as were the Children of those who kill'd his Father because as is exprest there The Father shall not be put to death for the Children nor the Children for the Fathers And Achan's punishment Ioshua 7.14 wherein he and his sons and his daughters were stoned to death and burned for his own Crime is no concluding argument against this opinion since that was founded expresly upon Gods revealed will who can dispense with or alter the Laws of Nature but it is very probable that the reason of that severe sentence was that God knew the whole Family to be involved in the guilt And it is very probable that they were resetters of the theft or conscious to it since the stollen goods were taken out of the Tent were they were And I remember that our Parliament in Anno 1661. having adjected to the Marquiss of Argyles Sentence the dishabilitation of his Children his Majesty did expresly command it to be rescinded in the last Session of that Parliament in which the Children were rendered capable to bruik Estates or Honours as the other Subjects were I know it is the opinion of some Lawyers such as Budeus that this l. 5. was thereafter abrogat â— Sancâ—mus C. de poenis which by his calculation is two years after the other And though Matheus thinks that l. Sancimus is only introduced in favours of the Friends but not of the Children Yet it is more just to think that by this Law the former was abrogat even quo ad Children since the reason given in that Law is general Sancimus ibi esse poenam ubi noxia est propinquos notos familiares procul à calumnia submovemus quos reos sceleris societas non facit Nec enim adfinitas vel amicitia nefarium crimen admittunt Peccata igitur suos teneant auctores nec ulterius progrediatur metus quam reperiatur delictum Hoc singulis quibusque judicibus intimetur Nor can it be concluded that it is clear that the former Law was not abrogat by that Law since l. pen. C. Theod. de bon proscrip the same Emperour Honorius leaves no Estate to the Children of Traitors for it does not follow that because they are to succeed to no Estate of the Traitors that therefore they should be uncapable to gain or to succeed to any other Estate But after all these Laws the Basil. l. 5. h. t. extends the punishment 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Another punishment of Perduellion by the Canon Law cap. felicis de paenis in 6. is that the Traitors House shall be thrown down and not re-built which is not in observance amongst us Nor was it lawful to mourn for him when dead or to give him a publick Burial l. 11. ff de his qui not l. 35. ff de relig And with us it is ordinary for the friends of such as are condemned for Treason to get a warrand for attending them in mourning upon the Scaffold But I do not find that the attending him in mourning or the burying him was ever accounted a Crime in Scotland I find that some Lawyers believe that the fear of losing an Estate excuses him who has complyed with the Enemies of his Prince notae ad Clar. h. t. num 9. Imol. Consil. 34. But this was expresly repelled in the Marquiss of Argyle's Process 1661. But certainly the fear of life might excuse for there can be no Crime where there is not a voluntar act and nothing can be voluntar which is forc'd Though repentance is no relevant defence against a ditty of Treason especially where there is once a deed of Treason committed yet such is the clemency of Princes that by the l. 1. Basil. h. t. I find that he who in the beginning of a conspiracy reveals is to be rewarded but he who after the Treason is committed reveals the Authors 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is only to be pardoned Sometimes likewise to punish the atrociousness of this Crime the very Parents are banish'd and all the Family are ordain'd to change their name as was done Ravillac's case by the Parliament of Paris for though these could not be corporeally punish'd yet the State may justly deny their protection and Countrey to any who may be presum'd will bear revenge or probably were infected with their Friends Crime But though these punishments may be inflicted after probation yet if the Pannel was only denounced for not appearing in Treâ—son he only loses his Moveables and a gift of forfeiture following such a denounciation was declared null by the Lords of Session because the certification of the Letters in that case is only to be denounced fugitives and lose their Moveables 30. Iuly 1662. and 30. Novemb. 1671. Haige contra Moscrop TITLE VII Sedition 1. What is Sedition 2. The punishment of it 3. Convocation of the Liedges how punished I. SEdition is a Commotion of the people without authority and if it be such as tends to the disturbing of the Government ad exitium principis vel Senatorum ejus mutationem rei publicae it is Treason but if it only be raised upon any privat account it is not properly called Treason But it is with us called a Convocation of the Liedges These publick Seditions are called Seditio regni vel exercitus cap. 1. l. 4. Reg. Majest And this species of Sedition is punishable as Treason And the Mr. of Forbes was hang'd for raising Sedition in the King's Host at Iedburgh When a Sedition is raised against the Government it is â—epute Treason by the Doctors as is clear by Bossius de crimine Laese Majestatis And Perezius hoc tit II. Albeit per l. 1. cod de seditiosis it be only said mulctam gravissimam subtinebit which general term in my opinion is used to signifie that this Crime is not to be equally punished but according to the several degrees of guilt and the authors and first raisers of the tumult are to be most severely punished And the Basilick sayes only that gravissimae paenae subjicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Greek gloss expounds unwarrantably to be ultimum suplicium in all cases and as to raise men against the Prince is Treason so to raise them against Publick Order or Discipline 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Sedition properly and thus Treason and Sedition properly differ though oftentimes Sedition may be accompanied with qualities which may raise it to Treason And this the Basilicks make not seditiosus conventus Treason but if it be rais'd ut occidatur Magistratus seditiosus conventus it is Treason in that case l. 1. h. t. I find not Sedition to be expresly declared Treason with us in any case for by the 78. Act Ia. 2. Parl. 14. the raising of Commons in hindering the common Law which is properly Sedition or the making of Leagues and Bonds within Burgh without the command of their Head Officer is declared to be punishable by Confiscation of Moveables and that their lives shall be in
Who are repute accessory in this Crime and how punished I. PAricide is a Crime which is committed by killing our Parents against which Solon refused to make any Law lest he should by forbidding it teach the people it was possible By the Civil Law Paricide was committed by killing Ascendents or Descendents in any degree or collaterals to the fourth degree The killing likewise of Wife Husband or Patron was Paricide by that Law l. 1. ff h. t. II. With us Paricide is by the Statute 220. Ia. 6 Par. 14. punished only in him who kills his Father Mother Good-sir or Good-dame and these are by that Act ordained to be disherished and their posterity in linea recta are incapable of succeeding to the person killed but the succession is devolved upon the next Collateral or nearest of Blood the person guilty being convict by an Assize From which Act it is observable that the Statute is not exclusive of other punishments but supposes that Paricide is capitally punishable according to the Common Law for it were absurd to think the punishment here related should be the only punishment by which Paricide could be reached And Women for murdering their Children are frequently either hanged or headed as other Murderers 2. This Act reaches only such as are convict by an Assize and therefore Ianuary 1664. it was found that Sir Iames Oliphant being declared Fugitive for killing his Mother but not convict by an Assize his Estate could not be gifted by the King and in effect though he had been found guilty by an Assize he could not have been forefaulted for the nearest Collateral would seclude the Fisk. It was likewise found in that case that the Son could not be forefaulted as having murdered his Mother under Trust for they found that not to be the Murder which is declared Treason by the 11. Par. cap. 51. Ia. 6. For the trust there mentioned is when such as came under the trust of others were persons who would not have come within their reach without special assurance of indemnity and protection and it is related as a received tradition amongst us that this Act were first made upon Mack-donald his killing the Laird of Mack-clane who came to lodge with him upon such assurance notwithstanding of the feids which were amongst them It were likewise improper to say that the Mother was under the power and assurance of the Son and if the power and assurance betwixt Parents and Children could fall under that Act Par. 11. Ia. 6. this Act had been unnecessar and there could have been no place for the pain therein contained for the Estate of the Traitor belongs to the Fisk and not to the nearest Collateral III. It may be doubted if this Act should be extended to Parents killing their Children and albeit the Statute does not in terminis expresse Descendants yet it is probable they may fall under its Sanction Even as the foresaid Text in the Civil Law is extended to equal degrees with these exprest ob paritatem rationis And by that Law the killing of Ascendents or Descendents is Paricide 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the Rubrick of this Act runns generally against Paricide nor can it be denyed but Paricide is committed by Mothers against their Children and Women dayly are convict thereof Whether the foresaid Statute against Paricide can be extended to degrees of Affinity as well as degrees of Consanguinity so that to kill a father-in-father-in-law may be punished as Paricide as well as the killing a father may be doubted but I conceive it extends not to degrees of Affinity because 1. Laws against Crimes should not be extended 2. The statute discharging Fathers Brothers or Sons to judge in the causes of these relations is not extended to brothers-in-law c. though that extension would be more favourable 3. Some of these relations in this statute cannot in propriety of speech be extended to degrees of Affinity for we say not good-sir or good-dame in Law and albeit § 6. just de publ judic uses the word adfinitatis in this crime yet Theoph. in his Greek instit eod § expresses the same by the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies affectionis non adfiniâ—atis and with Theophil agrees 36. eclog. tit 40 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and this shews advantages by the Greek Lawyers IV. Whether it doth extend to Bastards may be doubted for though it be certain that since they know their Mother it may be therefore extended against them if they kill her or she them Yet since their Father is uncertain nam sunt vulgo quaesiti patrem demonstrare nequeunt and since they have no advantage by their Father in law it were hard the Law should punish them as Paricides But yet Lawyers conclude they may be punisht for paricid Allex. ad lib. 2. de injur voc and since this is a Crime against the Law of Nature it may be punisht in Bastards who are natural Children V. This Crime extends not to Moveables by the Act but by our Law wherever the Law punishes by death it implyes confiscation for Moveables followeth still the person And by the Law of France from which we have borrowed this and many other things qui confisque le corps confisque les biens It is probable that upon this Act even absents may be convict of this Crime as the Lords then thought if the certification of the Letters had born the Penalty here exprest For albeit probation cannot be led in absence of the Party to fix a Crime upon him yet this seems to be a civil effect which strikes not against the person of the committer By the Civil Law also all Murderers were debarred from succeeding to such whom they murdered l. cum ratio § sin ff de bonis damnat which is yet observed in France but though with us there be no contrary decision yet with us they are not debarred and seeing this pain is only statuted in the case of Paricide we may by a natural consequence conclude that it should not be extended to ordinary Murders VI. By the Act 20. Parliament 1. Ses. 1. Ch. 2. Beating or Cursing of Parents is declared to have been punishable by the Law of God with death And therefore ordains that whatsoever Son or Daughter above the age of Sixteen and not distracted shall beat or curse his Father or Mother he shall die without mercy but if they be within the age of Sixteen and past pupilarity they are to be punisht arbitrarily From which it is to be observed 1. That this Crime is meerly statutory and therefore should not extend beyond the degrees of the act to grand-fathers or grand-children albeit appellatione filii nepos comprehenditur in favorabilibus 2. That arbitrary punishment is opposed to death and so never can be extended in other acts to death 3. That those who are not above the age of Pupilarity are not capable to commit crimes nor should be punished for they are here
accompted as distracted persons and if they were punishable for any Crimes it behoved to be for such as are against the Law of God VII It is very easy and too ordinary for women who bear Bastards to murder them And therefore to obviat this the Law presumes so far a woman who has born a bastard and has conceal'd her being with child to be guilty of Paricide if the child be found dead that it punishes her by some extraordinary punishment but not by death except she can prove that the child was born dead Thus it was decided in Savoy 1595 vid. Cod. fab de his qui parent occid Def. 11. And with us Lawson and Ramsey were both Scourged annis 1661. and 1662. even though they were assoylzied from the Murder But I think that this were severe if the woman openly acknowledged that she was with child though none was present when she brought it forth And in all such cases women are admitted to be witnesses The taking potions also to make one part with child abortum procurans should be a species of Paricide in my opinion since she thus endeavours to kill her own child and by the Civil Law it was punisht with death L. Cicero ff de paenis And though the Doctors distinguish here betwixt the using such means after the child is quick or before it making it capitall in the one case but not in the other yet they presume that the child was quick quod fetus erat animatus and that in odium delinquentis and burden the delinquent to prove the contrair Gomes de delict cap. 3. num 32. asserts that this is presumed not to inferr death but Ecclesiastick punishment and since to prove the contrair seems to me impossible I encline to Gomesius his opinion but yet the using such means even before the birth be quick is arbitrarily punishable as is even the using means to hâ—nder conception Marsil ad l. si mulierem ff de sicar And in these cases both the Physicians who administrats the cure and the woman who takes are equally punishable Marsil ibid. VIII So horrid is paricide that what would be but a degree of guilt in other crimes makes a compleat crime here and thus a childs endeavouring to poyson his father 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. Basil. h. t. and to kill parents by giving them wounds was punisht by death in Savoy C. fab h. t. though the wounded parent interceeded to the contrair And the Son who bought poyson to poyson his father though he was not able to give it Carer § homicidium num 128. for which crime suffered with the Son the Phisician who furnished the drugs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. Basil h. t. and the person who lent the son the mony to buy them but regularly these strangers are not capitally punishable for such an accession except the crime take effect and this is the present custom of nations though by the Roman Law and the Basilicks they who were conscious or lent the money or were surety for money to be so bestowed were guilty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And yet he who commands a son to kill his father is not guilty of Paricide Caepol Consil. 36. which may seem strange since to give poyson to kill a father seems equal guilt to giving a Son command to kill his father As these circumstances highten Paricide so there are some which restrict the punishment as if the father should find that his son had lyen with his own mother-in-mother-in-law and had killed him upon that accompt though not in the very act 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lawyers think that he should be only punisht by banishment but not by death and that generally for whatever crime or fault a father may exheredat a son that the same fault will excuse the father from death if he kill his son l. divus ff de paricid Cabal cas 15. Some also think that a woman killing her husband who is banished and upon whose head a Fyne is put is not punishable by death because her husband is nullus injure and Laws allow all to kill such a person without any distinction betwixt wives or others yet other Lawyers have concluded that she should be punished by death since such sentences loose not the wife 's natural obligations but he is still her husband and the Law owns so far the relations as not to punish her for omitting to kill him or for cohabiting with him Cub consil 278. A father killing his son by accident ought not to dye and therefore much lesse he who kills him in defence of his own life for self-defence is a duty This crime is so odious that is praescribes not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE XIV Incest Sodomy Bestiality 1. What Incest is and the several kinds thereof 2. The punishment of Incest by our Law 3. Sodomy how punished 4. Bestiality how punished INcest is defined by the Civilians to be faeda nefaria maris fâ—minae commixtio contra reverentiam sanguini debitam Incest is divided into two branches viz. that which is committed against the Law of Nature and into that which is committed against the Municipal Law of the Countrey All copulation betwixt ascendants and descendants such as Grandfatheâ— Father Mother Son Daughter c. is by all acknowledged to be Incest against the Law of Nature But it is controverted whether the Brothers lying with the sister be incest against the Law of Nature And the Roman Catholicks alledge it is not Because it was allowed at the beginning and therefore they conclude that the Pope may dispense therewith And this is the first difference betwixt that Incest which is committed against the Law of Nature and that which is committed against the Municipal Law The second difference betwixt them is that the pain of incest when it is committed against the Law of Nature is death but when against the Municipal Law it is only deportation l. 5. ff de quest The third difference is that Incest committed only against the Municipal Law is excused in a woman in figura matrimonii but ignorance of the Law of Nature is not But the man is inexcusable in either Matheus hoc tit Num. 5. The fourth difference is that if a Marriage contracted be rescinded as incestuous all the committers goods are confiscat if the Incest be committed against the Law of Nature but the Tocher and Joynter are only confiscat if the Incest be only committed against the Municipal Law Matheus II. Our Law does not observe the above-written distinction but it is universally Statut. act 14. p. 1. I. 6. That whosoever pollutes his body with such persons in degree as Gods word doeth contain in the 18. of Leviticus shall be punished with death Albeit by these words of the act whosoever abuses his body it would seem that such as actually copulat are only punishable by this act Yet I think nudus conatus or endeavour is punishable by death as it is in
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
that Judge oblieged to send him back except either in the case of prevention or repledgiation There are some crimes which may be commâ—tted in several places and yet be the same crime as being begun in one place and perfected in another and for knowing who is Judge competent for trying those crimes I think we may thus distinguâ—sh either the crime is begun in one place and perfected in another both in respect of him who commits the crime and of him against whom it is committed as if one should wound a man in one Territory and should follow and kill him in another or take away a woman in one Territory and deflour her in another in which cases the Judges of either Territory are competent but so that there is place for prevention for the scandal is committed in both places and the peace of both is injured The other case is when the crime is begun in one place and perfected in another only in respect of the committer as if a man in one Territory should stand and shoot one in another in which case the Judges of both Territories aâ—e competent l. 1. C. ubi de crim or the crime is begun in one and perfected in another place as if a man should in one pâ—ace give order that the crime should be committed in another place or should ratifie in one place what was commâ—tted in another place and in that case Clar. Bartel and others are of opinion that the crime should be tryed only in the place where the crime was consumat because it is not the giving of the mandat or order to commit the crime but it is the commission of the crime which infers the guilt But I crave leave to differ from them and to think that other Judge is competent and that because oft-times the giving of a mandat or order to commit a crime is of it self a crime and because he who gave the order having offended the Jurisdiction where he lived he ought there to be punished and the crime committed in the other place not being his own who gave the order but because of the order it must therefore be drawn back to the order and so he ought to be punished in the place where he gave the order which should the rather hold with us that the giving order is art and part and so is in our Law punishable in the same way as the principal crime If any man commit a crime in the confines of two several Jurisdictions or Territories he may be punished in either though some Lawyers are so subtile as to conclude that if a man be murdered in the confines of two Jurisdictions the murder ought to be tryed in that Jurisdiction within which the head of the murdered man fell but if the committer of the crime dwell also in either of the Territories or if the Judge of either of the Territories be founded upon any other ground of competency then that Judge who is so founded doublely ought to be preferred quia duo vincula magis stringunt Decian tract crim lib. 4. cap. 17. II. So well founded is the Judge of the place where the crime was committed as to his competency that some English Souldiers having in Anno 1662. killed a man in Edinburgh the Justices here were found Judges competent though it was alledged that they being Souldiers could only be tryed by a Council of War and being English Souldiers under English pay and a part of the English Army they could only be tryed in England all which was repelled because the crime was committed here and it was strange why any of the English did think this hard since they had execute Queen Mary though a Queen and the Bishop of Ross though an Ambassadour for alledged Treasons committed in England The reason why the Judges of that place where the delinquent dwells is Judge competent to the tryal of the criâ—â— is because it is fit that the Judge purge his own Land and Territory of evil doers and malefactors lest they affect others by their example or fall themselves to commit the like crimes there also and the reason why he who is Judge of the place where the malefactor was born is Judge competent is because the malefactor may and will probably return to the place of his Nativity and it is most reasonable that a man may be Judged as to his life where he first received life and Judges ought to consider the life and conversation of the delinquent which none can do so well as judex domicilii And therefore these two domicilii originis are still equiparat in the Law and what founds the Jurisdiction of the one founds ofttimes the Jurisdiction of the other and their joynt competency may be understood by these conclusions First the Judge of the place where a man dwells or was born may beyond all controversie proceed to take tryal of the crime committed within their own Territory if the person be found within the Territory 2. If he be not found some think they can proceed if the crime was not committed in their own Territory but others do more justly distinguish thus that either he is pursued by way of accusation at the instance of a private party and then judex domicilii is competent but that neither of these Judges can proceed to enquire into a crime committed without their own Territory and though the first part of this distinction be very just because an accuser has alwayes election where to pursue yet the last part of it may be justly controverted for these reasons 1. Because every Judge should endeavour to cleanse his own Land of Malefactors who dwell there and who may either infect his people oâ— commit the like crimes as was said formerly 2. It would incourage the committers of crimes if they might go out of their own Territories and commit crimes elsewhere and could not be punished upon their return by the Magistrat where they live whereas it is probable that the poor party injured could not follow them to a place so far distant 3. We see that fathers do and are obliedged to punish their children for faults done by them even without their own family And a Judge is in Law instead of a father to his own people and should endeavour that they keep themselves free of all guilt 4. Per. l. 1. C. ubi de crim dicitur quaestiones posse institui apud judicem loci ubi ipsa commissa sunt aut loci ubi reus ad est And with us Criminal pursuits are sustained at the instance of the Procurator Fiskal of the Territory where a man dwels for crimes committed without the Territory though no privat party inform I find likewise that Calderas does distinguish thus if sayes he both the place where the crime was committed and the place where the delinquent dwells be under the same Prince though the Jurisdictions be under different privat Judges and the privat Territories be different Yet the Judge
discover their Complices and to confess the Crimes which others have denyed in a rage or confusion occasioned by the shortnesse of their respite With us a Sentence may be presently put to Execution and the Judge is confined by nothing but by his own discretion yet where pecuniary Mulcts are inflicted either the Pannel is returned to Prison till he pay his fine or the Act of Adjournal bears ordinarly that payment should be made within six dayes and though Barrons cannot poynd in Civil Cases upon lesse then fifteen dayes yet it was found that they might presently poynd sine ullisindiciis legalibus upon Criminal Sentences VII Sentences were execute of old amongst the Romans either by the Common Executioner or by Souldiers l. 7. C. de Cohort an instance whereof is clearly to be seen in Our Saviours Passion and these Souldiers were called optiones speculatores l. 6. ff de bon damnat And yet I rather think that the Souldiers were only Guards and never Executioners and were called Speculatores because they were appointed to oversee the Execution and to restrain Tumults Especially seing common Executioners were so infamous that they could not be advanced ever thereafter to any sacred orders C. clericum distinct 50. And I remember to have seen the Executioner of St. Iohnstoun repelled by the Lords of Session from being a witnesse That the Justice may force any of the Magistrats of a Town to supplie the place of an Executioner if they want one is I think without all warrand seing officium nemini debet esse damnosum And no man would be a Magistrat if that were allowed but I think that the Magistrats may be fined for negligence if they omit to appoint one and for the same reason I think that the Magistrat cannot force any mean person who leads an honest life to be an Executioner albeit Clar. § Fin. quest 99. num 4. And Gomes lib. 3. cap. ult num 5. do assert that the Judge may force any ex infima plebe to officiat in that employment and yet their opinion agrees with our custome The Executioner hath right to the Cloathes pannicularia of the person executed by our custome And per. l. D. Hadrianus ff de bon dam. But by the Civil Law the Bodies of the persons executed could not of old be buried without the permission of the Prince ff de cadav punitor which is antiquated per. l. obnoxius C. de relig sumpt fun And by our custome wherein the persons execute may be buried in all cases though the friends of the person condemned for Treason cannot assist on the Scaffold or wear mourning by our customes except the Council give expresse consent VIII If the defender be absent then upon an Act of Adjournal he is to be denounced rebel or outlawed as the English and our old Statutes call it and though if the punishment be capital or the fine be for His Majesties use the Clerk of the Justice Court can only write the Letters yet if the fine be to be payed to any privat person any Writer to the Signet may write the Letters and though the 126. Act 1. Parl. Ia. 6. appoints that all Criminal Letters should not be registrat as other Letters but returned to the Adjournal yet de praxi such Hornings are sometimes Registrat in the ordinary Register of Horning likeas albeit the Escheat of him who is denunced cannot fall upon a denounciation at the Mercat Crosse of Edinburgh though Caption may be raised upon such an Execution yet Criminal Letters may be execute at Edinburgh or any Mercat Crosse where the Justice Court did sit in which the Sentence was pronounced Act 140. Parl. 8. K. Ia. 6. upon production of the Regâ—strat Hoâ—ning Letters of intercommuning are granted upon a common Bill past by the Lords of Session by which all the Leidges are discharged to intercommune with the Rebel which must be execute at the Mercat Crosse of the respective Shires and Registrat there or in the general Register Upon the denunciation immediatly the single escheat fals and after remaining at the Horn for year and day the life-rent escheat falls which custom we have borrowed from Saxonie with most of our other forms for with them si reus fugitivus in primum sive simplex bannum sit declaratus nec intra annum diem se purgaverit sed annum diem prorogare passus sit in bannum superuis incidit vid. Carpz pract crim part 3. quest 140. num 80. From whom also we have our stile of declaring escheats Upon the registrat Horning Caption is raised and if the Messeâ—ger be deforced in the execution thereof then the Council grants commission of fire and sword which is But a Caption for inbringing the Malefactor who resists the ordinary course of Law And in my opinion Letters of fire and sword may be granted though the Malefactor hath not deforced if it be not our that the Malefactor be not to be reduced in the ordinar way for it is unreasonable to expose His Majesties Laws to contempt and His Officers to certain hazard as in the case where a person is denounced fugitive for deforcing Messengers or hath convocat loose men and lives in open rapine it were against sense that a new deforcement were necessar But thir commissions are never granted but in criminal cases and yet I remember that one was granted to Mackintosh against Lochiel after that Mackintosh had obtained Decreets of removeing and had raised Letters of ejection but the Sheriff had declared that he durst not eject for the Council thought ti not just to expose the Sheriff to certain hazard And yet the ordinar course is that the Sheriff should offer to eject and if he be deforced then the case becomes criminal and some think that the execution of deforcement is not sufficient in that case without a sentence ensuing on it and that the deforcers be registrat at the Horn thereupon But others think that as in civil cases Letters of second Caption are granted where the first Caption cannot take effect so in cases of extraordinar opposition to authority Letters of fire and sword are granted upon a meer execution that the ordinar course of Law cannot take effect IX It may be doubted what a Judge ought to do if after sentence the innocence of the person condemned should be convincingly cleared in which case the answer is that the Judge cannot rescind his own sentence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 56. Basil. de paen but he ought to acquaint the Council and they may interceed for his Remission l. 27. de paen l. 1. § ult ff de quest the Council may prorogat also the dyets appointed for execution but I think the Justices and much less inferiour Judges cannot prorogat dyets appointed for execution even by themselves since they are functi by the pronouncing of the doom though some ignorant Judges de facto prorogat executions and as they cannot even before sentence remit so neither can they prorogat for any long time for else prorogations may be lengthened so as to become Remissions upon the the matter The other side of the doubt viz. whether a person once absolved may be thereafter pursued for the same crime is more intricat but may be somewhat cleared by these positions 1. The same party cannot upon new probation much less upon the old probation accuse a person once assoilzied by an Assize though he may accuse the Assize who assoilzied him of wilful errour and that even though he should thereafter willingly confess the crime for which he was formerly accused though Farin quest 4. num 43. thinks that he may be again pursued and I should think that confession savoured too much of madness to be the foundation of a criminal sentence 2. Though the pursuit was at the instance of the party injured yet His Majesties Advocat cannot again pursue upon the pretence of res inter alias acta for that were to keep people in a constant suspense 3. If the pursuer did collude with the defender so that the defender was assoilzied by a white Assize in abstracting the necessary probation I think in that case his own fraud should not secure him Reg. Maj. lib. 4. cap. 28. si per calumniam procedat vid. cap. 2. de collus de teg but though the defender was assoilzied by collusion betwixt the defenders friends and the pursuer yet I think the defender cannot again be reconveened for the same crime since he was innocent though the collusion was advantagious to him X. By the death of the offender all punishment ceased except in Treason crimine repetundarum or missimployment of publick Money in ceteris vero criminibus ita demum pro delictis paena ab haerede incipere potest si vivo reo accusatio mota est l. ex judiciorum ff de accus so that by that Law if the pursuit was intented against the Father it might have continued against the Son to infer a pecunial Mulct but this last holds not with us amongst whom no Probation can be led in absence except in Treason but yet I think that a Civil pursuit may be sustained for damnage and interest and expences of a Criminâ—l pursuit even against the Malefactors Heir as was also decided by the Senat of Savoy Cod. Fab. tit de accusat def 15. FINIS
causam dederit there is a Civil Action by the Civil Law allow'd ex lege aquilia But for the further understanding incendii culpas the more exact Doctors do distinguish betwixt incendium ex culpa lata ex culpa levi ex culpa levissima commissum And since culpa lata aequi paratur dolo therefore they make it to be corporeally punishable though in that case the punishment is not extended to death but if the same be committed only ex culpa levi then it is to be punished by a Fine but if the committer have not wherewith to pay his Fine he may Subsidiarly be punished in his person But if the Fire be raised per culpam levissimam then the committer can never be punished corporeally even though he want Money wherewith to pay his Fine dicunt tamen aliqui culpam levissimam in faciendo aequiparari culpae levi in committendo Alex. con 55. IX By our Law he who burns a House in a Town by misgovernance and not of set purpose as the Act sayes he shall be punished at the sight of the Magistrats of the Town and his Goods shall be given to him who suffers the prejudice and shall likewise be banished for three years and if he have no Goods he shall be scourged at the Mercat Cross and thorow the Town and shall be banished for seven years but if he who owes the House do either by himself his Wife or Bairns id est negligently burn his own House albeit no Neighbour be thereby prejudged yet he shall be banish'd the Town for three years And if he to whom the House is set burn the same negligently he shall repair the dammage and be baninished for three years Or if a Stranger or Traveller burn as said is he shall be Arrested and repair the skaith which if he be not able to do he shall abide in Sickerness id est in Prison at the King's will And if the Governours of the Town be negligent in the execution of their Office they are to be unlawed in ten pounds And if Fire happens in Husband-Towns in Barronies they are to be punished by the Lords id est Barrons in like-manner as Magistrats do within Burgh Ia. 1. Parl. 4. cap. 75. By this Act likewise no Fire is to be carried from on House to another but in a covered Vessel under the pain of an Un-law but since this Un-law is not exprest it is therefore Arbitrary to the Judge to raise it as high as his Jurisdiction will suffer though in justice he should proportion it to the Crime especially since it is not tax'd here of design that it may be proportioned as said is Upon this Act there may be several doubts raised as first What is meant by the word misgovernance for clearing whereof the common distinction made by the Doctors and related by Alexander Consilio 55. would be considered And it appears that misgovernance in this case does include culpam levissimam the meanest fault because the Act bears misgovernance and not of set purpose so that whatever is not of set purpose or designed is punishable by this Act. Likeas the word recklesly which is likewise used in this Act as exegetick of the former may be properly enough extended to culpa levissima but yet it may be argued upon the other hand that since the punishment of Servants raising Fire by misgovernance is to be Scourged publickly and then Banished and that Masters are punished if they burn their own Houses after that manner it were hard to extend this punishment ad culpam levissimam and as the Law interprets obligations to give Wine or Corn neither to be extended to the best nor worst of that species so in this case misgovernance should be interpret as that it may properly neither be meant of culpa lata nor levissima but of culpa levis which is media and the word misgovernance properly doth imply a fault that is considerable verba poenam imponentia sunt strictissime interpretanda as Lawyers observe 2. It may be doubted whether if Children who are not come to that age at which they are only punishable themselves should burn the Fathers House if the Father be punishable by this Act eo casu and albeit it would seem that he is seing accident without judgement is punished in this case by repairing the dammage done yet it is more suitable to reason to conclude that he is not because 1. He who hath no government by Law of himself or any thing else cannot be said to do any thing by misgovernance 2. Children in Law are equiparat to fuâ—ious persons or Idiots and as the Father could not be punishable for what is done by his Children being furious and Idiots so neither can he be punishable for what is done by them whilst they are impuberes 3. Quia accessorium sequitur naturam sui principalis subsidiarium naturam ejus cui est subsidiarum and therefore where the Child himself cannot be punished we ought to conclude that the Father ought not to be punished for him XI The Doctors do conclude that the Master of the Family is bound not only for his own but likewise for the fault of any of the Family who raiseth Fire for having choos'd them himself he ought to be lyable for their fault and he ought to blame himself for not choosing of better Servants But this is to be restricted to the injuries done by the Servants in their respective imployments to which they were made overseers by Masters As for instance if the Cook should leave the Fire securely at night in the Kitchin but a Laquie belonging to the House should thereafter come in to the Kitchin and scatter it so as that both their Masters and the Neighbours House were burnt they conclude that the Master would not be lyable to make up his Neighbours dammage since the Master was not to be blamed the person choos'd by him having done his duty Carpz part 1. quest 39. num 51 52. But this seems unreasonable for it may be alledged that the Master should not have choosed any such Servants And it is all one to the Neighbours by whom the prejudice is done or whether it was done without the committers office or not And therefore it were fit to consider whether the person who did the injury was known to be a profligat or vicious person before he was imploy'd And it seems that this may be the interest of the Common-wealth because it would secure Neighbours and be advantagious for the Common-wealth that none should imploy Servants who are not sufficient TITLE X. Witch-craft 1. Wierus arguments against the punishing of Witches with the answers thereto 2. Some observations which may perswade a Iudge to be cautious in judging this Crime 3. Upon what presumptions Witches may be apprehended 4. Who are Iudges competent thereto 5. Paction with the Devil 6. Renouncing of Baptism 7. The Devils mark 8. Threatning to do mischief how
Dalkeith he immediatly distracted which Article was likewise found relevant being joyned with fame and dilation Which decisions are in my opinion very dangerous for they want a sure foundation and are precedents whereby Judges may become very arbitrary And against these I may oppone a third alledgiance used in the former Process against Agnes Finnie wherein it was alledged that the conclusion of all Criminal Libels should be necessarily inferred from the deed subsumed and that conclusio semper sequitur debiliorem partem nam libellus est syllogismus apodicticus sed non probabilis and therefore except the Libel could condescend upon some means used by the Pannel from which the malefice were necessarily infer'd it could not be concluded that these Malefices were done by her or that she was guilty of the wrong done Thus Bodin lib. 4. does conclude that veneficae non sunt condemnandae licet sint deprehensae cum bufonibus ossibus aliisque instrumentis egredientes exovili licet oves immediate moriantur And Perkins cap. 6. asserts that neither defamation nor threatnings albeit what is threatned does follow nor mala fama nor the Defuncts laying the blame of their death upon the person accused called inculpatio by the Doctors can infer this Crime though all these be conjoyned for in his opinion nothing can be a sufficient ground to condemn a Witch except the Pannels own confession or the depositions of two famous Witnesses deponing upon means used by the Pannel And it is remakable that in the Chapter immediatly subsequent to that wherein Witches are ordinarily to be put to death GOD hath expresly ordained that out of the mouth of two or three Witnesses every word shall be established And in the Process deduced against Isobel Young for Witch-craft Feb. 4. 1629. and against Katherine Oswald Novemb. 11. 1629. This point is likewise debated it being Libel'd against the said Katherine that by her Witch-craft she caused a Cow give blood instead of milk and caused a Woman fall and break a rib in her side Against which it was alledged that there was no necessar connexion there inter terminum à quo ad quem inter causam effectum But on the contrary the Cowes giving blood for milk might proceed from another natural cause viz. from lying upon an Ant or Emmot hill and therefore I think that because we know not what vertue may be in Herbs Stones or other things which may be applyed it were very hard to find Cures performed by the application of these without the using Charms or Spells to be Witch-craft But when these outward applications are used to do hurt as for instance if the said Margaret Wallace being at enmity with Iohn Clark and after she was forbidden to frequent his House did continue to frequent the same and did throw in blood or any unusual thing upon his Wifes Pap if the Child who suck'd the same had thereafter died I think this Article joyned with preceeding defamation of her by another Witch might have been found relevant because she was there in re illicita And since the Law cannot know exactly what efficacy there is in natural causes it may very well discharge any such superstitious forbidden Acts as it pleases under the pain of Witch-craft Nor can these who are accused complain of severity since sibi imputent that use these forbidden things against the express commandment of the Law and therefore since the Law and Practick hath forbidden all Charms it is most just that these who use the same should be severely punished whatever the pretext be upon which they are used or after whatever way or manner or to whatever end whether good or bad X. Albeit per leg 4. Cod. de mal Math. these Magick Arts are only condemned which tend to the destruction of mankind but not these whereby men are cured or the fruits of the ground preserved yet I have oft-times imputed this constitution to Tribonian who was a Pagan and a severe enemy to Christians or else that it behoved to be so interpret or that thereby remedies assisted by Godly Prayers were allowed else what mean these words suffragia innocenter adhibita But since I am informed from the Ecclesiastick Historians as Zozim lib. 2. that Constantine was not yet turn'd Christian when he past that constitution but however this constitution is omitted in the Basilicks and the Gloss sayes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was not thought fit to be mentioned in the repurgation of the Law And that constitution was very well reprobat by Leo's 65. Novel And by the Canon Law tit de sorti-legiis And the general Sanction of the former Act of Parliament leaves no place for this distinction Suitable to all which Iohn Brough was convict for Witch-craft in Anno 1643. for curing Beasts by casting white stones in water and sprinkling them therewith and for curing Women by washing their feet with South-running Water and putting odd money in the Water Several other instances are to be seen in the Processes led in Anno 1661. And the instance of Drummond is very remarkable who was burnt for performing many miraculous Cures albeit no malefice was ever proved XI Consulting with Witches is a relevant Ditty with us as was found against Alison Iollie per. Octob. 1596. and this is founded upon the express words of the Act. The professing likewise skill in Necromancy or any such Craft is by the foresaid Act of Parliament a relevant Article For the full clearing of which Act it is fit to know that Divination was either per daemono-mantiam the invocation of Pagan Gods or Nanganiam which was the Prophecying for invocation of some Sublunary thing Mangania is divided in Necromantiam which was a Prophecying by departed Spirits Udromantiam which was a Divination by Water c. All which species and kinds of Divinations by any thing is comprehended under the general prohibition of Necromancy and such like Acts So that Predictions and Responses by the Sieve and the Shear and by the Book and all such cheats and species of Sorcery are punishable by death in this Act Yet these forbidden practices may sometimes be excused by ignorance or if it can be cleared by circumstances that the user designed nothing but an innocent jest or recreation Delrio lib. 4. cap. 1. quaest 4. XII The last Article in Criminal Libels useth ordinarily to be the being delated by other Witches which the Doctors calls diffamatio and we common bruit and open fame which are never sustained as relevant per se but only joyned with other relevant Articles as is to be seen in the foresaid Process of Margaret Hutchison though I think that Interloquutor very severe since if any of the former Articles be per se relevant they need not the assistance of fame and delation Sometimes likewise but with much more reason Articles that are of themselves irrelevant are sustained relevant being joyned with fame and delation an example whereof is to be
prove design which is a secret act of the mind All killing is alwayes punishable by death except some of the qualities of chance self-defence c. be alledged upon by the Pannel It may be here asked if by our Law he who strikes with his fist or a batton which are of themselves no mortal weapons be punishable by death though the party struct there by him dye And it would seem hard that he should seing no designe to kill can be here presumed maleficia voluntas affectus distinguunt and by the 5. cap. Wil. Reg. num 4. It is said that si quis interficiat cum pugno dabit regi 25. vaccas satisfaciet parentelae defuncti secundum assisam regni by which it would appear that striking with the fist is not capital albeit death follow Murder premeditated may be divided into that species which is simply such Assasination Murder under trust and self Murder XVI Murder under trust is with us when a party who put himself under the assurance and trust of another is murdered by him and this is by a special statute punisht as treason Act. 51. P. 11. Ia. 6. The words are where the party slain is under the traist credit assurance and power of the slayer the party being tryed and found guilty thereof by an assize it shall be Treason and the person found culpable shall forefault Life Lands and Goods what this credit and assurance is hath oft been questioned and it is reported that the origin of this was to punish the Murder of a Gentleman who invited his neighbour to a feast and killed him and all his relations in his own house so that invitation is one branch of this trust 2. Assurance signifies that when two persons were at fead and the one hath found borrows to one another Act 97. Ia. 1. p. 6.3 Where persons at varience are under capitulation 4 This Act has been stretcht to the conjugal trust betwixt man and wife anno 1627. Andrew Row And yet in the Process intented against Swintoun for killing his wife anno 1666. It being objected that this act extended not to such trusts as this the pusurer restricted his Libel to Murder And the Lords of Session Anno. 1665. found that a sons killing his own mother was not a murder under trust punishable by this act and yet it would appear that both killing of wives and Children falls under that branch of the act where the party is under the power of the slayer This species of Murder was by the Civilians called proditio which is designed to be homicidium sub praetextu amicitiae v. g. dum sederem tecum in mensa vel amicitiam fingerem which is punishable by a more severe death then ordinar Murders And in Spain the betrayer or proditor for even in propriety of speech Murder under trust is treachery or Treason trahitur ad caudam equi postea furca suspenditur Gomez By that act likewise tryal should be taken by an assize And therefore the Lords found that though Mr. Iames Oliphant had been guilty of killing his Mother and that it had been Treason yet his forefaulter could not fall to the King upon a simple Denunciation for not appearing to underly the Law because a tryal is requisite in this case And by the 137. act 13 Par. Ia. 6. The killing any person in the Parliament-House during the sitting thereof or the inner Tolbuith id est the inner house of the Session during the sitting thereof or the Council-house whilst the Lords sit or kill any in the Kings Chamber Cabinet or Chamber of peace or in the kings presence any where infers the pain of Treason XVII What is interpret to be art and part of Murder can hardly be defined for it does depend upon the assize A designe to Murder though no Murder follow affectus sine effectu punitur capitaliter l. 1. is qui cum telo C. ad Corn. de Sicar yet by the custome of nations the punishment now reaches not life Clar. hoc tit num 74. and I find that Mathew Stewart being pursued for contriving the death of Thomas Kennedie came in the Kings will and was only banisht Mart 1597. As also I find that though Lawson was cleansed of the murder of her own child yet she being referred to the Justices because of the violent presumptions adduced against her and that she her self had confest she bore a dead child the Justices therefore did ordain her to be whipt and banisht 20 August 1662. and Margaret Ramsay having confest that she bore a dead child and was advised to cast it into the north-Loch which she did not though without her knowledge it was done by others the Justices though she was assoylzied by the inquest ordained her to be scourged and banisht 1661. XVIII Though such as kill in prosecution of Law are not punishable as Murderers yet if they exceed they are punishable not only quo ad excessum arbitrarily but even paena ordinaria as Murderers An instance whereof was decided the 14. of Iune 1672. in the person of Mr. Archibald Beath who being Pannelled for killing Allan Gairdiner alledged that the Council had by their Act and Proclamation ordained all Meal brought from Ireland to be seiz'd upon and the boats wherein it was brought to be sunk in prosecution whereof Gardiners Meal being Seiz'd he broke the Seizure and being followed in a Boate by the said Mr. Archibald and others he was commanded to stay his Boat but was so fare from obeying though commanded in His Majestie 's name that he had run almost down the Pannels little Boat who was thereupon forced to shoot at them and though this Act ex post facto degenerat into an act of killing yet no killing was at first intended and the rise of all such Actions is to be first considered To which it was replyed that this act was to be understood civiliter and did only impower the Leidges to Seize but not to kill and all mandats are to be so interpreted as not to be extended ad ea quae mandans in specie non mandasset or quae solitus est mandare si aliquando mandat non mandat nisi certa forma servata but it cannot be subsumed that the Council would have allowed the importer of such victual to be killed nor do they use to intrust the execution of such Laws to Ministers and if they had designed that the execution of this prohibition should reach death they would have expresly allow'd the Seizers to kill as they use to do in such cases To which it was duply'd that though the Minister was not obliedged to concurr because of his function yet concurring as a Subject he is not punishable therefore capitally and if a Minister should concur when the hue and cry were raised after a night Thief or if a Minister did assist such as pursued Rebels and should kill in the pursuite it were absurd to conclude that he should be punisht
Law by which non licebat ducere eam in uxorem quam quis polluit adulterio But it must be observed that this only holds where there was an actual Divorce upon the adultery prior to the marriage And therefore a present marriage could not be dissolved by offering to prove that the contracters had committed Adultery during their former marriage This act of Parliament having declared such marriages unlawfull it did very consequentially declare the succession to be begotten by such unlawful conjunctions to be unhabile to succeed as Heirs to these Parents And I have heard it it doubted whether they were capable to receive dispositions from their adulterous parents But I conceive as to this there is no difficulty For though the Law make them uncapable to succeed as Heirs yet it does not make them uncapable to receive a disposition and though it may seem that this be a farther check upon the Adulterers whose children could no way be gratified by those with whom they committed the crime Yet since quilibet est arbiter rei suae it were hard to deprive a man of the use of his property because he has committed Adultery I find that by the Civil Law such Bastards as were born in Adultery or Incest whom in the Civil Law calls nati ex damnato coitu could neither succed to their vitious Parents nor were they capable of any thing by their Parents Testament cum ita facilius paterna libido coercere posses censeatur l. Fin. C. de nat lib. Bald. ad l. 1. C. de jur Aur. Nor could they be adopted by their Parents l. legem C. de na lib. Upon which principle our Parliament has been induced to make the 117. Act. Par. 12. I. 6. but has streatched it a little further then the Civil Law did For by that statute a woman divorced for her Adultery marrying thereafter the person with whom she committed the Adultery for which she was divorced or dwelling and resorting in company with him at Bed and Buird cannot dispone her lands or set tacks thereof in prejudice of the Heirs who would otherwayes have succeded to her From which statute it is observeable that since the woman is only incapacitat to dispone in this case that therefore a man though Divorced for Adultery may lawfully dispone his Land in favours of the Children Procreat in that Adultery this prohibition being restricted to the woman because of the Imbecility of her sex who may be tempted or seduced more easily then men can be and yet since the presumption did only runn against the Adulterous Children procreat in the second marriage whom it was probable the mother would have preferred to the children of the first and slighted husband It seems strange why any deed done by her in prejudice of not only those children but even of any of her Heirs would be null though done in favours of neither the Adulterous Husband nor his Children but even in favours of meer strangers whom the Law needed not have suspected But this was certainly done to prevent the mothers fraudulent convyances who might have transmitted the estate to the adulterous Husband or his posterity or friends under borrowed names the discovering of such contryvance being very difficult and the hazard of not discovering being very great I conceive likewayes for the same reason that the granting of a personal Bond upon which the estate was thereafter comprised from the mother may be quarrelled upon this statute For else the Law might be easily cheated and the statute it self declares all deeds done to the prejudice of the saids Heirs directly or indirectly to be null and yet since the mother remains still fiar notwhithstanding of this prohibition I see not why a Bond and comprysing led thereon for debts truly owing by the Mother could be quarrelled where nothing was fraudulently designed against this act And though this act be only conceived in favours of the Heirs of the prior Marriage or the womans Heirs whatsoever yet I see no reason why this act would not militat in favours of the King to reduce deeds done to his prejudice as ultimus haeres since a last Heire in the construction of Law is a true Heire TITLE XVIII Bigamie 1 What is Bigamie by our Law and how punished 2 Why Bigamie was not punished as Adultery 3 Whether Quakers may be punished for Bigamie 4 VVhether long absence may excuse in this Crime 5 VVhether the marriage sine concubitu infers Bigamie 6 VVhether a woman devorced for Adultery marrying again be guilty of Bigamie THat a man might marry two wives was allowed by many Nations and Tacitus observed that only the Germans amongst all the Nations were content with one but no Nation allowed that a wife should marry two husbands which was done either because men were the only Legislators and so were kind to themselves in allowing themselves that liberty they denyed to poor women or else this was not allowed because a womans marrying two men prejudged the peopling the common-wealth Whereas a mans marrying moe wives was advantagious for it And the Law sayes that more chastity is required in women then in men and men being by nature hotter then they Bigamie is therefore more unnatural in women I. Yet in our Law either a man marrying two wives or a woman marrying two husbands commits Bigamy and this is accounted by the 19. Act 5. Par. Q. Mary a breach of the Oath made at marriage and therefore is punishable as Perjury by confiscation of all their Moveables warding of their persons for year and day and longer during the Queens will and as infamous persons never to bruik Office Honour Dignity or Benefice in time coming II. It may be here doubted why Bigamie was not punisht as Adultery seing it may be notour Adultery and is ordinarly so to which difficulty I think the answers are that it was contraverted amongst Lawyers whether Bigamie was punishable as Adultery or as Stuprum or Fornicatio that it was not Adultery they contended because God allowed Bigamie but he never allowed Adultery 2. Many Nations allowed Bigamie who condemned Adultery and l. 2. C. de incest nupt where it is said that uemini licet duas uxores ducere the punishment of Adultery is not subjoyned but it is only said that praefes provinciae hoc inultum non patietur and it may be added that their marrying shows some more respect to the Law then Adultery obfiguram matrimonii multa non adeo puniuntur 3. When Bigamie was by this Act declared punishable only as Perjuâ—y and not by death even incorrigible and manifest adulteres were only punishable by confiscation of their Moveables is clear as by the subsequent Act and the Act against notour adulterers to be punisht by death was not made till the 9 th Parl. Q. Mary I know that Menoch de arb cas 420. thinks that Bigâ—mie should be punisht as Adultery And I do think that if the marriage be contracted upon design
punishment of the Crimes for which they were accused and such as killed themselves taedio vitae vel doloris impatientia for the first they punisht as Murder but the last they favoured with a lesser punishment Nay and in the Primitâ—ve Church many for making themselves away to evite thereby Idolatry or Pollutionâ— have been accounted as Martyres thus the Wife and Children of Adauctus having killed themselves when they were to be defloured it was doubted if they ought not to have been numbered amongst the Martyres 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cedren pag. 220. and the like story is reported by Euseb. lib. 8. cap. 17. of a Noble Lady who was brought to Maxentius But our Law is jealous that such pretexts might be brought to colour all base designs and allowing none to be their own Judges has made no such distinction as was found in the case of Thomas Dobbie cited by Craig diages de regal and to allow this were to feed despair and to make patience and long-suffering to be no vertues II. Yet furiosity and madness ought to defend against all Punishment in this case since a furious Person has no will in the construction of Law and the will is that which makes the Crime nor should they be more punished then Infants are to whom the Law compares them Fury also defends against Treason Blasphemy and Heresie which are more atrocious Crimes then Self-murder facti infelicitas furiosum defendere dicitur l. infans ad l. Corn. de sic and therefore I cannot well understand wherefore in Dobbies case as Craig relates it the Lords repelled the Defence of Furiosity and found that even furious Persons ought to lose their Moveables if they killed themselves but I think the fury there has not been strongly qualified and that it has been but a Species of Melancholy for the reason given for that Decision is because the Lords thought no man would kill himself if he were not distracted and so it distraction could defend such as killed themselves against confiscation of their Moveables it would defend all who kill'd themselves and so the Law should have no effect but this must be interpreted of some degrees of madness for sure no man kills himself except he who is somewhat mad Nor does Hypocondrick fits or the first degrees of madness defend against this Confiscation but a total aberration from reason cannot but defend which is also clear from the Law of England Bolton Cap. 11. lib. 1. and the difference betwixt these two must be inferred from the various circumstances which attends such diseases and from the declarations of Physicians who waited upon them Whether one who is mad but has lucid intervals is presumed to have killed himself in his madness or lucid intervals is not so clear and depends much upon Circumstances but since none use to kill themselves except under some distemper so therefore it is more humane to refer this killing to have been in the hours of madness except it can be proved that the killer used even in his lucid intervals to wish he were dead or to commend Self-Murder vid. Cabal cas 289. III. An endeavour to kill ones self is punishable as Self-Murder if the killer did all that in him was to effectuat it as if he hang'd himself but was immediatly cut down And by the Law of England if a man wound himself mortally though he live year and day thereafter his Goods falls to the King Bolton lib. 1. cap. 10. IV. Self-Murder may be committed by omission as well as commission thus if a man would starve himself to death he might be punisht by confiscation of his Moveables but the design must be clearly proved since as many innocent people might be alledged to have killed themselves whilst they have fasted either through pain or necessity V. When a man kills himself his Majesty gifts his Escheat and the Donator pursues a general Declarator thereupon wherein he calls the nearest of kin and he must prove there that the Person whose Escheat he has got killed himself which must be proved by clear and convincing evidences such as the depositions of Witnesses or a Paper under the Defuncts hand wherein he declares the reasons of his discontent and why he killed himself which is very ordinary in these cases wherein they design thereby to justifie to the world this horrid Act But I think presumptions are not sufficient here since this is a Crime except they be very strong and violent but if they be such it appears they are sufficient to infer Confiscation for though presumptions be not sufficient to prove a Crime to infer Capital punishment yet they are oftimes sustained to infer Confiscation of Moveables or other civil effects And if presumptions were not sufficient in this case Self-Murder could never be proved for the committers choose retired places and quiet times for executing their wicked designe and who could say but that if a man were known to have exprest much dispair and thereupon to have entered into a Room and were found with the Door closed and hanging in his own Garter but that these presumptions would infer Confiscation of his Moveables By our practice thir Declarators have been sustained before the Lords upon probation of the Self-Murder led before themselves without any previous tryal before the Justices and some think such a previous tryal not necessar for all tryals before them are by Assizers and dead men cannot be tryed by an Assize but it might be alledged upon the other hand that such a previous tryal before the Justices is more suitable to the analogy of all other Crimes which are all tryed before the Justices and though it may be alledged that the Lords jurisdiction is here founded ratione incidentiae and that many Crimes are tryed before them as falling incidently in other civil cases yet even in falshood though the Lords of Session are Judges competent to the deed it self Yet no mans Escheat falls upon their Decreet though he be found a falsary by them till he be also tryed by the Justices and the Escheat falls as an effect of their sentence only Nor has this exception been yet repelled as to Self-Murder so that res est ad huc integrae especially if the persons whose Escheat is craved to be declared be yet alive so that he may be tryed before an Assize for having endeavoured to kill himself for some endeavours to kill ones self are punishable by death though prevented as has been said formerly And in that case I conceive that a previous tryal before the Justices is necessar TITLE XIV Paricide 1 To what degree reaches Paricide by the Civil Law 2 To what degrees by our Law 3 Whether does the Act 220. Ja. 6. Par. 14. extend to descendents 4 Whether does that Statute extend to Bastards 5 The punishment of Paricide by that Statute 6 The 20. Act Par. 1. Ch. 2. concerning beating of Parents explained 7 How the murdering of Children is punished 8