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
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
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
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
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
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
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 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
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
Causes in the first instance And of old if a person accused for treason did absent himself the Criminal Court not no other Inferiour Court could proceed to take tryal by probation against him and so all they could do was only to denounce him fugitive for his absence upon which denounciation his escheat did only fall but he could not be forefeited and therefore since it was unjust that he should by his own absence procure to himsâ—lf an impunity and exemption from forefeiture the Parliament did by their supream power cite the person guilty to appear before them and did lead probation in absence against him and forefeit him in absence though guilty But it being found inconvenient that Parliaments behooved either to be called or such Delinquents pass unpunished therefore by the 11. Act 2. Parl. Ch. 1. It is Statuted that the Justices may proceed to try Crimes by probation even when the person cited is absent in cases of treasonable rising in Arms and open and manifest rebellion against his Majesty or his Successours and their Authority so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents except only Perduellion oâ— open and manifest treason And albeit it may seem strange that the Justices should have been allowed to lead probation against absents in this which is the greatest of Crimes and not in Crimes of lesser importance yet this proceeded from the just detestation which the Parliament had of this Crime and that the punishment thereof might not be delayed where the delay might prove so dangerous II. If the Parliament forefeit any person after cognition of the Cause their sentence cannot be quarrelled by any Inferiour Judge Act 39. Parl. 11. K. I. 6. And though it be added to that Act that no forefeiture lawâ—ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicatory for these words Lawfully and orderly led seem unnecessary since after cognition of the cause by the Parliament no Inferiour Judicatory can quarrel a Decreet of Parliament even though it be pretended that the said Decreet was not lawful and orderly yet if a person be only denounced Fugitive by the Parliament the Lords of the Session may suspend in that case if the Process was not orderly led but whether they can reduce even in that case est altioris indaginis And some think that though it were very inconvenient that such a â—ecreet should receive present execution where possibly the party was not lawfully cited yet that such respect is to be payed to the Parliament as that the illegality of that procedure before them though not objected before sentence should remain undecided till the next Session of Parliament III. If the Parliament should remit any such Process for Crimes to any of their own number to be decided finally before them it hath been doubted whether their decisions could be reduced by the Session And this Act of Parliament reaches only to decisions in Parliament But yet since Decreets pronounced by Commissioners of Parliament are reputed with us Decreets of Parliament and since Decreets pronounced by Commissioners for valuation of Teinds are not reduceable because these Decreets are repute Decreets of Parliament as being pronounced by such Commissioners of Parliament it seems that Decreets pronounced by such Commissioners in Crimes after probation could not be quarrelled and reduced by the Session or other Inferiour Judicatories TITLE IV. The Jurisdiction of the High-Constable in Crminals 1. The Original of the word Constable and his power 2. The Office of petty Constables 3. The Iurisdiction of those who are Constables of His Majesties Castles I. SOme describe the word Constable from the word Coning which signifies a King and Staple which signifies a Stay or Hold in the Saxon language because Constabularies were only erected in those places where the King keeped House and thus the Constable was judge of old to all crimes committed within twelve Leagues of the Kings House and Habitation l. Malcol c. 6. Though Skeen there observes that the best Manuscripts bear only two Leagues or four Scots Miles Our Craig and other Authors derive the word Constable from the Comes stabuli under the Roman Empire nam Constabularius sayes he nihil aliud est nisi praefectus aequitum since the Reign of King Robert the Bruce this Office of High-constable stands heretably in the noble Family of Errol and their being some debates concerning his Iurisdiction Francis Earle of Errol obtained Commission under the great Seal dated the 23. of Iun 1630. Seal'd penult March 1631. to the Persons therein specified or any nine of them impowering them to search the Acts of Parliament consuetude Monuments and Registers of the Kingdom and all Evidents that the Earl of Errol or the Lord Hay his Son should produce concerning their Honours Hostilogies Priviledges and Immmunities belonging or which had belonged to the Office of Constabulary from the first institution thereof This Commission I have seen with the report thereof dated the 27 of Iuly 1631. bearing the Commissioners to have met with the Earle of Errol and his said Son and to have considered their Instructions Warrands and Customes of other Countreys anent the Constables Priviledge and in the third Article of the report which relates to the Criminal Jurisdiction only here treated of they set down these words The Constable is Supream in all matters of Ryot Disorder Blood and Slaughter committed within four Myles of the Kings Person or of the Parliament or Council representing the Royal Authority in his absence and that alse well within the Court as outwith the same And the tryal and punishment of such crimes and offences is proper and due to the Constable and his Deputs and the Provost and Bailies of that Centre or Burgh and all other Judges within the bounds where the said facts are committed are obliedged to ride concurr fortifie and assist the Constable and his Deputs in taking the saids Malefactors and to make their Tolbooth patent for receiving them therein As was clearly evident by production of Warrands granted by His Majesties Predecessors to that effect and which likewise appeared by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable for the time concerning that purpose the King having seen this report did approve it in a Letter directed to His Secret Council of this Kingdom from the Court at Theobals the 11. of May 1633. Registrat in the Books of Secret Council the 15. day of that Moneth and in the Commission report and Letter foresaid the Constable is designed High-constable and his Office the High-office of Constabulary The Constable is still in use since that time to judge Riots within the bounds foresaids and to interrupt the Town of Edinburgh when he knows of their medling providing the Riots be committed in time of Parliament and I was told that in time of Parliament holden at Edinburgh Anno 1640. and 1641. the Earle of Errol was found
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