cap. 24. Levit. all cited by Johannes Suarez de mendosa ad l. Aquil. C. 2. in apparatu N. 6 where he says plane haec de talione lex non solum bono sed aequo convenit quia in poenae aequalitate versatur sed nulla esse reperitur quae magis secundum naturam sit nitebatur enim naturali hac ratione quae aequiss ma omnibus visa est nimirum quod inse patiatur quisque quod fecerit alteri And again N. 8. Igitur cum haec lex naturali ratione suffulta sit Inde est quod omnes Gentes eâdem lege regebantur ab omnibus peraeque custodiebatur And this Answers exactly to the Definition of natural Equity given by Aristotle lib. 5. c. 7. where dividing jus in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 naturale legitimum he calls naturale quod ubique eandem habet vim non quia sic videtur aut non videtur And legitimum quod initio quidem liberum est postquam vero constitutum sit observari necesse est This natural Equity is also asserted by learned Divines Andreas Rivetus ad Exod. 21.24 N. 3.4 And Antonius Walaeus oper tom 2. p. 290. col 2. as also by Soto tractat de inst jur lib. 5. art 4. in the case of punishing Accusers and by Episcopius inst l. 3. Sect. 2. c. 12. The same is also maintained by Farin prax crim qu. 16. de accusat N. 2. and by Vander Muelen p 2 qu 15. Arg. 3. As this is evident by these many Authorities so it is proved by the following Acts of Gods special providence and vindicative Justice executed by the Rule of Retaliation against hainous Offenders and notorious Malefactors as upon Pharaoh by drowning him and his Host in the Red-sea in Retaliation of the Command to drowne the Male-Children of Israel Exod 1 22 In like manner Adonibezeck King of Bezeck who had cut off the Thumbs and great Toes of 70 Canaanitish Kings had his own Thumbs and great Toes cut off by the Tribe of Judah Jud 1 6 7. where he acknowledges the justice of GOD in this Retaliation saying AS I have done SO GOD hath requited me And when Samuel hewed Agag the King of the Amalakites in pieces before the LORD 1 Sam. 15 33 he said unto him AS thy Sword hath made Women childless SO shal thy Mother be made childless among women These three were Gentile Kings who could not suffer by the Law of Retaliation as it was a Law of the Jewish oeconomie but as it was a Law of natural Equity We have another Example of the executing of this Law by vertue of it's natural equity even before its Promulgation by Moses viz upon Josephs Brethren they had cast him in a Pit and had no regard to the Intercessions made by him or for him Gen 37 21 22 23 24 and he again on another occasion but with a better design had no regard to their Intercessions but cast them in Prison Gen. 42.9 10 11 12 13 14 15 16 17. and verse 21. they acknowledge the Justice of this Retaliation saying to one another We are verily guilty concerning our brother in that we saw the anguish of his Soul when he besought us and we would not hear therefore is this distress come upon us Arg. 4. The natural Equity of this Law is prov'd by GOD's threatning to retaliat upon the Enemies of his Church in general Isa 33.1 When thou shalt cease to spoil thou shalt be spoiled and when thou shalt make an end to deal treacherously they shal deal treacherously with thee And against the Chaldeans in particular Habak 2.8 Because thou hast spoiled many Nations all the Nations of the People shal spoil thee And not only did GOD threaten the Heathen Nations but even his own People the Jews Deut. 32.21 yea even David himself 2 Sam. 12.9 10 11. Sword for sword defilement for defilement And Solomon tells us Prov. 21.13 Whoso stoppeth his ears at the cry of the Poor he also shal cry himself but shal not be heard A Threatning worthy to be observed in this time of Scarcity Arg. 5. If the Law of Retaliation had not been founded on natural Equity but had been meerly for the State of the Jews then it could not be obligatory under the Gospel but it is obligatory as appears from Matth. 7.2 With what judgment you judge ye shall be judged and with what measure you met it shall be measured to you again And Revel 13.10 He that leadeth into captivity shall go into captivity and he that killeth with the sword must be killed with the sword And many Nations observe it in particular Cases And whereas it is Objected by the Socinians and Anabaptists following them out of design to overturn the Power of the Christian Magistrat that Christ's own words Matth. 5.38 39 40 41. do abolish this Law It 's Answered by Rivetus dict loc Exod. and by the judicious Calvin by Marlorat Maldonat and others on our Saviour's words Matth. 5.38 c. and by Lorinus in Levit. 24 19 20. that all that Christ intended was to recommend Christian Meekness and Patience but not to wrong the Power of the Magistrat which is frequently asserted under the Gospel as Tit. 3.1 1 Pet. 2.13 and Rom. 13.1 2 3 4 5. where we are commanded to be subject to superior Powers who are a terror not to good Works but to the evil and vers 4. He bears not the sword in vain for he is the minister of God a revenger to execute wrath upon him that doth evil and therefore we are to be subject not for servile fear only but for conscience sake Farther Calvin and Rivetus say that Chrst intended to correct an error of the Pharis es who believed that the execution of the Law of Retaliation was committed to every privat person but Maldonat on the Text dissents from this thinking the Pharisees could not be ignorant of the Prohibition Levit. 19 17 18. Thou shalt not hate thy brother in thy heart and thou shalt not avenge or bear any grudge against the children of thy people Further to show that this Law was not abrogated under the Gospel GOD by many acts of his special Providence has inflicted the punishment of Retaliation under the Gospel as in Herod who Matth. 2.16 sent forth and slew all the children in Bethl hem among whom he that should have succeeded him was also slain Vid. Mâ—cr b. lib. 2. Saturn cap. 4. and Spanhem his disquisition upon it d b. evang Vol. 2. dub 76. As also the Daughter of Herodias who contrived the beheading of John the Baptist Matth. 14. was as she passed a River beheaded by the Ice holding her fast by the Neck whilst her Body danced under the Waters Niceph. lib 1. histor cap. 20. And the Jews who concurred in the wicked crucifying of our blessed Lord were crucified in great numbers dayly at the Siege of Jerusalem by Titus the Son of Vespasian Joseph de Bello
equivalent if one suffered himself willingly to be castrated by another dict § Farin fragm crim part 2. N. 584. and the D D. cited by him Haec castratio sit vel praecisione virilium vel faciendo Spadones thlibias thlasios dict § 2 As to all the Species and Punishments of this Crime vid. novel 142. de his qui Eunuchos faciunt novel leonis 60. See also Covar init prim par relect de homicid N. 6. where he adduces many Texts and Reasons to prove that it was unlawfull for any man seipsum eastrare praetextu Religionis vel volenter id pati ab aliis sibi sieri And therefore Eusebius is justly reprovable for defending Origin upon that account The common Reason is that nemo membrorum suorum est Dominus l. 13. ad legem Aquiliam whether this Crime may be punished poena talionis will occur to be spoke of afterwards upon the Question how far the Law of Retaliation is yet in Force Twelvthly I come now to speak of the Hand which in a large Sense is taken for the whole Arme but more particularly for that qui cubito annectitur and 1. includes the Carpus or Wrest or first part of the Palm of the Hand or that part of the Arme which is betwixt the lowermost part of the Cubit and the Hand and consists of eight small Bones with which the Cubit is joyned to the Hand 2. It includes the Metacarpus or Metacarpium or back of the Hand made of four oblong little Bones which expand the Palm of the Hand called postbrachialia 3. it includes the Digiti or Fingers joyned to the Metacarpus the outmost Bounds whereof are called Metachondyli It is called a Member Novel 134. cap. 13. We need not insist to prove that the Hand thus composed is a Member in the proper sense and that it has a distinct Operation this is not only confessed by all but to the end that Amputation of the Hand may be the more abhor'd and severely punished the Doctors of Law and Medicine have condescended on it's several Uses viz. By the Hand one defendes himself from the Cruelty of Man and Beast by it he rules and commands Beasts to be subject to him even such as are of the wildest Nature it serves to many uses for his Body and is useful to the very Beasts that serve him and being stretched foreward it supplies the want of the Eyes by preventing of several Dangers and by signs it many times supplies the want of the Tongue These are collected out of Coel. Rodig lib. 4. lect antiq Cap. 3. Galen lib. 1. de usu partium cap. 3. lib. 11. Arist. 4. de part anim Cap. 10. Cicer. lib. 2. de nat Deor. Fortunat. Fidel. lib. 2. relat med § 4. Cap. 1. Therefore the Justices have always found Demembration to be incurred by the cutting off of the Hand and Mutilation by the hurting thereof to that Degree that it became useless 5. May 1605. Skirven against Forrester for mutilating him of the Hand 26. Nov. 1613. John Hunter Taylor against Menzies of Castlehill who came in the Kings Will and was fyn'd in 100. lib. Scots and 30. July 1614. Donaldson against Lorimer And 10. July 1635. Thomson and her Spouse against Gillespie Thomson and others The like 24. July 1635. Fletcher of Benshaw against Ramsay Lindsay and Lord Spyney for Mutilating him of the Left-hand I should not need to cite Decisions in so clear a Matter were it not the Custome Thirteenthly There is as little Doubt that the Leg is a proper Member and that it has its distinct use profitable to the Body and which can be best judged by such as want it We have the following Decisions viz. 6. June 1627. Lesly against Harvie for Mutilating his left Leg. 20. July 16â—7 Paterson against Wordie for Mutelating his right Leg. And in the foresaid case 3. Novem. 1621. Williamson against Paton for shortning one of his Legs by wounding thereof and the like was pursued 28. July 1647. Forbes of Lesly against the Laird of Pitfoddels for mutilating one of his Legs by the Shot of a Pistol in which poena talionis was lybelled but it came to no Decision As also 11. March 1631. above-cited Crawfurd against Scot where the Justices sustained Mutilation for Scots breaking of Crawfurds Leg in Wrestling and remitted it to the knowledge of an Assise whereby he was convicted and fined in 250. Merks The like 19. March 1690. Relict and Children of Fenton against Montgomery for breaking of Fentons Leg where the Lords Commissioners of Justiciary found the Lybel as founded upon Presumptions relevant to infer an Arbitraty punishment and fyned him in 2500. Merks This case is as plain as that of the Hand and therefore Decisions are only cited for Custome Fourteenthly The greatest Difficulty is about the Fingers and Toes whether they are Members perse or only parts of the Hands and Feet The D D. are divided in their Opinions most of them are for the Negative but some are for the Affirmative Others distinguish betwixt the cutting off or Mutilating the whole and a part only For the Negative simply viz. That the Fingers are no Members we have these Lawyers Bartolus ad l. 14. ff de statu in l. 2. de pub jud N. 13. Where he says expresly digitus non est membrum sed pars Membri and if there were a Statute ordaining Amputation of a Member to be punished lege talionis it would not be extended to the Amputation of a Finger And Baldus in dict leg says digitus non est membrum sed pars officialis membri and that aliud est dividere rem in membra aliud in frusta sic amputans digitum non dicitur amputare membrum and again Digitus est tantum membrum in diminutivo non membrum proprie principaliter quia non est al quota pars corporis sed aliquanta particula respectuqualitatis and compares it to a Tree of the Roof and a stone in the Wall of a House which are but parts of the Roof and Wall and not Members of the House And with these agree Decius in l. si fugitivi C. de servis fugit N. 26. Julius Clarus Farin frag crim part 2. N. 587. Pannormitan in Cap. Cum illorum 32. de sent excommunic As also Covarr part 3. relect in clement Sifuriosus de Homicid N. 8. vers incip tertio Where he cites not only Bartol Bald. but Felin Anton. R. Chassanaeus and others With them likewise agree Cabal dict cent 3. resol 236. N. 11.110 and 118. Where besides these above cited he cites Coepol Angel Castr August c. But although Caballus dict cas 236. has affirmed that digitus non est membrum yet in eod cas N. 109.110.111 seqq he is forced to grant that if the hand be debilitated meaning Mutilated by Percussion of a Finger one two or three that then percussor tenetur de membro debilitato and says he has often seen
559. says it infers no Iraegularity so says Covarruv in Clem. si furiosus p. 2. in prin N. 1. de homicid because the Member being dead is no Member or rather I say because the separated Member was not cut off a living Body as in the case immediatly preceeding Majol cited by Farin N. 600. ibid. and some others affirme the contrary because if the person had been alive the Delinquents malice would have led him to do the same and voluntas non actus spectanda est l. 1. § 8. ff de sicar Yet for all that I think the Crime of Demembration cannot be hence inferr'd seing Homicide could not be inferred by a wound in the Heart which would have killed him had he been alive vid Suarez de cens disp 44. Sect. 2. N 3. ad sin vers atqne ita N. 4. Farin loco citat N. 601. The use of all this Discourse concerning proper and improper Members is for understanding general Statutes concerning Members without mentioning whether they are proper or Improper For Example if a Law or Statute Ordain that one who euts off Mutilats or Debilitats a Member shall be punished that will not reach him who cuts off Mutilats or Debilitats an improper Member Cabal dict Cent. 3. cas 236. N. 16.17 unless says he the contrary appear from the mind of the Statute as if it run against him who cuts off or debilitats ANY Member in that case says he it would comprehend improper Members because the Relative ANY or ALIQVOD is general and for this he cites Bald. Fulgos. Castr. Caepol Angel August And the like is asserted by Bartolus ad l. non sunt liberi 14. ff de Statu viz. That if there were a Law ordaining him that cutts off a Member to be punished paenâ talionis it would not reach him who cuts off an improper Member and Pannormitan C. cum illorum 32. de sent excommun followes Bartolus and it doth not alter the case whether the punishment appointed by the Statute be Corporal or arbitrary the thing remarkable being only the generality of the Word Member All Judges competent in Homicide are likewise competent in the Crimes of Mutilation and Demembration and therefore not only are the Justices competent but likewise Baillies of Regalities Stewarts of Stewartries and the Commissioners of the Borders But sometimes where the Pursuit was first commenced before the Justices they have refused to allow Repledgiation as in the forecited case 15. July 1642. Chynie of Wallie against Mouat and Nevings where the Justices did not allow Sir William Dick Stuart of Orkney the place where they dwelt to repledge but recommended to him to agree the parties and because he did not agree them the Justices judged the Cause ut supra The Justices allowe the Commissioners of the Borders to repledge and so 11 June 1612. Lord Cranston repledged Rutherford pursued by Weir for mutilating him of the foremost Finger of his left Hand and yet the Justices did not admit of that Repledgiation till they had advised with the Privy Council Barons of Baronry are not competent Judges of Mutilation and Demembration and therefore there being a Pursuit moved before the Justices 10. July 1635. Thomson against Gillespie and others for mutilating her of her right Hand when she came to rid them and they craving to be absolved because the Laird of Killhead as Baron Baillie to the Lord Drumlanrig had judged the Cause The Justices repelled the same and remitted the Pannals to the knowledge of an Assize Neither is the Privy Council Judge to these Crimes more than to Murder And hence it followeth that if he who is guilty should be conveened before the Privy Council to be punished for that Crime as a Ryot their Sentence would not hinder the Justices to judge it over again under the head of Mutilation and Demembration 27. June 1605. Johnston against Brown and 9. and 11. January 1628. Mcmurran against Hamilton where the case of Johnston against Maxwel of Grubtoun Anno 1605. for assaulting the House of Newbie was cited but the Justices only continued the Dyet because Hamilton the Pannel was sick But though the Privy Council cannot decide cases of Mutilation and Demembration yet they can precognosce and discharge the Justices to proceed for this they can do in Homicide which is the greater Crime and there needs no Proof of this because it 's dayly practised There are some Cautions to be observed in forming a Libel of Mutilation as first Albeit it be sufficient in the case of Homicide to libel that the Desunct was killed ex gr on the first day of January 1698. or on one or other of the days of the said Month or Months of the said year yet in a Libel of Mutilation the Day must be precisely condescended on or declared at the Bar which is equivalent 10 January 1640. Ker against Halyburton and the alternative upon one or other of the Days of the said Month or Months of the said Year will not be sufficient because the Pursuer cannot insist within Year and Day after the committing of the Crime in respect the Law allows that time to expect recovery of the Wound as we shall prove in the first Defence Secondly It will be convenient that in a Libel of Mutilation ex gr of the Eye the true matter of Fact by which the Sight was taken away be condescended on and so in the foresaid Action 28. July 1643. Logie against Howison the Libel bears that the Eye was mutilated by a Stroke with a Tree on the Head which brought a Defluction on the Eye and occasioned a Blindness If the Libel be so formed it will the better quadrat with the Probation and prevent all Cavillation which may occur by reason of Difference that may happen between the Tenor of the Libel and Probation I say it will prevent Cavillation but I say not that a Libel without this Condescendence will be rejected as irrelevant for the contrary was found 19 Nov. 1647 Inglis of Craigmakerren against Martin where the Justices sound a Libel of Mutilation relevant without such a condescendence notwithstanding it was urg'd that Mutilation falls no otherwise under the external sense but by vertue of the Incisions or other Hurts from which it 's inferred But there will be greater difficulty in a Libel of Demembration ex gr of a Leg which was not cut off by the stroke or wound but was crushed to that Degree that the Chirurgeon was necessitated to cut it off for if the true matter of Fact be not libelled but in place thereof it be said that the Pannel cut off the Leg then the Pannel will simply deny the Lybel and consent it be found relevant as conceived and then when the Witnesses come to be examined a Debate will arise upon the Interrogatories for either they must be agreeable to the Lybel or to the Matter of Fact If to the Lybel viz. whither they knew that the Pannel cut off the Leg
in Leith for dislocating the Spondyls of his Back and mutilating him of his Leg in which Pursuit the Justices found this Defence relevant to elide the Lybel that the Pursuer being a young Boy had in his usual Recreations with his Comrauds run Races on the Links of Leith as he was in use to do before he was hurt As also 6. June 1627. Lesly against Harvie for breaking at least lameing and mutilating him of his left Leg this Alledgiance was found relevant that the Pursuer had walked from his House many Miles This Defence of Recovery is only relevant against a Lybel for Mutilation for as hath been said Members once prescinded cannot be recovered But Gaspar Taliacotius in his Chirurgia nova de Narium Aurium Labiorumque defectu pretends to have discovered a new Art of repairing Noses per incisionem cutis ex humero And Lanfrancus cited by P. Zacchias quaest medico-leg lib. 5. tit 3. q. 3. N. 3. reports that some had asserted that a Nose which once lay prescinded in the owners hand was thereafter restored to it's place but he calls it an impudent Falshood Yet Zacchias dict q. N. 1. and 4. followes Taliacotius and cites Paree and other famous Chirurgeons asserting the same and thinks this may be usefull to Lawyers for discussing cases of Demembration But seing these learned Physicians do not agree about it I remit the case to be class'd inter ea quae raro ex inopinato accidunt Like the partus quinquagenariae in l. si major 12. C. de legitim Haered and like Serapia's Birth of five Children in l. utrum 7. ff de reb dub which last Aristotle judg'd to be as impossible ut in l. 36. ff de solut as Lanfrancus did the restoring of the Nose and seing if it exist we cannot expect express Law to decide anent it because Laws are only made for things quae ut plurimum non quae raro eveniunt l. 3.4.5 ff de legib it must be then regulated when it happens by paritie of Reason with cases commonly existing according to l 10 11 12.13 ff eod And by the same Rule the Judge may decide in the Amputation of the Toes of persons formerly mentioned N. 62. who use them instead of Fingers The second peremptory Defence is that the case being submitted the Arbiters have decerned and the Pannel is willing to sulfill the Decreet or has already done it and obtained a Discharge or that the Parties have transacted and agreed this I say is relevant for all Injuries become extinct by Paction or Transaction l. sitibi 17 § 1 l si unus 27 § pacta 4. D de pact l non solum 11 § 1 D de injur and was so found by the Justices 14 June 1637 Allardice against Forbes for mutilateing him of his left Leg. In all these cases the Justices desert the Dyet which is the proper terme of the Sentence proceeding upon Transactions The Justices do oftentimes recommend to the Parties to submit so they did-in the foresaid case 15. July 1642. Cheyne of Wallie and his Brother against Monat and Neivings where Sir William Dick Stewart of Orkney compearing to repledge the Justices recommended to him to agree the parties Sometimes a judicial Submission is made to the Lords themselves as was done 1. Feb. 1650. by Mclure and Baxters Whence observe that the Crime of Mutilation and Demembration are but privata delicta whereanent Judges are not oblig'd to inquire dict § 4. ff de pact whereas publick Crimes cannot be transacted l. juris gentium 7 § paciscar 14 init vers Et in caeteris ff eod and may be inquired in A third peremptory Defence is that the King has remitted the Crime ordered an Assythment the Pannel has found or is willing to find Caution to pay the same as shall be modified or that it s already modified consign'd which Defence as its usual against Homicide so is expresly sustained to fist the Pursuit of Demembration 17. May 1610. Rob. Keith against Lindsay Fourthly Dissimulation which is a tacit Discharge inferred from a friendly converse and Acts of Kindness is a good peremptory Defence § ult Inst de injur l si tibi de liber caus But it must evidently appear that there is a design to pass from the Pursuit and therefore in the foresaid case 12. January 1642. Taylor against Norrie for mutilating of his Thumb the Justices found that the Pursuers consenting to let the Pannel out of Prison and drinking with him were no such Acts of Dissimulation but perhaps there were some Specialities in the case as that they convers'd and drank together for respect to the Company and the letting out of Prison might be in order to meet for communing about an Agreement But abstracting from these or the like Circumstances friendly conversing drinking together is astrong Presumption of passing from the Crime according to Mathaeus Apud Germanos says he dict tit N. 14. propinatio poculi validissimum dissimulatae injuriae argumentum est Fifthly res judicata is an uncontroverted Defen ce the Tryal being before the Justices who are the Judges competent But as I said before N. 67. neither is the Privy Council nor any Barron-Court Judge competent Act. 6. Parl. 16. Ja. 6. And therefore their Decreets will not serve for an Absolvitor but if the Pursuer passes from the Mutilation and insists for Blooding or Wounding only res judicata before the Privy Council or an inferior Court is sufficient and if it be the Sheriffs Decreet and a Reduction of it raised and a Reply upon the Reduction the Justices will continue the Process for a time till the event of the Reduction be known So they did 19. Nov. 1649. Inglis of Craigmakerran against Martin Sixthly It 's a good Defence that the Privy Council hath precognosced found the Pannel innocent and discharged the Justiees to proceed This is dayly practice and needs no Confirmation as was said N. 68. supra Sometimes the Council remit to the Justiees to precognosce so they did 30. July 1614. in a Precognition craved by Donaldson against Ronald Lorimer and other three persons for demembring him of the Left Hand and the Justices not being able to discover any thing because the Fact was done in the Night they remitted it to the Assize who neither would fyle nor cleanse the Pannels whereupon the Justices committed Lorimer to Prison till they should advise with the Council and then 16. Novemb. that same year after adviâ—â—ng with the Council they pronounced Doom that Lorimer should find Caution to satisfie Donaldson as the Council had ordained Seventhly The alledgeance of Self-Defence is relevant here as in Homicide and therefore as a Man may kill in defence of his Person his Wife or her Honour l. 1. § 4. ff ad l. Cornel. de Sicar so much more may he mutilat or demember such an Invader As was sustained 27. June 1605. Brown against Johnston in which case Brown was mutilated