doubted whether Lords of Regality or Subjects having a Justitiary are Judges competent to Treason and it seems not for the reasons foresaid XIX The second priviledge of treason is that those who are pursued for treason should be immediatly committed to prison and their goods should be put under sicker Burrows id est Caution under which they must remain ay and while they suffer an Assize Ia. 2. p. 12. c. 49. and Reg. Maj. lib. 4. c. 1. But it seems very hard in our Law that there is no time prescribed for the pursuer to insist but that the person suspect may be kept in prison for a long time though he be very innocent and offer himself to a tryal whereby the most innocent of Subjects may be ruined in their Fortunes and Families without any just cause And yet upon the other hand it were hard that Traitors should be allow'd to go abroad because probation cannot be presently had which it may be the traitor hath abstracted or that the King or State should be forc'd to discover too soon by a pursuit a treason which he is bound in policy to cover for some time And as in War so in Treason which is as dangerous many things are allow'd to be done which are not otherwise regular the interest of all preponderating the interest of any one or a few XX. The third speciality in treason is that all Charges of treason should be execute by Heraulds and Pursevants bearing Coats of Arms and by Macers and that for the greater solemnity else these Charges are declared null Ia. 6. p. 12. c. 125. Likeas the ordinary custome is to execute Summonds of treason after that manner But it was found upon the 5. of December 1666. in the Action intented at his Majesties Advocats instance against Mackulloch and others that this Act did only relate to Summonds of treason or any other Charges wherein men are ordain'd to obey under pain of Treason But that inditements of treason given to men who are in prison may be execute by ordinary Messengers And yet the Act sayes that all Executions given otherwise then is appointed by that Act shall be null XXI Women and others may be Witnesses in this Crime though in other Crimes they cannot and one Witness is sufficient here and famosi impuberes of what ever age are receivable as Witnesses by an express Act of the Sederunt of Lords of Session in Anno 1591. Likeas Cod. fab hoc tit def 4. sayes est privilegium criminis Laese Majestatis ut facilius probetur And that it may be proved per famosos socios criminis And that it was decided in Savoy 1591. vid. Pappon lib. 24. tit 2. But the English do most justly conclude that because the punishment is severe in treason therefore it ought to be proved by manifest and direct proof and not by presumptions or strains of wit Cook pag. 12. And that two witnesses are necessary for proving treason he proves most learnedly pag. 26. By the Civil Law famosi mulieres were admitted to accuse in this Crime though not in any other Crime l. 7 and 8. ff ad l. jul maj But this last priviledge should only hold in Perduellion Mascard de prob lib. 1. conclu 462. and not in Statutory Treason And that this should hold in no species of treason was Math. opinion pa. 372. because per l. ult cod de prob in capitalibus causis Idoniis testibus atque appertissimis documentis opus esse dicitur nec excipitur crimen Majestatis Neither doth it follow that because persons who are not admitted in other Crimes are admitted to be accusers in this that therefore these who are unfit to be Witnesses in other Crimes should be admitted in this for there is little hazard in an unfit accuser but there is great hazard in unfit Witnesses And this I think much more suitable to reason then the former Statute for the greater the hazard is the probation should be so much the clearer And though testes inhabiles may be received or one Witness may prove sufficiently for subjecting the Pannel to the torture which is all that can be infer'd from that Act of Sederunt which sayes only that they ought to be received Witnesses but sayes not that they ought to be received in all cases Yet it were against all reason that any condemnatory verdict or sentence could be founded upon such probation I find also by the Law of Savoy that socii criminis famosi are admitted to be Witnesses not in treason generally but in Perduellion And that Act is by their Lawyers restricted so that the Pannel cannot be condemned to death or forfeiture upon such depositions but only to torture Nor will he be tortured upon such depositions except the deponent be upon Oath and abide the torture also at his deposition Cod. fab lib. 9. tit 5. All which seems most reasonable but yet it seems that no man is to be repute socius criminis but he who is convict or hath confess'd the Crime and dilates others for else a man being accused for treason cannot alledge that the Witnesses led against him were socii criminis for that were to confess himself to be guilty for no man can be socius criminis to the Pannel except the Pannel be guilty himself and was socius to the witness therein nam relata se mutuo ponunt And this was so found in Assint's Process but it was there alledg'd that though socius criminis could not be received for the Pannel yet he could be received against him And that was the sense of the Doctors who exclude socius criminis from being a witness in treason But as to this I doubt very much for if a person confessed his accession it seems unjust that he could condemn others being infamous himself And yet in open treasons as rising in Arms it seems necessary to receive such as were in Arms for none else can come near an Army of Rebels and so the Crime must be proved by these or by none XXII The fifth priviledge is that treason is not extinguisht by death in all cases as other Crimes are But that treason committed against the Kâ—ngs Person or Common-wealth may be inquired into after death and the committers Heir may be forefault therefore Ia. 5. p. 6. c. 69. which Act bearing to be founded upon the Civil Law these general words contained in it against the Kings Person or Common-weal must only be extended against such treasons as were by the Civil Law accounted Perduellion And therefore it is most necessary to know the Civil Law in this case and what was therein called Perduellion Seing albeit all treasons may by an natural interpretation be said to be committed against the Kings Person or Common-wealth yet the Civil Law declared only that species of the Crime of treason which they called Perduellion to be punishable after death l. ult ff ad l. jul Maj. plane non quisquis legis juliae Majestatis
Law for trying the innocency of such as wanted other legal probations The Longabards first did allow this way of Duelling by pulick authority who did regulat it by twenty several determinations And thereafter it was renewed by Philip the fair King of France Anno. 1360. but was bounded with these four conditions 1. That it should only be allowed in Criminal and capital cases 2. That it should only be allowed in Crimes treacherously committed where the Truth could not be otherwayes found out 3. Where there did lye strong presumptions against the persons provocked 4. Where it was certain there was such a Crime committed against the provocker II. With us in Scotland Duels were allowed not only for clearing of innocence as to Crimes but likewise in civil cases as when an Heir denyed that his predecessor granted a Conjunctfie R.M. lib. 2. cap. 16. v. 47. And when any thing was denyed to be lawfully bought by the owner Lib. 3. cap. 13. v. 4. But thereafter I find that by the 16. cap. Stat. Rob. 3. All duels are discharged except in the four former cases allowed by Phillip the fair The solemnity of Cartels used in such cases was the casting of Gloves to one another as is clear by Skeen ad cap. 24. v. 9. R. M. Duelliones in hoc regno hinc inde chiro thecas offerunt which custome had its origine from the Longohard Law above cited as is clear by Long. de duel and Dumhaud tit cod The place appointed by our Law for such Duels was the Bridge of Stirling cap. 28. Stat. David 2. And if the appealer in ordinar Crimes was foil'd and worsted his pledges payed the King nine Cowes and a Colpindach and satisfied for the calumny Stat. Alex. cap. 11. But in Treason the appealer worsted became in the Kings will and the party appeased being worsted was disherished R. M. L. 4. c. 1. But these Duels are Discharged by the Canon Law cap. monomachia 2. quest 4. cap. ultim Ext. de purg vulg though with us such judicial Combats by authority are not absolutly discharged for by the 12. cap. 16. Parl. I. 6. Wherein singular Combats are discharged there is an exception made of such as are fought with His Higness licence III. Duels undertaken without publick authority are thought by many Lawyers to be lawful when undertaken by a person who is injured in his honour if the party injured cannot be otherwayes repaird either because there is not a judge in the place or else the injurer will not appear before him or though he compear the Judges refuses to do Justice ubi enim deficit jus ibi suplet ensis propria ultio Bart. in L. hostes num 9. ff de cap postlin revers And many are of opinion that these privat Combats are lawful for defence of our honour and as we may defend our life by taking that of our neighbours so we may defend our honour by the hazard of his life But that Duels are in themselves unlawful by all Law appears very clearly from these reasons 1. That the Law has justly thought fit that the Magistrat only should do justice to all and that no private man should revenge himself for in so far he commits treason in assuming the power of the Civil Magistrate 2. The power of taking and using Arms belongs only to the Common-wealth and consequently no private man should run to Armes upon an imagination that he is wronged in his honour 3. There is no proportion betwixt the injury and reparation in such cases a verbal injury being too severely punished when punished by death there being no proportion betwixt what may be helped and what may not 4. Revenge belonging to God it is an usurping of his power It is the destroying that body which is the Temple of God the defaceing of his image whereas to deface even a Princes Image designedly is Treason and it is a spilling of that blood for which Christ shed his 5. It is a crime against a mans self and is in effect self-murder Nor need those who resolve to kill themselves take a base way since this honourable way is easy and patent for he may soon make quarrels and so kill constantly till he be killed It is a Crime against the common wealth because it destroys its subjects and makes the hateful sin of Murder a desireable effect of Glory It is likewise a great offence against our friends since it drawes them though innocent into the same snare as seconds assisters and revengers and it is dishonourable because it wrongs a mans wife by making her miserable and notwithstanding of his many obligations to her 6. It is an unjust decision of controversies since strength skill or accident prevail oftentimes against honour and innocence so that this tryal should neither be allowed by justice nor honour and therefore Augustus being provoked by Anthony did nobly answer that if Anthony was weary of his life he might take any other way to dispatch himself And Sertorius being provocked by Metellus answered it was below a General to dye like a common Souldier And therefore it may be answered to the contrary arguments that it is to be presumed the Magistrate will do justice in repairing the fame of him who is wronged nor can a Duel restore the fame that is lost for a Duel shews only a man to be resolute or desperat without being innocent or generous and it is more presumable that the provocke was justly defamed and finding himself unable to survive the shame resolves to dispatch himself by this plausible way of self-murder nor can a man take a more easy way of publishing that wherein he was defamed then by killing the defamer whereby he will both bring himself and the occasion of that accident into the mouths of the world Though that act discharge only singular Combats And that the word singular Combat is properly only applicable to the fighting of two single persons which is only properly called singulare certamen yet this singulare certamen or singular Combat is properly enough extended where moe fight on a side Cagnol in l. Favorabiliores 86. ff de reg jur V. Since fighting of singular combats is only declared punishable therefore the giving or receiving challenges is not punishable by death though even that be likewise punishable by the Council Arbitrarie as ending to disturb the peace but since the very fighting is declared punishable by death it follows necessarily that such as fight Combats are punishable by death though neither party be killed And if only killing had been punishable by death this act had been unnecessary since that was punishable as Murder before this act VI. If any person be killed the libel is founded both upon the Acts against murder and this act against Duels But the difference betwixt the way of libelling is this that if the libel be only founded upon the acts against Murder then self-defence is receiveable by way of exculpation to eleid this
pâ—sse crimina vel idoniis testibus vel apertissimis documentis vel judiciis judubitatis probari l. 2. ff quon apell non recip ubi jubetur curialis observare ne quis homicidarum Adulterorum c. Argumentis convictus testibus superatus vel voce propria confessus audiatur apellare 2. Since Witnesses are only believed because it is presumed they will not damn themselves why may not other Presumptions be likewise received 3. Presumptions are in many cases allowed as a sufficient Probation as the presumption of Cohabitation after the parties are discharged is sufficient be Act of Parliament to infer Adultery 4. The depositions of Witnesses are oft-times founded upon Presumptions as when they depon upon dolus malus ebriety or any other thing which depends upon acts of the mind 5. Many have been condemned upon Presumptions as Ianet Brown who was convict for Murder of her own Child upon presumptions and hang'd accordingly the 25. of Iune 1614. And Scot was convict and hanged for killing of Drumlanrigs Sheep the 20. of February 1616. And after a solemn debate how far Presumptions could prove in criminals in Alexander Kennedies case he was convict and hanged for falshood upon Presumptions in Anno 1662. This difficulty hath forced some of the Doctors to conclude that this case is arbitrary and others to conclude that Presumptions may infer paenam extraordinariam sed non ordinariam Cod. fab tit de paen which last opinion is upon the matter coincident with the first for in arbitrary cases the Judges can never proceed to death and it seems that both these opinions are well founded because not only the committing of crimes but even the giving of scandal and the doing that which is like a crime deserves to be some way punished but this arbitrariness should only in my opinion be allowed to the Council who are a supream Judicatory and are in such extraordinary cases tyed to no express Law TITLE XXVI Probation by Witnesses 1. How witnesses are cited with us 2. Who are testes ultronei 3. What witnesses are not worth the Kings unlaw 4. When women may be admitted to be witnesses and when not 5. How minors are to be admitted witnesses 6. Persons guilty of crimes cannot be admitted 7. Persons within degrees defendant are not admitted and who these are 8. Domestick servants when admitted 9. Moveable Tennents 10. Socius criminis 11. Defenders cited as parties 12. What time is considered in the hability of a Witness 13. Whether Witnesses inhabile may be received at His Majesties instance 14. Who are testes singulares 15. The contrariety in depositions considered 16. Causa scientiae 17. Witnesses ad futuram rei memoriam 18. It is now necessary to give in a list to the defender of the witnesses names who are to be led against him 19. Absent witnesses how punished and compelled 20. What number may be cited for proving each crime IF the crime be pursued by raising of a Summonds that Summonds contains a warrand to cite witnesses but if the pursuite be by way of inditement the Justices grant warrand by precept for citing of Witnesses At the day of compearance the pursuer gives in with his execute Summonds executions likewise against the Witnesses and if the executions against the Witnesses be not legal the dyet is deserted But if the witnesses be lawfully cited and compear not of old there was a warrand given to apprehend them and the dyet was continued but now there are formal Letters of Caption given under the Signet of the Session and not of the Justice-Court and the Letters are still raised by the Justice-Clerks deputâ— who is the ordinary Clerk of Court And if the Sheriff refuse to apprehend the Witnesses by vertue of the Caption the Letters will be direct against himself as in civil cases and this was first observed in the cases of Mackalla against Lindsay After the Justices have found that the Pannel should go to the knowledge of an Inquest he asks the pursuer what way he will prove his Libel and if the probation by witnesses be chosen as the manner of Probation to be used II. The Justices desire the Clerk to call the Witnesses and if any be given in in the list against whom there is no formal execution it is alledged they cannot be received and this is the first objection against the witnesses and is founded upon this reason viz. that he who offers himself to depon without being lawfully cited is presumed to be too desirous to depon and so to have malice These the Civil Law calls testes ultronâ—i yet I find that the Justices sometimes receives witnesses cited apud acta as Alexander Forrester against a Witch the 3. of August 1661. So though they will not receive a witnesse who appears upon an unlawful citation and which he knows to be unlawfull yet they will receive some though not at all cited for the first show a complyance but not the last all the objections against the Wittesses are discust before they be sworn for it is below the Majesty of an oath to administrat the same unnecessarily before it be known whether the person to whom the oath is to be administrat will be received To object against a witness in our Law is called to cast a witness or to set him and by the Doctors it is called to repel a witnesse but because objections against the witnesses or oppositiones contra testes as Farinacius calls them are so largely treated of by him and others I shall therefore only take notice of some particular objections which are mentioned and made use of frequently in our Law and practique And in Law these objections are divided into such as are used contra personas testium and these which are used contra dicta testium I shall therefore first treat of these objections which are used contra personas testium III. Witnesses are not admitted with us if they be not worth the Kings unlaw which we interpret to be ten pounds and because no man can know the value of anothers estate this objection is found therefore only probable by the oath of the witnesse himself as was found in the case of Ruchead against Muire the 9. of December 1668. But this seems strange for since the Law is jealous that he will depon unjustly why it should believe him as to his own quality and therefore I think that in Criminal cases when the hazard is so great the being known to be an actual beggar should be sufficient per se to cast a witnesse without referring the same to the witnesses oath This objection is founded upon the presumption that such as are poor are liable to impression And such as are poor are expresly repelled from being witnesses by the 34. cap. stat 2. Rob. And they were likewise repelled by the Civil Law IV. Women regulariter are not witnesses neither in Civil nor Criminal cases with us nor should they make as much faith with us
instance of the Fisk. 2. If the objections be such as tend to cast the witnesses meerly because of his relation to the party wrong'd as that he is Servant or within degrees defendant to the party wrong'd then though the party wrong'd insist not yet these witnesses cannot be received if any advantage may accress to the party wrong'd by their deposition and except he declare that he shall thereby reap no advantage and except the crime be such as did no affront to the party injured for eo casu it is still presum'd that his relations will retain a privat grudge or malice whereupon they may prejudge in their depositions both the truth and the defender and yet ordinarly with us the relations of the persons injured are received at the instance of the Kings Advocat Thus Neilson was received against Margaret Wallace for Witchcraft though he was brother in law to Nicol who gave information in the dittay because the Summonds was not raised at his instance the 20. of March 1622. and yet in that same Process Stirling was not admitted to be an Assizer because he was brother in law to Muir who was one of these who was alledged to be malificiat by her albeit the Libel was not raised at the instance of Muir nor none of his relations which I think both irregular and dangerous Albeit these be relevant objections against witnesses yet if the proponer of the objection cite them also at his own instance eo ipso he acknowledge the witnesses to be habiles testes but sometimes he may notwithstanding propon objections even against those himself cites v. g. though I cite a man to be witness for me yet I may set him from being witness for my adversary because he is brother or servant IV. The objections contradicta testium are singularity and contrariety and the not giving a sufficient causa scientiae Singularity is when the witnesse who depons hath no concurring witness and this singularity is divided in obstativam adminiculativam diversificativam Singularitas obstativa is in acta non reiterabili an instance whereof they give in Susanna and the two Elders who deponed upon the same Adultery but differed in the place and therefore did not prove And it is a general rule that where the crime is not reiterable or reiterated that two witnesses varying upon the time or place as if one should say a man were murdered at Edimburgh and the other at Haddingtoun these depositions could not be conjoyned for proving the murder Singularitas adminiculativa is where the witnesses do not concur in their depositions yet they are not contrary and the one assists the other as in the proving that a Horse was stoln one should depon that he saw the Thief go in without a Horse another saw him take the Horse but no more which singularity in depositions doth not hinder the witnesses to prove neither by our practiques nor in the opinion of the Doctors Singularitas diversificativa is when witnesses depon different Acts as in a crime which is reiterable and thus the Adultery against Iohn Maxwel was found by the Lords to be sufficiently proved though one of the witnesses deponed only upon an Adultery committed at one time and another of an Adultery committed at another time February 1666. for the Lords thought that if one witness should peep in through a hole and see Adultery committed and thereafter another witness should peep in and see the Adultery likewise committed yet they were contestes and did prove sufficiently etiam ad paenam mortis infligendam as was found in the probation of Adultery led against George Swintoun but in my opinion this case differs from the former for in George Swintouns case both the witnesses concurred in one Act but they did not so in the case of Iohn Maxwel and therefore though the depositions were conjoyned against him by the Lords for sustaining a Decreet of Divorce yet it were hard that these different Probations could have been conjoyned if the case had been criminally pursued as is clear by Farin quest 64. de oposition contra exam testium num 55. XV. Witnesses who depon things that are contrary do not prove if that contrariety be in things that are substantial but though they differ in some extrinsick circumstances yet they prove verba sunt improprianda nut testes concordentur etiam concordari debent aliquando à judice per interpretationem supletivam but though contrariety be a great defect in depositions yet too formal an agreement amongst the witnesses who depon all in the very same words per praemeditatum sermonem is suspect v. g. If two or more witnesses should tell over a long story in the very same words as Farin well observes quest 64. num 24. XVI Lawyers have taken so great pains to secure the lives of poor Pannels that they will not believe witnesses though concurring except they can render a sufficient causa scientiae if the thing deponed fall under sense as the seing a man killed if it fall not under a sense absolutely as that a person was drunk mad or repute a thief c. Betwixt which two there is likewise this difference that in these things that fall not under sense the ratio scientiae must be given whether it be asked or not because in effect it is the ratio scientiae and not the deposition which proves in that case Witnesses must in our Law be received in presence of the Pannel and Assize that the Pannels presence may over-aw the deponer and that the Assize may judge by the deponers countenance gestures and assurance how far he should be believed and Advocats are to be present that they may interrogat upon emergents and this is much juster than the Laws of other Nations are who allow neither Advocat nor party to be present whilst the witnesses depons Gomes de delict cap. 1. num 65. And in this also we agree with the Civil Law l. Custodias ff de publ judiciis XVII Witnesses are sometimes received in criminalibus ad futuram rei memoriam for the defender but never for the accuser and that because the accuser may blame himself for not pursuing sooner which is not in the defenders power and testibus non testimoniis creditur whereas depositions ad futuram rei memoriam are only testimonia And yet with us the Justices sometimes declare in Court when they continue dyets that they will receive the depositions of witnesses to lie in retentis but this form is not allowable in my opinion except both parties consent because by Act of Parliament all probation should be led in presence of the Assize XVIII It was a defect in our Law that albeit it allowed the Pannel to object against witnesses yet it did not allow him to cite witnesses to prove his objections as for instance if the pursuer adduced a witnesse who was convict of Theft by a sentence at Aberdene this would be relevant but the Pannel could not
without inserting any part of the Process in the Journal Books wherein also I found that Malefactors were ordain'd to be execute very early in the morning for bestiality which was occasioned by the confession of one who asserted that the reason of his committing that crime was a curiosity he contracted at his seeing one execute for it And in such crimes no man needs to be deter'd nor wâ—ll terror restrain him whom nature cannot Since then executions for some crimes incite some to curiosity and vex others with horror and are necessary to none some may be more properly punished privatly then publictly and thus such persons as are popular and are execute only for crimes for which the people have a kindness will be more happily execute privatly then publickly because the persons executed are by publick executions obleidged to die rebelliously and the people are confirmed in their good opinion of them by their courage at death II. Constantine did forbid that any Malefactor should be crucified and this he did because of his respect to the Cross he likewise did forbid to stigmatize the face l. 17. C. de paenis because the face is Gods Image Martyrus was of opinion that banishment was not lawful lest the person so punished should be forced to live amongst Turks and others by whom he might become more flagitious then formerly and I have oft thought it inhumane to send our Malefactors to our neighbours and imprudent because it will occasion the sending of theirs from home whereby we may be likewise troubled with such as they have banished and it is probable that Correction-houses would be both safer and more advantagious for in these they may serve the publick whom they have offended but with us no Judge can confine a man whom he banisheth to any place without his Jurisdiction because he hath no Jurisdiction over other Countreys and so cannot make any Acts nor pronounce any sentences relative to them Torturing punishments at death are also very inexcuseable for they oft-times occasion blasphemies in the dying Malefactor and so damn both soul and body whereas the soul should be allowed to leave quietly this Earth and go in peace to the Region of Peace nor doth these terrifie others from the like offences for these who fear not death will fear nothing III. It was a rule amongst the Civilians that no man could obliedge himself to any thing under a corporal pain quia nemo est dominus suorum membrorum But with us it is most ordinary for a man who is guilty of a crime to obliedge himself never to return to Scotland under the pain of death thus Hamiltoun was hang'd Anno 1649. for returning to Scotland after she haâ— enacted her self never to return under pain of death and her dittay was only founded upon that contravention and certainly contempt being added to the former guilt may make a crime that was not capital become so and this contravention implies in effect paenam effracti carceris which is oft-times capital so that though a person cannot bind himself when he is guilty of no crime to perform any thing under pain of life or limb yet if he be guilty of a crime he may consent and enact himself as said is IV. Whether when Law allows a Judge an arbitrary power in punishing that Judge may inflict death in that case is much contraverted Chassan and Socin think that he cannot and this seems clear 1.4 qui vexant annonam debent puniri extra ordinem non tamen animae amissione Inst. de publ ind And Pappon relates a Decision of the Parliament of Paris finding that it could not 2. This would make Judges very arbitrary and render the Lives and Fortouns of the Leidges very unsecure 3. Seeing Lawyers are of opinion that no mans life can be taken away without an expresse Law it seems very consequential to this that no mans life can be taken away upon so general a Law 4. By the 20. Act Parl. 1. Sess. 1. Ch. 2. death and arbitrary punishment are opposed For these who haveing past sixteen years of age beat or curse parents are ordained to die but if they be within sixteen and past pupilarity they are ordained to be arbitrarly punished Whereas if arbitrary punishment might be extended to death this difference would be ineffectual and the Law thereby evacuat And by the 5. Act 1. Parl. Ia. 6. the punishment of saying and hearing Messe is escheating of their goods and an arbitrary punishment of their persons for the first fault banishment for the second and death for the third so that arbitrary punishments is lookt upon as lesse then death else the first fault should be as seveerly punished as the third against both the principals of reason and the design of the Law-giver 5. Arbitrary punishment is appointed ordinarly for so mean and inconsiderable faults that it were inhumane to think that these could be extended to death Skeen also de verb. sig verb. iter sayes that if the Pannel come in will it is lawful for the Justice to fine him according to his offence but he speakes not there of his power to inflâ—ct death eo casu and yet Skeen ad cap. 6. l. Malcolimbi vers 2. Wherein it is statute that the Marischal and Constable shall punish offenders according to the quality of the offence observes that paena extraordinaria may be sometimes extended to death because of the aggradging circumstances and cites for this l. ult ff de priv delict 16. de paenis but these Laws are ill cited as will appear by reading them When the pain is by Law or custome arbitrary and the defender comes in will he must presently find caution to satisfie the Kings will betwixt and such a day this is the constant custome and was practized the 22. of November 1600. Advocatus contra Patrick Mc. creif and others but where the crime is punishable by an expresse and determinat punishment there though a defender come in will it ought not to be received and thus the Marquise of Argile being pursued before the Parliament for Treason offered to come in will but his submission was not accepted V. It is uncontraverted with us if when any crime is punishable by death the Moveables falls to the King though the Act bear not that the crime shall be punishable by death and confiscation of Moveables and according to the Civil Law proscriptus eratis cujus bona expressim confiscabantur damnatus vero cujus bona tacite publicatio enim bonorum sequebatur tacite paenam capitalem Matheus cap. 2. de Sicartis num 2. And albeit the Judge should omit in his Sentence the punishment due by Law yet ipso jure there is by the damnation jus quaesitum fisco as was found after a large debate in the case of Wauch who being a landed man found guilty of Theft though he was only fined by the Sheriff in a thousand Pounds yet the Donator to the Escheat was found to have
decisions then Philosophers to continue in the errors of their Youth But yet when the arguments pro and contra weigh equally and reason seems puzled where to encline the authority even of our former decisions should cast the ballance especially where the same reason then urg'd was there pressed and in the interpretation of Laws of which decisions are the best interpreters if a whole tract of decisions can be produced it would infallibly bind wherein Craig diag de jure quo utimur agrees with Callistrotus l. 38. de leg in ambiguitatibus quae ex legibus profisciscuntur consuetudinem aut rerum perpetuo judicatarum auctoritatem vim legis obtinere Where these decisions have proceeded upon a debate by which the reason of Judges is much ripened and the future inconveniences fully considered for as Pomponius well observes l. 2. § his legibus ff de origine juris his legibus latis caepit ut naturaliter evenire solet ut interpretatio desideraret prudentium authoritate necessariam esse disputationem fori And Durie in the case of Hoom of Cowdoun-knowes shewes us how the L. of Session thought it not derogatory from their honour to retreat a sentence after debate which they had pronounced when no Advocats were compearing We follow the Civil Law in judging Crimes as is clear by several Acts of Parliament wherein the Civil Law is called the common Law And Robert Leslies Heirs are by the 69. Act. Par. 6. Ia. 5. ordained to be forefaulted for the Crime of Treason committed by the father according to the Civil Law And forefaultor in absence was allowed by the Lords of Session in Anno 1669. because that was conform to the Civil Law and falshood is ordain'd to be punisht according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. And by Craig l. 1. diog 2. As also from our own Historians Lesly l. 1. cap. leg Scotor Boet. l. 5. hist Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as Forcat lib. 1. hist. Angl. Petr. diamitis Geograph Europ tit D. Escosse and Duck de auth jur civ lib. 2. cap. 10. and though the Romans had some customs or forms peculiar to the genious of their own Nation Yet their Laws in Criminal cases are of universal use for Crymes are the same almost every where as Boet. well observes leges Romanas à Iustiniano collectas tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhorrens quae eas non fuerit admirata And K. Ia. 5. was so fond of the Civil Law as Boet. observes lib. 17. that he made an Act ordaining that no man should succeed to a great Estate in Scotland who did not understand the Civil Law and erected two professions of it one at Saint Andrews and another at Aberdeen And when Iames the 2. did by the 48 act of his 3. Parliament ordain that his Subjects should be governed by no forraign Lawes he designed not to debar the respect due to the Roman Lawes but to obviat the vain pretences of the Pope whose canons and concessions were obtâ—uded upon the people as Laws by the Church men of these times The 4th branch of our Criminal Law are the Books of Reg. Maj which are in criminalibus lookt upon as authentick Thus the Thief must be punisht before the recepter and assysers must be pares curiae c. For which and many other maximes there is no warrand besides what is contained in these Books of Reg Majest But why should this be doubted seing they are cited as such Act 47. Parl. 6. Ia. 3. where it is said that wilful and ignorant Assysers shall be punisht after the form of the Kings Law in the first Book of the Majesty and by the 98. act 14. p. l. 3. transgressions of that act are to be punisht conform to the Kings Laws and of Regiam Majestatem likeas by the 54. P. 3. I. 1. a Comittee of Parliament is ordained to meet and examine the Book of the Law that is to say Regiam Majestatem and Quoniam atta chiamenta which is repeated 115. Act. 14. P. I. 3. And albeit they contain many things which are not in use with us yet they have been in use and this objection would conclude the Acts of Parliament not to be our Law It is then my opinion that K. Ia. the 1. hath brought down some of these collections from England with him Nor find I these books cited before this time It is doubted whether the Secret Council can by any Act or Proclamation either introduce a cryme which can infer tinsel of life or escheat for the Parliament can only dispose upon our lives and fortunes And it being the representative of the Nation every man is in Law said to have consented to what the Parliament doth I find Craig to have been of opinion that no Act of Secret Council can infer a Crime pag. 38. Nor can the Council by their Acts warrand any to do what would be otherwise a Crime for ejus est nolle cujus est velle And none can take away a cryme but such as can introduce a cryme and therefore M r. Archb Beath being pursued for killing some men he alledged that these men were bringing Meal from Ireland And that by Act of Council it was lawful to sink or kill such as contraveened the Act. To which his Majesties Advocat did reply that the Acts of Secret Council could not warrand the killing of a free Leidge and the committing of murder which reply was found relevant But since the Council are to secure the peace and that many accidents may emerge wherein the publick peace cannot be preserved without this power it were hard to limit them too much IV. Whether dolus or a wicked designe be requisite in all crymes is largely treated of by the Doctors and is most fully debated in the process of Ochiltrie Balmerino and the Marquiss of Argyle And by the texts § placuit just de furt l. 3. ff De injur l. pen. ff ad Leg. jul de Adult It seems that the wickedness of the designe makes only an action criminal but in my judgement this inquiry may be resolved in these conclusions 1. That seeing man can only offend in what is voluntar to him it must follow that the will is the only fountain of wickedness And consequently it was at first the designe of Law-givers only to punish such Acts as were designedly malicious 2. Because design is a private and conceal'd act of the mind which escapes the severest probation Therefore in some cases this dolus is allowed by Law to be inferred from conjectures and presumptions where the act is
not punisht except they be known to have enmity against the person killed or that fraud be other wayes presumable quo casu they may be punisht extra ordinem Farin quest 82. VII Such as are drunk are sometimes for want of dole and malice more meekly punisht than others especially if they were cheated upon designe into that condition by others And in this case the Law distinguisheth inter ebrios who are rarely drunk â—briosos who are habitually drunk for these last should be most severely punisht both for their drunkennesse and for the crimes occasioned by it But such as make themselves drunk upon design to excuse or lessen thereby the guilt they are to commit merit no favour and such as knew they were subject to extravagancy in their driâ—k merit as little Cabal cas 297 I have not in our Law found drunkenness to defend in either cases And it was repelled in the pursuite of murder pursued against the Laird of Spot and Douglas for killing Hoom of Eccles. Anno. 1667. Yet I think that in some circumstantiat cases the Council may mitigat the Sentence upon this accompt But it is never a defence against the relevancie Such as are furious are not in the construction of Law capable to commit a crime Stat. 2. Rob. 2. for the Law compares them to infants or to dead men lege si quis ff de acquirend haered to such as are absent l. sed si ff de injuriis and makes them to be no more guilty because of the crime they commit then a stone from a house or a beast is to be repute guilty and punishable for the wrong they do Quam si pauperiem pecus dederit aut tegula ceciderit l. 5. ff ad l. aquil and the Law commiserats so far their condition That it expostulats with such as would pursue them for a cryme non exigas poenas ab eo quem fati in felicitas excusat quiabque furore ipso satis punitur l. Infans ff ad l. Corn. de sicar they are excused by their own misfortune and abundantly punished by their own fury but since the Law protects furious persons from punishment because they want all judgement l. 14. ff de officio praesid It follows naturally that this priviledge should be only extended to such as are absolutly furious 2. It may be argued that since the Law grants a total impunity to such as are absolutely furious that therefore it should by the rule of proportions lessen and moderat the Punishments of such as though they are not absolutely mad yet are hypocondrick and melancholy to such a degree that it clouds their reason qui sensum aliquem habent sed diminutum which Lawyers call insania and the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. That such as shew any acts of resentment or revenge in the wrong they do may be punished with some degree of severity since they show some degree of judgement But yet the Parliament of Paris is justly condemned by all Lawyers for having caused execute a mad man who had killed one that had struck him two dayes before but since he did show memory and revenge in that act he might have been punished justly to some moderate degree 4. Since there are some mad men who have lucid intervals whose fury has its tides and waxes and wanes like the moon upon which it depends quos furor stimulis suis variatis vicibus accendit l. 14. ff de officio praesidis that therefore they should be thought capable to commit crymes when they are in their lucid interval but not when they are agitated by their fury But here it may be doubted whether the crymes committed by a mad man who has lucid intervals should be persumed to have been committed by him when he was in his fury or in his lucid intervals and the general conclusion is that though every man be presum'd to be sound in his judgement till the contrary be proved quia qualitas quae inesse debet inesse praesumitur Alciat praesump 1. Yet when a man is once proved to have been furious the Law presumes that he still continues furious till the contrair be proved for madness is but too sticking a disease and is seldom or ever cured And this presumption should rather hold in the committing of crymes then in any thing else for the committing of a cryme looks liker the madnesse then the lucid intervals And yet if my opinion were of authority enough I would limit this rule in two cases 1. If the madnesse had fixt to an ordinary interval as the hight of the moon in lunaticks I would presume that if the Cryme were not committed at that time it behov'd to be presum'd it was committed in the lucid interval 2. If the person offended was one against whom the offender had prejudice in his lucid intervals or before his madnesse or if he shew any wit or contrivance in the execution of the wrong he did I would presume that the offence was committed in the lucid interval But because the Cryme in these cases would be founded upon presumptions I think the punishment should be lessened upon that accompt and possibly that Judge would not be much mistaken who would remit something of the ordinary punishment in all Crymes committed even where the lucid intervals are clearly proved for where madnesse has once disordered the judgement and much more where it recurts often it cannot but leave some weakness and make a man an unfit Judge of what he ought to do est tantum adumbrata quies intermissio sed non resipiscentia integra And as our proverb well observes once Wood â—ay the worse It is statute by the 24. Chap. Stat. 2. Rob. 2. That a mad person shall be kept by his friends and if he commit any wrong it shall be imputed to his friends and keepers but though these may be made lyable civily for any damnage the furious man doth as a Master is in Law liable for the prejudice done by a wild beast which he keeps yet it were too severe to punish them corporally for the murders and other Crymes which he commits except where they are commanded by the Judge to keep him exactly which ought not to be extended against such as are only his Curators or nearest of kin Bartol ad l. divus ff de off praesid It is generally agreed to by Lawyers that furious persons committing a Cryme in their fury cannot be punisht for it though thereafter they return to themselves for in punishing Crymes the time of the commission is to be considered though Iason Tiraquel and some others are of opinion that if the Cryme was very atrocious the mad man recovering may be punished And for this they instance the Queen of Castile who punished with death a man who had in his fury wounded her Husband King Ferdinand and they cite l. 14. ff de officio praesidis But the instance is founded upon the passion of a woman and that Law
that these who Blaspheme in jest are to be less severly punished and that Rusticity mitigats the ordinary punishment in this case but Gothofredus is as to the last of a contrary opinion because Rusticity excuses not from the knowledge of the Law of Nature much less of God but they may be reconciled thus that open gross Blasphemy is equally punishable in both but not consequential and indirect Blasphemy as if a Countrey-man should erre in the Persons of the Trinity which some remot High-landers are so ignorant of as not to know those should rather be pitied then punished except they add obstinacy to Blasphemy vid. Cabal cas 296. IV. The punishment of Blasphemy is Death by the Law Nov. 77. by the Canon Law Publick repentance for the first fault and the standing at the Church Door with an infamous Mitre or Paper Hat for a relapse V. By our Act 21. Sess. 1. Par. 1. C. 2. Blasphemy Railers against God or any of the Persons of the blessed Trinity shall be likewise punishable by death if they obstinatly continue therein From which Act it is observable 1. That this Crime can only be tryed before the Justices and therefore not before the Lord of a Regality though they have equal power as hath been formerly observed 2. Distraction is only excepted here so Ignorance Passion Rusticity or Railery excuses not nam exceptio firmat regulam in non exceptis and yet these may excuse from the ordinar punishment in some circumstances but are never defences against the relevancy 3. It may be doubted why the denying God or any of the Persons of the Holy Trinity is only punishable by death if they continue obstinat therein And yet the railing upon or cursing God or the Trinity is simply punishable without obstinacy and the difference seems to be that cursing or railing against God cannot proceed from Ignorance but argues Malice whereas the denying Gods Attributes or the Trinity may proceed from Ignorance It may be doubted if with us a person who should call himself the Son of God or the Messias could be punished as a blasphemer and it is said that the Parliament of England thought he could not and therefore Iames Nailor was only scourged for this Crime Yet I think he could be reached by our foresaid Act as a person who rail'd upon God and the Trinity For to make our selves equal with them is to rail against and vilifie them VI. Cursing of Parents viz. Father or Mother but no others is punishable by death if they be past sixteen or arbitrarly if they be below sixteen and above punishable vid tit parricid Act 20. Par. 1. Sess. 1. Ch. 2. Justices of Peace are by the 38. Act 1. Par. Ch. 2. to punish such as curse and swear profanely and exact from a Noble man twenty merks a Barron twenty merks a Gentle man Heretor or Burges ten merks a Yeoman fourty shilling a Servant twenty shilling a Minister the fifth part of his Steipend and the Husband must pay his Wifes fine ergo regulariter the Husband is not liable for the Wifes fine if there be no warrant therefore by Statute By the 16. Act 5. Par. Q. M. the swearing abominable Oaths are to be fin'd but that Act is only temporary By the 103. Act Par. 7. I. swearers and blasphemers ar to be punished by the Magistrats and if they fail by the Privie Council Notà by this Act that Women are to be punished in penal Statutes conform to their Blood and their Husbands quality that is to say conform to their Blood if unmaried or to their Husbands quality if maried and therefore may be doubted whether these Women who have precedency according to their Birth though maried as an Earles Daughter when maried to a Gentle man or those who have precedency by a Patent above their Husbands quality should not be punished according to their precedency though maried The Justices did in May 1671. fine a Woman in Dumfreis in 500 merks for drinking the Devils health but did not find it Blasphemy TITLE IV. Haeresy 1 The definition of Heresy 2 Whether Invocation of Spirits be heresy 3 The punishment of Heresy 4 Iesuits and trafficquing Priests how punished 5 The specialities ontroduced in punishing this Crime HEresy is committed when a Christian owns pertinatiously errors condemned by the Church I said when a christian own'd them because Pagans and Mahumetans are not punish'd as Hereticks Simancas de haereti cap. 31. num 3. for these are enemies to our faith in general and erre not in particular points of it I said who err'd pertinatiously because such as erre ignorantly or as having err'd perversly do not pertinatiously adhere to their error are not to be esteem'd haereticks And this repentance is to be receiv'd any time even after sentence to stop the execution Carer fol. 642. except they have relaps'd in their Heresy for their second fall is not to be taken off by repentance but though their repentance secures them against death in the first fall yet the are to be punished by perpetual Imprisonment Igneus in l. ff ad Sillan Cook hoc tit II. Though some make the adoration and invocation of Spirits to be Heresy yet others do more judiciously determine that if these devils be invocked to reveal things to come then that invocation is of the nature of Heresy for that is to attribute omniscience to the Devil which is one of Gods attributes but if the Devil be invocked for a particular end or interest such as that he may learn the invocker how to prevail with a mistriss or how to gain a Princes favour in these cases the invocker is not to be call'd a Heretick Clarus § Haeresis num 25. but neither do's that distinction please me for such as invock the Devil are not properly Hereticks especially if they have renounced their Baptism for there is no reason to call them Hereticks who not only erre in the faith but have renounced the faith intirely and as Pagans are not Hereticks because they worship false Gods so neither should they who worship the Devil and these who have renounced their Baptism for they are in the same condition with these who were never baptized III. The punishment of Heresie in the opinion of the Doctors is to be burnt and confiscation of the Delinquents Moveables Clar. num 13. But by the Law of England Hereticks are only to be burnt if they will not abjure By our Law Heresie was in the first instance try'd by the Church and the Secular power did not meddle to condemn Hereticks till they were first condemned by the Church Ia. 1. Par. 2. Act. 28. In which it is ordain'd that the Bishops shall inquire into Heresie and if they be found that they be punished as the Law of the Holy Kirk requires and if it misters that Secular power be called in support and helping of holy Kirk From which Act it is observable first that the Kirk was Judge to Heresie in
prima instantia during Popery and this is conform to the opinion of almost all the Doctors who think heresie crimen mere Ecclesiasticum Alcia in c. 1. num 37. de offic ord but they justly conclude as in this Statute that the cognition belongs to the Church and the punishment to the Secular Judge and this Canonists calls tradere hâ—reticum brachio Seculari and Clarus do's so far appropiat this tryal to the Ecclesiastical Judge that he allows not so much the Secular Judge as the power of mitigating the punishment and yet now the Justices are Judges competent in prima instantia to such as hear or say Mass but the reason is because such are in general condemn'd by the Church as guilty of Heresie and yet the Popish Church are still Judges to the Protestants thogh they be condemn'd in general as Hereticks for the Hereticks are try'd and condemn'd first by the Ecclesiastick Judge among them The second thing remarkable in this Act is that amongst Ecclesiasticks the Bishop is the first Judge in Heresie which is also conform to the opinion of the Canonists Clar. h. t. num 5. After the Reformation there was a Confession of Faith made and is set down by King Iames in his first Parliament and Ratified Act 4. And they who profess not the true Religion may not be a Judge but this is not extended to Heretable Offices Procurator nor Member in any Court Ia. 6. pa. 1. c. 9. and such Church-men as will not subscribe that Confession are deprived Ia. 6. Pa. 3. Act 46. and all such as refuse to subscribe are to be repute Rebels and enemies to the King and his Government Act 47. IV. Our Law fearing the pains taken by the Romish Church more then the hazard arising from any else have been more severe to these than to others And therefore the sayers or hearers of Mass or such as are present thereat are punished 5. Act 1. P. I. 6. by confiscation of all their goods moveable and immoveable and an arbitrary punishment of their persons for the first fault banishment for the second fault and death for the third fault It may be doubted if such as hear Mass for curiosity may be thus punished which is very ordinary abroad and it seems that Heresie must be an act upon design and yet this Law makes no distinction here 2. It may be doubted if by confiscation of Goods immoveable be meant Land and Heritages for they are call'd bona immobilia and yet I rather incline to think that this should only extend to Heritable Bonds and such like but not to Lands for Heritage uses alwayes to be exprest distinctly when the confiscation of it is design'd And if Heritage were forefaulted by the first fault the punishment of the first would be greater then the punishment of the second fault which is only banishment Nor do's Heritage use to be exprest under the word Goods But thereafter the sayers of Mass and trafficking Papists and the receivers of them against the King's Majesty and Religion presently profess'd are declared guilty of treason Act 120. Pa. 12. Ia. 6. But from these words Against the King's Majesty and Religion presently professed it may be argu'd that only such Jesuits and others as traffick to the prejudice of the King's Person and Government such as these who attempted the Gun-powder-treason or to kill the King or raise Rebellion are only guilty of Treason which seems the rather because it were hard to make simple endeavouring to perswade others in meer matters of Religion to be treason It is also observable from this Act that such Jesuits or trafficking Papists or receipters of either as satisfies the King and Kirk are not to be guilty of treason so that here treason is taken away by repentance but it may be doubted if though they be not guilty of treason they may not be punish'd as Hereticks conform to the above-cited 5. Act. 1. Pa. Ia. 6. for the Act only declares that the penalty foresaid shall not strike against them And though as I observed formerly such as are guilty of Heresie may by repentance save themselves from the punishment of death yet are they still declar'd lyable to other punishments such as perpetual imprisonment But yet since our Law appoints no other punishments against Traffickers and receipters of Jesuits but what is exprest here and that the punishment here exprest is taken off in case of repentance I rather believe that no punishment can be inflicted in case of repentance against these And it is very reasonable that meer errors in faith should be pardon'd by meer repentance but as to the sayers and hearers of Mass the former Act seems to stand The Sellers also and dispersers of erronious and Popish Books are to be punish'd arbitrarily by the Rubrick of the 25. Act 11. Pa. Ia. 6. but the statutory words run only against the home-bringers of such Books the Books also are to be destroyed and warrand is given to Magistrats of Burghs with a Minister to intromet with them without hazard of spuilzie But yet de practica other Officers such as Sheriffs and Lords of Regality do intromet with such Books though they be not warranted And though inclusio unius est exclusio alterius and though the Act ordains a Minister to be present which was certainly apointed that it might be known whether the Books were Popish yet de praxi Magistrats use to intromet without having a Minister present I find no express punishment against other Hereticks in our Law nor de praxi are other Hereticks punish'd corporally but whether they may not be punish'd conform to the common Law and upon that general Act of K. Iames the First I will not determine As also it is ordinary to banish only Jesuits and sayers of Mass as was done December 9. 1573. Mr Iohn Robertson was banished by order from the Council he enacted himself under the pain of death never to return to Scotland V. The common Law or Doctors have introduced many specialities in the tryal of this Crime as first that less clear probation is admitted in proving Heresie then other Crimes Clar. § Haeresis num 20. And by an old Act of Sederunt socii criminis Women and Pupills are to be admitted with us to prove hearing and saying of Mass else that Crime could not be proved 2. A Heretick may be try'd after death Alber. in rubr h. t. which they say holds not only in a Heretick found guilty by probation Haereticus verus but in these who were cited to compear for Heresie but compeared not whom they call Haereticum praesumptum but this holds not with us no not in these who are guilty of Treason as being Traffiquing Jesuits or Papists for only Perduellion is by our Law to by try'd after death But though the Heretick cannot be punish'd after death yet his opinions may be condemn'd as Heretical even after his death TITLE V. Simony Baratry 1 What is Simony 2 How it
is probable 3 The nature and punishment of it in Scotland 4 Baratry Ecclesiastick 5 Baratry Civil SImony is the selling or buying any Church Office cupiditas emendi aut vendendi aliquid spirituale aut spirituali annexum So called from Simon Magus who offered to buy the Grace of God And the Canonists teach that it is Simony to paction for any advantage in administrating the Sacraments but not to take reward after they have administrate them II. In this Crime infamous persons whoors and other witnesses who are not habiles or at least who are not omni exceptione majores are here receivable cap. sicut de Simon because it is ordinarly carried on with much privacy and clandestine dealing for which reason likewise Lawyers conclude that it may be proved by presumptions It is crimen mere ecclesiasticum and cannot be punished by Laicks the punishment is depravation III. With us Simony is once mentioned and that is Act 1. Par. 21. Ia. 6. Wherein it is Statute that if the Arch-Bishop or Bishop deprehend that the person who is presented hath made any Simonaical paction with the Patron whereby he hath so hurt the Benefice as that he hath not reserved a sufficient maintenance for himself and his successors suitable to the value of the Benefice that the Bishop may refuse the presentation and the Lords of Session are declared to be Judges to any debates arising betwixt the Bishop Patron and Person upon that account From which Act it is observable 1. That it is implyed and tacitly acknowledged that Simony is a Crime by our Law seing this is punished as a Branch thereof and therefore I conceive that what ever is punisht as Simony by the Canon Law is punishable with us and that a Minister or other Benefic'd Person who bargains or transacts with any to get them a Church or Benefice and gives or promises Money therefore is punishable even by our Law 2. That by this Act a paction whereby the incumbent reserves to himself a competencie suitable to the Benefice is not Simony and what this conpetencie is is left arbitrary to the Judge because it is not determined 3. That this Crime is probable with us by Oath because of its clandestine convoyance as said is By the Stat. Eliz. 31. the person committing Simony is declared uncapable to enjoy that Ecclesiastick Office IV. Baratry is a kind of Simony Socinus reg 55. Bald. part 5. Consil. 21. which with us is committed by these who go to Rome to buy Benefices without licences from the Chancellor or their ordinar I. 1. P. 7. cap. 106. the pain of it is banishment and never to bruik honour or imployment for the future within the Kingdom This word comes from the Italian word Baratry which signifies corrupting of Judges for our Law presumed that these who went to Rome to get a Benefice designed to get it by corruption But though Baraters are called canpones beneficiorum by the Doctors as Craig observes pag. 371. Yet our Kings being of old very submissive to the See of Rome durst not directly at first forbid application to Rome but did only forbid the carrying abroad Money out of the Kingdom knowing that nothing could be done there without Money But thereafter this Crime growing greater the Parliament did by the 84. cap. P. 6. I. 3. forbid expresly the going to Rome to purchase Benefices or to be its collectors under the pain of being demean'd as Traitors and never to bruik Benefice or use Worship which is ratified by the 53. Act 5. P. I. 4. But though the punishment is that of Treason by these Acts yet by the 2. Act 1 P. I. 6. the punishment of Baratry is declared to be prescription banishment and never to bruik Honour nor Office within the Kingdom and all applications to Rome are punishable as Baratry This Act being after the Reformation And by this last Act it is declared that Baratry may be punisht either by the Justices or Lords of Session And upon this Act Iames Arch-Bishop of Glasgow was exauctorated after the Reformation for going to Rome V. The Sons of Noble Men and others passing to Schools beyond Sea's without the Kings Licence are also said to commit Baratry I. 6. P. 6. cap. 71. And the Council uses to ordain Noble Men who breed their Children abroad in Popish Schools to bring them home under a great fine as they did lately to the Lords of Mordingtoun and Semple in anno 1668. Before which Act also all Laicks going out of the Kingdom without consent of the King or Licence from the Chancellor committed Baratry I. 4. P. 5. cap. 53. And though Craig debates pag. 371. whether the punishment of this be the same with Treason because it is said to be punishable as Treason cap. 84. Pa. 6. I. 3. Yet it is clear that this punishment is restricted by the Act 2. P. 1. I. 1. To the being declared incapable of Trust and Banishment This Prohibition of Laicks going abroad was first at Carthage and is now in vigour at Naples and many other places And though it be now in desuetude at least is not punisht except in Privy Councellours Yet I see no reason why any should say that this Crime takes only place in Vassals holding immediatly of the King for the Act is general And yet Merchants are warranted by divers Acts of Parliament to Traffique abroad and so fall not under this Prohibition TITLE VI. Treason Laesa Majestas 1 Treason is divided by the Civil Law in Perduellion and Laese-Majestie 2 The differences betwixt Perduellion and Laese-Majestie 3 Treason with us may be divided in Perduellion Laese-Majestie and Statutory Treason 4 The nature of Perduellion or rising in Arms which is the first species of Treason 5 The second species of Treason is committed against the Kings Person 6 The third is the recepting such as have committed Treason 7 The fourth is to hold out Houses against the King 8 The fifth is to assail Castles where the King resides 9 The sixth is to raise a fray in the Kings Host. 10 The seventh is to trouble any who kills a declared Traitor 11 The eighth is to impugn the Authority of the three Estates 12 The ninth is to decline the King or Councils Authority 13 The tenth is to conceal and not reveal Treason 14 The eleventh is to desert the Kings Host. 15 The twelfth is to deny the Kings Prerogative in having the sole power in calling and dissolving Parliaments 16 How the killing Counsellors is punishable 17 The several branches of Statutory Treason 18 To accuse any man for Treason if the accused be assoilzied is Treason 19 Treason is not Baleable 20 Summonds of Treason ought to be execute by Heraulds 21 Whether less probation be sufficient in Treason then in other Crimes 22 Treason may be pursued after the Committers death 23 Traitors may be forefaulted in absence 24 How disobeying the King is punishable 25 The punishment of Treason in general UNhappy
man retains in nothing so much a desire to be like his Maker as in that he would be Supreme and no wonder that this Crime should be incident to him in this laps'd condition when his will is crooked and his judgement blind since the very Angels in their purity and Man in his innocence were tempted by it so that since men have subjected themselves to Government we may easily conclude they found a great convenience in this submission else they had never offered so much violence to their own inclination To Societies and Laws we owe every moment the preservation of our lives and fortunes which nothing but Discipline does secure and without an intire submission these Societies would be but Companies of Robbers and Laws but meer toyes How many dangers do Governours incurr And by how many cares and fears are they disquieted Wherefore it is most just that those who govern should be more secure against their Subjects then against their enemies since they may be most easily wrong'd by those who live in their own bosome and who have easie and open access to them In other Crimes one or at most few are wrong'd whereas in rebellion and Laese Majestie the whole Society is offended And therefore it was most just that those who design the ruine of the Common-wealth or the Supreme Governour which Crime we call Treason should of all others be most severely punished And the Basilicks l. 1. h. 1. observes well that Treason is a kind of Sacriledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Treason was by the Civil Law divided in Perduellionem Laesam Majestatem Perduellion was that Treason which was committed against the Prince or Common-wealth immediatly Adversus populum Romanum vel securitatem ejus Laese Majestie as opposed to Perduellion was committed by speaking against the Prince revealing his secrets c. This Crime was punish'd per legem juliam the branches whereof are the raising of Arms against the State the being in accession to the flight of such as were Hostages to the Common-wealth or to the killing of any Magistrat of the Common-wealth the keeping correspondence with the enemies the continuing to govern a Province after a a Successor was named the Levying of an Army and running in to the Enemies All which are expresly enumerat ff ad leg Iul. Majestat II. Betwixt these two Hottoman assignes these four differences 1. That Perduellion was that whereby the Common-wealth was in general wrong'd qui summam rei publicae lube factare conati sunt Laesa Majestas was that whereby the Common-wealth was only wronged in a part or by consequence as to suffer the enemies of the Common-wealth to escape or to conceal them c. The 2. is the Crime of Laese Majestie might have been pursued before the ordinary Judge in foro but Perduellion could not be pursued but in the great Meetings of the People à populo Romano comitiis centuriatis in campo martio Whence probably did arise the judging Treason by Parliaments with us The 3. was that the Crime of ordinary Laese Majestie was not punished with death as Perduellion was but with banâ—shment The 4. was that the ordinary Laese Majestie was punish'd by death but Perduellion was punishable after death III. Treason may be with us divided in Perduellion which we call High Treason called by the English Law alta proditio or rebellion which is only with us a rising in Arms against the King and in ordinary Treason and Laese Majestie such as to conceal and not reveal Treason And in Statutory Treason which is not Treason properly of its own nature but is declared to be so by a particular Statute as is that of Murder under trust Theft in Landed-men c. IV. Perduellion in the Civil Law is that which we call Rebellion in our Acts of Parliament and it was so called extravagan Hen. 7. qui sunt rebelles And there it is Statute that rebelles infideles imperii qui quom docunque aliquid machinantur contra prosperitatem imperii But I find not the word Rebellion used in the Law before that time Yet sometimes Rebellion is in our Law taken for that which is committed against the Kings Person as in the 3. Act 1. Parl. K. Ia. 1. where it is said No man shall rebell against the Kings Person openly nor notourly But the Adverb there used openly and notourly in that and the subsequent Acts interprets sufficiently the word rising against the Kings person to be the same with us that is called Perduellion in the Civil Law viz. Siquis hostili animo adversus principem vel rempublicam animatus sit To raise Arms against the King then or to rise in open rebellion is the first and highest degree of Treason Ia. 2. Par. 6. Act 25. where it is called a raising in fear of War against the King which Act comprehends all the kinds of Treason like lex prima ff ad L. Iul. Majest And therefore I will follow that method And though it be added in that Act that it shall be Treason to rise in fear of War against his Person or Majesty of what ever age he be of without the consent of the three Estates Yet the consent of the three Estates will not defend the rising in Arms against the King as was found in the case of the Marquiss of Argyle being pursued upon this Act in Anno 1662. for rising in Arms against the Marquiss of Montrose then the Kings Commissioner For the Analysis of that Act must run run so as that these words Without consent of the three Estates cannot be added to all the former treasons committed against the Kings Person which are contained in that Act For many things in that Act could not be justified by the Authority of the three Estates for else the three Estates and not the King would be Soveraign for they only are Soveraign against whom Treason can be committed But these words must only be taken as added to the last Crime prohibit which is the assailing of the Castles or Houses where the Kings Person is which may be lawfully done by Authority of the Estates For if the King being very young were taken prisoner as our Kings oft-times were in their minority it had been absurd to think that these who went to assail by the authority of the three Estates that Castle where the Kings Person was should be punish'd as Traitors because of their obedience But to suppress all pretext that might arise from that Act it is declared by the 5 Act 1. Parl. 1. Sess. Ch. 2. That the King hath the only power of making War and Peace And that it shall be Treason for any number of men less or more upon any ground or pretext whatsoever to rise or continue in Arms to maintain any Forts Strengths or Garisons or to make Leagues or Treaties amongst themselves or with forraign Princes without his Majesties authority and approbation first interponed thereto or to attempt any of these things under
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
expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
by imprisonment during life forfeiting of goods and of the profit of Lands during life For this Crime the Earl of Morton was execute by King Iames 6. for having conceal'd the design'd death of King Henry his Father And it may be doubted whether concealing be Treason where the King is not in a condition to repress or punish the Treason that is intended for there the end of revealing seems to cease which is information in order to resistance It hath been likewise doubted whether the not revealing Treason was punishable where the Treason was design'd by the Prince or Queen But since they are likewise Subjects and may commit Treason therefore there can be no doubt but it is Treason in any others to conceal their treasonable designes XIV The eleventh point of Treason is to flee from his Majesty or his Lievtenant which is not extended only to such as are sworn to Collours but even to such as are warned to and do attend the King's Host vid. tit the jurisdiction over Souldiers XV. The twelfth point of Treason is to deny his Majesties having the only power of calling and dissolving of Parliaments Act 3.1 Parl. Ch. 2. XVI By the common Law it is Treason to kill any of the Princes Counsellors because they are a part of the Princes own body l. quisquis C. h. t. But with us the pursuing or invading any of the Session Secret Council or any of his Majesties Officers for doing his Majesties service is only punishable by death but not as Treason Act 4. Parl. 16. Ia. 6. By Officers here are meant only Officers of State else it might be extended to Messengers And I heard it resolved that this Act extended not to such as invaded the Lyon And these words Any of the Session are not extended to Advocats Clerks Macers or any else besides the Lords as is clear by the narrative of the Act. But I think the quality adjected that they were invaded for doing his Majesties service may be proved by circumstances and presumptions as if a pursuer who had lost a Cause should invade the next day a Lord who had voted against him And the words This being verified and tryed import so much But the Stat. Edward 3. is much more clear making it Treason to kill the Officers therein mentioned only viz. Chancellor Thesaurer chief Justice of either Bench or any Judge of either Bench sitting in Judgement only and from this Statute of our Neighbouring Nation we may argue that the killing none below a Lord of Session should infer the punishment of this Act. The killing a Member of Parliament is not in England Treason though the Parliament be a higher Judicatory then any exprest in the Act. And Cook tells us that they allow not argumentum à fortiori to infer Crimes And with us the killing a Member of Parliament would not infer death by this Act since they fall under no qualification therein specified In England killing Officers falls only under the Statute but with us invading or pursuing them is death though it take no effect Quaritur If to invade them when they are out of the Kingdom would fall under the Statute since they are not under that character elsewhere Or if he who invaded them during their being suspended would fall under this Act since during that time they retained the character and the exercise is only suspended And it is resolved by the Doctors that a Statute punishing such as invade Magistrats is only to be extended to such Magistrats as are once admitted but not to such as are only named or elected for such Statutes are extended in gratiosis yet they are restricted in such odious points as thir Cabal cas 148. Treasonable words vid. t. Injuries and Libells XVII The third branch of the division is Statutory Treason which comprehends under it several other points of Treason which because they relate to other Crimes therefore I shall also refer the Reader to these Titles wherein these Crimes are principally treated of But it will appear by these Acts that these Crimes are not declared to be Treason but only to be punishable as Treason and therefore these Statutory Treasons have not at all the other priviledges competent to Treason as that they may be proved by Women alios testes inhabiles or that he who accuses in these will commit Treason if he prove not his accusation Thus wilful Fire raising is Treason Ia. 5. Parl. 3. cap. ultimo Theft in Landed-men is Treason Ia. 6. Parl. 11. cap. 50. vid. tit Theft Murder under trust is treason Ia. 6. Parl. 11. cap. 51. vid. tit Murder sayers of Mass Jesuits trafficking Papists and their resetters commit Treason Ia. 6. Parl. 12. cap. 120. vid. tit Heresie To buy or bring home poyson is treason Ia. 2. Parl. 7. c. 31. vid. Poyson Thieves who take leill men upon Bond to re-enter them commit treason Ia. 6. Parl. 1. cap. 21. But though this Act speaks generally of the taking of any Scottish-man yet it may clearly appear by the narrative and the whole strain of the Act that the same strikes only against such Thieves as kept correspondence with the English and took Scottish-men prisoners into England But custom hath interpret this otherwise for Duncan Macgrigor was 15. Iuly 1643. convict and hang'd as a traitor for arte and part of taking Iames Anderson and Iohn Mackie and the taking of Captain Cairns found relevant as an Article of Treason against Assint To usurp any Prelats place after his decease is likewise treason Ia. 5. Parl. 7. cap. 125. XVIII This Crime hath in it many specialities wherein it differs from other Crimes As first He who accuses any man for treason doth incur the pain of treason if the defenders be acquit which is occasioned as the Act bears because of the odiousness of treason But since the the Act sayes expresly that this shall take place where the party calumniat is called accused and quit of the Crime of Treason therefore it may be inferred that though the pursuer raise Summonds of treason and should pass from the same before the Pannel go to the knowledge of an Inquest that eo casu though the pursuer might be punished poena extraordinaria yet he could not be punished as a traitor It may be likewise doubted if this holds in Statutory Tâ—eason as Theft in Landed men c. And since the reason inductive of that Act is the odiousness of treason it would appear that this rigid Law should not take place in these points of treason which are not so odious of their own nature Another speciality in treason is that it can only be tryed by the Justices Reg. Maj. lib. 1. e. 1. v. 1. and that because of the Kings immediat interest since it is not presumable that the Fiscal in Inferiour Courts would be as careful as his Majesties Advocat who cannot appear there and because of the intricacies and great consequence of that Crime but it may be
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
bona non tamen de delicto habetur pro confesso Divi fratres rescripserunt l. 1. ne quis absens puniatur hoc jure utimur ne absens damnetur And that no probation can be received against absents in Treason is clear by Matheus hoc tit and albeit per extrav constitutionem Hen. 7. It is ordained that probation may be received in absence yet this is repute no part of the Civil Law and is followed by no Nation and by that extravagant constitution this priviledge is allowed to all species of Treason which we find to be unjust And albeit Treason may be in some cases punished after death yet it cannot be from that inferred that it may be punished in absence since after death the malice of unjust pursuers ordinarily ceases and the hazard of Death is then over so that the event of the pursuit is not so terrible nor dangerous And in these Processes the nearest of Kin are called who may propound against both relevancy and probation whatever was competent to the Defunct Whereas when a person is pursued in absence for Treason no man can in our Law be admitted to propound any thing in his defence And albeit it seem unreasonable that a person guilty of Treason should be in a better condition by his contumacy then if he compeared To this it may be answered that this would prove too much for this absurdity may be as well press'd in absents for all other Crimes and against such as are absents in all the several inditements of Treason and yet the Justices are never allow'd even by the late Act to proceed to sentence against any but such as are pursued for rising in Arms against the King But the true answer to this seeming absurdity is that the Law is not so inhumane as to punish equally presum'd and real guilt what may be a Crime as what is found one And it hath been oft found that men have been absent rather out of fear of a prevailing Faction or corrupt Witnesses or by inadvertence or not being truly cited or by being violently detained then out of a consciousness of guilt yet since so judicious a person proposed this overture and since Council Session and Parliament have fortified it by their Authority I submit my judgment to their determinations XXIV It is ordinary for his Majesty to command or forbid by privat warrands under all highest pains or as you shall be answerable to us And the certification here being indefinit it may be doubted what the punishment may be in case of contravention And 1. It would appear that the contraveeners cannot be punish'd as guilty of Treason for only Laws can make Traitors in this Kingdom 2. It seems that this being a contempt of the chief and Supreme Magistrat it may be punish'd arbitrarily if the command be lawful and in case of importance since even inferiour Judges may punish such as contemn or disobey them in what is necessary for their jurisdiction Likeas Lawyers are of opinion that in obediens praecepto superioris sub paena indignationis est arbitrarie puniendus Cabal casu 30. Bald. in l. legis virtus ff de legib Menoch cas 365. But in that case they determine that the arbitrary punishment cannot extend to death And though some Doctors are of opinion that commissions are to be punish'd in this case more severely then omissions yet I conceive some omissions may infer greater contempt and be more dangerous then commissions Nor allow I the distinction used by Lucas de penna ad l. 1. C. ut dignit ord servet who sayes that if the contempt be of dangerous consequence as if one being commanded to take care of a Castle or to stop the passage of an enemy that then the contempt is to be severely punish'd by death but if the contempt be of things indifferent or mean then the contempt is only punishable arbitrarily And yet he is too severe in making it to be punishable by death except the person commanded were a Souldier or one who were obliged by acceptation of his Office to obey under that peril And therefore I would rather distinguish betwixt such commands as use to be punish'd by death if contemn'd such as Military commands and in these the contempt may be punish'd by death for Custom comes in place of Law sibi imputet who hath undertaken such an employment as requires such obedience But if the King should command any Country Gentle-man or Lawyer to fortifie or keep a Castle under all highest pains it is probable that their omission could not be punish'd by death and is only punishable by losing of the Princes favour quod Princeps non exhibebit se gratiosum which Bartol makes the punishment of that disobedience in all cases ad extrav qui sunt rebelles XXV The punishment of Laese Majestie was death l. 5. C. h. t. animae omissio as Iustinian calls it in his Institutions together with the Confiscation of all his Estate that lyes within the Territories of him against whom the Treason is committed but is not extended to his Estate lying else-where C. 2. de constil in 6. So that if a man commit Treason against the King of Britain his Estate in France does not forfeit With us the punishment of Treason is death and Confiscation likewise of all the Traitors Estate whether Heretable or Moveable Feudal or Allodial And the solemnity used in Parliament at the pronouncing of such sentences are that the Pannel receives his sentence kneeling and that after the Doom of the forefaulter is pronounced against him the Lyon and his Brethren Heraulds come in in their formalities and tear his Coat of Arms at the Throne and thereafter hang up his Escurchion revers'd upon the Cross Which had its rise from the old Roman customs for as Tacit observes lib. 5. deterrere omnes à simili culpa volebant non poenae modo sed ignominiae mâ—tu ut nomen è fastis deleretur effigies tolleretur Which is likewise clear l. 24. ff de poenis And that this is the custom of Flanders is clear by Perez h. t. moribus nostris insignia gentilia delentur destruuntur But this I think should only hold in the Crime of Perduellion but not in other Treasons Perez ibid. num 19. Another speciality introduced in the punishment of Perduellion by the common Law was that memoria damnabatur and that his Children were declared uncapable to bruik any Estate or Office which the Emperours Arcadius and Honorius l. 5. c. ad l. Iul. Maj. calls a mitigation of the punishment due to Children who as they say should have died for their Fathers Crime But this is so unjust that no Nation doth now use it as Matheus observes p. 352. And it is expresly against l. Crimen ff de poenis and the Scripture Deut. Chap. 24. Vers. 16. And the opinion of Plato lib. 9. de legibus And therefore Amazias 2 King 14.5 6. would not kill such
the King's will From which Act it is likewise to be observed that the command of the Magistrate doth in things belonging to his Office excuse the Liedges and therefore it may be asserted that the Liedges rising in obedience to commands of the Sheriff or Lord of Regality are not punishable except it was clearly palpable to them that their insurrection was in contempt of his Majesties Authority which appears to be the meaning of the foresaid l. si quis contra evidentissimam jussionem c. And seing the Liedges are oblidged to obey their Magistrats and to rise when he calls them as is evident by many Acts of Parliament and without this allowance his Majesty could not be served it were hard to punish them for that obedience which would be punishable if they refused it III. The convocating the Liedges in Bands of Men of War for daily or monethly wages without special licence is declared likewise to be punishable by death by the 75. Act 9. Parl. Q. M. which Act is ratified by the 12. Act 10. Parl. K. Ia. 6. And the making of all Leagues and Bands amongst the Liedges without his Majesties consent are discharged and the contraveeners are declared to be punishable as movers of Sedition and unquietness to the trouble of the publick peace of the Realm therefore to be punished with all rigour to the example of others Both which Acts are ratified by the 4. Act 1. Ses. Charl. 2. And yet it may be contended that such Seditions as these are punishable as Treason since the making of Bonds and Leagues amongst the Liedges is declared by the foresaid 4. Act to be one of his Majesties Royal Prerogatives And sure it is Treason for any of his Majesties Liedges to usurp his royal prerogative But sure it is that to convocat the Liedges simply without Bonds or Leagues can no wayes be accounted Treason much less the being present as such Convocations though in Arms And thus it was found in the case of a Baxter who was pursued as guilty of the Convocation raised against the Customers in Anno 1665. That naked assistance at such meetings per se was not relevant to infer death but only an arbitrary punishment as is clear by the 5. Act 1. Parl. Ia. 1. whereby all men are forbidden to travel with more not they can sustain and if they do they may be put under sicker Burrows till the King declare his will And by the 85. Act 6. Parl. I. 1. Electing of Deacons was discharged as Sedition Convocations are allowed in some cases as for pursuing of Thieves and Sorners as Ia. 6. Parl. 14. cap. 247. This Crime of simple Convocation is ordinarily pursued before the Council and is seldome punished either by the Council or Justice Court tanquum crimen per se but as the agradging quality of a Ryot or other Crime TITLE VIII Poyson 1. The punishment of Poyson by our Law 2. How far the giving good Druggs irregularly is punishable 3. Whether the poysoning Iews or Excommunicat Persons be punishable 4. Whether the poysoning Beasts or Fields be punishable by this Statute 5. Whether endeavours to poyson be punishable 6. The aggravations of this Crime 1. POyson is by our Law declared to be punishable as the Crime of Treason but it is not declared Treason Act 31.7 Parl. Ia. 2. By which all persons are discharged to bring home Poyson for any use by which any Christian man or woman may take bodily harm and that under the pain of Treason and that being convict they shall forefault to the King Life Land and Goods but notwithstanding of these words for any manner or use Apothecaries and others do daily bring home Poyson But to this it may be answer'd that they bring the same home not as Poyson but as Druggs and the Law presumes that the Liedges are in no hazard of that Poyson which is in the hands of skilful men This was likewise the opinion of the Doctors Gothofred prax criminal § venenum But notwithstanding that the buying or giving of Poyson is declared Treason by the Law yet I find no instances in the Journal Books where any have been convict as Traitors upon this account But on the contrary Iohn Dick for poysoning his Brother and Sister is only ordained to be execute but is not forefault ult March 1649. If any Stranger bring home Poyson any manner of way it is provided by the 32. Act of that Parliament that they shall be punished the same manner of way and that no remission or safe conduct shall be profitable to them The reason of this severity proceeds from the abominableness of that Crime plus est enim hominem veneno necare quam gladio dicit gloss in § ead lâ—ge just de publicis judicibus per textum l. 1. de mal Math. For he to whom Poyson is given cannot defend himself and Poyson is a way of death so much hated that though the Law hath allowed executions by the Sword yet it hath never allowed any execution by Poyson Those who give Poyson were by the Civil Law called venenarii and they were only punished capitally per l. Corneliam de sicariis l. 1. § 1. adl Cornel. de sic And it may be proved by presumptions Clarus Quest. 4. vers fin But the Body must in this case be sighted by Physitians and the poysonous quality must be proved The buying of Poyson though with a design to kill thereby if murder do not actually ensue is not thought capital by the Doctors but only punishable paena extraordinaria Gothofred prax criminal § venenum num 21. Yet with us the very buying is by this Act of Parliament capital II. Whether to give Druggs that are not of their own nature poysonable too frequently and contrary to the nature of the disease be punishable by this Law or as murder or be punishable at all was debated in Kennedies case the 8. of February 1676. and that it was punishable was contended because venenum or pharmacon was in Law nomen generis and exprest good Druggs as well as ill l. venenum ff de verb. sig And the best of Druggs given in great excess is Poyson for Poyson consists in excess of quantity as well as quality and whatever overpowers our nature is poysonable to us And since the one may kill as well as the other and that killing is that which is punish'd the Law should punish the one as well as the other And whatever may be said where the design was not known yet here the design of killing was communicated to Kennedie And it is proved that he refused to give meer poyson left the external marks after death should discover that Poyson was given but that it was safer to give constant purgations to be thrown in by his Servant in his drink upon all occasions and that without his knowledge and contrary to the nature of his disease he having a Flux All which circumstances shew a design to kill
punishable by death Cap. 8. Parl. 3. I. 5. II. But since design and dolus are acts of the mind therefore they are inferr'd from presumptions and what presumptions are necessary in this case are very well related by Far. quest 110. cap. 2. And Iohn Meldrum was execute upon presumptions 2 Aug. 1633. where he being pursued for burning the House of Frendrick The only presumptions adduced against him were great threatnings capital enmity his contradicting himself in his own Examinations common brute and open fame that he was the burner But I think that case very hard and not to be drawn in consequence for though the dolus and design may be proved by presumptions because that is an act of the mind yet the burning it self being an external act should only be proved by Witnesses and confession 2. Seing probatio praesumptiva is but fiâ—titiâ— it were hard to allow both thâ— burning it self and quo animo the Fire was raised to be proved by presumptions against that common rule in Law that duae fictiones non cadunt in candem rem 3. Lawyers are positive that dolus debet possit probari manifeste Bertez consil 322. III. It is doubted among the Doctors whether he that burns his own House may be punished as Incendiarius since quilibet est rei sua arbiter and dominion is defined to be the using of any thing as we think fit But since Fire-raising is oft-times punished not only for the prejudice it hath done sed quia flamma potuit longius è vagari therefore Fire-raising should be punished in this case And as it is not presumable that any man will burn his own without design so if this were not punished men might upon the pretext of burning their own waste and destroy their own and ruine their neighbouss And he might very well be presumed to have had a design against his Neighbours but though the immediat dominion belong to private persons yet the King has also an interest dominium directum And as no man can kill himself lawfully so neither can he burn his own House except he can instruct that he did the same upon a just and reasonable cause IV. The punishment of Fire-raising by the Civil Law was various and suitable to the several degrees of the Crime for raisers of Fire within a Town were burnt alive Those who burnt Corns beside Houses were bound and beat and then burnt but not burnt quick as we speak lex 28. parag Incendiarii ff de poenis but the burning of a House or Village was not so highly punish'd And Clarus Quest. 68. thinks that the Statutory pain of Fire-raising if it be capital should not take place in small Fire-raising But since a small spark may kindle a great fire this conclusion seems very unwarrantable if the Fire was designedly rais'd V. According to our Law the burning of folks in their Houses and Corns and wilful Fire-raising is Treason And Laese Majestie Ia. 5. p. 3. cap. 8. From which Act it is to be observed 1. That the Particle and is not here copulative but a disjunctive for either of these cases viz. the burning of Corns is per se Treason 2. It is observable that all Fire-raâ—sing is not Treason though the Rubrick of the Act bear that all Fire-raising is Treason which may be concluded by these reasons 1. That all punishments should be commensurat to the Delicts and Crimes which are punished and therefore since Fire-raisings are very various it were unjust that they should be all equally punished especially the punishment here being Treason which were too severe for burning Peets in a Moss or a little Cottage standing in a Moor where the guilt is so small that the offenders in these cases should be capitally punished And in a case pursued against Mackenzie of Suddie upon the 29. Iuly 1693. for burning some fewel standing upon a Moor the Justices would not sustain this as Treason 2. If all Fire-raising were by this Act Treason there needed not a posterior Act have been made cap. 146. p. 12. Ia. 6. declaring that wilful Fire-raising in Coal-heughs upon malice and despite is punishable as Treason 3. By the foresaid Act of K. Ia. 5. it needed not to have been said that the burning of Folks in their Houses and the burning of Houses and Corns should be Treason if generally all Fire-raising were Treason For the better understanding then of that Act we must consider that there are three several species of Fire-raising declared to be Treason by that Act The first is the burning Folks in their Houses which must be interpret likewise to be the burning of Dwelling Houses though the People were not accidentally there or were possibly there and escaped Which species of Fire-raising is most severely punished both because Fire-raising was of all others the most horrid domus sua est unicuique tutissimum refugium and because ordinarily the burning of all the persons dwelling in the House is thereby designed as well as the burning the House it self The second species is the burning Houses and Corns which is suitable to the foresaid 28. Law ff de poenis where it is said that qui acervum frumenti juxta aedes positum combusserit vinctus verberatusque igne necatur The third species is willful Fire-raising which differs in this from Burning that Burning is of a particular place with design to destroy no more But Fire-raising is the burning a particular place with design to burn more as to kindle a little Corn upon design to burn the whole Field VI. The other Act making the burning of Coal-heughs to be Treason was practised upon Iohn Henry 14. Iune 1615. who was hang'd thereupon And the reason of this Law was founded upon the favourableness of that Manufactory which some do ruine by putting fire in them which is so easie that nothing could defend against it but the severity of such a Law as this and upon the greatness of the hazard which did arise by such Fires as this which could never be quenched when once kindled VII I was once consulted whether the drowning of Coal-heughs was Treason by this Act since erat eadem ratio utrobique but I thought not because penal Laws especially in which the punishment is so severe as Treason should not be extended as is elsewhere largely debated And the hazard of drowning a Coal-heugh is not equal to the burning of it for drowning can be easier removed and cannot spread so far VIII So odious is this Crime that it is expresly provided it shall be one of the four points of the Crown and so can only be cognosced by the Justices and all remissions granted for Fire-raising are declared null But this last is not in viridi observantia And Fire-raising being included in the Earl of Caithness remission it was sustained though thir Acts were objected IX If dole and design canot be proved in the Fire-raising so that it were accidental sed si culpa incendio
punishable 9. Malefices where there are no conection betwixt the cause and the effect 10. The useing Magick Arts for good ends how punishable 11. Consulting with Witches how punished 12. What the being defamed by the Witches imports 13. A Witches confession not punishable except the thing confest be possible de succubis incubis 14. Whether the transportations confest be real and though real whether punishable 15. Whether a Witch can cause any person be possest 16. Whether penetration be possible 17. Whether transformation be possible 18. Whether he can make Bruits to speak or raise storms 19. Whether Witches may transfer diseases and whether it be lawfull to seek their help for this 20. Whether Witches may kill by their looks 21. Whether they can procure love by their potions 22. How they torment men by their Images 23. Whether Confessions before Kirk Sessions be relevant 24. Who can be Witnesses in this Crime 25. The punishment of this Crime by the Civil Law and ours 26. The punishment of it by the Law of England THat there are Witches Divines cannot doubt since the Word of God hath ordain'd that no Witch shall live nor Lawyers in Scotland seing our Law ordains it to be punished with death And though many Lawyers in Holland and elsewhere do think that albeit there were Witches under the Law yet there are none under the Gospel the Devils power having ceased as to these as well as in his giving Responses by Oracles I. Wierus that great Patron of Witch-craft endeavours to maintain his opinion by these Arguments 1. That such as are accused of Witch-craft are ordinarily silly old Women whose Age and Sex disposeth them to Melancholy and whose Melancholy disposeth them to a madnesse which should render their Confessions very suspect And in this Crime there are seldom other prooves whereas the things confest are so horrid that it cannot be imagined any reasonable creature would commit them 2. God can only work the Miracle ascribed to Witches he who is the Author of Nature being only able to alter or divert its course And the Devil doth but delude the fancy of poor Creatures as Feavers and Melancholy misrepresent objects Nor are such as are cheated in the one more guilty then they who are sick of the other And it is severe to burn men and women for doing that which is concluded impossible to be done by them 3. It is unjust to punish them for doing ill by Charms except it could be first proved that these Charms produc'd the effects that are punishable and Lawyers should argue thus those who kill or hurt Men or Beasts by unlawful means are punishable by death But so it is that Witches and Charmers kill Men and Beasts by unlawful means and therfore Charmers ought to be punished by death Off which Syllogism Wierus denyes the Minor for it can never be proved that Verses Crosses or laying Flesh in the Threshold c. can destroy Men or Beasts these being causes very disproportionable to such effects there being no Contract betwixt the Agent and Patient in these cases 4. These who execute the will of God are not punishable for that is their duty and so cannot be their Crime But so it is that whatever the Devil or Witches do is decreed by God either for tryal or punishment expresly and without his permission nothing can be done And if the Devil were not acting here by obedience or were at liberty he would not leave any one man undestroyed or any of Gods works undefaced But that there are Witches and that they are punishable capitally not only when they Poyson or Murder but even for Enchanting and deluding the world is clear by an express Text Exod. 22. Vers. 18. Thou shalt not suffer a Witch to live And it is observable that the same word which expresses a Witch here is that which is used in Exod. 7. to express those Magicians who deluded only the people by transforming a Rod into a Serpent as Moses had done though no person was prejudged by their cheat and illusion Likeas Lev. 29. and 27. It is ordained that a man or a woman that hath a familiar spirit or that is a Wizard shall surely be put to death they shall stone them with stones their blood shall be upon them Which Laws were in such observation amongst the Jews that the Witch of Endor 1 Sam. 28. was afraid to use her Sorcerie before the King because the King had cut off those who had Familiar Spirits and Wizards out of the Land And so great indignation did the eternal God bear to this sin that he did destroy the Ten Tribes of Israel because they were addicted to it Not were the Jews only enemies to this vice but even the Henthens following the Dictats of Nature punished Witches as enemies to the author of it for the Persians dashed their heads against Stones as Minsing observes ad § Item lex Cornelia inst de pub jud and Tacitus lib. 2. Annal. tells us that Publius Marcius and Pituanus were execute for this Crime for which likewise Valerius Maximus lib. 6. eap 3. tells us that Publicia and Lucinia were with threescore and ten other Romans hang'd But since it is expresly condemned in Scripture and by many general Councils such as Aurelian Toletan and Anaciritan it should not be lawful for us to debate what the Law hath expresly condemn'd by the same reason that we should deny Witches we must deny the truth of all History Ecclesiastick and Secular And Plutarch lib. 5. Sumps cap. 7. observes Quodammodo Philosophiam tollunt qui rebus mirabilibus fidem non habent opportet autem qua ratione aliquid fiat ratione tractare quod vero id fiat ex ratione est sumendum It is sure that the Devil having the power and will to prejudge men cannot but be ready to execute all that is in Witch-craft And it is as credible that God would suffer men to be convinc'd by this means that there are Spirits and that by thir means he would give continued proofs of his power in repressing the Devil and of the necessity that silly men have of depending upon his infinit power To the former Arguments it may be answered that as to the first all sins and vices are the effects of delusion nor are Witches more deluded by Melancholy then Murderers are by Rage or Revenge And though it hath never been seen that persons naturally mad have been either guilty of or punished for this Crime the Devil designing in this Crime to gain only such as can damn themselves by giving a free consent Yet if Madness could be proved or did appear it would certainly defend both against the guilt and punishment And therefore such a series of clear circumstances should concurr before a person be found guilty of this Crime as should be able to secure the Pannel and satisfie the Judge fully in the Quaerie But since daily experience convinces the world that there
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
By the 219. Act Par. 14. Ia. 6. If either the pursuer or defender in civil pursuits kill one another during the dependence eo casu the killer being put to the Horn either for not compearance at the Dyet or for not finding Caution he loses his Life-rent Escheat immediatly upon the Denounciation XXI Murder is one of the four Plea's of the Crown Malcol 2. c. 11. and therefore the cognition thereof belongs to the Justices and Commissions cannot be granted for tryal thereof Act 74. Ia. 6. Par. 11. albeit it be now most ordinar to grant such Commissions and yet this Act being alleadged against one of those Commissioners before the Council they did recall the same but if the Murderer be taken red hand he may be judged by a Barron having power of Pit and Gallows by a Sheriff or any other Judge ordinar betwixt which there is likewise this difference that Murder is Bailable Ia. 3. Par. 6. c. 42. But Slaughter taken red hand is not Bailable but the committer thereof should be judged within that Sun Ia. 1. Par. 6. c. 89.95 And if the Barron or Sheriff proceed not within that time the Cognition belongs only to the Justices for they are Judges to Murder upon citation XXII By several old Acts I find that the Sheriff when a Murder is committed may raise the Kings Horn id est the hue and cry hoesium as the Latine translation calls it upon the Murder and follow him out of his Sheriffdom and send Letters to the next and he to a third and so till he be taken and that when he is taken Justice should be done upon him within fourty dayes and that he should be sent from Sheriff to Sheriff to the place where the Crime was committed which is now absolet for if he be not taken red hand the Sheriff cannot proceed against him albeit it would appear that he may if he be taken within fourty dayes Ia. 1. Par. 6. c. 89. which I find no where abrogated nor any thing to the contrair except only Hops assertion in his lesser Practiques and that may be interpret also of Cognitions after the fourty dayes are expired By the 50. Act of the 6. Par. Ia. 1. It is Statuted that Sheriffs in the former case may proclaim the Murderer fugitive and forbid all the Lieges to receipt him under the pain of losing Life and Goods but this power is also absolet And the receipting Murderers seems not any accession except other presumptions be adduced as if the Murder was committed upon the receipters account in which case receipting may be arbitrarlily punisht but of this I find no formal Decision only the Registers mention that Thomas Brice being accused for receipting his own Son who had Murdered Fairhop it was alledged that the receipting his own Son could be no Crime nam proximitas sanguinis tollit praesumptionem criminis hoc casu Clar. quest 110. num 54. l. 2. ff de recept And receipt could only be interpret to be a Crime In our Law after the committers are Denounced and Letters of intercommuning obtained against them which Defence was thought so relevant that the Justices demur'd upon it but this received no Decision XXIII When a man is killed by fore-thought fellony the King can by our Law grant no Remission for the Murder Ia. 4. Par. 6. cap. 63. and Ia. 6. cap. 13. cap. 169. But yet Remissions are daily granted for such Murderers and are admitted in the Justice Court notwithstanding of this objection as in the Earl of Caithnes case in anno 1668. And it is alledged that these Acts are by the Stile but temporary Acts. But all such Remissions are null except the offender offer to Assith the Party which Assithment is modified by the Council and the Party cannot propon upon his Remission till he find present Caution to satisfie what shall be modified within fourty dayes or else he must during these fourty dayes go to Prison and if payment be not made within fourty dayes his Remission is null Ia. 2. Par. 14. cap. 75. Assassinii crimen or to kill a man by Assassination is to Murder a man for Money and this Species was introduced first by the Canon Law cap. 1. de homicid cap. 6. and had its name from the Assassini who were a Tribe of the Phoenicians and who fain'd themselves to be Christians being truly Mahumetans that they might kill Christians and therefore and because the foresaid Canon speaks only of Christians it is still concluded that only such as kill Christians are to be repute Assassinats and the killer of a Jew was found no Assassinate Cavall h. t. num 475. And yet Matheus thinks that all killing for Money is Assassination for this Crime being founded upon Nature to kill a Jew is as far against Nature as to kill a Christian And it is a greater scandal upon our Religion to kill a Jew because it reproaches us amongst Infidels The Specialities introduced in this Crime are that the endeavour to kill for Money is a Crime though death follow not and that Assassination may be proved by presumptions and that they cannot enjoy the benefite of a Sanctuary or Girth Cabal num 501.515.526 And though the foresaid Canon run only against such as undertake to kill for Money yet the Conducers or such as intreat them to kill are also Assassinats Gomez 3. resol 3. num 10. Math. pag. 521. But these are not in observance with us except as to the Priviledge of a Sanctuary from which all such as committed Murder under Trust or per insidias which that Act calls Assassinium only are expresly excluded Act 35. part 5. I. 3. TITLE XII Of Duels 1. The several kinds of Duels allowed of old by other Nations 2. What Duels were allowed of old in Scotland 3. How the giving and receiving challenges is punishable though no Combat follow 4. The way of Libelling used in this case 5. Whether Duels for reparation of honour be lawful where no other reparation can be had 6. What must be proved in this Crime 7. Whether he be not punishable who kills in a rancounter only or he who tells the provooker that he is going to such a place 8. The punishment of Duels and who are accompted art and part DUels are but illustrious and honourable Murders And therefore I have subjoyned this Title to the Title of Homicide This is that imperious Crime which triumphs over both publick revenge and privat vertue and tramples proudly upon both the Law of the Nation and the life of our enemy Courage thinks Law here to be but pedantrie and honour perswades men that obedience here is cowardliness I. We find no such Crime as this among the Romans because that wise Nation employed their lives against their enemies and not against their fellow-Citizens And the true tryal of courage among them was fighting against the enemies of Rome Duels are either Judicial or Extrajudicial Judicial Duels were these which were allowed by
Sodomy in which endeavour is punishable by the opinion of the Doctors though by the Law of England Sodomy requires habuisse rem veneream puerum carnaliter cognovisse Cook p. 59. albeit the manner of death is not exprest in this act yet practick hath determined the same to be hanging as in the case of Barnoch who was hanged for committing Incest with his own Sister Decemb. 8. 1641. And of Ioan Knox who was hanged for committing Incest with her husbands brother May 1646. Sometimes it is likewise punished with heading as in the case of Iames Strang who was beheaded for committing Incest with his brothers daughter the 4. of April 1649. III. Sodomy is when a man lyes with a man for which both are punishable by death l. cum vir nubit C. de adult they are burnt in France and Savoy as Gothofred observes By the 25. act Henry the 8. Sodomy is declared Fellony and the punishment of Fellony by the Law of England is in all cases to be hanged by the neck till death Though Carpzovius and the other Doctors are of opinion that confession alone is not a sufficient probation in this Crime except other presumptions concur for clearing that the Crime was truly committed yet with us the confession it self without any other adminicles is sufficient to inferr the punishment of death except the confessor be known or at least suspected to be distempered Mastrupatio est ubi quis propriis manibus aliove instrumento se polluit punitur ut sodomia Carp Part. 2. Quest 76. haec paena non est in usu apud nos IV. Bestiality is when a man lyes with a beast which the Romans also punished with death and in which some Lawyers affirm the endeavour is as highly punishable as the crime it self effectus sine affectu Papon lib. 22. tit 7. art 1. Damhaud cap. 96. n. 16. Which opinion they found upon the attrocity of the Crime and it seems that he deserves not to live who could harbour such horrid thoughts but especially if he did all that was in his power to put his design in practice and was only letted by some interveening accident 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But yet other Lawyers conclude that even in this crime the endeavour is punishable by a less severe punishment then death which seems clear by l. 1. § fin ff de extraord crim qui puero struprum abducto ab eo vel corrupto comite persuaserit aut mulierem puellamve interpellaverit quidve impudicitiae gratia fecerit perfecto flagitio punitur capite imperfecto in insulam deportatur And though in hotter Countreys where Custome and Climat lessens this Crime the Crime is by their Lawyers thought punishable less severely yet with us death ought to punish it if the delinquent was only letted by others And in both thir crimes of Sodomy and Bestiality witnesses who are lyable to exceptions will be received because of the attrocity of the crime Bos. de judiciis We have no particular statute for punishing either Sodomy or Bestiality for they are crimes extraordinar and rarely committed in this Kingdom but our Libels bear That albeit by the Law of the Omnipotent God as it is declared in the 20. c. of Leviticus As well the man who lieth with mankind as the man who lieth with a beast be punishable by death Yet c. the ordinar punishment in both these is burning and the beast is also burnt with which the Bestiality is committed as in the case of Iames Fiddes who being convict of Bestiality was ordained to be burnt in the last of May 1650. And Major Weir April 1670. Yet sometimes it is only punished by hanging and thus Iohn Logie was only hanged in Iuly 1642. and Iames Wilson was only hanged for the same crime 15. Feb. 1649. which last Sentence bore that the execution should be very early in the morning and ordained the Mare with which the Buggery was committed to be drowned in any Mosse or Loach TITLE XVI Raptus Ravishing 1. The nature of a Rapt described and its punishment 2. Whether the violent lying with a woman without the carrying her away be a Rapt 3. If the carrying a woman away upon any other accompt then lust be a Rapt 4. If the carying her away without lying with her be a Rapt 5. If a womans carying away a man be a Rapt 6. Whether a subsequent consent purges this Crime 7. Some instances of the punishment of this Crime 8. Whether the parents consent not being obtained makes a Rapt 9. Whether minors and such as force common whores be punishable for a Rapt RApt or Ravishing is that crime which is committed in the violent carrying away a woman from one place to another for satisfying the Ravishers lust And is in the Civil Law punishable by death l. un C. de Rapt virgin c. In our Law it is one of the four points of the Crown that is to say the cognition of it belongs only to his Majesties Justices and not to any other judge R. Maj. l. 1. c. 1. N. 6. and is punishable by death and confiscation of the Committers movables For albeit I remember not that the punishment of death be expresly appointed for it Yet in the 8 cap. l. 4. R. M. It is said expresly that it shall be punished as the other Crimes above related and these are Murder Treason and fire-raising which are all capitally punished And by the Act. 4. P. 21. I. 6. it is declared that albeit the consent and declaration of the woman ravished declaring that she went away of her own free will may free the committer from capital punishment Yet shall it not free him from such arbitrary punishment as His Majesty shall inflict by Warding confiscation of their goods or imposing upon them pecunial mulcts Which act insinuats that the Crime is otherwayes Capital else that act had been unnecessar II. The definition given of a Rapt l. 4. c. 8. R.M. is that it is the unjust oppressing of a woman by a man against the Kings peace in which it differs from the Civil Law at least from some Doctors who alledge that lying with a woman or abusing her body violently is not a Rapt except she be carryed from one place to another Albeit they do confesse that this violence is punishable by deportation or banishment and is as some affirm non Raptus sed Stuprum l. 3. C. de ad leg Iu l. de vi But yet other Lawyers and chiefly Mathaeus doe conclude that albeit the away taking and the forcing or violent abusing a womans body be differently punished yet they are degrees of the same crime and both are Rapts But according to our Law both are Rapts and both punishable by death Neither does our Law make any distinction inter Raptores deforciatores mulierum betwixt Ravishers and Deforcers of women and it were most unreasonable that he who defloures a woman violently should not be as severely punished
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
is most reasonâ—ble for this is in effect greater then ordinary Theft because these things have none to guard them And in our Law likewise he who finds a waise Beast which hath strayed from the owner should cause cry it either in the Court of his Over-Lord or in the Church or else he may be pursued for Theft and Theft is likewise punishable albeit the person be not known from whom the thing was stolen Alex. Concilio 23. And yet furtum non fit nisi sit cui fiat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 43. § 5. basil h. t. V. Theft was divided by the Civil Law in manifestum non manifestum Manifest Theft was when the Thief himself was deprehended in the very act or if he was seen with it before he did arive at the place to which he did destinat to carry it Theft not manifest was when either the Thief was not taken or seen with it and this distinction hath in my opinion given occasion to the difference in our Law betwixt in-fang-Thief and out-fang-Thief which concerns only the Jurisdiction where the Thief is punished but not the punishment it self as shall be said hereafter but there are several other vestiges of it in our Law as cap. 21. l. 4. Reg. Maj. It is said that he who is taken with nothing in his hand may purge himself by 27 men and three Thanes and a Burgess being accused of manifest Theft may purge himself by the Oath of twelve the meaning whereof is that he shall give his own Oath he is innocent and shall get so many men to swear that they believe his innocence and this manifest Theft is called Theft with red hand Stat. Orcar by a Metaphor borrowed from Murder But with us Theft may be divided into common Theft which is Theft so properly called or Stouth-rife which is violent Theft and is a complex of Theft and Robbery And receipt of Theft which distinction is hinted at in all our Laws but most specially 50. Act. P. 11. Ia. 6. VI. As to the punishment of Theft it is much contraverted amongst Lawyers if the Law-givers can justly punâ—sh Theft with death and though I will not dispute the power of Princes and States yet I incline to think that for simple Theft a Thief should not dye For fâ—rst we find by the Law of God to which as the Scripture sayes nothing should be added or paired Theft is not punishable by death nor can this Law be called only a judicial Law fitted for the Common-wealth of the Jews for that it is a Moral Law according to its statutory part forbidding Theft appears from its being insert amongst the commands and why it should not be so as to its Sanction and punishment like Murder Incest and these other crimes I cannot see a reason 2. We see that some Thefts are capitally punished as are the stealing things Sacred Iosh. 7. And Theft committed in the night Exod. 22 2. and stealers of men Deut. 21.7 by which it appears that God Almighty intended not that single Theft should be punished by death 3. There is no proportion betwixt the life of a man and any mony for all that a man hath will he give for his life 4. The life of the Malefactor is ordinarily taken where the Crime cannot be repaired as in Murder Incest c. But in Theft it may and the parties wronged would in all probability be far easier secured this way seing many will rather want their goods nor have a mans life taken Many Thieves would restore if they thought restoration might be made with safty of their life and the Law would easilier sustain the pusuers probation if the event were only to reach goods and not life 5. It seems absurd that single Adultery which is the worst of Thefts seeing the Husband thereby is robbed of his Estate quiet good name and Succession should not be punishable by death and yet Theft should be made capital and that Theft and Murder which are not equal crimes should have equal punishments And albeit it be objected that Laban Gen. 24.9 did vow that these who had stollen his goods should be punished by death Yet the reason in that case will appear to be because that the Theft there mentioned was Sacriledge And whereas Davids Oath to Nathan is that he who had stolne his Neighbours Lamb should die is objected It is answered either that was spoken in passion which the Text bears or otherwayes that was suggested by a special providence to David to the end he might be his own accuser Nor do I deny but there was a kind of Communion of goods amongst the Jews more then in other Nations as appears by their Jublee by their not taking Pledges nor anual rent so that there was less reason to make Theft capital amongst them then amongst us and that according as crimes grow more frequent the punishment may be augmented but I deny that they should be soaugmented that suitable proportion should not be keeped And it is known from experience that many men fear hanging lesse then being constantly keeped in Correction-houses or in the places where they may be kept working as they do in Holland for the good of the Common-wealth VII To descend then to our Law the custom is that the justices do sometimes hang even for very small faults as Thomas Neilson for stealing a horse 10 December 1661. Watson hanged for stealing 40. Sheeps though there was no probation against him but his own confession and though he had restored â—he things stoln Sometimes by banishment as Richard Lauder 6. Febr. 1639. and Alexander Cumming and Iohn Tailer 25. Febr. 1639. Sometimes they are Drowned as Grissel Mathow for stealing a Coffer with Writs 23. Iune 1599. Sometimes Scourged as Iames Wilson 7. Feb. 1608. Sometimes they are hanged in Chains if they be notorious Thieves As Patrick Roy Macgrigor May. 1668. c. It is thought that de jure there is no Law in Scotland for Hanging a man for Theft which is a great mistake for Leg. Burgorum cap. 121. It is said if a Thief be taken with bread worth a Farthing and from one Farthing to four he should be Scourged for four Farthings he should be put in the Joggs and Banished from four to eight he should loose an ear and if that same Thief be thereafter taâ—â—â— with eight Pennies he should be hanged but if any Thief should be taken with 32. Pennies and an Farthing he may be hanged 2. By the 7. Act stat Da. 2.13 ch and cap. 13. l. 4. Reg. Maj. one defamed for Theft who cannot find caution should be hanged cap. 16. It is said that no man can be hanged for lesse then two Sheep and by the Law likewayes of Birthinseck a Thief should not dye for as much meat as he can carry upon his back and cap. 18. a Thief being hanged and falling from the Gallows is no more to be punished All which implyes clearly that Theft is of
its own nature punishable by death 3. By the 82. act I. 6. P. 11. Stealers of Pleugh Graith or breakers of Miâ—nes are to be punished therefore to the death as Thieves But because our practiques is in this a little arbitrary and uncertain it will be fit to know that Theft in Scotland is either purâ—ued by accusation which is at the instance of a private accuser or by way of inditement which is at the instance of the Procurator-Fiskal If the pursuite be intented by way of Accusation it may be judged by Barrons having power of Pitt and Gallows or as our Charters call foffa furca or by Sheriffs but if it be pursued by way of inditement the Cognition thereof belongs to the Justice Reg. Maj. cap. 1. Num. 7. But this distinction is not well observed for the Sheriffs do proceed to judge Thefts even by Citation though the Thief be not taken with with the Fang which is certainly an error for all processes upon citation against a Thief should belong to the justices VIII In the procedor before these inferiour Courts they do not condemn to death except upon three Thefts or that the person be taken with Fang and he be likewise famosus fur As to the three Thefts I find no expresse Law for it only stat Da. 2. cap. 17. where it is said if a Thief be defamed at three Barrons Courts and wants a Pledge or Cautioner then he may be hanged or if he be defamed and cited in two courts or in one and be of ill fame likewise or as we say there be publick bruits and open fame that he is a Thief then he may be hanged But simple fame is said there not to be sufficient to infer death except that ill fame were found by an Assize upon Oath Yet this is now absolet for fame is in no case sufficient to inferr death As to the three Thefts I find the Civilians relate that the third Theâ—t by the statutory Law of most places is capital and it seems to be grounded upon very good reasons for he who is oft found committing the same crime is presumed by the Law to designe to make it a trade Ang. ad l. 8. devi publica where the committing of Theft twice inferrs this presumption The Law of Holland provides that a Thief shall be hanged for the third Theft except it seem otherwayes just to the Judge because of his age or any other pregnant reason and ordinarily three small Thefts are by Matheus said not to be construed such according to the Law of Holland as deserves death the Civilians do upon supposition that the third Theft is Capital conclude that these three thefts should be distinct even as to to the time and that he is to be punished with death for the third theft though he had been formerly punished for both the other two or though the former two had been remitted to him by the Prince and albeit they use many distinctions for clearing whether a Thief should be hanged for the third theft where the first two were not committed within his Territory or Jurisdiction and so could not be punished by him yet since Capital punishment is not inferred by a statute against the third Theft but that the third Theft is only punishable with death because the committer is presumed to be irreclaimable therefore I think that where ever the Theft was committed yet for the third Theft the thief should be hanged for albeit there be no express statute for that with us yet seing Gomesius Chasaneus and other famous Lawyers attested this to be the general custome of the world I think it should be followed by our Sheriffs and inferiour Judges who being determined by that number have some certain rule whereby they may be both limited and warranded which is much safer then that they should be allowed scop to break out into the extreams of either cruelty or cowardliness The Law of England divides Theft or Larcenry into petty Larcenry when the thing stoln exceeds not twelve pence and its punishment extends not to death and grand Larcenry when it exceeds twelve pence wherein the thief is punishable by death except he be saved by the book and if one steal to the value of six pence at one time and six pence at another time then he is guilty of death but if two steal to the value of eighten pence joyntly each is guilty Common bruit and open fame of being an ordinary thief is likewise a good ground of making theft puishable by death the thief being taken with the fang hi fures famosi sive infamati de pluribus furtis are ordinarily hanged likewise as is clear by Clarus Num. 8. hoc tit Menoch arbitrariis Casu 295. And it is sufficient that witnesses depon of their credulity and that they are informed by others our Law calls such de famiati de latrocinio and if he cannot find caution the old Law appoints that he should be proceeded against as if he were a proven thief for latro defamatus latro probatus are still aequipollent in our Law But I think these Laws too severe and they are not in use IX As to the procedor of the Justices it is because their power is more eminent that they are allowed to be more arbitrary but I think the distinction allowed by Civilians will be very reasonable which is that in furto simplici in simple theft the pain of death should never be imposed but in qualified theft if the quality be such as agredges the crime very much Which aggravations are either taken from the thing it self that is stoln as in our statutes the stealers of Pleugh-graith cutters and destroyers of Pleugh and Pleugh-graith in the time of telling and cutters and destroyers of growing trees or breakers of Milnes or of leading coâ—ns or fewel are to be punished to the death as thieves 82. Act. 11. P. I. 6 and hocheâ—s and killers of Oxen horses and other cattel are punishable by death and confiscation of movables as well committers as recepters Act. 110. p. Ia. 6. and upon this act were hanged for killing Drumlanerk's sheep 20. Feb. 1666. Albeit it would appear that that act is only to be extended to labouring cattel Nota this is a case wherein Theft may be committed without carrying any thing away for the doing of these wrongs without carrying away the thing wronged is constantly declared to be Theft per constitutionem Frederici Secundi de stat § agricultores the stealing Pleugh graith is punished as a particular crime X. Herdships likewise which is the driving away a great many Cattle called by the Civilians crimen abigeatus is likewise by the Law of all Nations and particularly by ours punished with death but though lex prima dig de abigeat say that abigei ad gladium dentur Yet Matheus doth interpret that not to be meant de ultimo supplicio but only de ludo gladiatorio and with this agrees l.
bought and presently sold or within four Miles of the place where they were bought for the crime in this case is inferred from the speciality of time and place It was alledged that confiscation of Moveables could not be inferred though for the third and fourth fault except the Pannel had been convict for the first two Which was spelled likewise because the King could not be prejudged in his interest quo ad the confiscation by the negligence of his Advocat or any privat informer by not pursuing Nor could that negligence purge their guilt or procure them an impunity And it were absurd seing crimes and punishments are to be commensurat that these who had continued in that guilt for many years should be no more punished then these who had but once incurred the same TITLE XXIV Usury 1. In what Contracts Usury may be committed 2. The taking of more annualrent then the quota stated by Law is the first branch of Usury 3. The second is to take annualrents before the term of payment 4. The third is to take Wodsets in defraud of the Law 5. Whether a Clause not to redeem for a long time be Usury 6. The probation of this Crime 7. The punishment of it USury is that Crime which is committed by taking more annualrent for any sum lent then what is allowed by the Law of the Kingdom I. This Crime is committed properly in Money in mutuo but yet it is both by our Law and the Civil and Canon Laws extended to other Contracts for with us it is committed in bargains of Victual or Tacks as shall be cleared by the subsequent Acts and therefore Lawyers divide Usury into that which they call direct Usury quae obtinet tantum in mutuo and indirect Usury which takes place in other Contracts Usury is also divided in usuram manifestam velatam which co-incides almost with the former distinction By our old Law Usury could not have been pursued in the Usurers own life but he might have repented him of it at any time before his death so that it was not the commission of the Crime but the continuance in it which was punishable but if he repented not his Heirs might be forefaulted l. 2. Reg. Maj. cap. 24. And this Skeen observes to be consonant to the Law of England whereby the penalty of a living Usurer belongs to the King but of a dead Usurer to the Church II. The true method in this Title is to clear the several kinds of Usury determined by our Statutes The first Species thereof is Whoever receives more annualrent then ten for each hundred shall be punished as Ockerers or Usurers conform to the Laws of the Realm already made Par. 11. K. Ia. 6. cap. 52. And yet I find no prior Law to this expressing the punishment of Usury only it is said Par. 6. Ia. 2. Act 23. that keepers of Victual to a dearth shall be punished as Ockerers and this is properly Usury By Act of Parliament 1649. it is appointed that the annualrent of Money should be at six per cent conform to which Act all annualrents were payed in Scotland till 1661. At which time the Parliament 1649. was rescinded whereupon it was debated in Hugh Roxburghs case March 23. 1668. whether the taking of more annualrent then six per cent after the year 1649. could infer Usury and that it could not was urged from these reasons 1. That where there was no Law there could be no contempt but so it was that the Acts of Parliament 1649. were no Laws that Parliament being rescinded ob defectum authoritatis and without any salvo as to what was past 2. The Liedges might as well be punisht now for transgressing the penal Statutes made by the usurpers seing these were binding the time of the transgression and both want authority equally 3. By the Act betwixt Debitor and Creditor 1. Session 1. Parl. K. Ch. 2. Such pactions are only declared usurious quo ad futura inclusio unius est exclusio altetius To this it was answered that the Parliament 1649. was in vigor till the year 1661. Ergo before that time it was Usury to take more then the annualrent therein prohibited and albeit the defect of Authority might be pleaded where the Crime committed depended meerly upon the Authority contraverted Yet in this case it could not seing Usury was a Crime which was prohibited by all Laws And as to the quota which was all that was determined by the Parliament 1649. It was no such thing as concerned the Rebellion for which that Parliament was rescinded but was a reasonable and universal good for the Kingdom and approved by the present Parliament And those who took annualrent during that time at more then six per cent did in so far oppresse their Debitors beyond others and so should be punished 2. By the Act anent penal Statutes 1661. Usury is excepted from the penal Statutes therein abridged which needed not if the taking more then six per cent for the years immediatly preceeding had not been Usury 3. The Lords of Session did still restrict the annualrents even during these years to six per cent which they could not have done if that Law had not warranted them as in the case betwixt Wauchop and Lawder 1665. for if that Act was in force then it was a Crime to take more then was therein commanded if it was not abrogated then the former Act 1648. appointing eight per cent was in vigour and so the Lords could not restrict the annualrent to six against an expresse Law This case was not decided but the Justices inclined to think that though the Act 1649. was abrogated yet it was a sufficient warrand to regulat the Decision of civil cases because all bargains were then made with respect to the quota thereby determined erat lex habita reputata but that being abrogated it could not found sufficiently a criminal Action to infer so severe a punishment as that of Usury for a Crime is mainly such because Authority is contemned and contempt is the essence of a Crime but so it is there could be no contempt where there was no Authority But it may be doubted if a Merchant who was to imploy his stock upon Merchandize whereby he might have got far more then the annualrent of his stock should at the desire of his friend then in great straits lend him his Money for more then the ordinar profit if in that case he could be punishable as an Usurer And albeit our Law be general yet here ab est animus faenerandi and there was no advantage taken of the Debitors necessity for which Usury is mainly punishable And I find that Abbas c. Naviganti de usur num 13. Socin tract de usur num 75. do conclude this to be no Usury Yet I know that some judicious Lawyers with us did at a consultation upon this same case conclude that the Justices could not receive this exception seeing
word may comprehend negligence is to be put from his office for three years if he be an Heritable Officer and if he be not Heritable he loses his office Which distinction I find also observed by Bald. ad l. manicipia ff de serv. fugit where he says that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo and Farin Q. 3. n. 423. is of opinion that majores officiales non removetur sed minores facile removeri possunt TITLE XXVI Deforcement 1. To whom was the execution of Law committed by the Romans and to whom by our Law 2. What is Dâ—forcement and what are the several degrees thereof 3. The Messenger must have his Blason and give an execution of Deforcement 4. Whether may a Messenger be deforced who wants his Caption or transgresses his power 5. What witnesses can prove a Deforcement or if the Messengers execution can prove it 6. These who deforce may be pursued Civilly for the debt LAws are only the idea or picture of Justice but execution is its life and though those who have the execution of Laws and Sentences committed to them be ranked but amongst the lowest servants of Justice yet they have the happinesse to be these who compleat that great work and amongst whose hands it becomes perfect and therefore the Laws having committed its most excellent part to them it should be and is in a most eminent way careful of them and in providing for their safty it secures its own honour I. The execution of sentences was committed amongst the Romans to the apparitors mention'd of the Codex in three several Titles and these were erected in a Colledge which was stiled collegium or familia apparitorum as our Heraulds are in a fraternity by the 125. Act. Parliament 12. K. I. 6. The Italian Doctors call them now Beroarii so that these who would know what the doctors hold in cases of deforcement must look to the Indexes at these words According to the Roman Law it was a species of laesae-majestie to resist the execution of sentences l quisquis ad l. Iub majest l. Iulianus ff de officio ejus cui mandata est jurisdictio and Guid. Pap. quest 557. observes that from these Laws does rise the practique of France qua puniuntur capitaliter verberantes apparitores in exe cutione officii nam qui mandata principum exaequuntur videntur vivae principium imagines ac adeo graviter puniri debent ac injuriantes Statuas principum With us the execution of sentences is committed to Heraulds Pursevants Messengers Macers and the execution of sentences of inferiour Courts to the respective officers of these Courts and the resisting beating or wounding of these in the execution of their office is in our Law that Crime which we call Deforcement Leg. Burgal cap. 135. II. Deforcement then is defined to be that Crime which is committed in opposing Macers Messengers or any others who use to execute sentences whilst they are executing their office And upon that accompt so that if either the Officer was not in execution of his office or if the Officer be beat upon any other accompt as if a scuffle should arise occasioned unjustly by himself this would not infer a deforcement as shall be said hereafter Though this crime be amongst the most attrocious because the King and Soveraign power is in their person despised and therefore this crime is called Dispectus Regis stat Williel cap. 4. verse 5. And Justice is after much pains taken by the Judges and expences layed out by the Parties disappointed yet it is only punished by confiscation of moveables and an arbitrary imprisonment and the one half of the Moveables so escheated falls to the King and the other half to the Party at whose instance the Letters were execute I. 6. P. 12. cap. 150. The words whereof are If an Officer of Armes or Sheriffs in that part or other person whatsoever be deforced molested invaded or pursued to the effusion of their blood by any person or persons whom they shall Summond or others of his causing and command the time he is executing of any Summonds Letters or Precept direct by His Highnesse or other Judges that he shall loss c. From which Act it is to be observed 1. That Deforcement is committed by troubling of any Officer belonging to any Court 2. That those words to effusion of their blood seem to be a quality put in a sentence by it self and so may be thought to relate to all the former words molested invaded or pursued yet the words of the Act are only wrong pointed and these words or pursued to the effusion of their blood should all be put in one sentence for de practica simple opposing or molesting the Messenger though without blood will infer a Deforcement 2. Though by the Act it would seem only these against whom Letters and Charges are raised or such as they hound out can be guilty of Deforcement yet if any others do deforce a Messenger though they be neither the parties interested themselves or hounded out by them yet they are likewise guilty of Deforcement As is clear by the 4. cap. stat Williell vers 1. And by the 84. Act 11. Parliament K. I. 6. And seeing the crime lies in the opposition to the Messenger whoever is guilty of that act commits this Crime 3. Though this act make only causing or commanding a crime yet certainly if any person interested does ratihabit the Deforcement committed by any other person by either giving him good deed or by receiving his Letters or Blason taken from him he is eo ipso guilty of Deforcement As the Council found in the case of the Earl of Seafort against the Lord Mackdonald anno 1669. upon full debate In which 〈…〉 lords in the Highlands should be lyable for deforcement committed upon the grounds if they did not deliver up the offenders 4. Though the execution be disappointed and stopped yet is declared by the Parliament to be as sufficient as perfected and it were unjust that the party having done all that in him say that the disappointment eo casu should be prejudicial to him 5. Seing the punishment of this act is only confiscation of Moveables and imprisonment whereas by the Act 84.11 Parl. K. I. 6. The lives and goods of the offenders were to be in the Kings will It may be doubted whether the Judge may punish by either of the Acts seing the last does not expresly abrogat the first or whether both should stand in vigour and force Concerning which question the general Lawyers have very many learned debates but the most solid and approven conclusions are that when a crime is punished by several pains in several Laws or Acts which Acts do not derogat one from another expresly that it is in the election of the Judge to punish the delinquent by either of the pains l. quoties ff de actionibus obligationibus But
the Judge making election of one of the pains cannot thereafter make use of the other l. ff senatus de acusationibus vid. Cabal resol criminal cap. 3. where this general question is fully handled and to the considerations there adduced by him I would adde this that where there are several punishments appinted by Laws whereof the one derogats not from the other that the Judge should follow that of the two which is most in use And therefore seing Confiscation of moveables and imprisonment is alwayes used in this case that punishment should be certainly followed by the Juge for since custom may antiquat Laws and is a warrand for a Judge to proceed criminally where there is no Law it should much more determine betwixt two Laws which of them should be followed But there is the less difficulty in this case that none of the acts makes deforcement to be capital And these words that their lives shall be in the Kings will do not infer de jure the pain of death as is elsewhere fully debated but it may be doubted if their persons may not likewise be punishable seing not only by the former act are their lives to be in the Kings will but likewise by the seventh Act 17. Parliament I. 6. It is declared that deforcement of Officers shall be punished by the escheat of their moveable goods and punishment of their person according to the Laws of before So that there is geminatio legum which makes the Law much stronger And I remember that some Sea men in Bruntisland having rowed off their Boat when the Customers Officers were about to poynd some unfree goods bought out of Captain Dewars Ship by rowing off of which Boat the Messenger who was to Poynd fell in the Sea The Commissioners of the Thesaury did summarly in Iuly 1669. ordain the Sea-men to be whipt which was accordingly done III. Messengers have as the Badge of their Office a Blason bearing the Kings Armes and a Wand of Peace if they bear not the Blason it is believed and that is the first objection against the conception and relevancy of the Lybel they may be deforced because by that act only people are obleidged to know that they are Messengers and the Wand of Peace is that whereby they touch a Rebel and declares him to be their Prisoner and when they are deforced they use to break the Wand of Peace but though their Libel bear alwayes that the Wand of peace is broken yet if the troubling of the Messenger be proven though this quality be not proven the assize will still find guilty as was found in the case betwixt Murray and French 13. Iuly 1669. where it was likewise found that albeit ordinarily the Messenger who was deforced doth give in with his Libel an exemption of deforcement wherein after the ordinary form he relates how he execute the Letters and how and by whom he was deforced yet that execution is not absolutely necessary for proving the deforcement but that the deforcement may be proven by witnesses for else there could be no deforcement if the Messenger were killed so that he could make no execution or if he were bribed by the deforcer and so would give none but that an execution of deforcement was only necessary to the effect the Letters might be repute as validly execute as if they had been really execute It uses sometimes to be alledged against the relevancy of the Libel in this crime that the Libel is not relevant because it bears not that the Messenger had the letters of Caption in his hand and shew them to the Party whom he apprehended be vertue of that Caption for without seeing of the Letters the Party is not obliedged to obey and if it were otherwayes any man might take a free Liedge and keep him till he should get a Caption though he had none at the time of the execution But upon the 19. of February 1672. Gordoun of Braco was found guilty of deforcement though the Messenger his having a Caption was neither libelled nor proved and that because the Rebel did not crave to see a warrand and the Messenger was answerable if he did execute without a warrand Neither did the Lords think that the Messenger was bound to put the warrand in the Rebels hands left he should destroy it But he was bound to shew it to any disinteressed person who was present In the same Process it was likewise found that a Messenger might execute a Caption under silence of night though it was pretended that this might give a colour to Robbers to enter in to honest mens houses under night upon pretext of executing of Captions though Poyndings indeed cannot be execute after the Sun is set because a Poynding is a sentence and requires formam judicii and no Court can be kept under silence of night Some Judges ordain Officers to take Raes from a Mast and arrest Ships without a written order the haste of the executâ—on so requiring and therefore I think that though such have not a written warrand they cannot lawfully be opposed for it is the duty of all good Subjects to enquire first if he who pretends to have authority have it already though he see no written warrand but not rashly to oppose what may be lawful Another ordinary objection against the Libel is that the Messenger and his assisters did transgress their power and warrand and so it was lawful to resist them and thus upon the 18. of Novemb. 1667. Mr. Archibald Borthwick being pursued for deforcement it was alledged that he compeared as Procurator for the Lord Borthwick who had arrested Sandilands and the Tennents Corns as Master of the Ground and so alledg'd the Messenger could not poynd the Corns till the Master was payed wherein the Messenger did unjustly and so he had good reason to stop the poynding This alledgiance was found relevant but if justly it may be doubted And Lawyers are very positive that no man can stop any execution upon such pretence of unjustice where the unjustice can be no otherwise redressed by appellation or otherwise which they call resistentia licita per subsidium Menoch de recup possess remed 8. num 30. 31. Cabal resol crim cas 132. And their opinion seems most just for it were dangerous to make private persons and such also as are interessed Judges to the justice of what is done against themselves 2. Nunquam recurrendum est ad remedium extraordinarium quamdiu locus est ordinario but so it is that if a Messenger do any wrong in the execution of his Office he is lyable therefore ad damnum interesse and finds caution for that effect to the Lyon at his entry 3. Messengers are Judges in poyndings and it is not lawful to resist Judges upon pretence that they judge unjustly And this suggests to me another distinction which is that either a Messenger or Executer doth wrong the party interessed via juris as in omitting formalities and repelling
the offer having before their examination come to light IX The third kind of falshood is committed by falsifying money falsum nummartum which is accounted so great a Crime that it is commonly excepted out of Remissions as may be seen in Crightouns Remission March 15. 1661. This Crime is committed 1. By forging true money without Authority 2. By Coyning false money and impressing Copper Lead or any base Mettal with the stamp of the Prince or of other currant money 2. By mixing and allying worset with nobler mettals in currant Coyns 4. By venting and passing or out-putting as our Law terms it the adulterat money coyned by others or intertaining the Forgers or being art and part redde or of the Council with the Coyners By the Civil Law qui probos nummos cudunt sed non in officina publica tenentur lege Cornelia nummaria l. 12. C. de falsa monet qui adulterinos cudunt qui veros adulterant radunt fingunt l. qui cunque l. seque ff hoc tit qui nammos probos lavant constant aut vultu principum signatos reprobant l. 1. C. de vet numis pot By our Law every Burgh should have a clipping-house which was a house for trying money for the tryal was by clipping and sworn men who should clip evil money who are to have a penny for ilk pound that is clipped and the haver was to tyne the false-money I. 6. p. 1. c. 19. and the clipped money if it be evil stuff or false coyn should be returned to the owners I. 4. P. 4. Act 4. They who falsifies money or counterfeits the Kings Irons are to be justified id est punished according to the old Law Act 124. P. 7. I. 5. By which Act though it be added according to the old Law yet we have no Law de falso nummario prior to this except Act 40. P. 5. I. 3. which punisheth only the home-bringers of black money with death By the Act 70. P. 9. Q. M. the home-bringers of false coyns or lay-money should be dilated and the dilater is to have the half of all his goods moveable and immoveable for his revealing And it seems by that Act that it is made treason for confiscation of Lands or moveable Goods is only in the case of treason and I find no other Act that can be the foundation of Drummonds conviction as a traitor Et de practica this Crime hath been diversly punish'd Reid was hang'd for forging false money with the Kings Irons Iuly 13. 1602. Drummond burnt for forging false money Novemb. 27. 1601. And his Brother Patrick Drummond buâ—nt also for art and part red counsel and concealing the treasonable forging coyning and out-putting for venting is still a Crime and is designed out-putting in our stiles of false money Meinzies also was hang'd for art and part as said is Iune 30. 1603. Thomson was hang'd and forefault for bringing home and out-putting false money Ianuary 19. 1603. X. The fourth species of Falshood is false weights and measures adulterinae staterae which are punish'd per l. Corneliam l. annonam ff de extraord crim falsae measurae which are punish'd per relegationem ibid. With us the using false measures or weights of old was punish'd by a Fine leg Burg. cap. 52. And the Bailies of the Burghs were declared Judges competent thereto for the first three faults but the fouâ—th was declared to be only punishable by the Justices because the committers life was to be in the Kings will cap. 74. ibid. But now such as use false measures or weights deceiving the people are to be indicted as falsars Act 47. P. 4. I. 4. By which Act havers cannot be punish'd except they use since the Act ordains users to be punish'd and mentions only such as deceive the people which is not done without using And by the 2. Act Parl. 19. Ia. 6. the users of false weights and measures are to tyne their hail goods and geir which punishments derogats not from the former Act inflicting the punishment of falsit as hath been debated more fully in the Title of Deforcement De practica I find that Brown was fyn'd for false measures by the Councils warrand in 100. merks pen. Iuly 1629. And that Porteus was found guilty though using was not proved since having of false weights in the Shop presumes using except this presumption be taken off as by alledging that the weâ—ghts were presently bought or borrowed or laid aside as light May 1671. By the foresaid last Act the Sheriffs Lords of Regalities and Stewarts are declared Judges competent to this Crime but their Commission there is only tempory for a year and therefore it may be concluded that these are not otherwayes Judges competent to this Crime else this Commission had been unnecessary The using also a longer Ell or Yard is also punishable though it would appear that here the Merchant himself is only prejudged for he may receive as well as give out by it nor doth the Law presume that a man would keep any measure to his own disadvantage I find also that there was a Merchant in Elgin puâ—sued before the Justices Iuly ult 1672. for false weights in swaâ— far as he going to a Mercat dragg'd his Tobacco after the Boat in the salt water which made it weigh more then otherwise it would have done and so the people were cheated But the dyet was deserted and though the defender alledg'd that this was done for keeping the Tobacco from drying too much and mouldering into pieces yet the Magistrats of Elgin had fyned him formerly for the same fault in 20. pound Scots even for the ill example paena falsi arbitraria tenetur qui in sua mercatura addit inutile ut pulverem arenam c. aut species aridas detinet in loco humido Carp pag. 375. XI Falshood is also committed by assuming a false name vid. Stellionatum and by presenting one person for another at the subscribing of Papers suppositio salsae personae which is punished tanquam partum sui positum by the Civil Law I find one David Donaldson hang'd for this imposture having made use of a false person who design'd himself to be the person who should by the agreement have subscribed the Assignation Decemb. 12. 1611. The svpposing a false birth that is to say the laying in one child for another is punishable as a false deed with the punishment of falshood since thereby men are cheated out of their Estates l. ad Corn. de fals the words whereof being periculum capitis subeat is found to extend to death Boer decis 82. And the Mid-wife who brought in such a false Child is punâ—shed by death Pegner decis 80. But I find that Farin relates that periculum capitis was in this case extended no further then scourging But yet since this was a great cheat and doth steal away an Estate from the righteous Heir and adulterats the off-spring it ought to be panish'd as severely
sine juramento est perjurii reus Nor is a person deponing for the information of the Council oblieged before an oath be administrat to consider what she is deponing as lyable to the certification of Perjury and if it were otherwayes there needed no oath be administrat so that before the administration of an oath the deponer being neither a witness nor sworn can neither be guilty of perjury nor false witnessing much less can she be guilty of perjury in having deponed falsly which is a complicated crime made up of perjury and falshood 3. She is but one single witness and so could not have prejudged by her testimony the persons against whom she deponed semper perpendendum est damnum quod ex perjurio resultat Carpz quaest 46. n. 47. Likeas here she retracted her own deposition her self before any pursuit was or could be intented against those Gentlemen and that she deponed was the result of the confusion she was put in by her appearance before the Council being a young Girle not exceeding 18. so that her age and sex should excuse her si quis calore iracundiae aut forte lingua lapsus aut praecipitatus perjurium commisit ei eo casu ignosci debet Rens lib. 3. decis 2. And there is nothing more natural or less dangerous then that a guilt arising from a deposition and meer words should be taken off in the same way especially before any person be thereby prejudg'd as in this case 4. This Libel could not be warrantably founded upon the Act of Q. M. which punish'd only perjury committed in marrying two wives but no other species of perjury To which it was answered that as to the first defence it was not relevant since she being cited before the Council ought to have depon'd truly even for informing the Supreme Judicatory of the Nation who use and must examine women for the good of the Common-wealth especially in such atrocious and occult crimes as in the burning of the House of Frendraught And though the defender may in some cases cast a woman from being witness yet that excuses her not if she be examined To the 2. Lawyers are clear that a witness may depon without being sworn for the swearing them is not essential since the pursuer may remit it And yet the witness who depones falsly even though not sworn is a false witness Bart. in l. si quis ff ad l. Cornel. de fals Clar. h. t. num 11. To the 3. it was not relevant since she inform'd against these Gentlemen in a treasonable point and might have prejudg'd them nor did her retraction proceed from repentance but confrontation nor did she accidentally only or by confusion lapse into this error she having spread these misreports before she was cited and having reiterated her confession after citation To the 4. the practice of the Kingdom was oppon'd which is the best interpreter of Laws And in Anno 1615. Grahame of Long-boddom and in Anno 1622. Turnbul of Belshes and lately Dempster of Muresk were punish'd with death for deponing falsly or seducing others to depon But these points were not decided VII The punishment of Perjury by the Civil Law was Banishment l. ult ff de crimine Stellionatus fustigatio or Scourging l. si duo § si quis perjuraverit By our Law Act 19. Parl. 5. Q. Mary Bigamy is declared punishable as Perjury which is declared to be confiscation of all their moveable Goods warding of their Person for year and day and longer during the Kings will and that as infamous persons they shall never be able to bruik Office Honour Dignity nor Benefice in time coming As to which Act it is observable 1. That Perjury is not formally punishable with us but only declaratorly Perjury being in it self so heinous a Crime but the reason of this seems to be that Perjury was before this Act punishable after this manner for by the 4. cap. lib. 1. Reg. Maj. it was appointed that temere jurantes super assisa spoliabuntur mobilibus in carcerem detrudentur per annum diem adminus infamiae notam incurrent amittent legem terrae which Skeen interprets to be non habère personam standi in judicio and not to be receivable as witnesses either in judicio or extrajudicium which Act is likewise ratified by the 47. Act Parl. 6. K. I. 3. where it is said that wilful or ignorant Assizers Man-swearing shall be punished after the Kings old Law in the first Book of the Majestie Where Perjury is to be inferred from a Deposition either as Party or witness it is necessar that the Deposition be subscribed by him and the Lords found that Mr. Iames Row could not be convict of Perjury upon his Deposition subscribed by the Clerk Sometimes the Council change the punishment of Perjury into banishment as in the case of Galbraith who came in will for Perjury 23. Iuly 1625. TITLE XXX Of Injuries Personal and Real And of infamous Libels 1. Injuries are either verbal or real 2. The requisits in Libelling verbal injuries 3. What are real injuries 4. Who are Iudges to verbal or real injuries 5. Infamous Libels how punished 6. Leasing-makers how punished by our Law I Have oftimes thought that men should walk legally not only in obedience but gratitude to Law since the Law takes so much pains to secure not only our lives and estates but even our honour and reputation and will humour us so far as that because we will think railery a misfortune it will therefore punish even these who offend our imagination I. Injury then in its more comprehensive sense may give a name to all crimes for all crimes are injuries but injury as it is the Subject of this Title is the same thing with contumely or reproach It is divided by Lawyers into such as are committed by thoughts deeds words and gestures but the more received division is that injuries are either verbal or real II. Verbal injuries are these which are committed by unwarrantable expressions as to call a man a cheat or a woman a whore but because expressions vary according to the intention of the speaker therefore except the words can allow of no good sense as Whore or Thief or that there ly strong presumptions against the speaker the injuriandi animus the designe of injuring as well as the injuring words must be proved and the speaker will be allowed to purge his guilt by declaring his intention l. 5. § octavo ff de injur and his declaration will without an oath be sufficient except the offender be burdened with contrary presumptions Berlich conclus 60. num 18. Lawyers therefore require in Libelling injuries 1. That the particular expressions be distinctly condescended upon nor is the general you called me a Cheat or said some such thing sufficient seing not only words but even the pointing of them does alter the estimat of Injuries 2. The pusuer should Libel the design of injuring
dead and dye of the falling Sicknesse 17. May 1615. but in this the words were maliciously spoken for the speaker utterred them because he had lost a Plea But sometimes the speaker is only Scourged and Banished as Tweedy was 13. March 1612. for abusing Constables and bidding the King the Council and them kiss his arse and swearing he cared not a fart for them which words appeared both by the speaker and the contexture of the words to have rather flowed from folly then design And Spotswood in his History relats that the School-master of Edinburgh was hanged for dispersing Libels against the Regent wherein he charged him with being guilty of capital Crimes Leasing makers VI. Like to this Crime if not the same with it is Leasing making whereby hatred and discord may be raised betwixt the King and his people which was punished with tinsel of life and goods by the 43. Act Parliament 2. King Iames the 1. Likeas any misrepresentation or evil information as our Law calls it of the King to his people is punishable in the same way by the 83. Act Parliament 6. King Iames the 5. And though the slandering of His Majesty might have been punished by the reason of the first Act yet we see that our Predecessors did not think paritas rationis sufficient in punishing Crimes Upon which Acts a great person was found guilty of death for writing a Letter wherein the Parliament was slandered Anno 1662. But this was thereafter rescinded by his Majesty Likeas by the 20. A. of the 14. P. KI 6. the hearing and not revealing and not apprehending of such Leasing makers if it be in the hearers power is equally punished with the Leasing making but because these Acts could not reach to slanderers of His Majesty to His people in England or misrepresenting them to the King or abusing any Privy Counseller of that Kingdom therefore the misrepresenting them is declared punishable at His Majesties pleasure by the 9. Act 20. Par. K. Ia. 6. By the same last Act dispersing or making Cockalands or other infamous Libels against Counsellours of England is punished as Leasing making TITLE XXXI Poinding of Oxen in time of labouring 1. How this Crime is punished by our Law 2. How by the Civil Law 3. The explication of our Act of Parliament in this case 4. How the Civil Law and ours differs in this point BY the 98. Act 6. Parl. Ia. 4. it is Statute that no Sheriff or Officer shall poind or distreinzie the Oxen Horse or other goods pertaining to the Plough and that labours the ground the time of the labouring of the same where any other Goods or Lands are to be Apprized or Poinded according to the Common Law II. The Common Law to which this relates is l. 8. C. quae res pig oblig possunt pignorum gratia aliquid quod ad culturam agri pertinet auferri non convenit and by the subsequent authent ibid. agricultores terrarum securi sunt ita ut nullus inveniatur tam audax ut personas boves agrorum instrumenta aut si quid aliud quod ad agrorum rusticorum operam pertineat invadere aut capere praesumat siquis hoc statutum violare praesumpserit in quadruplum ablata restituat infamiae notam ipso jure jucurrat imperiali animadversione nihilominus puniendus and Maranta de ordine jud part 6. Act 3. num 31. relates that this Law is confirmed in Sicilie by an expresse Statute and all these Laws seem to be founded on Deut. 24. vers 6. No man shall take the upper nor nether milstone to pledge for he taketh a mans life to pledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Grotius observes out of Philo. which are called mola catillus l. cum de lanionis § idem consultus ff de instructo vel instrumento legato III. By the foresaid Act of Parliament the Poinding of such Goods is forbid in the time of labouring but it is not declared to be a Crime and the Lord Renton haveing in Ianuary 1666. pursued the Officer of the Court of Coldinghame for poinding one of his Plough Oxen when they were labouring before the Criminal Court is was alledged that no criminal pursuit could be founded upon this Act seing nothing could be criminally pursued but that which was made a Crime by a special Statute and to which a special sanction was annex'd Likeas by the constant custome many actions of Spoilzie were founded upon this Act but no criminal pursuit was ever thereupon intented To which it was replyed that the contempt of a Law was in it self a Crime seing disobedience to Authority was in effect the basis of all Crimes 2. Illegal intrometring with another mans Goods was a Crime especially ubi lex non solum non assistebat sed restistebat for theft is nothing else but an unwarrantable intromission and as the taking of His Majestie 's free Liedges is a Crime where the same is not warranted by Law so the poinding of these Goods should infer a Crime that being another species of unlawful execution 3. This Act discharges such executions conform to the Common Law And by the Common or Civil Law this is a Crime as is clear by the Law above cited and whereas it was alledged that no sanction was annex'd It was replyed that where the Law annexes no sanction the punishment is there arbitrary and there are many Crimes both in the Civil Law and outs to which no sanction is annext The Justices sustain'd the Libel and ordained the Pannel to go to the knowledge of an Inquest The expresse words of the Interloquutor were that the poinding an Oxe in the time of labouring is an injury and wrong punishable by the Law paena aplicanda filco And thereafter the three Pannels were found guilty though it was not expresly proved that the Oxe was labouring actually the time of the poinding but only that he used to labour and was in the Plough the week before and the Countrey was then labouring all which are necessary qualifications of this Crime and so are necessary interrogators after pronouncing of which doom the Justices fined each of the three Pannels in fourty Pound Scots And yet in Iune 1674. a reply against lawfully poinded being proponed in a pursuit for theft the case was by the Justices referred to be first civily pursued It was here also alledged that by the 34. Act. 4. Parl. I. 5. where Crimes may be criminally and civily pursued the civil pursuit ought first to be discus'd which was repelled because though a civil pursuit of spoilzie were intented there could no defence such as lawfully poinded authore praetore c. which are usual in other cases be proponed here seing though the executions were formal and the Decreet whereupon they proceeded irreduceable yet to poind a labouring Oxe in labouring time is in all cases unlawful itacessat hoc casu ratio legis 2. The defender could not plead the benefite of this
were punishable as Menoch observes de arbitr casu 331. Yet the Parliament inclined not to punish him if nothing else could be proved But whatever may be said of ratihabition in general yet certainly ratihabition of Treason is punishable as Treason and it may be also contended that the excepting of a reward by one as if the Crime had been committed by him is punishable since that reaches further than a naked ratihabition so that certainly Assint had been punisht as a Traitor for that accession if he had not been secured by an Act of Indemnity IX There remains yet two practical questions to be resolved The first is whether such as are accessory can be pursued till the chief actors be first discust and either found guilty or assoilzied And that the chief or principal actors ought to be first discust seems most reasonable 1. Because it is the nature of what is accessory to follow and not to preceed that to which it is accessory 2. The principal party might have a defence which the assister doth not know at least cannot prove As for instance if a man be pursued as art and part of driving away Cattel possibly he was but a servant to the person who did drive them and who if he had compeared had proved that the goods were his own or if he were pursued as art and part of convocating the Liedges or of rising in Arms possibly if the principal convocator were pursued he would alledge he had done so by warrand from Authority and would produce his warrand which none else could have in keeping 3. By the opinion of Clar. quest 90. num 6. and other Doctors quando proceditur contra aliquem tanquam quod prestiterit auxilium delicto debet primo in processu constare principalem deliquisse 4. By the 26 Chap. 4. Book Reg. Maj. entituled Of the order of accusing Malefactors for Crimes it is said that the principal Thief should be pleaded and discust before him who commanded the same to be done or before the resetter And in the 4. vers of that Chap. it is generally said and swa it is manifest that the commander or resetter shall not be charged till the principal doer be first convict by an Assize From which words and from the general Rubrick it is clear that this conclusion holds not only in Theft but in other Crimes Likeas Skeen in his Annotations upon these words observes from this Text that complices criminis non possunt accusaâ—i ante pricipalem malefactorem nam sicut reâ—â—oto principali removetur accessorium ita absoluto malefactore absolvuntur complices consentientes and cites for this opinion Gloss. in cap. 1. de offic jud de legat which conclusion is also clear as to Theft from the 83. Chap. quon attach Upon which Law a verdict fyling George Grahame as receptor of Theft was rescinded by warrand from the Council because the principal Thief was not first discust And as to all Crimes by the 29. Chap. Stat. David 2. entituled The complices should not be punished before the principal malefactor It is also observable from the last vers 26. chap. lib. 4. Reg. Maj. that the principal malefactor should be not only accused but convict by an Assize before the complices can be accused so that it is not enough the principal actor be declared fugitive which is likewise conform to Clar. quest 90. num 6. nam non sufficit saith he contumacia ficta which answers to our denouncing fugitive as I formerly observed I find likewise that by the Law of England the principal ought to be attained after verdict or confession or by outlawrie before any judgement can be given against the accessory but the principal must be surely kept until the accessory be attainted Bolton cap. 24. num 38. Notwithstanding of all which Charles Robertson being pursued as accessory to the casting down of a house belonging to Iollie which house was libelled to have been cast down by his sons and servants at his command The Justices found that he might be put to the knowledge of an Inquest albeit the children and servants were not first discus'd because the Act appointing a Libel to be relevant bearing art and part did abrogat the foresaid 4. vers 26. Chap. l. 4. R. M. since such as are pursued as art and part are all principals And the Advocat alledg'd that it were absurd that the King should be prejudg'd by the absence of the principal party To which it was answered that the Act of Parliament and the Law cited out of R. M. were in materia diversa and very consistent since the one determined only the manner of procedure and the other what Libel was relevant since that Act it was constantly found that the Thief behov'd to be punish'd before the Resetter which shews the foresaid Law of the Majesty is not abrogated nor was the King prejudg'd seing if the principal party were discus'd and denounced fugitive the accessory might be proceeded against but on the contrary the Liedges would be much prejudged if this order were not observed for probation might be led against absents eo casu contrair to the fundamental Law of the Nation V. g. if A. B. were pursued as hounder out of C. D. to commit a Murder probation behov'd to be led that C. D. committed the Murder albeit absent else the hounder out could not be punish'd nam primo debet constare de corpore de licti Nor can any man be guilty of hounding out except where the Crime is committed And it were not only against our Law but against reason to suffer Witnesses to be led for proving that the person who was absent committed the Crime For in that case his greatest enemies may be led as Witnesses and his strongest defences may be omitted and though the probation led against him in absence will not be concluding yet semper gravat famam and leaves still a disadvantagious impression In this case it was likewise found that ratihabition of a Crime might be inferred from the said Charles Robertson his resetting the committers of the Crime though they were neither declared fugitives nor Letters of Intercommuning against him And his saying these words They did too little and I wish that they had taken a Collop out of his Cheek was a ratifying of the Crime since the Crime was committed by his own sons and servants X. The second Question is whether the complices and such as are art and part of a Crime should be punished by the punishment due to the principal Malefactor That they should seems clear by the Act 151. Parl. 12. K. I. 6. where the Libel bearing art and part is ordained to be found relevant which implyes that art and part should inferr the punishment concluded in the Libel for that is only relevant which can inferr the conclusion 2. It is said cap. 38. quon attach and then it shall be conform to that which is said Consenters and doers should be
punished with the same pain 3. By constant custome in all Criminal Courts art and part is punished as the principal Crime Notwithstanding of all which I think the foresaid conclusion very rigorous for paena est commensuranda de licto and to punish the more and the less guilty equally seems against nature and justice And by the Laws of all other Nations and the opinion of all Doctors accessions are punishable according to their proportional degrees of guilt and albeit the Act above cited sustains the Libel yet it ordains not the punishment of art and part to be the same with the punishment of the principal offenders but though the Act did bear the same expresly yet by the opinion of the Doctors a Statute bearing that such as are accessory shall be punâ—shed as the principal malefactors is to be restricted ad opem quae dedit causam maleficio non de quolibet modo auxiliandi annot ad Clar. quest 90. num 28. It would therefore seem just that not only the Justices or parties should make application to the Councel and interpose that the punishment should be mitigat according to the degrees of the guilt as the custom now is but that the Justices should have an innate power to propoâ—tion the punishment to the guilt proved for none can understand so well the nature of the guilt as the justices who hear the probation and it is hard that the poor Pannel should lye under so great hazard as to be exposed to a capital sentence whereas it may be the Council will not sit so soon as that he may interpose with them Some Crimes punished amongst the Romans which are not directly in use with us HAving finished in the last Title what belongs to those Crimes which our Law punâ—shes directly I resolved here to touch overly even those crimes which are little considered among us not only that we might thereby know the genius of that wise Nation but that we may consider how far it were fit to renew amongst us these excellent Laws The Romans considering how destructive those were to the Common-wealth who endeavoured by all indirect means to screw themselves into publict employments did therefore make this indirect dealing to be a Crime and called it Ambitus which punished lege julia those who gave money for making themselves Magistrats or that they might attain to honouâ—s It is commonly thought that how soon the power was transferred from the pople to the Senate and from the Senate to the Prince this crime ceased because the Prince having the sole power of bestowing Magistracy and honour is still presumed in Law to bestow them upon those deserve best who Groneveg de leg abrogat ad h. t. but yet I see not why the Prince may not justly cause punish such who have wronged both the publick interest and his favour in prostituting both to so unworthy a sale and since Commissioners for Parliaments and Magistrats of Towns are still elected by pluâ—ality of suffâ—â—ges I see not why such as bribe the electors may not be lyable to the same accusation The punâ—shment of this crime was depoâ—tation which was much like our banishment and in the lesse Towns it was punished by a Fyne of an hundred Crowns and infamy and since it is a kind of bribing I think it should be punished with us as such Residuorum crimen was committed by him who converted the publick money with which he was intrusted to his own private use and was punished by fyning him who was guilty in a third more then he owed This crime is punished by no expresse Law with us but that this is a crime with us appears clearly from its being excepted from the late Act of Indemnity amongst the other Crimes The words whereof are Excepting all privat murders c. and the accompts of all such persons as have intrometted with any of His Majesties Revenues publick impositions Excise Fines Forfâ—itures Sequestrations and all other publick money for which they had not order warrant or assignment for their own privat use or for which they have not duly counted and received discharges thereof from such as pretend to have authority for the time to do the same I doubt not but the Exchequer might be Judges competent to this crime if committed by their own members and the Council if done by any of His Majesties servants since there can be no greater injury done to His Majesties Government then to abstract or invert his money which is the nerves not only of War but of all power Peculatus is a stealing of the publick money as the other was a concealing of it and this was punished in publick Ministers capitally l. un c. h. t. Though other thefts was not capitally punished among the Romans so attrocious a crime did they judge the breach of trust and so easy a thing it is for publick Ministers to steal publick money if they please This crime is certainly punishable with us by death since all theft is so punishable Plagium was the stealing of men and was punishable by death l. 7. ult c. h. t. which agrees with the Law of God Exod. 21.16 Deut. 24.7 and with us Aegyptians and others stealing children have been likewise punished by death and such as force away men to be Souldiers should be liable to the same punishment though the Council uses to punish them only by an arbitrary punishment and such as take away mens childeren upon pretext to marry them before they come to the years wherein they may give a legal consent which is 12. in women and 14. in men ought in my Judgement to be so punished I have treated crimen repetundarum in the Title Brybing crimen annonae in the Title Fore-stallers I shall end this first part relating to crimes with Theophils apologie Subjoyned to his Title of Crimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS PART II. TITLE I. Of Jurisdiction in general 1. Iurisdiction defined and divided in imperium merum mixtum Jurisdictionem simplicem 2. Iurisdiction is either ordinary or delegat 3. It is either cumulative or privative 4. How a Iurisdiction may be prorogat THe Civilians do treat of Jurisdiction very learnedly and profusely but since most of their Dictats are very remot from our practice in Scotland I resolve to clear only such general terms as are borrowed by our Law from that of the Romans I. Jurisdiction may be defined to be a publick power granted to a Magistrat to cognosc upon and determine Causes and to put sentences following thereupon in execution in such way and manner as either his commission Law or practique do allow Jurisdiction was by the Civil Law divided in merum imperium mixtum imperium jurisdictionem simplicem Merum imperium est abere potestatem gladii ad animadvertendum in facinerofos potestatas etiam appellatur Mixtum imperium est potestas qua jure proprio Magistratui competit cui jurisdictio inhaeret inest dicitur
mixtum quia cum jurisdictione est conjunctum Iurisdictio simplex differt secundum Bartolum a mixto imperio in hoc quod imperium mixtum expediatur judicis nobili officio jurisdictio judicis ordinario With us the Justices have only a criminal Jurisdiction the Lords of Session and Commissars a meerly civil Jurisdiction Lords of Regality and Sheriffs a mixt Jurisdiction partly Civil partly Criminal But in all Jurisdictions though meerly civil there is still an innat power to punish even criminally such as offend and disturb even the Civil Jurisdiction Thus the Lords may ordain such as strike any in the Parliament House whilst they sit or falsify Papers produced before them or abuse any of their own number to be degraded or banished or to pay a Fyne or to have their Tongue bored c. according to the nature and merit of the offence For in Law when any power is granted every thing is also granted which is necessary for explicating or executing that power II. Jurisdiction is divided likewise in ordinariam delegatam and here it may be doubted whether the power of Judging crimes which is merum imperium can be delegat according to the Civil Law it could not l. 1. l. 70. ff de regulis juris and seing crimes are of so great concernment that industria personae in electiono judicis respicitur there is no reason why they should be cognosced by Deputs Ordinary commissions with us also bear a power of delegation which were unnecessary if the power of delegation were inhaerent naturally in Jurisdiction And albeit I have seen Justice deputs delegat others to represent them in the Justice Court yet this practice seems to want both warrand and reason And it is observed by Craig pag. 192. that potestatem gladij qui ab alio quam a principe habet nemo potest delegare and by Balfour cap. 63. that a Barron cannot delegat any person to judge in the matter of blood except the said power be specially allowed him But the Law allows even to Deputs though they have no power to delegat others a power to appoint another to judge for them in cases of necessary absence l. 1. ff de off ejus cui mand which Lawyers do also allow ex paritate rationis to such as are sick Bart. ibid. and the reason of both is least the Common-wealth suffer by their absence or sicknesse for it is necessary that crimes be presently tryed III. Jurisdiction is divided by our Law in cumulativam for so we call that Jurisdiction which is competent to several Judges and whereby they may preveen one another and thus Sheriffs and Barrons have a cumulative Jurisdiction in blood weits privatam for so we call that Jurisdiction which is competent peculiarly to any one Judge This distinction is used very much in our Law and especially by Craig pag 192. who layes it down as rule that omnis curia delegatur tantum cumulative sed nunquam privative non est enim quasi translatio juris ex una persona in alium sed tantum mandata jurisdictio quae non obstante jurisdictione sive mandato ad huc remanet in delegante nec minus dominus post juvestituram vassallo factam retinet jurisdictionem curiam quam antea And thus albeit His Majesty grant commission to a Sheriff yet he oft-times appoints other Deputs as Mr. William Wallace in Edinburgh Sir Gilbert Stewart in the Sherifdom of Perth And it was found that though a prelat had appointed an heretable Bailiff yet he was not thereby excluded from sitting himself although he was thereby excluded from appointing any other heretable Bailiff as is observed by Hadd 1. February 1610. IV. Jurisdiction is said to be prorogat when a defender does willingly submit to the judicatur before which he is cited though otherwayes not altogether competent affirmare judicium is to submit to a Judicatory altogether incompetent It is a received conclusion amongst Lawyers that a Delinquent may prorogat his Juâ—isdiction who has a Criminal Jurisdiction but that by an Act of his as by compearance and answering before an incompetent Judge the Delinquent cannot prorogat that Judges Jurisdiction who has no Criminal Jurisdiction at all Clar. quest 42. And thus if a man were pursued for Theft before the Commissars their Decreet would be null though the Delinquent declined not the Court but if before a Sheriff the sentence would be valid though the Delinquent were not of his Territory and though he were pursued for a crime to which the Sheriff were not otheâ—wise Judge competent but a privat delinquent by prorogating the â—udges Jurisdiction as said is can only prejudge himself by his own complyance but cannot prejudge any other Judge of his casuality TITLE II. Of the Judge Competent de foro competenti 1. In what place may a Delinquent be tryed 2. Who is Iudge competent to crimes committed by strangers 3. Where are Vagabonds to be pursued 4. Who is Iudge competent to Ecclesiastick persons 5. Prevention amongst Iudges competent explain'd and cleared I. FOr understanding who is Judge competent in general to punish crimes and what founds his competency or as the Civil Law and Doctors speak quod est forum competens it is fit to know that he who commits a crime may be judged either in the place where the crime was committed which they call forum delicti commissi or in the place where he was born which is called forum originis or in the pâ—ace where he dwells which â—s forum domicilii The place where the fault was committed is of all the three the most competent for it is most just and fit that crimes should be punished where they were committed that others who have seen the crime may by that punishment be deterred from committing the like and that the parties injured may be somewhat repair'd by seeing the Law justly reveng their wrong and in the place where the crime was committed accusers can most easily attend and probation can be soonest and best heard Act 6. P. 6. I. 1. Not only where the crime it self was fully committed may it be tryed but where any part of it was committed and therefore a thief may be judged not only where he first broke the House but by the Judge of that place where he was taken with the things stoln Carleval de judiciis pag. 156. But the Judge of the place where he was taken can only proceed against the thief in that case if he be present but cannot cite him if he be absent wheras the Judge of the place where the House was broke may cite him though he be absent And if the Judge of the place where the House was broke or the thing was first stoln pleases he may require the other to remit him or send him back to him to be judged But this last would not hold in our practice for with us wherever a thief is taken with a fang he may be hang'd nor is
full Copy must be given because all dyets here are peremptor and not with continuation of dayes the reason whereof is ut reus veniat instructus ad defendendum whereas before the Session a short Copy is sufficient because the Summonds is given out to see and a time allowed to answer The dyets are here so peremptory that if the defender be cited to a day whereupon the Council sits not if he appear at the day to which he is cited and take Instruments at the Council Chamber he will not be thereafter oblieged to attend nor can he be denounced Fugitive for being absent for seeing it is peremptory against him it is reasonable that it should be peremptory for him Where many parties are cited as defenders upon a Bill to the Council any one or two will be allowed to answer for the rest they finding caution and enacting themselves to be lyable for whatever shall be discerned against those for whom they undertake which priviledge is granted if no personal punishment be concluded against the defenders but if either the complaint conclude or that the crime will in Law infer a corporal punishment then the offering to find caution to answer will not be allowed nam noxa caput sequi debet and no man can bind his body for another nam nemo est dominus suorum membrorum the pursuer may appear by his Procurator but the defender must either be present or send a testificat of his sicknesse upon Soul and Conscience And yet it is the priviledge of any Councellour that he may undertake to answer for any defender that is cited quo casu the defender will not be unlawed or denounced fugitive upon his absence but his defences will be received as if he were present nor can any Bill for receiving a complaint passe against a Councellor but in presentia The Council by the first constitution were only to take cognizance of what concerned the publict Peace and were neither Judges in civil cases nor crimes but in so far as these impinged upon or were violations thereof but now that Judicator doth under the notion of Riots and breaches of the publict Peace hear to many causes Civil and Criminal But seeing the design of this Treatise aimes only to illustrat our criminal Law I shall only-consider the procedor of the Council in so far as they can cognosce upon crimes II. The most ordinar crimes which are punished by the Council are these which we call Riots in our Law A Riot is a breach of the Peace committed by oppression or wronging His Majesties Lieges by force and violence instances whereof are the dispossessing any of His Majesties Subjects by a convocation of the Liedges or otherwise the affronting of Magistrates by raising tumults against them c. For the better understanding of which crime it will be fit to consider that jura maxime oderunt violentias rapinas pluribus modis succurrant vim passis spoliatis for here the publick is wounded in breaking its Peace and privat persons are wronged by the prejudice done Upon which account the Law hath furnisht more remedies against this then any other crime for either it may be pursued civilly per interdictum unde vi so call'd from the first words of the Edict which runs thus unde vi tu illum dejecisti terestituere cogam which interdict restor'd only the possession of immoveables wheras moveables being spoilzied were craved back actione vibonorum Iustinian also introduced that he who rest and violently took what was his own should lose it l. 7. C. unde vi for in this the resumer usurps the power of the Magistrat whose ministry is requisit in inverting the present possession The Canon Law likewise hath introduced beneficium cap. redintae grandae 4. cap. 3. quest 1. and Menoch relates 17. remedies and Philip. Franc. 24. for recovery of possession and seeing the thing possest is still presumed to belong to the possessor and that hardly the right of moveables can be otherwise proved then by possession the Law did most reasonably both for securing Property and punishing Violence establish that great rule that Spoliatus est ante omnia restituendus and conform thereto the Council who are never Judges to Property but only to Possession so that in effect all their sentences are interdicts do still restore the possession to the person ejected and likewise punish arbitrarly the violence committed for we have no expresse Statute taxing the punishment By the Law of England it is accounted no Riot or routs except three at least were present and that something was done ad terrorem populi for breaking of the Peace Bolton cap. 31. III. The two ordinar defences which are propon'd against riotous ejections are that by a Writ it was lawful and agreed upon betwixt parties that the defender might have ejected the pursuer if he removed not at the day appointed which will defend against a Riot and yet Craig relates a case P. 198. where one who had granted a Tack only for a Year having ejected the Tacks-man after expiring of that Year was pursued actione unde vio in an action of ejection and was forced to transact albeit he contended that the word only was exclusive of any future possession but where by expresse paction it is declared lawful for him who enters to enter brevi manu without processe or hazard of ejection it would appear that this paction is unlawful seeing no man can warrand violence and this seems as unlawful as if one should oblidge himself never to pursue for any injury to be done him which paction the Law declares expresly unlawful nemo potest renunciare juri publico and this were to allow privat persons the power of Jurisdiction Nor can it be thought but this paction was extorted and albeit the party injured were excluded by this paction yet His Majesties Advocat may certainly pursue vindictam publicam if opposition was made and violence used Notwithstanding of which I remember that the Earl of Argile having obtained a Decreet of removing against George Campbel and it being suspended till the next Term The Lords ordained it to be insert in the Bill that the Earl might eject him brevi manu the next day after the Term by his own authority but the Earl was Sheriff here himself and so his Jurisdiction was only prorogat and the Law is expresse that privatus potest ex consensu prorogare jurisdictionem ejus qui aliqualem habet sed non potest privatus consensus tribuere jurisdictionem ei qui nullam habet vid. Hanc quaestionem apud Bart. ad l. creditores C. de pign hipoth But here also the Lords warrand to eject was a delegating of their own Jurisdiction I conceive also that where there is no violence nor opposition made the voluntar consent may allow the ejection especially in a Master towards his own Tennent who hath a natural Jurisdiction in that case and that his ejection is also
Merks though she was found guilty of nottour adultery which is death by our Law Sometimes they ordain no sentence to follow upon the verdict of an inquest as in the case of Purdy who was condemned for Usury in so far as he had taken Anualrent a month before the term of payment upon his Debtors voluntar offer And sometimes they ordain some of their own number to revise the processe and verdict Which Assessors do ranverse the whole Process and ordain it to be torn out of the Criminal Registers as in the case of George Grahame who being pursued for theft it was alledged that the Assize had found him guilty of recept and so the verdict was found disconform to the Libel and consequently the whole process was null Yet when Mr. William Somervel was found guilty of Murder upon the deposition of one witnesse the Council refused to review the verdict as unwarrantable for they found that they could not quarrel an Assize which condemned seing Assizers can only be quarrelled for error when they assoilzie And when his Advocat cited to them the 47. Act. Par. 6. K. Ia. the 3. Whereby it is ordered that where a party finds himself grieved by an Assize by partial malice or ignorance it shall be lawful to him to cite them before the Council and if the error be proved the party shall be restored to the condition he was in before the sentence To this it was answered that this Act speaks only of Civil cases and that by the Council here is meant the Session To which it was replyed the Rubrick and Act are general and treats of all persons wronged qui totum dicit nihil excipit And the reason of the Law is comprehensive of both From all this some do conclude that if the Justices erre in judging the relevancy or if the Assize find that proved which was not remitted to them that in either of these cases the Council may review the sentence but that they cannot quarrel the sentence upon the accompt that the verdict is not sufficiently warranted by the probation Sometimes also the Justices are concluded by the Decreet of the Secret Council which is repeated to the Assize as full probation So that the Justices have only the execution of their sentence remitted to them Thus Fleeming was convict before the Council of having uttered most disdainful speeches against the King and therefore was remitted to the Justices to be examplarly punished and upon production of their Decreet which Decreet is still exprest in the dittay he was hanged 17. May 1615. VII If the Law cannot receive full execution and obedience via ordinaria by the Criminal sentence then the Council upon production of Letters of Horning following upon any Criminal sentence and duely execute and registrat use to grant Letters of Intercomuning whereby all His Majesties Liedges are prohibit to intercomune with any of the Rebels so denounced which Letters must be published at all the Mercat-crosses of the Shyrs and Jurisdictions within which such persons reside whose intercomuning is suspected and registrat there And if need be the Council will likewise grant a commission for Fire and Sword to such persons as they will name against the persons who are disobedient in the Criminal Letters as said is And ordinarly this commissions of Fire and Sword are given to the persons interested which occasions many great abuses And these commissions are sometimes granted against parties who were never cited but upon a naked complaint exhibit to the Council which is most irregular The Council do sometimes grant commission to bring in parties dead or alive and that upon naked Petitions without any previous tryal as they did against the Laird of Dinbaith upon a Petition wherein it was represented that he had run away with the publick money delivered to him by the Shire for paying their Cesse and Excise But this seems hard and it were to execute a free Subject before he be heard or sentence pronounced against him for these privat petitions may be most unwarrantably founded VIII If any person keep out his House in Garrison against his Majesty the Council first uses to issue out Letters against him to deliver up his house under pain of treason and they ordain a Herauld to go and summond him for that effect and if he refuse they ordain him to be processed before the Justice-general and do immediatly before any criminal sentence grant a commission of Fire and Sword against him as in the case of Burgie Iune 1668. They used likewise of old to ordain Noble-men and others who could not be apprehended by Captions for civil Debts to deliver up their persons in any of his Majesties Castles under the pain of treason which though it be now indesuetude yet it was most reasonable and of excellent use seing it is most absurd that any of his Majesties Liedges should contemn his Laws and that such poor persons as pay his Majesties Taxes and Impositions and who are obliedged to venture their lives for him should not likewise have the assistance as well as the protection of his Laws So that when the ordinarâ— remedies of Caption Comprysing and others fail these and other extraordinary remedies should be allowed untill his Majesties Laws be obeyed and the party so injured be fully and finally repaired TITLE VII Of the Exchequers Jurisdiction in Criminals THE Exchequer are only His Majesties Chamberlains and have no Jurisdiction in criminals and yet they fine and confiscat such as transgresse pecunial Statutes or wrong His Majesties Rents quo casu they do in effect judge crimes for it is a crime to abstract customes or cheat the publick and without this Jurisdiction they could not manage His Majesties Rents so that this is jurisdictio emanatâ— founded upon that rule quando aliquid conceditur omnia concessa videntur sine quibus hoc explicari nequit but is seems de jure they should not even eo casu cognosce for by the 89. Act 1. Parl. Ia. 6. It is statute that such as commit fraud in transporting forbidden Goods shall be punished at Justice Airs at least the Justice also have powers I remember that in Iuly 1668. the Exchequre did fine a very intilligent Person for filling up a blank Signature subscribed by the King and ordain'd to be filled up by the Exchequer which some thought irregular for either he had committed a Crime eo casu he should have been remitted to the Justices or if he had committed none he could not have been fined And albeit the Exchequer or any other Court may fine or imprison such as injure their Jurisdiction or may ordain dammage and interest to be repayed to the party injured in any thing before their Court yet no person having here been prejudged and the injury having gone no fuâ—ther then à simplex conatus there could be no damnage and interest incurred But it seems the Exchequer are still Judges in criminibus repetundarum de residuis The
And thus an Assithment modified by the Justices being exorbitant the Lords by way of Suspension did lessen the sum The reason of which Decision was because they found this case to be but of the nature of damnage and interest and not to concern corporal punishment the 16. of December 1664. Innes contra Forbes VII By Act of Parliament 1555. such as kill or wound to the effusion of blood or any other way one another during the dependence of a criminal Process which dependance is declared to continue from the execution of the Summonds till the compleat execution of the Decreet that the pursuer committing the said crime shall for ever loss the cause and the defender being guilty is to be condemned in the plea. The pursuer or defender being convict before any competent Judge in criminals without any probation except summar cognition to be taken by conviction or putting the committer to the Horn and denouncing him fugitâ—ve By this Act the committer losses his life-rent Escheat immediatly after denounciation without being Year and Day at the Horn and giving of counsel is art and part in this crime This Act was to continue only for three Years and is prorogat for seven Years by the 138. Act Parl. 8. Ia. 6. and is thereafter made perpertual by the 219. Act 14. Parl. Ia. 6. I have oft seen Process intented upon this Act before the Lords But it is necessar albeit not observ'd that cognition be first taken by the Justices or other criminal and competent Judge Yet without this Process was sustain'd by the Lords in prima instantià but this defence was not there alledg'd and Process was sustain'd albeit no effusion of blood followed the 29. of Iuly 1662. Harper against Hamiltoun where it was debated whether the Lords might summarly receive probation of it themselves or remit the tryal to the Justices for which doubt I thought there was no great ground because by the Act foresaid the Justice is only Judge in prima instantia And yet in Sleiches case 1673. It was found that no previous tryal before the Justices was necessar The Earle of Niddisdale pursuing the Tennents of Duncow February 1672. they alledged absolvitur because the Earl had beat some of them who were sent to execute a Summonds at their instance against him at least he had given order to beat them or ratihabited the beating of them To which it was answered that 1. The beating some of them could only found an exception to such as were beat and this the Lords found relevant though the Summonds execuâ—â—d was for a common Cause and so in effect those who were beat represented all the pursuers 2. It was alledged that order to beat them was only probable scripto vel juramento for though a crime ordinarly in a criminal Court be probable pro ut de jure yet here quo ad civilem effectum it could not be so proved for else a Noble-mans whole and ancient Heritage might oft-times be taken away by Witnesses since Processes depending might extend to a Noble-mans whole Estate 3. It was alledged that ratihabition or any deed ex post facto did not infer the contravention of this Act which required explicit deeds as beating bleeding c. The Lords before answer to these two last alledgiances ordained Witnesses to be led before answer for clearing the nature of the Act and violence committed against them but in this case as in all others if the one party beat the other being forced thereto by self-defence the striker will not eo casu fall under the certification of the Act of Parliament as was found the last of Ianuary 1673. Iohn Sliech against Swintoun In which case the Lords also found that the certification of this Act did reach such as wounded one another during the dependence of a pursuit before an Inferiour Court though it was alledged that this respect was only due to the Lords of the Session and that the Act should only reach such as pursued Actions before them for to lose the whole Pley was too great a punishment for an incident Riot before an Inferiour Court I find likewise that one Weir having been pursued for slaughter the 15. of Iune 1591. he alledged he was absolved by a Rolment of Court at Aberdene To which it was replyed that the King had given a warrand for a further tryal which reply founded upon His Majesties Warrand was repelled as contrary to Law and because it was but a privat Rescript not subscribed by the Chancellour nor past Council And in respect the Lords of Session had given a Warrand to proceed notwithstanding of the Kings privat Warrand It is also observable though I think it irregular that Ludwharn having raised in Anno 1596. a pursuit against Momat and others for taking him out of his House without a lawful Warrand gave in a Bill to the Lords complaining that the Duke of Lennox as Leivtennent of the North intended to repledge wheras that Jurisdiction was only cumulative with the power of the Justices and that he had a Letter from His Majesty ordaining the Justices to proceed wherefore he craved that the Justices might be commanded to proceed which Petition was granted VIII Albeit regulariter the Parliament or Council grant Warrands to Advocats to appear for such as are Pannell'd before the Justices yet I find that the Lords granted a Warrand in Balmerinochs case to Advocats to compear for him And seing Advocats are subject to the Jurisdiction of the Lords it is most reasonable that the application be made to them for the same reason likewise I find that when any of the Lords are appointed Assessors in Criminal cases by the Council that they must have a Warrand also from the Lords for sitting there as in Toshes case 1637. TITLE IX The Admirals Jurisdiction in Criminals 1. The Iurisdiction of the Admiral extends to all Crimes committed within Flood-mark 2. Our Admiral has execute Pirats 3. Whether it be lawful for such as apprehend Pirats to execute them by their own Authority in the Ocean or when Iudges refuse 4. Any Nation may Iudge Pirats 5. Whether the Iustices have a cumulative Iurisdiction with the admiral 1. THe Lord high Aâ—miral and his Deputs are by the Laws of all Nations Judges competent to the tryal of all crimes committed at Sea and by an unprinted Statute with us the Admiral is competent in all controversies actions and quarrels concerning crimes faults and trespasses upon Sea or so far as the same flows or ebbs vid. Ship-laws corrected by Balfour tit Admiral c. cap. 2. Our Learned Countrey-man King in his Treatise which I have sayes Admirans habet merum imperium mixium jurisdictionem simplicem potest enim non solum jus dicere quod est jurisdictionis simplicis exequi imperare judices dane coercere quae sunt meri imperii sed est in facinerosos animadvertere quod est meri imperii de omnibus igitur contraversiis marinis cognoscere
made thereanent and if he find the said soverty initimation being alwayes made by you to us of the finding thereof that ye Summond an assize hereto not exceeding the number of 45. persons together with sick witnesses as best knows the verity of the premisses whose names ye shall receive in the Rolls subscribed by the complainers or either of them ilk person under the pain of a 100. Merks as ye will answer to us Ex deliberatione The form of an Inditement is thus An Inditement FOr sameikle as the abominable vile and filthy vice of Incest being so odious and detestable in the presence of Almighty God and be the same eternal God his express word so clearly condemned Therefore our soveraign Lord out of his godly disposition and zeal by diverse his Acts of Parliament expresly Statute and ordained that whatsoever person or persons commits the said abominable crime of Incest shall be punished to the death as the saids Acts of Parliament in themselves proports Notwithstanding it is of verity that the said A.B. being married with his lawful Spouse Daughter to C. most shamefully but fear of God or respect to our Soveraign Lords Laws has given the use of his Body to D. His Wifes â—ister in the Moneths of 〈…〉 in his and her journeying betwixt the Burgh of Edinburgh and the Town of Elgin and within the said Town of Elgin in the which filthy and incestuous copulation she has procreat a Bairn committing there-through the said filthy crime of Incest and Adultery to the high offence and displeasure of Almighty God violation of the Kings Majesti's Laws and evil example of others to run in the like filthy and abominable vice if the famine be suffered to remain unpunished as at length is contained in the said Dittay produced against him c. V. The Summonds should be execute only by a Messenger at Arms or by an Officer of the Court except in the case of Treason in which case it is appointed by the 125. Act Parl. 12. K. Ia. 6. that Letters and Summonds of Treason should be execute only by Heraulds and Pursevants bearing Coats of Arms or by Macers which must be understood only of Macers of the criminal Court for the Macers of the Council or Exchequer or Session cannot execute any other Summonds but what is pursued before these Respective Courts to which they are Macers The form of the Execution is that there be a full Coppy of the Letters delivered to the defender if he be personally apprehended or if he cannot be personally apprehended to his Wife or Servants or affixt upon the Gate of his dwelling House if he any has and Proclamation at the head Burgh of the Shire where a Coppy is likewise to be fixed at the Mercat Cross but if there be moe persons then two and all be called for one deed and crime in that case two of the Copies are to be delivered to two of the Principals named in the said Letters or their Wives c. In manner foresaid is sufficient Q M. 6. P. cap 33. but if the Persons live in Shires or Countreys ubi non patet tutus accessus the Bill whereupon the Letters passe use to contain a priviledge for citing them at the head Burgh of the Shire and to the end of the Letters bearing thir words and failzing thereof by open Procamation at the Mercat Crosses of our Burghs of c. because they are broken men having no certain dwelling and haunts and frequents with other broken men where our Officers dare not resort for fear of their lives with the whilk Charge swa to be given We and the Lords of Our Council by thir Presents dispenses and admits the famine to be as lawful and safficient as if ilk an of them were personally apprehended this is by the Doctors called citatio edictalis but if the party be out of the Countrey he must be cited at the Mercat Cross of Edinburgh Peir and Shoar of Leith as in other cases Nota though the Act of Parliament foresaid bear not a full Copy yet it is absolutely necessar that a full Copy be given for the Dyets in the Criminal Court being peremptor the Summonds is not given up to see as in other Courts and therefore the defender should have a full Copy that he may come instructed how to defend and that he may timeously raise exculpation and if a full Copy be not given the Executions have been found null in totum and the Acts of Parliament appoints they should be null Anno 1665. Livingstoun contra Leith And though some think that in the case where a short Copy is given the Summonds should be only given up to a short day but the Execution should not be null yet I think that opinion is not found 1. Because the Act of Parliament appoints the Execution to be null where a Copy is not given 2. The giving up to see cannot be sufficient for if the party had gotten a full Coppy at home upon the place where he lives he had raised Exculpation and cited the Witnesses therefore upon the place Thir Executions should be subscribed by the Executer and stamped and Sealed before Witnesses else they are null Act 32. Parl. 5. I. 3. And Letters should not be direct generally against Complices but the particular crimes of every defender should be expressed Ia. 6. Parl. 6. cap. 76. and Ia. 6. Parl. 11. cap. 85. And by this last Act all Criminal Letters which import tinsel of Life and Moveable Goods when they are execute by open Proclamation at Mercat Crosses should be execute betwixt eight Hours of the Morning and twelve Hours at Noon Though formerly when a party was in Prison his Inditement might have been given him upon twenty four Hours yet it was found in the case of Robertson in Iuly 1673. that a Pannel in Prison should have fifteen Dayes at least that he might within that time either raise a Summonds of Exculpation or might take out diligences for proving his Objections against Witnesses or Assizes and that conform to the eleventh Article of the Regulations concerning the Justice Court though it was alledged then by His Majesties Advocat that there was no expresse Warrand for that Indulgence in that Article And Correctory Laws such as the Regulations were ought not to be extended beyond the Letter especially in this case where the Pannel was a Murderer taken with reid hand and Justice was to be done against such by our old Law within twenty four Houres which replies were repelled in respect it was duplyed for the Pannel that though the Law did not expresse the time that is to be indulged to such as are criminally pursued yet it having exprest the reason for which this indulgence is to be given viz. that the party might either exculpat himself or cast the Witnesses or Assizers that were to be used against him the Law could not but allow a time sufficient for doing that diligence it being a Rule in
Probations should be led in presence of the Assizers 10. The Assize after inclosure can speak to no man 11. How the Assize ought to proceed after they are inclosed 12. Wilful errour in Assisers how punished and by whom I. ALL judgements were at first pronounced by neighbours and thus amongst the Romans were centum viralia judicia and amongst the Feudalists pares curie were only Judges in place of which last came our Assizes in France England and Scotland they are called a condign inquest because these should be pares â—uriae ita condigni The Word Assize is originally French and signifies properly siting or Session les assises sont les grands jours plaids solemnels Roy Charles Anno. 1413. vid. judicem Regean verb. assise where it will appear that Assize in French signifies a Judicator and in our Law it is often taken for a constitution or Statute which is made by that Session or sitting of the Judges and thus the Statutes of King David are called assisa regis Davidis and assisa terrae is called the Law of the Land Assisa is likewise sometimes called a measour and thus it is said Ia. 3. Pa. 14. cap. 110. that the Barrel should contain the Assize and measour of 14. gallons and the assisa halâ—cum or assize of Herring signifies a certain quantity and measure of Herring which pertains to the King as a part of his Customes Ia. 6. Pa. 15. cap. 237. And in the French Law it signifies a Tax also Regean ibid. But the proper acceptation of the Word Assize as it is now determined by custom is to signifie those who are chosen by our Law to determine either in civil or criminal cases the matter of Probation and are in effect neither properly Judges nor Witnesses but both II. For the more exact clearing of the Office of Assizers in criminal cases the Reader may take notice that the Libel alwayes beats that the pursuer shall Summond an Assize not exceeding fourty five persons which shall be given up in a Roll to the Messenger and should be subscribed by the pursuer which Roll shall be annexed to the end of his execution Ia. 6. Pa. 6. cap. â—6 But albeit this Act appoints that the Roll shall be subscribed by the pursuer yet it is sustained as valid though not subscribed by him if he homologat and ratifie the execution given in by the Messenger albeit it may be alledged that the Summonding of Assizes is eo casu not lawful seing it wants a warrand this subscribed list being by the foresaid Act of Parliament and Summonds it self appointed to be the warrand as also albeit by the Act the Messenger is prohibit to cite any more then fourty five under the pain of five hundred Merks yet the execution is not eo casu declared thereby to be unlawful and by that Act it is likewise declared that upon supplication the Lords may allow more persons to be cited then fourty five Why the pursuer should have had the choice of the Inquest may be doubted And if Assizers may judge ex propria scientia it would appear that to allow the pursuer the choice of the Assize were to put the defender absolutely in his will And I find that Gail l. 2. obs 34. concludes that the custom of some places allowing domino electionem parium pares apud nos signifies Assizers is most unreasonable quia dominus ita est quodam modo judex in propria causa nam est procul dubio eos electurus per quos se victoria potiturum sperat Alvarot ad cap. 1. de contrav send To which difficulty it may be answered in defence of our Law and Practique that 1. Where the Advocat is pursuer it is presumeable that he will be most just and that he will proceed without interest or malice 2. These Assizers are in effect either Judges or Witnesses and the pursuer hath still the choice of both Judges and Witnesses if they be otherwise competent 3. As the defender may decline them if there be any reason for it so they are sworn nor is it presumeable that any will be so impious to condemn a man to dy to please others Upon which presumption our Law leans so much that though Assizers condemn unjustly they are not liable to an Assize of error as is believed But by the third Article of the Regulation 1670. the list of the Assizers is to be made by a Quorum of the Justices and that list should express not only the names but the designation of the Assizers When the day of compearance is come and the Letters are called and the Assizers are likewise called and each absent Assizer is for his absence fin'd in an hundred Merks and their unlawes are to be taken up without any composition Ia. 6. Par. 12. cap. 126. by which act it is likewise appointed that an act is to be extracted upon their said absence and is to be delivered to the swearer or his Clerk within six dayes thereafter that Letters may be direct therupon for taking their unlawes but the pain of ilk absent Assizer at a Justice Air is to be fourty Pounds Ia. 6. Par. 11. cap. 81. If the Assizers Summond be not present others may be Summoned at the Bar or apudacta as we call it Ia. 4. Par. 6. cap. 94. When the Assizers are called fifteen of them are marked and then the dittay is read for the debate upon the relevancy must be in presence of the Assize Ia. 6. Par. 1. cap. 90. seing albeit they be not Judges to the relevancy yet since they are Judges to the Probation which depends much upon the relevancy and seing the Justices remit several defences which are propon'd against the relevancy to the Inquest it is most reasonable they should hear the debate III. The defence against the relevancy begins thus it is alledged by A. C. as Procurator for the Pannel that the Pannel should not go to the knowledge of an Inquest because c. And after all the defences are discust the words of the Interloquutor bear that the Justices either sustain or repel the defence and find or find not that the Pannel should go or not go to the knowledge of an Inquest and if the Justices find the Pannel should go to the knowledge of an Inquest either the Pannel confesses quia in confessum nullae sunt partes judicis therefore he may be banished or scourged without being put to the knowledge of an Assize as in Rutherfoords case the 9 of Iuly 1622 and in Iobs case who was scourged and banished for Bigamy without an Assize 19. Ianuary 1650. But if the crime be capital or the Pannel do not willingly acquiesce to the punishment it is still securer to put the Pannel to the knowledge of an Inquest because the Justices are only competent Judges to the relevancy and the Inquest only can find the Libel proved IV. Albeit it be a received principle in our Law that the Justices
a subvassal by a subvassal and a Burges by a Burges but a lower person may be judged by a higher and by the chap. 2. Stat. Alex. 2. A Knight should be judged by Knights or free holders but by an Act of Sederunt 1. Iune 1591. The Lords of Session declared all such as were landed men sufficient to passe upon Assizes of Error though the old Laws required noble men and Gentlemen only in such cases And albeit of old it was uncontravertedly received that none should passe upon the Assize of Noblemen except Noblemen Nor upon the Assize of Barrons except Barrons yet of late it hath been much debated and especially in the case of Douglasse of Spot 9. May 1667. at which time he being accused for killing Home of Ecles it was alledged that Spot was a Barron and so could not be judged but by Barrons holding of the King conform to the citations above duced It was replyed by His Majesties Advocat 1. Neither the books of quon attach or the Statutes of King Alexander are binding Laws but only books of Apocripha 2. Though they were Laws yet they are not in viridi observantia seing Burgesses and others are daily admitted by the late practique to passe upon Barrons Assizes and at the time of the making of these Laws Assizers were Judges both to the relevancy and probation whereas now in effect they are but witnesses and therefore since the Law reposes much lesse confidence in them now then formerly it should not now be so scrupulous in their election 3. Burgesses are in Parliament allowed to sit upon the Assize of and forefault Noblemen and it were against reason that they should be admitted to the more solemn Judicators and be rejected in Judicators where cases of less importance are ordinarily judged and in which the Sentence pronounced may be easier repealed 4. Dyets before the Justice-Courts being alwayes peremptor it is probable that dyets behoved very frequently to be deserted if only Noblemen were to be Judged by Noblemen Barrons by Barrons 5. By the state of King Alexander above cited it is only requisit that Knights be judged by Knights but it is not added there that Barrons should be judged by Barrons which shews that that priviledge was not allowed to them even in those dayes and lastly seing all mens lives are of extraordinary concernment it is not reasonable to think that he who can be judge of any mans life may not be Judge of the lives of all men To which it was duplyed as to the first That debate is opponed whereby it is evinced in the Title by what Laws Crimes are judged in Scotland and the Books of quon attach and Reg. Majes are our Law and the Act of Sederunt above-cited dispencing with that priviledge in some cases doth demonstrat that regularly this priviledge taketh place with us Likeas Skeen in his Treatise concerning the procedure before the Justice General cap. 4. sect 3. cites these Laws as binding and gives for a rule that no man can be judged in that Court but by his peers To the second it was duplyed that this being a declinatur and being arbitrary for parties to plead the benefite thereof it cannot be said to be antiquated unlesse it had been alledged that it had been pleaded and repelled But as this citation out of Skeen who is but a late Author did show the same to be in viridi observantia so Noblemen have lately had the same indulged to them as in the cases of the Earl of Traquair and Lord Ochiltree which was allowed to them upon the Laws here cited To the third founded upon Burgesses sitting upon forefaulters in Parliament the same doth not meet the case seing the Parliament may abrogat Laws and so are not in their procedure tyed to them and though Burgesses singlie be not Peers to Noblemen yet the collective body of the Parliament by which they are condemned are much more their Peers To the fourth it was duplyed that inconveniences are only to be looked to in the making of Laws but not after and the inconveniences of the other side are much more pressing it being very inconvenient that an Assize of 15. mean Tradsmen should be admitted to try a Duke or Marquesse and it was a vast mistake to think that Assizes are only witnesses and not Judges seing they vote and their verdict is called a Sentence and if Art and Part be Libelled the relevancy is in these cases which uses to be of all cases most intricat Simply referred to them without any debate To the fifth it was duplyed that the inference is meerly conjectural but if the Text be considered it will appear that by Knight there is meaned Vassal or free holder for the Latine translation renders the word Knight not eques but miles and it is said there that a Knight shal be judged by Knights or free holders So that the particle or is in that place exegetick and not disjunctive And to the Last it is duplyed that all mens lives are not equally precious in the eyes of the Law for even by the Roman Law mean people were judged to dye for many crimes which were not capitally to Noble Romans and though with us the punishment may be the same yet the way of procedure against Noblemen is justly allowed to be more solemn Upon which debate the Justices ordained a new Assize to be summonded whereof the most part should be Barrons and the remanent landed Gentleman It was thereafter doubted whether an apparent Heir of a Barron has the same priviledge so that none can passe upon his Assize who are not Barrons or Landed men and it was alledged that the apparent Heir had this priviledge and was a Barron in the construction of Law for his marriage or escheat would fall though not entered and as a Barron though denuded remained still a Barron or a Prelat though for age demitting would be still a prelat so the apparent Heir of a Barron though not entered should be still a Barron as was found 23. December 1674. To which it was answered that an appearent Heir was not nomen juris and priviledges ought to be strictly interpreted and the appearing Air of a Barron would not have an Heir as was lately found in Sir Allexander Seatons case quē sequitur in comodum c. Whereas in Law all Barrons may have Heirs nor did the instances adduced from the Casualities of marriage or escheat militat in this seing these proceeded ex natura feudi non ex vi privilegii and was introduced in favours of the superiour and not of the appearent Heir Upon which debate the Justices 19. of Iuly 1675. repelled the objection against the Assizers and found the priviledged extended not to the appearent Heirs of Barrons Mackintosh contra Frazer of Culbokie Not is this priviledge extended to Landed men though infest if their Lands be not erected in a Barrony VIII Albeit it be ordinarly received that Assisers may Judge upon their proper
punished after the form of the Kings Law in the first Book of the Majestie Skeen observes upon that place Reg. Maj. that amittere legem terrae is the same with non habere personam standi injudicio and they can never be admitted thereafter as Witnesses neither in Writs nor in Judgement vid. tit perjurie But to the end it may be known which of the Assize assoilzied it is by the 9. Article regul 1670. appointed that the Chancellor of the Assize mark upon the same Papper upon which the verdict is write who condemned and who assoilzâ—ed which Paper is to be sealed and kept till a Summonds of errour be raised The Council sometimes rescinds verdicts without any action of errour in criminalibus as in George Ghrahams case where they ordain'd the verdict of the inquest whereby he was found to be Art and Part of recept of stoln Bonds to be unjust and restored him against the same but it may be doubted whether these who are unjustly condemned may be restored against that verdict though it be found unjust seing these who are unjustly assoilzied cannot be thereafter pursued though the absolvitur be found unjust per argumentum à contrario vid. titl of the Council where this question is fully debated and determined TITLE XXIV Of Probation by confession 1. Probation defined 2. Probation by confession if judicial is the strongest of all Probations 3. In what case is an extrajudicial confession allowable 4. What are the effects of a qualified confession 5. The effects of a confession emitted before an incompetent Iudge 6. How far a minors confession obliedges PRobation is so fully treated of by the Civilians and Cannenists and we differ so little from them that I shall only treat of it here in relation to our own Law I. Probation is defined to be that whereby the Judge is convinced of what is asseâ—ted and it may be divided in probation by confession by Oath by Writ by Witnesses and by Presumptions II. Probation by confession is the most secure of all others and therefore it is said in Law that in confitentem nullae sunt partes judicis suitable to which such as confesse are oftimes codemned without the knowledge of an Inquest as I have more fully treated in the Title of Assizes but because men will sometimes confess a Crime rather out of wearinesse of their life then a consciousness of guilt therefore the Law hath required that if there appear any aversion for life taedium vitae or any signs of distraction or madnesse that these confessions should not be rested upon except they be adminiculat with other probation as also because confessions are oftimes emitted negligently the confessors thinking that their privat confessions cannot prejudge them therefore the Law doth only give credit to judicial confessions and not to these that are extrajudicial extra bancum which maxime is stronger with us then elsewhere because by a Particular Act of Parliament Ia. 6. Parl. 11. cap. 90. All probation should be led in presence of the Assize III. This Maxime doth admit in Farin icius opinion many limitations as 1. That if the extrajudicial confession be adminiculat by other presumptions it is sufficient but except the presumptions be very violent I cannot allow this limitation seing confessio extrajudicialis in se nulla est quod nullum est non potest adminiculari and therefore some approve Bossius who admits this confession though adminiculat only to infer paenam extraordinariam Sed non ordinariam for certainly such prevarication and abusing of truth and Judges deserves some punishment The second limitation is that if the confession be admitted in presence of the accuser and accepted by him then it is valid though extrajudicial but this I allow not because it is still extrajudicial and the confessor knew that he should not die upon such a confession for which reason likewise I approve not the third and fourth limitations which are that if the extrajudicial confession be geminata and reiterated or emitted in presence of a multitude or ad exonerationem conscientiae that then it should be valid and I remember that though Major Weir confest Sodomy and Incest to Ministers and Magistrats joyntly for exoneration of his Conscience in presence of many persons that His Majesties Advocat took great pains to bring him to a judicial confession as thinking the former not sufficient and yet Frazer was condemned upon a confession emited before the Assembly at Aberdene and other Noble men though retracted 1641. where this limitation is alledged upon out of Farinacius and this being represented to the Parliament they refused to give their opinion and referred all back to the Justices who sustained the confession adminiculated as said is The sixth limitation is that an extrajudicial confession is valid if upon Oath but I allow not this seing Oaths are not allowed in criminal cases nor can the Pannel be forced thereto and if he swear ultroniously and undesired the confession would appear to me to be suspect as emited either per surorem vel ex taedio vitae The seventh limitation is that an extrajudicial confession is sufficient when the crime confest consists in animo as for instance if it were doubted upon what reason a person accused fled or shot a Pistol c. But I neither allow this limitation for else it should be as large as the rule seing all crimes require animum delinquendi and yet I think that some circumstances of a crime may be proved by an extrajudicial confession and so this limitation may be true in that sense All these limitations are largely rather then exactly set down by Farin de reo confesso quest 81. Reg. 10. Confession though extrajudicial may be sufficient if adminiculat to subject the confessor to the torture but this is rarely practized with us But I remember to have seen Mitchel lately tortured upon his retracting a confession emitted by him in presence of His Majesties Privy Council and a confession extorted by torture is in no Law sufficient so that except it be adhered to after the person tortured is removed from the Rack for two or three dayes it makes no Faith Farin de reo confesso cap. 3. The custome with us is that the Advocat doth in presence of the Justices examine the party to be accused and if he confesse either he subscribes his confession if he can write or else the Justices subscribes for him or which is securer makes two Nottars and four Witnesses subscribe and albeit a confession thus subscribed by two Nottars before four Witnesses was found sufficient upon the 7. of December 1669. in the case of Finla Macknob who was pursued for Theft yet it was then alledged that the confession was not sufficient and that for these reasons 1. Because all Probation should by the Act of Parliament foresaid be led in presence of the Assize and therefore when the Probation was founded upon confession the confession should have been
in criminalibus as is allowed by the Civil Law and Doctors seing with us they are excluded from being witnesses even in Civil cases ergo à fortiori they ought to be rejected in Criminal cases for albeit the Doctors allow them sometimes to prove in Civil cases yet they reject them in the same causes when they are Criminally pursued as in Furto c. Farin quest 56. num 31. and by an expresse Act 1. Agust 1661. The Justices ordained that no women should be examined as witnesses in Theft for the future except ex officio cum nota and that same day they receâ—ved Elisabeth Watson as witness in Theft against Bruntfield 2. Women are sometimes received witnesses in some cases ob atrocitatem criminis as in Treason by an expresse act of Sederunt 1591. And in Witch-craft most ordinarily as is to be seen by the Books of Adjurnal and particularly in the Process of Margaret Wallace the 20. of March 1662. where Margaret Grahame and Marion Wear are received witnesses 3. They are admitted in criminibus domesticis because of scantness of probation and thus they were received against George Swintoun who was accused for murdering his own wife within his own house 21. Agust 1664. 4. Women are received witnesses where women use only to be present as in the being brought to bed murdering of Children in partu supposititio c. very many instances whereof are to be seen in the Adjurnal Books And yet Farin quest 59. sayes mulier non potest esse testis quo ad suppositionem partus si inde agitur criminaliter ad suppositionem corporaliter puniendam And by these we may conclude that women are not regulariter admitted witnesses in Scotland Likeas by the 34. cap. Rob. 1. These are expresly excluded from witnesse bearing yet Matheus concludes they may be received witnesses ex hoc quod mulier adubterii condemnata non admittatur ergo in aliis mulieres admitti debent But this opinion is contrary to all the Doctors vid. Farin quest 59. casu 1. where he gives it for a rule that mulier in criminalibus testis esse nequit which rule extends so far that according to his judgement three or moe women cannot prove a crime num 29. The reason why women are excluded from witnessing must be either that they are subject to too much compassion and so ought not to be more received in Criminal cases then in any Civil cases or else the Law was unwilling to trouble them and thought it might learn them too much confidence and make them subject to too much familiarity with men and strangers if they were necessitated to vague up and down at all Courts upon all occasions V. Minors if they be past fourteen years of age and no otherwise may be admitted to be witnesses by the foresaid Act of K. Robert and it being alledged in the Proces of Margaret Wallace 1622. That Margaret Graham could not be received a witness because she was not past eighteen years of age this was repelled because a Testificat bore that she was past fourteen years of age and might be man'd The reason of this objection is because Minors understand not to answer all circumstances which must be necessarily considered by the Judge nor yet the nature of that Oath which should over-aw them and they are very subject in their youth to corruption a clear instance whereof I saw my self in a little boy against Towie who after he was received did first depon mâ—ny improbabilities and sâ—emed terrified with every question and thereafter confest that he was bribed with a very small and childish bribe In many cases likewise witnesses are to depon upon that which requâ—res judgement as in proving self-defence ratihabition c. And in these cases it is repuisit that the deponer be of a more advanced age then fourteen VI. By that Act likewise of K. Rob. such as are Furious Adulterers Robbers Thieves Perjured Scourged and Servants cannot be received witnesses not yet Laiks against Church-men nor yet Church-men against Laiks whereas according to the Cannon Law cap. de cetero decret de testib Laiks are forbidden to be received against Church-men sed non contra The reasons of which constitution are given to be partly the reverence due to Church-men and partly the hatred whereby Laiks do persecute them but this objection is justly reprobat by our custome by which likewise Servants are received to be witnesses notwithstanding of the former Law against it but not for their Masters but whether he who hath redeemed himself from Justice by a Remission should be received a witness may be contraverted and that he should not be received may be argued 1. Because of this Law of K. Rob. which doth expresly repel him 2. A Remission takes not away the guilt but is only a defence against the punishment l. Fin. C. de gener abolit And semel malus semper praesumitur malus which wicked disposition cannot be altered by a Remission and since the King cannot make a man good it follows that he cannot make him a sufficient witness 3. It hath been found by several Decisions that a person convict and brought off by a Remission redemptus à justitia as this Law calls him hath been therefore set from being a witness as in the case of Tossoch who was condemned as a false Nottar and was thereupon set from being a witness in the Proces for burning the House of Frendraught and yet I my self have objected this against an English Captain in Argiles case it was repelled But to reconcile these two opinions I think we should distinguish betwixt such as make use of the Remission before they be convict and these who are convict and thereafter make use of the Remission for those who propon upon the Remission do eo ipso acknowledge the guilt yet that it is only fictione juris And therefore the foresaid Law sayes copulative that convicti redempti à justitia non possunt esses testes Guiltiness which casts a man from being witness must be proved by a sentence and it was not found relevant that the Theft was offered instantly to be proved the 10. of February 1673. in Ashintillies case but it would appear that sometimes the Theft is so recently committed that there could be no time for convicting him and yet it were hard that a person so guilty should be received The dependence also of a criminal pursuit against a witnesse should cast him if it was intented before his citation to be a witness else every witness might be cast by intenting a criminal pursuit against him VII These within degrees defendant by blood or affinity are likewise repelled by the foresaid Act. Degrees defendant are by our Law the fourth degree or Cousen Germans as is expressed in the foresaid Chapter and this term comes in my opinion from the French word defendre to forbid so that degree defendu is the true expression though we say defendent by
dangerous to challenge a Remission and I am informed that one of the learnedest Lawyers of his time was sent to the Castle for quarrelling the Kings power in granting a remission for fire-raising yet I find a Remission produced by Iohn Bell quarelled as null because 1. It was given for murdering Cristopher Irving and so is null by the foresaid Act. 2. The remission should contain the greatest crime and Slaughter is not so great a crime as murder Nor was the quality of fore-thought-fellony exprest 3. It was not subscribed by the Thesaurer The Justices delayed to give answer but I find not the person was punished 1643. As also Mackie being convict for falsit and having enacted himself never to return under pain of death thereafter he returned and being pursued for his life alledged upon a Remission To which it was answered that the remission was null because he returned before it was obtained and past the Seals nor was it yet past Upon which the dyet was continued the 23. of Febr. 1622. But it is observeable that the pursuit was here at the Advocats instance only who could not quarrel his Majesties remission upon no account IV. If the party doth willingly grant a discharge of all grudge or revenge in the crime of murder this discharge is called a letter of Slants and is called by the Doctors litera pacis and thus Plot. consil 78. sayes that gratiafacta parti nocenti à principe non valet nisi fiat reparatio damnorum interesse vel nisi pax sit prius habita ab haeredibus offensi This rule hath some exceptions both by the Common Law and by ours for by ours exception is made of remissions granted for pacifying the Highlands and Borders which are valid though the party laesed be not satisfied Act 174. P. 13. I. 6. Which is introduced in favours of the publick quiet and is founded upon the same reason from which acts of indemnity are granted without gratifying or repairing these who were ruined by the persons indemnified And for that reason also rex potest gratiari nocentem sine pace privati interesse habenti quando damnandus laborasset pro bono reipublicae fecisset illud per quod multorum salus causata esset l. non omnes § fin ff de re militari By thir Remissions the party is not restored to his good fame l. 3. C. de gen abolit indulgentia patres conscripti quos liberat notat nec infamiam criminis tollit sed paenae gratiam facit And though I think this should hold in such as are remitted after they are condemned because they are known to have diffamed themselves by contracting that Criminal guilt yet it should not hold in such as secure only their own innocence by a remission and redeem themselves rather from hazards then from guilt V. The Kings Majesty sometimes restores the person condemned by way of Justice per modum justitiae which he doth by rescinding the sentence that stands against him as injust and this is done either in Parliament if the person was condemned by them or by a review in the Justice Court if he was condemned there and in this case the party is restored not only to his Fame but likewise to all his Estate even though it was bestowed upon a third party as was afte much debate found by the Parliament 1661. in the case betwixt the Marquiss of Montrose and the Marquiss of Argile TITLE XXIX Of Prescription in Crimes 1. How crimes did prescrive by the Civil Law 2. Whether do crimes prescrive by our Law I. ACcording to the Civil Law crimes did prescrive in twenty years L. querela C. defals And Clarius doth assert that generally all the Doctors are of opinion that all criminal pursuits prescribe in that time but this prescription did not run in some atrocious crimes such as Sodomy Paricide Apostacy c. Wherein they erre for where the Law sayes that either semper paricidii accusatio permittitur as l. ult ff de leg Pompei ad paricid or that nullus temporibus arcetur apostotarum accusatio that must be interpret de prescriptione vigniti annorum which is in Law called longissum tempus but the crimes of Adultery and peculatus prescribe in five years II. It may be doubted with us if prescription has place at all and that it has not may be urged from these grounds 1. That prescription has no place with us except where it is warranted by a particular Statute and there is no Statute warranting prescription in criminals And if prescriptions founded upon the Civil Law had been sufficient in Scotland there needed not any particular Acts to have been made in civil cases but since our Law thought necessary to make Laws as to prescâ—iptionâ— in civil causes they had much more determined this poâ—nt by Law in criminal cases if they had thought it fit to extinguish crimes by prescription but on the contrair our Act of prescription in heritage 1617. hath excepted the crime of Falshood from prescription 2. There being jus quaesitum to the King by the committing of the crime both quoad vindictam et bonafisco applicanda that Right cannot be taken away from him but by a publick Law or His own privat Remission 3. It seems unreasonable that because a privat party will not inform being either affraid or negligent that the publick should therefore suffer 4. There is no instance in all our Practiques where prescription hath been sustained but one the contrair crimes of an old date even after fourty years have been punished 5. â—emel malus semper praesumitur esse malus in eodem genere malitiae and therefore it is unjust to suffer a person to live in the Common-wealth who will be both doing wrong himself and inciting others to do so by his example Yet for the other part it may be urg'd 1. That the only end of punishment is that the crime committed may be punished to preveen the errour of others but so it is that after a long time both the publick is presumed to have forgot that any such crime was committed and the parties injured or presumed to have forgot and remitted their privat revenge for satisfying whereof punishments are inflicted 2. After so long a time any probation that could be led against the Malefactor either fails or the witnesses after so long a time may have forgot the exact circumstances and it were very hard upon testimonies that have so unclear a causa scientiae as these witnesses can give to take away a mans life Likeas the witnesses and other probation will probably perish whereby the defender might have exculpat himself and mantained his innocenc so that the Fisk or any privat party may by their negligence or upon design prejudge the Pannel of his defences against the common rules of the Law whereby mens negligence can only wrong themselves and they have only themselves to blame that did not make use sooner of the remedy appointed by
be allowed by the justices who must find all libels relevant which bear consulting with Witches and that Ditty being proved they must condemn the Pannel to die albeit I think the Councel may alter the punishment if it be clear that the user of these acts had no wicked designe nor intercourse with the Divel therein XXVI By the Law of England Witch-craft was of old punished sometimes by Death and sometimes by exile But 1. Iac. this following Statute was made which I here set down because it is very special If any person or persons shall use practise or exercise invocation or conjuration of any evil and wicked spirit or shall consult covenant with entertain employ feed or reward any evil or wicked spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the skin bone or any part of a dead person to be imployed or used in any manner of witch-craft sorcery charme or inchantment Or shall use practise or exercise any witch-craft inchantment charm or sorcery whereby any person shall be killed destroyed wasted consumed pined or lamed in his or her body or any part thereof that then every such offender or offenders their aiders abbetters and counsellors being of any the said offence duely and lawfully convicted and attainted shall suffer pains of death as a fellon or fellons and shall lose the priviledge and benefit of Clergie and Sanâ—tuary If any person or persons take upon him or them by witchcraft inchantment charm or sorcery to tell or declare in what place any treasure of Gold or Silver should or might be found or had in the earth or other secret places Or where goods or other things lost or stoln are become Or whereby any cattell or goods of any person shall be destroyed or to hurt or destroy any person in his or her body albeit the same be not effected or done being therefore lawfully convicted shall for the said offence suffer Imprisonment by the space of a whole year without baile or mainprise Once every quarter of the year these Mountebanks are to mount the pillory and to stand thereupon in some Mercat Toun six hours and there to confesse his or her errour and offence TITLE XI Murder 1. The Etymologie of Murder 2. Self defence defined and whether it be punishable 3. How moderation in self defence is said to be exceeded 4. How self defence must be proponed 5. How it ought to be proved 6. What is casual homicide 7. Whether he who was doing what was unlawful may defend himself as only guilty of casual homicide 8. Whether he who is only guilty of casual homicide may be fined 9. What is homicidium culposum or faulty homicide 10. What wound is to be judged mortal 11. How the designe of Murdering or forethought fellony is to be cleard 12. Homicidium in rixa when many are conjunct actors how punishable 13. The killing of thieves or such as resist authority how punishable 14. Whether it be lawful for a father to kill his own daughter if he find her comitting adultery 15. Assasination how punished 16. Murder under trust how punished 17. What is art and part of Murder 18. How such as kill in the execution of law are punishable 19. Whether it be lawfull to kill a Rebel 20. The life-rent escheat of murderers falls in some cases 21. Murder is one of the pleys of the Crown 22. How Sheriffs and other Iudges ought to prosecute murderers 23. Whether remissions can be granted in case of murder GOD Almighty did to the honour of impressing man with his own image add as a second obligation a natural horror in every man to be in any accession to the defaceing it so that he has consulted his own glory and our security joyntly in these severe laws which he has made against Murder And his divine finger is not seen so apparently in any discovery as in that of Murder and it is very remarkable that these Barbarians who saw the viper fasten upon Pauls hand did instantly conclude him guilty of Murder because he was to their apprehension so miraculously punished I. Murder comes from the Dutch word Moorde which signifies caedem ex jusidiis vel proditorie factam Math. h. t. And Murder is properly different from Slaughter the one being committed per seloniam the other per infortunium Leg. Malc c. 2. And therefore when our Law forbids killing under trust Ia. 6. Pa. 11. ch 81. It calls it murder under trust But when it speaks of killing by accident or in self-defence it calls it Slaughter or Homicide c. 22. Par. 1. K. Ch. 2. Ses. 2. And by this it seems that this crime is better writ murder then murther though murther be the ordinar way of writing it especially in our old Law The Civilians define Murder to be the killing man by man unlawfully And they divide it into that which is committed casually in defence culpable or wilfully II. Necessarium Homicidium or homicid committed in self-defence is when a man being pursued or reduced to inevitable necessity has no way left him to evit his own death but by killing the Aggressor This is in law called inculpata tutela or moderamen in culpatae tutelae within which moderation if the defender contain himself he is no way punishable but if he exceed the same yet so favourable is self-defence that the exceeder is not lyable to the ordinar punishment but is ordinarly punishable according to the excess at the discretion of the Judge With us likewise self-defence is only punishable at the arbitrement or discretion of the Judge by the 22. act Sess. 1. Pa. 2. K. Ch. 2. But seeing that act ordains it to be punisht at his discretion it may be doubted if in all cases self-defence be not some way punishable And I remember that Captain Barclay being assoylzied in Decemb. 1668. Because the Assyse found that the killing Sinclar was in his own defence the pursuers were to petition the Council which is the ordinar way of taxing arbitrary punishment in this case that he might be fined And very learned Lawyers were of opinion that self-defence was in all cases punishable though attended with the most favourable circumstances of innocency from whom I differed upon these reasons 1. By the Civil Law and the opinion of the Doctors if the defender contain himself exactly within that moderation he is no way punishable as is clear by Farin part 74. quest 25. part 6.2 Self-defence is a duty and so not punishable for it were against reason that the Law should punish what it doth comcommand 3. The Law sayes that omni culpa caret qui se desendit and in our Law it is called murthrum justum leg Malcol c. 11. and so to punish him who necessarily defends himself were to inflict a punishment where the Law acknowledged there were no guilt 4. It should be in the
power of every malicious rascal to wrong the most innocent for either he behov'd to suffer himself to be killed or to be punished by defending his own life And by the said act it is only declard leisum to punish but not necessary And yet by the Law of England Murderers se defendendo for fault their movables and both in that and in murder upon misadventure for so they call casual homicide the murtherer must have a pardon Statute 6. E. 1. cap. 9. So great a regard sayes Bolton the Law hath to the life of a man cap. 15. num 16. And by the Law of Savoy he who kills though in self-defence needs a pardon but the Prince in that case cannot refuse to grant a pardon And therefore their Lawyers call that pardon gratia justitiae Cod. fabr lib. 9. tit 10. but with us no pardon is requisite albeit it is most ordinar to take remissions in such cases bearing self-defence in their narrative III. This moderation is said to be exceeded in these three viz. in Armes 2. In time 3. In the measure of following striking c. This moderation is exceeded in Armes as if the aggressor have only a staff and the defender wound him with a sword or pistol the defender is in that case punishable for there weâ—e no reason in that case the defender should have had any feâ—r of his life nec erat in dubio vitae constitutus And yet this conclusion is not infallible for if the defender was much weaker then the aggressor he might be excused to use such unequal Weapons The defender is said to exceed in time if he strike the aggressor ante quam sit in actu proximo occidendi for else it should be lawful to every man upon the first apprehension of fear to kill the aggressor which were very dangerous and here it may be doubted if when any aggressor threatens to kill if the defender who knows not when the threat may be put in execution may immediatly kill There are probable reasons to be urged for either opinion And albeit the punishment should in this case depend upon the arbitrement of the Judge yet if the aggressor be known to have any designe to Murder or be a person who uses to execute what he threatens and if he have a Sword though not drawn or a Pistol though not cockt For if he have either of these there is no doubt but he may be lawfully killed because he is in actu proximo offendendi and no man should wait till he be killed I think that though the aggressor be killed yet the defender hath the benefit of self-defence and albeit he may be arbitrarily punisht yet he cannot be punisht with death and many Lawyers are of opinion that he who threatens to kill may be killed which opinion they found upon these reasons 1. Because the Law looks upon that which is unlawful as done if it was intended to be done and that in odium of him who designes what is unlawful â— There is greater fear from some threats then from wounds and therefore seeing it is lawful to kill these who assault us with wounding why not and him who threatens 3 d. per. l. 1. C. quando licet cuique c. Mortem inquit imperator quam minabatur accipiet id quod intendebat incurrat nor can the friends of the threatner complain seing the aggressor was in effect author of his own death And it is clear that the defender had no design to kill Yet the Justices would not sustain minae per se to be a sufficient qualification of self-defence but sustain'd it joyntly with the aggressors fyring a Pistol though it mis-gave and though the defender might have fled Ianuary 1668. Sinclar contra Barclay And albeit by the Canon Law insultatus debet fugere And that by the Law of England he who is invaded is oblieged to flee as far as he can as to a Wall or Ditch Bolt cap. 15. num 17. Yet by the opinion of the Civilians a person invaded is not oblieged to flee far Farin quest 125. P. 2. It may be probable that if the defender was alone in a House or place with the aggressor and could expect no help that upon threatning or other probable designes laid against his life he may kill the aggressor and from which may be deduced that the actus proximus which Lawyers speak of must not be interpret only the having a Sword drawn for if a stronger man have a weaker in a lockt house and threaten he may kill him though asleep if he cannot otherwayes escape The defender is said to exceed in the measure also if he killed him for wounding whom he might have shun'd or if he followed the aggressor which though it be not fully lawful yet fugientem persequens dumodo in ipso actu non punitur paena ordinaria licet occiderit Boer decis 168. Novemb 7. And albeit much be left to the arbitration of the Judge as to all the three arma tempus modus yet the general rule is that if the defender exceed only in either of the three as v. g. in the armes or time the excess is said to be culpa levissima and no way punishable if in two of these as in time and arms then it is accounted culpa levis and is somewhat â—â—nishable but if the defender exceed in all the three as in time arms way of prosecution then it is culpa lata but yet he is not punishable as if he had dolose Murdered for though it be a rule in civilibus that culpa lata equiparatur dolo Yet it is a rule in criminalibus that culpa lata numquam equiparatur dolo ubi agitur de paena corporis afflictiva Far. quest 125. part 6. It iâ— also controverted amongst Lawyers if seing honour is as dear as life it be lawful to kill him who asperses our honour as it is lawful to kill him who assaults our life And albeit Farinacius be of the judgement that he who is thus provockt being a person of far more eminent condition then the injurer killing him is not to be punisht as a Murderer sed pena extraordinaria licet injuria sit verbalis yet in my judgement he errs in that position for in effect that is not self-defence because the verbal injury cannot be retreated nor retain'd but it is revenge yet dolor justus aliquando operatur ut paena ordinaria temperetur Boer decis 237 but yet that is not allow'd in killing and such other injuries quae non possunt revocari Gothofr prax crim § homicida N. 25. and albeit this hold in verbal injuries offer'd to our Honomr ubi nescit vox missa reverti yet if the injury offer'd to our Honour be real and such as may be stopt as by commanding an eminent person to loose down his Breeches to be whipt or do any most ignominously servile Act to the aggressor in that caise I should think that the