and both pursuer and defender must prove all that they alledge instantly The Advocation of a criminal pursuit doth contain the reasons upon which it is founded as in civil Advocations but though in civilibus the raiser of the Advocation will be allowed to add a reason though it be not libelled which is called an eiked reason yet that is not allowed in criminalibus because all must be proved instanter and the defender is not able to prove his answer instantly if he know not what is the reason which he must answer whereas in civilibus he will get a term to prove his answer to the eiked reason IV. The ordinary reasons of Advocation are 1. Consanguinity or Affinâ—ty within degrees defendant viz. cousins german or nearer for whatever is a sufficient reason to cast a Witnesse should in my opinion much more be sufficient to decline a Judge since there may be penury of Witnesses so that the Witness challenged may be necessary whereas if a Judge be suspect he may be supplied by another Deput or a superiour Judge and a Judge may by himself ruine a Cause which one Witnesse cannot do and though we have no expâ—esse Law for this yet the Lords encline ordinarly to sustain this and particularly in the Moneth of Decem. 1676. Ross contra Collodine where a Decreet was turned in a Libel because pronounced by a Nephew albeit it was there alledged that by the 212. Act 14. Parl. I. 6. a Brother Father and Son were only to be declined as Juâ—ges for that Statute relates only to the Lords of Session who because of their great Eminency and Trust are not to be as easily suspected as inferiour Judges It may be doubted whether the Justices or any of them may be declined as within degrees defendant for though they must now be Senators of the Colledge of justice yet they sit not there as such nor are the Justice-general or Justice-clerk alwayes of that number but yet I think that since the Justice Court is a supream Judicatory in its own kind and that this respect that is put upon them is because of their Eminency and presum'd integrity that therefore they being the same persons ought to have the same priviledges and the Justice-general and Justice-clerks being superior in order to the Lords of Session who are Justiciars ought at least to have as great trust but though the Admiral be a supream Judge also yet it may be doubted if this Statute should be extended to him because men of meaner parts may officiat there It may be also doubted whether this declinator against fathers brothers and sons should extend to the degrees of affinity as well as those of consanguinity so that a father or brother in Law may be declined and though the Lords lately would not decline one of their number though brother in Law to the pursuer yet it may be argued that albeit Acts of Parliament must be strictly interpreted yet where there is a parity of reason and the words may in propriety admit of the extension there the extention is to be allowed but so it is that here a brother in Law is to be suspected and a brother in Law is in propriety of speech a brother Likeas since witnesses may be cast upon the suspition of affinity why may not Judges especially seing in the Statute 1621. against dispositions made by Bankrupts and in the opinion of Lawyers degrees of affinity and consanguinity are still equiparat and so wise are we in this point that a pursuite at the instance of a Procurator-fiskal was Advocat upon this Statute because the Procurator-fiskal was brother to the Judge though he was only pursuing ratione officii and had no interest himself and expresly renounced all interest in the pursuite 28. Ianuary 1629. Whether this statute is to be extended to unlawful relations so that a Bastards brother c. may be declined vide my observations upon the Statute 1621. Another reason of Advocation like to this is that one of the members of the Court is pursuer as for instance the pursuite is at the instance of one of two Sheriff deputs before his own colleague habet quippe Societas jus quoddam fraternitatis in se l. verum ff praesocio vid. c. insinuante de offic deleg cap. Postr de appel and that none should judge where the colleagues pursue but that the pursuit should be carryed away to another Judicature is appointed by a
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
but though a person be at the horn for a civil cause it appears most unreasonable that because a person is not able to pay a great Sum for which he is denounced that he shall not therefore be admitted do defend his own innocence against a crime laid to his charge It seems likewise reasonable that some distinction should be made betwixt a pursuer and a defender in this case for it seems unreasonable that he who accuses another for a crime should debar him from self-defence though the debarring him from pursuit be not so unfavourable and upon this accompt in a case betwixt Ninian Spence and Hector Bannatine the Justices found that the pursuer in a Criminal pursuite could not by horning debar à defendendo the person whom he himself had called It may be likewise alledged that though the Kings Advocat may debar a Pannel from his defences when he is at the horn that no privat party can seing they are not prejudged by the Rebellion as the Fisk is but this last distinction is rather reasonable then legal and therefore I mention it rather as a good overture then a standing Law VI. Infamous persons cannot accuse according to our Law and what persons are accompted infamous is particularly enumerat in the foresaid 11. cap. Stat. Willielm 1. Infames dicimus omnes illas personas esse qui pro aliqua culpa damnantur notabili 2. Et omnes qui christianae legis normam abiiciunt ecclesiastica statuta contemnunt omnes sures sacrilegio 3. Omnes capitalibus criminibus irretitos Sepulchrorum violatores Apostolorum Successorumque eorum Reliquorum Sanctorum Patrum libenter violantes Statuta 4. Et omnes qui adversus Patres armantur qui in omni mundi parte infamia notantur 5. Similiter incestuosos perjuros homicidas receptatores malefactorum adulteros raptores maleficos de bellis publicis fugientes eâ— qui injusta vel indigna sibi petunt loca teneri aut sacrae ecclesiae auferunt facultates qui accusant non probant et qui contra innocentes principum animos ad iracundiam provocant omnes qui pro suis sceleribus ab ecclesia expelluntur 6. Et omnes quos ecclesiasticae seculares leges infames pronunciant Item servos ante legitimam libertatem abeuntes publice paenitentes bigamos omnes qui non sunt integro corpore qui sanam mentem non habent vel intellectum qui furiosi manifestantur 7. Hi omnes supra dicti nec ad sacros ordines promoveri debent nec ad accusationem vel Testimonium admitâ—i VII A person accused was not oblidged to answer of old but for one crime in one day except there were several pursuers quoniam attachiamenta cap. 65. by which accumulation of crimes was expresly unlawful sed hodie aliter obtinet for now there is nothing more ordinar nor to see five or six crimes in one Summonds or Inditement and to see one accuser pursue several Summonds and yet seing crimes are of so great consequence to the defender and are of so great intricacy it appears most unreasonable that a defender should be burdened with more then one defence at once and it appears that accumulation of crimes is intented either to laese the same of the defender or to distract him from his defence VIII To the end that persons may not be unjustly pursued the Civil Law did appoint two remedies 1. That the pursuer should find Caution to insist 2. That he should be pursued as a calumniator if his pursuit was found to be malicious As to the first the form amongst the Romans was that the accuser was oblidged de ferre nomen rei apud praetorem atque se inscribebat libello judici porrecto vel incodice publico quaerela deposita cui inscriptioni subscribebat ad talionis paenam se obligabat in casum calumniae Inscriptionis formula à pparet l. 3. ff de accus Consulibus illis die illo apud praetorem illum Titius professus est se Meviam legem julia de adult ream deferre quod dicat eam cum seio in civitate illa domo illius mense illo consulibus illis adulterium Commisisse Which inscription was only necessar in attrocious but not in lighter crimes nam illa de plano discutiebantur l. levia ff de accus but in some cases the necessity of inscription was remitted even in attrocious crimes as when a Woman suorum injuriam prosequitur parentes filii necem è contra And generally where the pursuer could not be pursued for calumny he needed not in scribere because inscriptions were onlâ—â—â—â—essar to the end the pursuer might be punished if he were found guilty of Calumny Nor were these inscriptions necessar in reconventions ante categoriis because in these the pursuer intended not to calumniat but only to defend himself by recriminating the pursuit The inscriber was according to the Civil Law oblidged to find Caution se perseveraturum in accusatione usque ad sententiam l. 7. ff de accus the reason whereof is by one of the Greek Scoliasts said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne facile quis ad accusationem per currat Suitable to this our Law has ordained that the pursuer when he raises a criminal Libel shall find Caution to insist in the intended pursuit and this Caution is found either by the Cautioner enacting himself in the Journel Books which Act is to be subscribed by him or else if the Cautioner be absent he sends a Bond bearing a clause of Registration in the Journal Books which is accordingly therein Registrat this Caution was first appointed by the 34. Act Parl. 4. Ia. 5. by which the Justice-clerk is oblidged to take sicker surety that the pursuer shall bring back the criminal Letters indorsed and execute but the Cautioner is not oblidged with us as he is by the Civil Law that the pursuer shall insist and the penalty appointed by that Act is an Earl or Lord two thousand Merks a great Barron one thousand Merks a Fermer five hundred Merks an unlanded Gentle-man two hundred Merks a Yeoman two hundred Merks But of old accusers behoved to find Caution to insist Reg. Maj. cap. 1. l. num 6. and if he cannot find a Cautioner it is said there that his Oath may be taken in all cases of fellony and the reason given is lest too much severity in exacting of Caution deterr the prosecution of a publick crime and it may be doubted if Cautio juratoria cannot properly come in under the notion of sicker security and there can be little hâ—zard to the Common-wealth seing the Law presumes that His Majesties Advocat will be still so just as to pursue the publick revenge where the party is unable Whereas by admitting this cautio juratoria ansa praebetur perjurio and the defender is disappointed of his damnage and interest if the party fail By the 29. cap. Stat. Rob. 3. pursuers before
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
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
was lyable ex sindi catu and might be punisht for exceeding his power but the party was free by his Sentence and if the Sheriff had absolved him though injustly he could not have been pursuâ—d again so much more should the Sentence of the Sheriff absolve from a greater punishment then that which the Law appoints nam qui potest majus potest minus IV. Some Lawyers declare all Criminal Sentences pronunced in the night time to be null but others declare that custome hath allowed them and though some allow inferiour Judges to proceed in the night time but not Supream Judges Alber. ad l. non minorem C. de transact And some allow delegat Judges to pronunce their Sentences in the night but not ordinary Judges becausâ— the dyets of an ordinary Judge are fixt by the custome of his Predecessors whereas a delegâ—t Judge is tyed to no time nor place except he be tyed to it by his Commission Castren ad D. l. minorem num 4. Yet I would rather choose to define that albeit regularly a Judge ought to proceed in open day to sentence criminals yet he may pronunce Sentences lawfully in the night time in these cases 1. If the case require hast as in mutinies and conspiracies falls oft out 2. If the crime be so abominable that the Prince or Judge is unwilling that the people should know that there was such a crime committed as was done twice by the Justices in the reign of King Iames the 6. by his own special recommendation and then all the Process Sentences and Executions was at midnight 3. If there be just ground to suspect that force will be used for rescuing the Pannel 4. Some add that if the Judge be so busy that he cannot proceed in the day time he may proceed in the night time but this seems hard vid. Cab. res crimin cas 218. V. Though a formal tryal by a Process and Assize be the regular form of tryals yet in cases of lesser consequences the Justices and other crimâ—nal Judges punish Malefactors in lesser Crimes sine strepitu forma judicii sumarly by ordaining them to be scourged or banisht instances whereof are given in the Titles of Murder and Witchcraft and the Justices allowed this custome in the procedure of the Magistrates of Edinburgh which as it is conform to reason so is warranted per. l. 2. § 51. publico ff de adulter l. 2. C. de abol l. levia ff de accusat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And though Durhie observes that the Lords found that Sheriffs and other inferiour Judges could not fine in Bloodwites for above ten Pounds without an Inquest yet now Sheriffs fine and imprison for all Bloodwites and lesser delicts upon probation led before themselves without an Inquest VI. Within what time a Criminal Sentence should be put to Execution is not generally determined and the learned Matheus has shewed much reading in this point yet I might begg leave to use some liberty being now so near the end of this Treatise to shew what may be added to his learned Observations from which I have hitherto abstained because my designe was rather to inform others then to raise in them any esteem for me By l. 5. C. de custod reor It is ordained that convictos velox paena subducat But l. 20. C. de paenis it is said nollumus statim eos aut subire paenam aut excipere sententiam sed per triginta dies super statu eorum sors fortuna suspensa sit In reconciling which Laws Cujac thinks that generally the punishment should be presently inflicted and that thirty dayes are only to be allowed where the Prince himself has imposed a severe sentence which seems to be allowed by that learned Greek Scoliast Thalalaeus si princeps statucrit paenam in aliquens non statim punitur sed dierum triginta dilatio datur forte enim princeps interim paenam revocabit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And though l. 19. Basil. de custod reor cum fuerit convâ—ctus non statim paenam pendere sed rursus conjici in custodiam iterumque eductum audiri nam haec dilatio iram judicum moderatiorem reddit Yet by the word Convictus there is not meant the last Sentence but the being so convict that he may be put in Irons which was not allowed till the prisoner be thought guilty was by the Judge as Thalalaeus excellently observes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be likewise observed that the former l. 5. doth not ordain that the Sentence shall be presently put to execution but that prisoners shall be presently tryed for the words are de his quos tenet carcer inclusos sancimus ut aut convictos velox paena subducat aut liberandos custodia diuturna non maceret And therefore that Law proceeds to ordain the names of the Delinquents to be given up to the Juâ—ge within thirty dayes And the Basilicks translate this Law thus ne diu is qui comprehensus est mancat in custodia opportet enim eum cito absolvi vel puniri The reason of allowing thir thirty dayes was because Theodosius having executed many Inhabitants of Thessalonica whilst he was in passion and for raising of a slight tumult he was so sensible of this frailty that at St. Ambroses desire he did endeavour to bridle that rage in succeeding Princes which he did then so abominat in himself Euseb. Eccles. hist. lib. 11. cap. 18. And yet I find that this same Law indulging thirty dayes has been much older as appears by Quintilian declamatione de falso caedis damnato the words are mihi videtur ideo constituta esse lex quae damnatum post tricesimum diem puniri voluit quia modo videbat legumlator possi fieri ut deciperetur accusator modo ut calumniaretur And though it may be urged that a present Execution is convenient because that prevents the prisoners escape by tumult or killing himself and that the more speedy the Execution be the Justice is the more remarkable and can be the less interrupted by appeals and intercessions Yet certainly a Christian Magistrat should allow sometime to the Malefactor for setting his Soul and House in order lest he else by his precipitancy destroy the Soul with the Body and punish the innocent Posterity with the guilty Pannel who gets not this time to settle his affairs and it hath been oft found that persons thus too hastily Execute have been thereafter found innocent great examples whereof are set down by Valer. Max. lib. 9. de temeritate And Seneca de jra lib. 1. It is likewise the interest of the Prince that he may have time to interpose and for this cause Tiberius being offended at the Senats too speedy Executing Caius Lutorius ordered that no man should be Execute within ten dayes after the Sentence Dion in Tiber. lib. 57. vid. Sidon Epist. 7. lib. 1. By this delay likewise the persons convict have oft-times been induced to