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-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
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
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
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
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
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
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
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
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
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
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
the Realm during his lifetime 1. Novem. 1597. The prosecution of this crime concerns only his Majestie 's interest And therefore the dyet was deserted because His Majesties Advocat nor none to represent him did not concur nor was the Libel raised at his instance 20. Iuly 1596. Mr. Iames Leask against Andrew Red. TITLE XXXIII Beggars and Vagabonds 1. How Beggars and Vagabonds are to be punished by our Law 2. How by the Civil Law OUr Law hath been so charitable as to provide for Beggars by special Statutes Ia. 1. Parl. 1. cap. 25. Ia. 1. Parl. 1. cap. 42. Ia. 4. P. 6. Parl. cap. 70. Ia. 5. Parl. 4. cap. 21. But sturdy Beggars our Law calls them Egyptians oftimes as the French calls them Bohemians and Vagabonds should be proceeded against by the Sheriffs and other Judges and they may exact caution of them and if they find none they should be denounced fugitives Ia. 6. Parl. 1. cap. 97. and may be sent to publick Work-houses or put in the Stocks Ia. 6. Parl. 12. cap. 124.144 and 147. Item Ia. 6. Par. 15. cap. 268. and if they be recept after they are denounced fugitives their receptors are lyable for the prejudice sustained and the parties damnified will have action against the Magistrates within whose bounds or jurisdiction these Vagabounds are recept wittingly Ia. 6. Parl. 11. cap. 97. But this Act determines not whether this wittingly relates to the receptor or Magistrat yet by the common Law the adverb scienter is still applicable to the person against whom the penal Statute runs so that except the Magistrat know that the Vagabond was harboured within his bounds it were severe to sustain action of damnage and interest against him though the receptor knew the Vagabond and did wittingly recept him But I think that if the Magistrate did either omit his duty he will be liable nam scire scire debere aequiparantar or if he was willingly ignorant I find that A. B. being pursued criminally for general recepting Vagabonds this action was not sustained but he was referred to the Kirk Session which it seems was done because of the 147. Act Parl. 12. Ia. 6. whereby Ministers Elders and Deacons may nominâ—t any two of their number to enquire into this crime and whom His Majesty makes and constitutes Justices as to that effect It appears by a Proclamation emitted by the Council in Anno 1603. these Egyptians were ordered to leave the Kingdom upon pain of death which is ratified by the 13. Act Parl. 20. Ja. 6. and upon that Act of Parliament Moses shaw and other Egyptians Sorners and Vagabonds were hanged the last of Iuly 1611. II. Our Law has in this followed exactly the Civil for there is a title in the Codex de mendicantibus validis our sturdy Beggars and the novel 80. this Crime was also called by the Athenians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive otii ignavi de quo vide heigium l. 2. quest 27. TITLE XXXIV Robery Oppression vis publica privata 1. The several Epithets given to Robbery and how it is distinguished from other Crimes 2. Common Theft and Stouthrief how punished by our Law 3. Several decisions as to this Crime 4. How the assisting of Robbers is punished by our Law 5. In what cases is it lawful to joyn against Robbers 6. The punishment of oppression by our Law 7. In what cases the civil right is to be discussed before the violence can be criminally punished 8. How Oppression was termed by the Civil Law and how it was thereby punished 9. What Concussion is and how punished 10. Black mail how punished MEn may by dilligence and circumspection defend themselves against Theft and these who steal clandestinely shew a reverence even to that Law which they transgress but Robbery and Oppression are Crimes against which there can be no fence and in which these who violat the Law contemn the Legislators To defend them against these men did associat themselves under Government and renounced their native liberty for the protection of Law nor can Law justifie the severity of its punishments and the great exactions it requires but by returning to these it commands a sweet and pleasant security against all rapine and violence I. When Theft is aggraged by violence it is called Robbery from the Germane word Raube and is with us called Stouthrieff Stouth signifying Theft and Rieff signifying violence In which Crime our Persons are endangered as well as our Estates and so is ordinarily punished by death even in these Countreys where Theft is only punishable by pecunial mulcts or whipping and thus it was punished with death amongst the Jews as is clear by Davids answer to Nathans Parable though Theft was only punished by restitution and though Calistratus l. 28. § grassatores ff de paenis seems to make such only punishable if they Robb frequently and in high wayes and with Arms grassatores qui praedae causa id faciunt proximi latronibus habentur si cum ferro aggredi spoliare instituerunt capite puniuntur Utique si saepius atque in itineribus hoc admiserunt caeteri in metallum dantur aut in insulas relegantur Yet by the custome of all Nations Robbery is punished with death though it be not reiterated and I think that Law must be only understood of such as designed to Robb qui instituerunt who are punishable though they actually Robb'd nothing and had no design to kill but to plunder predae causae if they went out frequently and to high wayes with that design for if they actually Robb'd or had a design to kill though they killed not yet they are still punishable by death by all Laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 II. The quality of frequent and common committing Theft and Robberies is not only a quality that raises the Crime of Theft alone from being punishable by restitution to be punishable by death in other nations but by the 51. Act 11. Parl. I. 6. It is declared that landed men who are convict of common Theft Recept of Theft or Stouthreif shall incur the crime and pain of treason upon which Act it was contraverted whether the word common was a quality and adjunct to be added to the Recept of Theft and Stouthreif as well as Theft since the Act sayes but only common Theft not common Recept of Theft nor common Stouthreif and it was urged that it was reasonable that this should be understood of all seing it was that quality which rendered them Treason For simple Recept would not have been declared treasonable of it self and by the foresaid l. 28. the reiterating this crime aggraged it from banishment to death and in the oâ—dinary way of speaking men cease not to repeat such words Likeas it was just that as the crimes were in Landlesse men punishable only by restitution or death if repeated so in Landed men the punishment should grow proportionally and infer death or Treason if commonly committed To which
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
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
speaks only of Crymes committed in a lucid interval And whereas Caballus thinks such a punishment necessarâ— for satisfying the discipline of the Church I should rather think that the Chuâ—ch should of all other least punish that misfortune it being against Christian charity to add affliction to the afflicted And it were brutish for Church men to be more severe then the madness it self was which was so charitable as to take its leave As a man should not be punished in his health for what he did when he was mad so upon the other hand a man who committed a Cryme in his health ought not to be punished bodily if he thereafter turn mad for then he is not sensible of correction which is one of the great designes of punishment And to punish him then were to endanger his soul nor would the people be deterred from vice but would rather be troubled with passion at such a spectacle but yet he may be punished in his goods Clarus quest 6. tells us of one who was scourged for perjury though it was alledged he was mad but this last seems too severe for the reasons foresaid and since a mad man is lookt upon as absent it may be justly doubted whether he may be process'd during his madness for a Cryme committed by him while he was in health even in order to the inflicting a pecuniary punishment and that because absents cannot by our Law be try'd criminally and because mad men cannot inform their Friends or Lawyers so as they may propon their just defences But since absents may be tryed for Treason by the late Act it would therefore appear that mad men may be likewise accused for Treason during their madness It may be likewise doubted if he who used any means to make himself mad after his sentence may not be put to death notwithstanding of his madness since that madness was occasioned by himself and so should not disappoint the Law But Clarus quest 6. is of opinion that it ought to defend him from all corporal punishment and Caballus Casu 298. num 27. is also of opinion that even he who commits a Cryme whilst he is mad though he himself occasioned the madness yet he is not to be punished by the ordinar punishment for the Law doth not presume that they made themselves furious upon design IX Whether a collective body of people or university such as a Burgh or Incorporation may commit a Crime seems debateable And Ulpian seems to deny it l. sed ex dolo ff de Dol. Mal. whose words are sed an in municipes de dolo detur actio dubitatur ego puto ex suo quidem non posse dare quid enim municipes facere possunt But I conceive that we may clear this point by these positions 1. That properly Incorporations cannot commit a Crime for they are jus non persona 2. Crimes which consist in omission may be fixed upon Incorporations as if their Magistrates omit what the Law commands L. Iubenius C. de Sacro-Sanct Ecclesia l. si procuratorem ff mandati 3. In these things which are proper only to be done by Incorporations such as in making Acts raising and using unlawful Judicators Incorporations may be said to be guilty of what their Rulers commit Constit. freder de stat consuct 4. Even these Crymes which are ordinarly committed by privat men such as Murder Oppression c. are in Law sometimes charged upon the Incorporations if these things be done by command of the Rulers l. Metum ff quod metus causa 5. No deeds of the Magistrats can infer a Cryme against the Incorporation except the body of the people concur for they represent not the people in their Crymes but in their Government and they were not impower'd in their election to commit Crymes l. si procurator § Celsus ait ff de condit indebit 6. If one man oppose what may be a Cryme then the Incorporation cannot be guilty for the university there cannot be said to offend since all concur'd not in damno vitando potior est conditio negantis How far Incorporations may be punished may be likewise clear by these positions 1. The Incorporation offending may be ordained to restore in so far as they got advantage l. Metum autem ff quod met caus l. sed ex dolo ff de dol mal 2. In these Crymes wherein the fathers may be punished with the children such as Treason Incorporations may be likewise punished for their innocence is not more favourable then that of Children Bartol gives several instances where Towns have been for Treason condemned to be plow'd 3. If an Incorporation offend in doing things that are only proper to be done by Universities then the University may be punished by confiscation of a part of their common-good but if an University should proceed to commit a Cryme which is usually committed by private persons such as the going with displayed Banners to oppress their neighbours then as the deeds of privat citizens cannot wrong the Incorporation so neither can the deeds of their Rulers And Bart. is of opinion that if the Incorporation be fin'd such as are innocent should not be liable to pay any part of it but it should all fall upon the actors Arg. l. 1. ff de Magistrat conveniend for they were not impowered in their election to commit Crymes as said is TITLE II. The division of Crymes 1 Crymes are publick or privat 2 Ordinary or extraordinary 3 Capital or not capital 4 Occult or manifest 5 Atrocius or not atrocius 6 Statutory and such as are not punish'd by express Statute CRymes are divided by the Civil Law into publick Crymes and privat Crymes publick Crymes are defined to be these which any privat person may pursue for publick revenge and whereof the punishment is stated by an express Law § 1. institut de publ jud And a privat Cryme which none can pursue but the party injured and which is not declared to be a publick Cryme by an express Law But many of the Doctors do of late conclude that all Crymes which are punishable by the Statute of any particular Countrey are eo ipso to be accounted privat Crymes statuta enim sunt loges judiciorum privatorum Bal. ad leg ult Cod. qui testa fac poss Yet this appears to be a mistake for if a Statute should allow any person whatsoever to pursue the Cryme therein forbidden that Cryme would be doubtless a publick Cryme for the true notion of a publick Cryme seemes to be that wherein the Common-wealth is immediatly concerned either by Interest or Example by Interest as in Treason or coining of false Money by Example as in Murder Witchcraft c. In which though the Common-wealth be not immediately concerned as a body yet every particular person of that body is concerned because he who committed that Cryme may commit the same again semel malus semper praesumitur malus in eodem
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
as were the Children of those who kill'd his Father because as is exprest there The Father shall not be put to death for the Children nor the Children for the Fathers And Achan's punishment Ioshua 7.14 wherein he and his sons and his daughters were stoned to death and burned for his own Crime is no concluding argument against this opinion since that was founded expresly upon Gods revealed will who can dispense with or alter the Laws of Nature but it is very probable that the reason of that severe sentence was that God knew the whole Family to be involved in the guilt And it is very probable that they were resetters of the theft or conscious to it since the stollen goods were taken out of the Tent were they were And I remember that our Parliament in Anno 1661. having adjected to the Marquiss of Argyles Sentence the dishabilitation of his Children his Majesty did expresly command it to be rescinded in the last Session of that Parliament in which the Children were rendered capable to bruik Estates or Honours as the other Subjects were I know it is the opinion of some Lawyers such as Budeus that this l. 5. was thereafter abrogat â— Sancâ—mus C. de poenis which by his calculation is two years after the other And though Matheus thinks that l. Sancimus is only introduced in favours of the Friends but not of the Children Yet it is more just to think that by this Law the former was abrogat even quo ad Children since the reason given in that Law is general Sancimus ibi esse poenam ubi noxia est propinquos notos familiares procul à calumnia submovemus quos reos sceleris societas non facit Nec enim adfinitas vel amicitia nefarium crimen admittunt Peccata igitur suos teneant auctores nec ulterius progrediatur metus quam reperiatur delictum Hoc singulis quibusque judicibus intimetur Nor can it be concluded that it is clear that the former Law was not abrogat by that Law since l. pen. C. Theod. de bon proscrip the same Emperour Honorius leaves no Estate to the Children of Traitors for it does not follow that because they are to succeed to no Estate of the Traitors that therefore they should be uncapable to gain or to succeed to any other Estate But after all these Laws the Basil. l. 5. h. t. extends the punishment 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Another punishment of Perduellion by the Canon Law cap. felicis de paenis in 6. is that the Traitors House shall be thrown down and not re-built which is not in observance amongst us Nor was it lawful to mourn for him when dead or to give him a publick Burial l. 11. ff de his qui not l. 35. ff de relig And with us it is ordinary for the friends of such as are condemned for Treason to get a warrand for attending them in mourning upon the Scaffold But I do not find that the attending him in mourning or the burying him was ever accounted a Crime in Scotland I find that some Lawyers believe that the fear of losing an Estate excuses him who has complyed with the Enemies of his Prince notae ad Clar. h. t. num 9. Imol. Consil. 34. But this was expresly repelled in the Marquiss of Argyle's Process 1661. But certainly the fear of life might excuse for there can be no Crime where there is not a voluntar act and nothing can be voluntar which is forc'd Though repentance is no relevant defence against a ditty of Treason especially where there is once a deed of Treason committed yet such is the clemency of Princes that by the l. 1. Basil. h. t. I find that he who in the beginning of a conspiracy reveals is to be rewarded but he who after the Treason is committed reveals the Authors 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is only to be pardoned Sometimes likewise to punish the atrociousness of this Crime the very Parents are banish'd and all the Family are ordain'd to change their name as was done Ravillac's case by the Parliament of Paris for though these could not be corporeally punish'd yet the State may justly deny their protection and Countrey to any who may be presum'd will bear revenge or probably were infected with their Friends Crime But though these punishments may be inflicted after probation yet if the Pannel was only denounced for not appearing in Treâ—son he only loses his Moveables and a gift of forfeiture following such a denounciation was declared null by the Lords of Session because the certification of the Letters in that case is only to be denounced fugitives and lose their Moveables 30. Iuly 1662. and 30. Novemb. 1671. Haige contra Moscrop TITLE VII Sedition 1. What is Sedition 2. The punishment of it 3. Convocation of the Liedges how punished I. SEdition is a Commotion of the people without authority and if it be such as tends to the disturbing of the Government ad exitium principis vel Senatorum ejus mutationem rei publicae it is Treason but if it only be raised upon any privat account it is not properly called Treason But it is with us called a Convocation of the Liedges These publick Seditions are called Seditio regni vel exercitus cap. 1. l. 4. Reg. Majest And this species of Sedition is punishable as Treason And the Mr. of Forbes was hang'd for raising Sedition in the King's Host at Iedburgh When a Sedition is raised against the Government it is â—epute Treason by the Doctors as is clear by Bossius de crimine Laese Majestatis And Perezius hoc tit II. Albeit per l. 1. cod de seditiosis it be only said mulctam gravissimam subtinebit which general term in my opinion is used to signifie that this Crime is not to be equally punished but according to the several degrees of guilt and the authors and first raisers of the tumult are to be most severely punished And the Basilick sayes only that gravissimae paenae subjicitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Greek gloss expounds unwarrantably to be ultimum suplicium in all cases and as to raise men against the Prince is Treason so to raise them against Publick Order or Discipline 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is Sedition properly and thus Treason and Sedition properly differ though oftentimes Sedition may be accompanied with qualities which may raise it to Treason And this the Basilicks make not seditiosus conventus Treason but if it be rais'd ut occidatur Magistratus seditiosus conventus it is Treason in that case l. 1. h. t. I find not Sedition to be expresly declared Treason with us in any case for by the 78. Act Ia. 2. Parl. 14. the raising of Commons in hindering the common Law which is properly Sedition or the making of Leagues and Bonds within Burgh without the command of their Head Officer is declared to be punishable by Confiscation of Moveables and that their lives shall be in
And Gothofred § venenum is clear that medici farmacopolae ineptum medicamentum scienter ad hibentes ut infirmus morietur tenentur ut homicidae And though the judgement of Physicians ought to be ask'd where the design is not known yet where the design of killing and means suitable to that design are clearly proved there is no place for consulting Physicians nor can any danger ensue from the preparatâ—ve of punishing this Pannel to other Physicians or Apothecaries except they give Physick without being imployed by the party and at the desire of Servants who imploy upon a design to kill and administrat the Druggs at unseasonable hours All which are of themselves Criminal and this way is more dangerous then ordinary Poyson because Servants are more easily admitted then others and this way is less discoverable Nor needs it be proved that the Defunct died of this Poyson for even one who got true Poyson might have died of other diseases but it is sufficiently proved that after the giving of thir Purgatives he died the next morning of such a loosness as made his Bed to swim And as this is like the natural product so presumitur contra versantem in illicito especially all this design of Murder being to conceal the Servants theft in which this Apothecary was a sharer III. From these words of the Act through the which any Christian man or woman may take bodily harm it may be concluded that 1. The poysoning of a Jew or Pagan falls not under this Act though it may be pursued as Murder And it may be doubted whether the poysoning of an Excommunicat person can fall under this Act since they are not Christians But to prevent all this the English Statute bears that to kill any reasonable creature in rerum natura by Poyson or otherwayes c. And Cook observes that to poyson a Jew or Turk falls under their Satute IV. From these words likewise it may be observed that the poysoning of bruit Beasts does not fall immediatly under this Act nor yet the poysoning whole Fields to the end Beasts may die Albeit both these Crimes be punishable by death by the Laws of other Nations as Carpz observes tract crim Quest. 21. num 24. And since Theft is punishable by death much more ought the poysoning of Beasts be since not only is the party less'd by wanting his Beasts as much as in Theft but the Common-wealth is more prejudg'd then in Theft since the Beasts so poyson'd are made unserviceable as to all uses and men are likewise in danger by eating or using of them And this is worse then houghing of Oxen which is capital by our Law But if a Beast be poyson'd that men may be thereby poyson'd then the poysoning of Beasts will infer death From these words may take bodily harm it may be infer'd likewise that the giving of Poyson whereby men do fall Paralitick or Lame should fall under this Statute though the person dies not since that may be constructed bodily harm V. As also it may be concluded that since to bring home Poyson whereby men may die does infer death that therefore the giving of Poyson though death do not follow either because the Poyson was not strong enough or because the party poisoned did counter-counter-act its force immediatly by suitable remedies should be punishable by death for these are more immediat deeds then to bring home Poyson And generally indeavour is in this Crime punish'd as the consumat Act where the indeavour comes to any deed that approaches the Crime l. 1. ff ad l. Pomp. de parricid though Carpz is of a contrair opinion asserting that conatus or indeavour is only to be punished even in that case by an extraordinary punishment The administrating Drinks or Medicaments to procure or increase love is thought not punishable though death do not follow because there was no design there to kill Carpz ibid. l. siquis ff de poenis though this be punishable as that Law asserts by a lesser punishment nam est res mali exempli VI. Indeavour is punishable in the poysoning of Parents and in reiterated indeavours though death follow not And the poysoning of Magistrats or Masters since these great aggravations are so odious in the very contrivance that these aggravations are as odious as success And as the Judge may mitigate the punishment upon the accovnt of lessening circumstances so he may highten the punishment upon the account of aggradging circumstances Vasq. contraver illust cap. 14. and Carpz num 50. quest 20. part 1. gives us several decisions to this purpose and amongst other decisions tells us of two Mountibanks who were burnt with hot Tongs to death for having poyson'd ten several persons But if a Physician would poyson his Patient it would be certainly Treason with us as being Murder under trust TITLE IX De Incendiariis or Fire-raisers 1. Malicious and designed Fire-raising is only punishable by death 2. What presumptions can prove this design 3. Whether one may be punished for burning his own House 4. The punishment of Fire-raising according to the Civil Law 5. The punishmint of it according to our Law 6. The burning of Coal-heughs how punished 7. Whether the drowning a Coal-heugh be punishable as the burning of it 8. Fire-raising cannot be remitted 9. The punishment culposi incendii 10. How accidental Fire-raising is to be punished 11. How Masters are to be punished for their Servants negligence IT is most unnatural that the Elements which were created to be Servants to Man should have dominion over him And therefore these who raise Fire are repute great enemies to mankind and more criminal then either Theives or Murderers For in Theft the thing stollen remains still with the Common-wealth whereas it is absolutely destroyed by Fire And in Murder the Crime extends never further then the design whereas in Fire-raising the merciless Element which is imployed debords oft beyond its commission and involves in the common misery those against whom the Fire-raiser had no design with those who were his known enemies And therefore those who raise Fire within a Town are burnt whereas those who burn only a House are not so grievously punished I. A Fire-raiser or Incendiarius is by Lawyers defined to be he who of design raiseth Fire whether he kindle the same with his own hand or commissionat another or executes himself anothers Commission And because of the atrociousness of this Crime the attempt is punished though the effect follow not and threatnings though nothing follow are punished Damhaud rubrica de Incendiariis but because this Crime is of so high a nature and that it is improbable that any would be so merciless to commit the same therefore the Law requires that the Fire-raising which is punishable be committed dolo malo And with us it is required they be combustores domorum nequiter malitiose as Skeen translates it ad cap. 10. Malcolmi 2. And wilful Fire-raising is only declared
Dalkeith he immediatly distracted which Article was likewise found relevant being joyned with fame and dilation Which decisions are in my opinion very dangerous for they want a sure foundation and are precedents whereby Judges may become very arbitrary And against these I may oppone a third alledgiance used in the former Process against Agnes Finnie wherein it was alledged that the conclusion of all Criminal Libels should be necessarily inferred from the deed subsumed and that conclusio semper sequitur debiliorem partem nam libellus est syllogismus apodicticus sed non probabilis and therefore except the Libel could condescend upon some means used by the Pannel from which the malefice were necessarily infer'd it could not be concluded that these Malefices were done by her or that she was guilty of the wrong done Thus Bodin lib. 4. does conclude that veneficae non sunt condemnandae licet sint deprehensae cum bufonibus ossibus aliisque instrumentis egredientes exovili licet oves immediate moriantur And Perkins cap. 6. asserts that neither defamation nor threatnings albeit what is threatned does follow nor mala fama nor the Defuncts laying the blame of their death upon the person accused called inculpatio by the Doctors can infer this Crime though all these be conjoyned for in his opinion nothing can be a sufficient ground to condemn a Witch except the Pannels own confession or the depositions of two famous Witnesses deponing upon means used by the Pannel And it is remakable that in the Chapter immediatly subsequent to that wherein Witches are ordinarily to be put to death GOD hath expresly ordained that out of the mouth of two or three Witnesses every word shall be established And in the Process deduced against Isobel Young for Witch-craft Feb. 4. 1629. and against Katherine Oswald Novemb. 11. 1629. This point is likewise debated it being Libel'd against the said Katherine that by her Witch-craft she caused a Cow give blood instead of milk and caused a Woman fall and break a rib in her side Against which it was alledged that there was no necessar connexion there inter terminum à quo ad quem inter causam effectum But on the contrary the Cowes giving blood for milk might proceed from another natural cause viz. from lying upon an Ant or Emmot hill and therefore I think that because we know not what vertue may be in Herbs Stones or other things which may be applyed it were very hard to find Cures performed by the application of these without the using Charms or Spells to be Witch-craft But when these outward applications are used to do hurt as for instance if the said Margaret Wallace being at enmity with Iohn Clark and after she was forbidden to frequent his House did continue to frequent the same and did throw in blood or any unusual thing upon his Wifes Pap if the Child who suck'd the same had thereafter died I think this Article joyned with preceeding defamation of her by another Witch might have been found relevant because she was there in re illicita And since the Law cannot know exactly what efficacy there is in natural causes it may very well discharge any such superstitious forbidden Acts as it pleases under the pain of Witch-craft Nor can these who are accused complain of severity since sibi imputent that use these forbidden things against the express commandment of the Law and therefore since the Law and Practick hath forbidden all Charms it is most just that these who use the same should be severely punished whatever the pretext be upon which they are used or after whatever way or manner or to whatever end whether good or bad X. Albeit per leg 4. Cod. de mal Math. these Magick Arts are only condemned which tend to the destruction of mankind but not these whereby men are cured or the fruits of the ground preserved yet I have oft-times imputed this constitution to Tribonian who was a Pagan and a severe enemy to Christians or else that it behoved to be so interpret or that thereby remedies assisted by Godly Prayers were allowed else what mean these words suffragia innocenter adhibita But since I am informed from the Ecclesiastick Historians as Zozim lib. 2. that Constantine was not yet turn'd Christian when he past that constitution but however this constitution is omitted in the Basilicks and the Gloss sayes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was not thought fit to be mentioned in the repurgation of the Law And that constitution was very well reprobat by Leo's 65. Novel And by the Canon Law tit de sorti-legiis And the general Sanction of the former Act of Parliament leaves no place for this distinction Suitable to all which Iohn Brough was convict for Witch-craft in Anno 1643. for curing Beasts by casting white stones in water and sprinkling them therewith and for curing Women by washing their feet with South-running Water and putting odd money in the Water Several other instances are to be seen in the Processes led in Anno 1661. And the instance of Drummond is very remarkable who was burnt for performing many miraculous Cures albeit no malefice was ever proved XI Consulting with Witches is a relevant Ditty with us as was found against Alison Iollie per. Octob. 1596. and this is founded upon the express words of the Act. The professing likewise skill in Necromancy or any such Craft is by the foresaid Act of Parliament a relevant Article For the full clearing of which Act it is fit to know that Divination was either per daemono-mantiam the invocation of Pagan Gods or Nanganiam which was the Prophecying for invocation of some Sublunary thing Mangania is divided in Necromantiam which was a Prophecying by departed Spirits Udromantiam which was a Divination by Water c. All which species and kinds of Divinations by any thing is comprehended under the general prohibition of Necromancy and such like Acts So that Predictions and Responses by the Sieve and the Shear and by the Book and all such cheats and species of Sorcery are punishable by death in this Act Yet these forbidden practices may sometimes be excused by ignorance or if it can be cleared by circumstances that the user designed nothing but an innocent jest or recreation Delrio lib. 4. cap. 1. quaest 4. XII The last Article in Criminal Libels useth ordinarily to be the being delated by other Witches which the Doctors calls diffamatio and we common bruit and open fame which are never sustained as relevant per se but only joyned with other relevant Articles as is to be seen in the foresaid Process of Margaret Hutchison though I think that Interloquutor very severe since if any of the former Articles be per se relevant they need not the assistance of fame and delation Sometimes likewise but with much more reason Articles that are of themselves irrelevant are sustained relevant being joyned with fame and delation an example whereof is to be
Images of Clay or Wax and when the Witches prick or punse these Images the persons whom these Images represent do find extream torment which doth not proceed from any influence these Images have upon the body tormented but the Devil doth by natural means raise these torments in the person tormented at the same very time that the Witches do prick or punse or hold to the fire these Images of Clay or Wax which manner of torment was lately confess'd by some Witches in Inverness who likewise produced the Images and it was well known they hated the person who was tormented and upon a confession so adminiculat Witches may very judiciously be be found guilty since constat de corpore delicti de modo de linquendi inimicitiis praeviis XXIII It is ordinarily doubted whether confessions emitted before the Kirk Sessions in this case be sufficient But this I have treated more fully in the Title of Probation by Confession Only here I shall observe that Christian Stewart was found Art and Part of the bewitching Patrick Ruthven by laying on him a heavy sickness with a black Clout which she her self had confest before several Ministers Nottars and others at diverse times all which confessions were proved and upon these repeated confessions she was burnt Novemb. 1596. Margaret Lawder was convict upon confession emitted before the Magistrats and Ministers of Edinburgh albeit past from in Judgement Decemb. 9. 1643. see that Book of Adjournal pag. 349. And if the confession be not fully adminiculat Lawyers advise that confessors should be subjecâ—â—d to the torture which is not usual in Scotland And it is very observable that the Justices would not put Iames Welch to the knowledge of an Inquest though he had confest himself a Witch before the Presbytery of Kirkcudbright because he was Minor when he confest the Crime and the confession was only extrajudicial and that he now retracted the same but because he had so grossely prevaricat and had delated so many honest persons they ordained him to be scourged and put in the Correction house April 17. 1662. It was proved against Margaret Wallace March 20. 1622. that she said that if it could be proved that she was in Gregs House she should be guilty of all the Ditty and therefore it being proved that she was in Gregs House that probation was alledged by the Advocat to be equivalent to a confession as was found against Patrick Cheyn To which it was replyed that this could amount to no more then a lie and in my opinion it could not have even the strength of an extrajudicial confession but rather imported a denyal of the Crime XXIV The probation by Witness in this Crime is very difficult and therefore socii criminis or other confessing Witches are adduced but though many of them concur their depositions solely are not esteemed as sufficient ne vel ad poenam extraordinariam imponendam though some think the same sufficient to that end because of that general Brocard ex multiplicatis indiciis debilibus resultare indicia indubitata But Delrio asserts that the conjection of such testimonies is not sufficient Nanquam enim saith he quae sua natura dubia sunt possunt facere rem indubitatam ut nec multa aegraunumsanum nec multa non alba unus album nec multa tepida anum callidum And that the testimony of one confessing Witch was found not sufficient to file the Pannel is clear by the Process of Alison Iollie who was assoilzied pen. Octob. 1596. Albeit Ianet Hepburn another Witch confest that the said Alison had caused her bewitch Isobel Hepburn whereof she died but though VVitch-craft cannot be proved per socios criminis though dying and penitent VVitches yet it may be doubted if the consulting VVitches may not be proved by two VVitches who were consulted for if this be not a sufficient probation it would be impossible to prove consulting any other manner of way The persons to whom the injuries are done by the VVitches are admitted to be VVitnesses thus Katherine Wardlaw was admitted against Margaret Hutchison but sometimes they are only admitted cum nota if the probation be not otherwise weak and thus William Young and Agnes Hutchison were only admitted cum nota against Beatrix Leslie August 1661. And in that Process likewise they received only Agnes Ross cum nota because she was the Mistriss of the two VVomen who were maleficiat Neilson was admitted to be an Assizer against Margaret Wallace though he was Brother in Law to Iohn Nicol who had given information for raising the Ditty because the Ditty was not at Nicols instance and yet Starling was set from being an Assizer because Moor who was alledged to be one of the persons maleficiat was his Brother in Law March 2. 1622. Dickson was there likewise admitted to be an Assizer though he assisted the Bailie in taking her which was found the office of a good Citizen and though he had deadly fead against her Husband since it was not proved he had any against her self Women are received Witnesses in this Crime as is clear by the Process against Margaret Wallace and all the Processes in August 1661. The not shedding of tears hath been used as a mark and presumption of Witch-craft Sprenger mal malef p. 3. q. 15. because it is a mark of impenitence And because several Witches have confest they could not weep But the being accused of so horrid a Crime may occasion a deep melancholly and melancholy being cold and dry hinders the sheding of tears and great griefs do rather astonish then make one weep XXV The punishment of this Crime is with us death by the foresaid Act of Parliament to be execute as well against the user as the seeker of any response or consultation de practica the Doom bears to be worried at the Stake and burnt By the Civil Law Consulters were punished by death l. 5. C. de mafef mathem nemo aruspicem consulat aut mathematicum nemo ariolum angurum et vatum prava confessio nonticescat sileat omnibus rer petuo divinandi curiositas In which Law Fortune tellers are also punishable though with us dumbe persons who pretend to foretel future events are never punished Capitally But yet I have seen them tortured by order from the Council upon a representation that they were not truly Dumb but feigning themselves to be so abused and cheated the people The forsaid Law is renewed in the Basilicks l. 31 h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But Farin and others thinks that where no person is injured death should not be inflicted and thaâ— imprisonment and banishment is now practised by all nations in that case Lib. 1. Tom. 3. quest 20. Num. 89. Clarus § heresis num ult But Perezeus thinks this too favourable a punishment except the users of these curious arts were induced thereto out of meer simplicity sine dolo malo but with us no such distinction can
proportionable to the violence offered by the Aggressor and so exceeded not moderamen inculpatae tutelae for the said Pannel struck not him with any mortal Weapon but only gave him a thrust with his hand which was necessary to throw the Defunct off him Upon which debate the Justices sustain'd the Libel only to infer paenam extraordinariam and remitted also the Pannels defences of casual Homicide self-defence and that the Wound was not mortal to the knowledge of the Inquest XI It is here controverted whether he who intended to kill one by a mistake killed not him but another be punishable as a Murderer seing as to the person killed the Murderer had no design yet I think he should die seing the design of killing a man and not any one particular man is Murder and the killer intended to deface God Almighties Image and to take from the King a Subject And I find that this is determined to be Murder by Bolton cap. 11. num 24. by whom likewise it is given as a rule nihil interest utrum quis occidat an acausam mortis prabeat And thus a Son for having caryed his Father being sick in a frosty night from one Town to another was executed as a Murderer because the Father died And a Harlot having exposed her Child in an Orchard where a Kite killed it was execute as a Murderer also ibi volunt as reputatur pro facto And if this were not Murder this Crime might be Palliated under other shapes This Defence viz. that the killer had no design to Murder is a Negative and so can only be proved by presumptions as if there was no deadly fead formerly amongst the Parties 2. If the Parties were Kins-men or intimats 3. If the killer struck with a Staff having a Sword or Pistol or having these struck only with the hilts of his Sword or with the head of his Pistol and generally it is rather presumed to be homicidium culposom then dolosum premeditatum nam nunquam praesumitur dolus By our Law Slaughter and Murder did of old differ as homicidium simplex premeditatum in the Civil Law and Murder only committed as we call it upon fore-thought fellony was only properly called Murder and punished as such K. Ia. Par. 3. cap. 1. where it is Statute that Murder is to be capitally punished but Chaudmella or Slaughter committed upon suddenly shall only be punishable according to the old Laws vid. Acts 95.96 Par. 6. Ia. 1. 22. Par. 4 I. 5 35. Par. 5. Ia. 3. Act 31. Par. 6. Q M. The old Laws to which these Acts relate are Statute William c. 5. Stat. Allexander c. 6. Stat. Rob. 2. c. 9. in which it is declared that Muâ—derers who are guilty of fore-thought fellony shall not have the priviledge and advantage of refuge in the Girthâ— but that such as are guilty of Chaudmella or casual Slaughter shall be sheltered in the Girth Yet I find that none of these are in any other old Statute to determine punishment of casual Slaughter but that it was not punishable as Murder is clear by the opposition and in all our Laws betwixt single Slaughter and fore-thought-fellony all casual Slaughter was of old comprehended under the word Chaudmella which is a French word Chaud signifying Hot and Mesler signifying to mix But in effect this Melletum answers properly to rixa homicidium in rixa commissum which is but one species homicidii non dolosi XII By the late 22. Act Parl. 1. Ch. 2. Sess. 1. It is Statute that casual Homicide Homicide committed in self-defence and Homicide committed upon Thieves shall not be punished by death And seing this Act mentions not Homicide committed in rixa or homicidum culposum and seing homicidium culposum differs from casual Homicide it may be doubted if under the one the other may be comprehended and it may be urged that casual Homicide is in this Act a general term comprehending all Homicide which is not committed by fore-thought fellony because what is not designed is casual and what is not fore-thought is casual and the Doctors do use the Word Casual oftentimes in this general sense as is clear by Gothofred prax crim hoc tit And by the rubrick of this Act which bears an Act concerning the several degres of casual Homicide It appears that the word Casual is taken there in a Lax Signification albeit I confess that the inscription is most improper seing Homicide in self-defence and Homicide committed upon Robbers are not Species of casual Homicide but whether Homicide in rixa be comprehended under that Act was contraverted in William Dowglas case and by that Decision it is clear that in in our Law though Murder was not at first designed yet if it was designed the time the stroak was given the killer is guilty of Murder that premeditation is requisit to make Murder Capital being only such as antecedit actum licet non congressum The Civilians in the case of Homicidium per plures commissum state three questions The first is where the Murder was committed upon fore-thought fellony and then indefinitly all the assisters are punishable by death The second is when it is not certain but it is only suspected and presumeable that it was deliberatly committed and then all may be tortured but if they deny the design they are all only punishable by an arbitrary punishment because of the uncertainty The third is when the Murder was certainly committed in rixa or tuilzie and then either the author of the Pley is certainly known and he is punishable by death in the rigour of the Law Albeit many Lawyers are positive that no Countrey uses this rigour I remember that in William Dowglas's case this was urged for there several Gentle-men having made a quarrel which was only proved by one witness they went to the Fields of Lieth and Hoom of Eccles was killed but it was not proved who was the killer and the quarrel was only proved by one witness who likewise proved that Spot had the quarrel with Eccles and that William Dowglas had none and yet the Assise found William guilty and he thereupon died because present XIII Homicide likewise committed upon Thieves and Robbers breaking houses in the night or committed in time of masterful depradations are free from punishment by the foresaid Act 22. And albeit it be declared lawful to the Justices to fine such as are assoilzied from Murder upon the defences of casual Homicid and Homicide in defence yet such as kill Robbers or night Thieves are free from all arbitrary punishment By this Act likewise it is lawful to kill such as assist or defend the depredators or oppose their pursuit by force and by the 6. Act of the second Session of that Parliament it is Statuted that the Parties whose goods are robbed shall acquaint the Sheriff or Justices of Peace of the Paroch who shall require all Parties to concurr and if any of the
concurrers kill any of the Robbers they are declared free upon which it may be doubted if such as kill Robbers without acquainting the Sheriff or Justices of Peace are punishable and it seems they are seing this Act explains the other and modifies somewhat the indefinite power given to private persons who upon pretence of such invasions which might prove very dangerous and therefore the last did wisely require the concourse of the Magistrate and upon this consideration I know that it was consulted that notwithstanding of this such as had not acquainted the Sheriff or Justices could not be exculpat And yet it may be argued that this Act narrates not the other nor bears expresly a rectification of it but without lessening the priviledge therein granted adds a new one and so being introduced in favours of possessors should not be interpret to their disadvantage By the Civil Law licebat nocturnum furum occidere And by the 227. Act 14. Par. Ia. 6. it is declared lawful for the Leidges to conveen and execute Thieves and they are all made Justices for that effect upon which Act a defence was propon'd for the inhabitants of Kintail who took a Robber and execute him by their own authority in a formal Court But by the Civil Law and Doctors it was not lawful furem vel predatorem diurnum occidere except the thing stoln was of great value and could not be otherwayes recovered or that he defended himself and resisted his being apprehended all which defences may be proved by the assertion of the killer Farin 125. part 4. And if any other Probation were requisite the benefit of these Acts were a snare rather then an advantage and necessity legittimats many things which are otherwayes hard XIV By the Civil Law it was lawful for the Father to kill his own Daughter if he found her committing adultery and to kill also her adulterer l. part 1. ff de Adult which was allowed rather in hatred to adultery then because the Law considered it was too hard for a Father to restrain his passion in that case for if it had been allowed to the father only upon this last accompt it had been allowed much more to the Husband to kill his wife if he found her committing adultery for his relation beeing nearer and his honour more concerned then the Fathers his passion behov'd to be also more violent and yet the Law being jealous of the Husbands violence does only allow the Husband to kill the adulterer if he be a mean person but if the adulterer be a person of quality or if the adulterer be found elsewhere then in the Husbands own house it it not lawful to kill them for the injury is hightned by polluting the Husbands own house and becomes a kind of adulterous Hamsuckin And yet if the Husband kill in either of these cases that Law ordained the husband only to be punished by some arbitrary punishment but not by death l. Marito ff de Adulter But this last determination doth not satisfie justice for it seems reasonable that it should be rather lawful to kill a person of quality committing adultery then a mean person both because adultery is more ordinar amongst them as having more ease and being more luxoriously fed and because the husband cannot be so easily presumed to have had former quarrels with a person above his rank and so should be believed to have killed him meerly to satisfie his just revenge As also since they can sooner prevail they ought to be more rigidly punished The Law has deny'd this priviledge to women who may not kill their Daughters or Husbands the reason whereof I conceive to have been that the Law considered that Husbands were more prejudged then the Wives by adultery since thereby not only was their bed defiled but their estate carryed away to another mans children or else it thought women too passionat to be intrusted with such a licence or that it was undecent to allow women the use of Armes And yet I believe their just grief would secure them against the ordinar punishment and though some prerogative be due to the man over his wife but not è contra yet women may complain that men being the only Legislators have taken too great a measure of favour to themselves in this Law I have not observed any decision of this in our Law and since our statutes have secuted murderers in other cases as in self-defence killing of thieves c. And yet have not priviledged this case it may seem that the husband nor rather cannot kill by our Law and the most that they could expect were that after they were found guilty by the Law the Council might either change the doom of death into an arbitrary punishment or might recomend the party to his Majesties clemency for a remission But it were hard to punish with death amongst us what almost all Nations allow as lawful and what may be yet a further check to that growing vice And this seems juster then to allow with the Civil Law that the Husband or Father who are persons interessed should be judges in their own concern and should be judges when they are in passion and because they are in passion Nor can I see why the Law should punish even him who possesses by his own authority what is truly his own and yet should allow here the parties interessed to punish with death by their own authority or that passion which only infers mitigation of the pain elsewhere should here infer absolute impunity for this were to make one irregular Act legittimat another since passion is a transgression against reason as Adultry is against Law But since this indulgence is personal and only granted to the Father and Husband because of their just passion and near relation it is not reasonable that it should be extended to such as kâ—ll by the Fathers or Husbands Command which command none ought to obey being contrair to Law Nor ought this indulgence to extend to the Father or Husband when they kill ex intervallo and not when they find the Committers in the very transgression for the Law allows no passion to continue therefore what ever revenge is allowed to it is only allowed if it be executed immediatly ex in continenti And though in civil cases that is said to be done ex in continenti or immediatly which is done before the doer go about any thing else Yet I conceive that interpretation would be too lax in this case and that the killer could not plead this priviledge except he killed them in the very Act or rising from it Homicidium deliberatum or upon fore-thought Fellony is still punishable by death and confiscation of the movables of the Defunct for His Majesties use Stat. Rob. 3. cap. 43. And albeit Lawyers say that it is still rather presumable to be casual then deliberat and that by our Law and custome designe is still libelled yet because it is impossible to
as a Murderer because he was not obliedged to kil and it is not imaginable but if it had been proposed to the Council what seizers should do in case of resistance but they would have authorized them to kil nor could their act receive compleat obedience in case of resistance for else such as resolve to contraveen might secure themselves by their resistance and the Council by empowering to sink the Boat where the Victual is does very clearly impower the killing of such as resist for they might have been sunk in the Boat and he who is allowed to sink a Boat is allowed to sink all who are in it Notwithstanding of which defences the said Mr. Archibald was put to the knowledge of an inquest and after the verdict was ordain'd to lose his head but the Parliament having thereafter that same moneth allowed by their act such as resisted to be killed the said Mr. Archibald was thereupon remitted as to the Crime but was never readmitted to his Church Some Militia Souldiers also being pursued for Murder 3. Febr. 1674. alledged that they could not go to the knowledge of an inquest as Murderers since if they killed it was in prosecution of their Officers orders for they being sent to Poynd were resisted and though it was reply'd that opposition to the poynding could not warrand killing but they might have pursued a ryot This was alledged not to be relevant because sibi imputent who opposed and Souldiers must do effectually what is commanded and their Officers may shoot them if they return without effectuating what was commanded and military commands must not be delayed nor opposed like other commands Notwithstanding of which debate they were found guilty XIX It is much controverted amongst the Doctors whether it be lawful occidere hannitum a Person at the Horn and by the Civil Law non licet Bart. in l. ut vim N. 1. ff de inst jure but by the Statutes of particular places they all conclude it may be lawful ob quietem publicam and by our old Decisions that the killing of such as are at the Horn for Slaughter or other Crimes is not Criminal Ianuary 1600. Guthrie contra Iarden but by the foresaid 22. Act Par. 1. Ch. 2. It is declared that the killing such as are denounced or declared Rebels for Capital Crimes or such as defend these Rebels may be lawfully killed whereby it is implyed that such as are at the Horn for other Crimes may not be killed and such could not be lawfully killed who are only at the Horn for Pecunial Causes and any Statute allowing to kill such would be null Clar. hoc tit num 53. But it may be here doubted what are these Criminal Causes for which one at the Horn may be killed for clearing whereof it is fit to remember that the Doctors allow only such to be killed who are banniti ob grave delictum Clar. num 53. and in reason it should be such a Crime for which the Rebel hath deserved death if he had appeared for it seems rigid and unjust that wherever the conclusion of the Summonds was Criminal the Party being Denounced may be killed or that when ever the Rebel was Denounced for absence from a Justice-Court he may be killed seing the common-good which is the reason inductive of this Law do's not require nor in effect is not consistent with thir interpretations 2. It may be doubted if he who kills a Rebel for private revenge and not ob vindictam publicam will have the benefite of this Defence of this we have an instance anno 1600. where Robert Auchmoutic being pursued for the Slaughter of Iames Wanchop it was alledged that the Defunct was at the Horn for receipting a Traitor to which it was replyed that the Pannel killed him upon a private quarrel for having conversed with the Defunct long after he was at the Horn for that cause but that he killed him in a Duel upon a privat quarrel in respect whereof the Pannels defence was repelled and he put to the knowledge of an Inquest and thereafter beheaded And yet I find the Doctors of opinion that bannito occiso per inimicum occidens non reputatur homicida and which is more he will not have right to the reward promised for killing the Rebel Caravet in Prag 1. de exul num 134. and enemies are these who most probably will execute this publick Justice which the Law designes And seing our late Act makes no distinction betwixt such as kill upon publick and private revenge I believe that the case now hath no difficulty and that now the killer in both cases would be free from Punishment Yet I think that he who would kill a Rebel in a Combat might yet be Pannelled for contraveening that Act anent Duels for though he might lawfully kill a Rebel yet he could not lawfully fight a Duel 3. It may be doubted if he who was Denounced Rebel was not lawfully Denounced v. g. if he was out of the Countrey the time of the Charge or that the Execution was not stamped or wanted some Solemnity if eo casu the killer would be guilty of Murder which Defence I find likewise propon'd in the former case and yet repelled and very justly for a privat Person is not oblieged to know these nullities If any man resist the execution of his Majesties Laws by Messengers or other publick Servants in that case the Messenger cannot proceed to kill as was found in Iohn Mackintoshes case May 11. 1673. but if the resister do also proceed to offer violence by drawing upon the Messenger in that case the Messenger may kill him lawfully without necessity of proving that he would have been in danger of his life if he had not killed though privat persons cannot kill when they are invaded except they be by that invasion put in danger of their life XX. Albeit ordinarily death and the confiscation of Moveables is the punishment of Murder and that the life-rent of the Murderer doth not thereby fall yet in some cases the life-rent falls as by the 118 Act 12. Par. Ia. 6. These who are denounced Rebels for slaying men in the Church or Church-yard in the time of Prayer Preaching or administration of the Sacraments their Life-rents presently falls to the King though regulariter Life-rent Escheits fall to the respective Superior and the receipters do likewise loose their Life-rent Escheats declarator being first past upon the receipt It may be here doubted if these words the time of Divine Service may extend to slaughters committed the time of Preaching c. Albeit there be no Preaching or Prayer for the time there the reason of the doubt is seing the 39. Act of the 6. Par. Q. M. anent removing is so interpret for by that Act warning of Tennents should be used at the Paroch Church the time of Preaching or Prayer which words are thus interpret the time that Preaching uses to be though there be none at the time
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
libel because self-defence there is not contrair to any quality of the libel which must be expresly proved for the quality of fore-thought fellony must necessarily be libelled in Murder Yet it needs not be proved and so the probation of the defence and lybel are not contrary Whereas in Duels an express provocation must be lybel'd and proved and so the probation of the libel and defence would be contrary as was found in the case of Mackie in Iune 1670. where it was likewise found that a challenge given and accepted did infer a Duel and it was not sufficient that the party provocked coming thereafter to the field was set upon and put in hazard of his life by the provocker for though primus insultus be sufficient to defend against fore-thought fellony in other cases yet where there preceeded a provocation it is not sufficient because he who was provocked by going to the place versabatur in illicito and so should not have the benefite of self-defence And if this were allowed the party provocked might easily elude this statute because he might accept the challenge And yet when he is upon the place refuse to fight untill he were set upon by the other and put even in hazard of his life by him which method being followed by one Robertson a Souldier in Linlithgow's Regement he was notwitstanding found guilty of Murder in Iuly 1673. VII From this it appears likewise that such as in answer to challenges do declare that they will be in such a place at such a time and if the provocker attaque they will defend themselves they fall within the compasse of this act since by declining a formal answer they designe to cheat the Law for by assigning place and time they in effect accept of the challenge this can neither be called a meer rancounter nor self defence as is most justly debated by Voet. de duel cap. 33. quest 1. but if any man getting a challenge shall answer that he will not transgress the Law but if the challenger shall attaque him he will defend himself if this person thereafter in defence kill he will not be punishable by this act for self defence does not leave off to be a legal defence because the person attaqued promises he will defend himself VIII Both the provocker and provocked killing are by this act not only punishable with death but by confiscation of their moveables and the provocker is declared lyable to such arbitrary punishments as his Majesty shall think fit because his guilt is greatest for the party provocked hath still his guilt lessened with a shadow of self-defence Not only are Seconds art and part but even those who carried the challenge though they were no Seconds and yet it may be alledged that these cannot be punished with death except they were present since the carrying a challenge is but an incompleat act nudus conatus But yet it may be answered that if death follow upon a Combat wherein they carried the challenge they are punishable as murderers since the crime was compleated by their complices In Iune 1676. David Hamiltoun was found guilty though it was alledged that albeit he had come to seek the length of his gear who was to fight with his Son yet that was done but upon designe to terrifie the other to fight as appears not only by the strangeness of the expression but because he did tear the challenge how soon ever he got it in his hands and albeit it was proved that he did trip up the mans heels who was fighting with his son yet that was done meerly to end the Combat he having taken his own Son in his armes immediatly thereafter In this case it was likewise alledged that those who were adduced witnesses could not be received because they had come out of the house with the other party to the field and being very many in number they might have stopt the Combat if they had pleased notwithstanding of which objection they were received But I conceive that since all men are oblieged as farr as in them lyes to keep the peace and hinder crimes it seems very reasonable that if many who might hinder do tamly look on without offering to redd or separat the parties they should be punished and this should hold not only in any of the Kings officers who are present or in any who are commanded by them whom Cook observes to be fineable pag. 158. but even in all who are present though the punishment as to them sholud be lesse then as to the others idem est facere nolle prohibere cum possis qui non prohibet cum prohibere possit in culpa est TITLE XIII Self-Murder 1. Despair nor Stoicism cannot defend against Self-Murder 2. Furiosity does defend 3. An endeavour to commit Self-Murder is punishable 4. Self-Murder may be committed by omission as well as commission 5. What Declarator is to be pursued by the Donators of the Self-Murderers Escheat and how it is to be proved I. GOD Almighty has placed every man at his Post here and he who violently tears himself from it deserves much worse and is more guilty then a Souldier who deserts his station and since Princes punish as Criminals such as kill their Subjects much more may the Almighty punish him who kills himself for he who kills himself kills Gods Subject and therefore Nemo est dominus suorum membrorum The Law likewise considers him who would kill himself as one who would spare none else and condemns an humour which is so dangerous Upon these reasons but especially because God hath forbid man to kill without making a distinction of killing our selves or others all Christian Nations punish severely Self-murder as Murder for they confiscat their Moveables and deny them Christian Burials to which some Nations for a further mark of Ignominy add the hanging them upon Gibbets but this last our Nation uses not This Crime was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the Greeks and it was condemned by Plato l. 9. de leg and was at first punished by the Heathens Virgil. lib. 6. Aeneid speaking of Hell proxima deinde tenent maesti loca qui sibi laethum insontes peperere manu lumenque pero si projecere animas the English call him felo de se. The Stoicks who had made their Reason their God and made their convenience their Reason allowed the killing of ones self either to shun thereby Torture or Shame and thought death a door which every man might open at his pleasure for since death may surprise a man when he is not ready they resolved to be some way equal with it in forcing it to be ready whensoever they pleased And from their practice for most of the Romans especially the Gown-men were of that Sect flow'd these Roman Laws l. 3. § sic autem ff de bon eor l. siquis § ult ff de pen. By which they distinguisht betwixt such as killed themselves to evite a just
punishment of the Crimes for which they were accused and such as killed themselves taedio vitae vel doloris impatientia for the first they punisht as Murder but the last they favoured with a lesser punishment Nay and in the Primitâ—ve Church many for making themselves away to evite thereby Idolatry or Pollutionâ— have been accounted as Martyres thus the Wife and Children of Adauctus having killed themselves when they were to be defloured it was doubted if they ought not to have been numbered amongst the Martyres 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cedren pag. 220. and the like story is reported by Euseb. lib. 8. cap. 17. of a Noble Lady who was brought to Maxentius But our Law is jealous that such pretexts might be brought to colour all base designs and allowing none to be their own Judges has made no such distinction as was found in the case of Thomas Dobbie cited by Craig diages de regal and to allow this were to feed despair and to make patience and long-suffering to be no vertues II. Yet furiosity and madness ought to defend against all Punishment in this case since a furious Person has no will in the construction of Law and the will is that which makes the Crime nor should they be more punished then Infants are to whom the Law compares them Fury also defends against Treason Blasphemy and Heresie which are more atrocious Crimes then Self-murder facti infelicitas furiosum defendere dicitur l. infans ad l. Corn. de sic and therefore I cannot well understand wherefore in Dobbies case as Craig relates it the Lords repelled the Defence of Furiosity and found that even furious Persons ought to lose their Moveables if they killed themselves but I think the fury there has not been strongly qualified and that it has been but a Species of Melancholy for the reason given for that Decision is because the Lords thought no man would kill himself if he were not distracted and so it distraction could defend such as killed themselves against confiscation of their Moveables it would defend all who kill'd themselves and so the Law should have no effect but this must be interpreted of some degrees of madness for sure no man kills himself except he who is somewhat mad Nor does Hypocondrick fits or the first degrees of madness defend against this Confiscation but a total aberration from reason cannot but defend which is also clear from the Law of England Bolton Cap. 11. lib. 1. and the difference betwixt these two must be inferred from the various circumstances which attends such diseases and from the declarations of Physicians who waited upon them Whether one who is mad but has lucid intervals is presumed to have killed himself in his madness or lucid intervals is not so clear and depends much upon Circumstances but since none use to kill themselves except under some distemper so therefore it is more humane to refer this killing to have been in the hours of madness except it can be proved that the killer used even in his lucid intervals to wish he were dead or to commend Self-Murder vid. Cabal cas 289. III. An endeavour to kill ones self is punishable as Self-Murder if the killer did all that in him was to effectuat it as if he hang'd himself but was immediatly cut down And by the Law of England if a man wound himself mortally though he live year and day thereafter his Goods falls to the King Bolton lib. 1. cap. 10. IV. Self-Murder may be committed by omission as well as commission thus if a man would starve himself to death he might be punisht by confiscation of his Moveables but the design must be clearly proved since as many innocent people might be alledged to have killed themselves whilst they have fasted either through pain or necessity V. When a man kills himself his Majesty gifts his Escheat and the Donator pursues a general Declarator thereupon wherein he calls the nearest of kin and he must prove there that the Person whose Escheat he has got killed himself which must be proved by clear and convincing evidences such as the depositions of Witnesses or a Paper under the Defuncts hand wherein he declares the reasons of his discontent and why he killed himself which is very ordinary in these cases wherein they design thereby to justifie to the world this horrid Act But I think presumptions are not sufficient here since this is a Crime except they be very strong and violent but if they be such it appears they are sufficient to infer Confiscation for though presumptions be not sufficient to prove a Crime to infer Capital punishment yet they are oftimes sustained to infer Confiscation of Moveables or other civil effects And if presumptions were not sufficient in this case Self-Murder could never be proved for the committers choose retired places and quiet times for executing their wicked designe and who could say but that if a man were known to have exprest much dispair and thereupon to have entered into a Room and were found with the Door closed and hanging in his own Garter but that these presumptions would infer Confiscation of his Moveables By our practice thir Declarators have been sustained before the Lords upon probation of the Self-Murder led before themselves without any previous tryal before the Justices and some think such a previous tryal not necessar for all tryals before them are by Assizers and dead men cannot be tryed by an Assize but it might be alledged upon the other hand that such a previous tryal before the Justices is more suitable to the analogy of all other Crimes which are all tryed before the Justices and though it may be alledged that the Lords jurisdiction is here founded ratione incidentiae and that many Crimes are tryed before them as falling incidently in other civil cases yet even in falshood though the Lords of Session are Judges competent to the deed it self Yet no mans Escheat falls upon their Decreet though he be found a falsary by them till he be also tryed by the Justices and the Escheat falls as an effect of their sentence only Nor has this exception been yet repelled as to Self-Murder so that res est ad huc integrae especially if the persons whose Escheat is craved to be declared be yet alive so that he may be tryed before an Assize for having endeavoured to kill himself for some endeavours to kill ones self are punishable by death though prevented as has been said formerly And in that case I conceive that a previous tryal before the Justices is necessar TITLE XIV Paricide 1 To what degree reaches Paricide by the Civil Law 2 To what degrees by our Law 3 Whether does the Act 220. Ja. 6. Par. 14. extend to descendents 4 Whether does that Statute extend to Bastards 5 The punishment of Paricide by that Statute 6 The 20. Act Par. 1. Ch. 2. concerning beating of Parents explained 7 How the murdering of Children is punished 8
Who are repute accessory in this Crime and how punished I. PAricide is a Crime which is committed by killing our Parents against which Solon refused to make any Law lest he should by forbidding it teach the people it was possible By the Civil Law Paricide was committed by killing Ascendents or Descendents in any degree or collaterals to the fourth degree The killing likewise of Wife Husband or Patron was Paricide by that Law l. 1. ff h. t. II. With us Paricide is by the Statute 220. Ia. 6 Par. 14. punished only in him who kills his Father Mother Good-sir or Good-dame and these are by that Act ordained to be disherished and their posterity in linea recta are incapable of succeeding to the person killed but the succession is devolved upon the next Collateral or nearest of Blood the person guilty being convict by an Assize From which Act it is observable that the Statute is not exclusive of other punishments but supposes that Paricide is capitally punishable according to the Common Law for it were absurd to think the punishment here related should be the only punishment by which Paricide could be reached And Women for murdering their Children are frequently either hanged or headed as other Murderers 2. This Act reaches only such as are convict by an Assize and therefore Ianuary 1664. it was found that Sir Iames Oliphant being declared Fugitive for killing his Mother but not convict by an Assize his Estate could not be gifted by the King and in effect though he had been found guilty by an Assize he could not have been forefaulted for the nearest Collateral would seclude the Fisk. It was likewise found in that case that the Son could not be forefaulted as having murdered his Mother under Trust for they found that not to be the Murder which is declared Treason by the 11. Par. cap. 51. Ia. 6. For the trust there mentioned is when such as came under the trust of others were persons who would not have come within their reach without special assurance of indemnity and protection and it is related as a received tradition amongst us that this Act were first made upon Mack-donald his killing the Laird of Mack-clane who came to lodge with him upon such assurance notwithstanding of the feids which were amongst them It were likewise improper to say that the Mother was under the power and assurance of the Son and if the power and assurance betwixt Parents and Children could fall under that Act Par. 11. Ia. 6. this Act had been unnecessar and there could have been no place for the pain therein contained for the Estate of the Traitor belongs to the Fisk and not to the nearest Collateral III. It may be doubted if this Act should be extended to Parents killing their Children and albeit the Statute does not in terminis expresse Descendants yet it is probable they may fall under its Sanction Even as the foresaid Text in the Civil Law is extended to equal degrees with these exprest ob paritatem rationis And by that Law the killing of Ascendents or Descendents is Paricide 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the Rubrick of this Act runns generally against Paricide nor can it be denyed but Paricide is committed by Mothers against their Children and Women dayly are convict thereof Whether the foresaid Statute against Paricide can be extended to degrees of Affinity as well as degrees of Consanguinity so that to kill a father-in-law may be punished as Paricide as well as the killing a father may be doubted but I conceive it extends not to degrees of Affinity because 1. Laws against Crimes should not be extended 2. The statute discharging Fathers Brothers or Sons to judge in the causes of these relations is not extended to brothers-in-law c. though that extension would be more favourable 3. Some of these relations in this statute cannot in propriety of speech be extended to degrees of Affinity for we say not good-sir or good-dame in Law and albeit § 6. just de publ judic uses the word adfinitatis in this crime yet Theoph. in his Greek instit eod § expresses the same by the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies affectionis non adfiniâ—atis and with Theophil agrees 36. eclog. tit 40 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and this shews advantages by the Greek Lawyers IV. Whether it doth extend to Bastards may be doubted for though it be certain that since they know their Mother it may be therefore extended against them if they kill her or she them Yet since their Father is uncertain nam sunt vulgo quaesiti patrem demonstrare nequeunt and since they have no advantage by their Father in law it were hard the Law should punish them as Paricides But yet Lawyers conclude they may be punisht for paricid Allex. ad lib. 2. de injur voc and since this is a Crime against the Law of Nature it may be punisht in Bastards who are natural Children V. This Crime extends not to Moveables by the Act but by our Law wherever the Law punishes by death it implyes confiscation for Moveables followeth still the person And by the Law of France from which we have borrowed this and many other things qui confisque le corps confisque les biens It is probable that upon this Act even absents may be convict of this Crime as the Lords then thought if the certification of the Letters had born the Penalty here exprest For albeit probation cannot be led in absence of the Party to fix a Crime upon him yet this seems to be a civil effect which strikes not against the person of the committer By the Civil Law also all Murderers were debarred from succeeding to such whom they murdered l. cum ratio § sin ff de bonis damnat which is yet observed in France but though with us there be no contrary decision yet with us they are not debarred and seeing this pain is only statuted in the case of Paricide we may by a natural consequence conclude that it should not be extended to ordinary Murders VI. By the Act 20. Parliament 1. Ses. 1. Ch. 2. Beating or Cursing of Parents is declared to have been punishable by the Law of God with death And therefore ordains that whatsoever Son or Daughter above the age of Sixteen and not distracted shall beat or curse his Father or Mother he shall die without mercy but if they be within the age of Sixteen and past pupilarity they are to be punisht arbitrarily From which it is to be observed 1. That this Crime is meerly statutory and therefore should not extend beyond the degrees of the act to grand-fathers or grand-children albeit appellatione filii nepos comprehenditur in favorabilibus 2. That arbitrary punishment is opposed to death and so never can be extended in other acts to death 3. That those who are not above the age of Pupilarity are not capable to commit crimes nor should be punished for they are here
accompted as distracted persons and if they were punishable for any Crimes it behoved to be for such as are against the Law of God VII It is very easy and too ordinary for women who bear Bastards to murder them And therefore to obviat this the Law presumes so far a woman who has born a bastard and has conceal'd her being with child to be guilty of Paricide if the child be found dead that it punishes her by some extraordinary punishment but not by death except she can prove that the child was born dead Thus it was decided in Savoy 1595 vid. Cod. fab de his qui parent occid Def. 11. And with us Lawson and Ramsey were both Scourged annis 1661. and 1662. even though they were assoylzied from the Murder But I think that this were severe if the woman openly acknowledged that she was with child though none was present when she brought it forth And in all such cases women are admitted to be witnesses The taking potions also to make one part with child abortum procurans should be a species of Paricide in my opinion since she thus endeavours to kill her own child and by the Civil Law it was punisht with death L. Cicero ff de paenis And though the Doctors distinguish here betwixt the using such means after the child is quick or before it making it capitall in the one case but not in the other yet they presume that the child was quick quod fetus erat animatus and that in odium delinquentis and burden the delinquent to prove the contrair Gomes de delict cap. 3. num 32. asserts that this is presumed not to inferr death but Ecclesiastick punishment and since to prove the contrair seems to me impossible I encline to Gomesius his opinion but yet the using such means even before the birth be quick is arbitrarily punishable as is even the using means to hâ—nder conception Marsil ad l. si mulierem ff de sicar And in these cases both the Physicians who administrats the cure and the woman who takes are equally punishable Marsil ibid. VIII So horrid is paricide that what would be but a degree of guilt in other crimes makes a compleat crime here and thus a childs endeavouring to poyson his father 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. Basil. h. t. and to kill parents by giving them wounds was punisht by death in Savoy C. fab h. t. though the wounded parent interceeded to the contrair And the Son who bought poyson to poyson his father though he was not able to give it Carer § homicidium num 128. for which crime suffered with the Son the Phisician who furnished the drugs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. Basil h. t. and the person who lent the son the mony to buy them but regularly these strangers are not capitally punishable for such an accession except the crime take effect and this is the present custom of nations though by the Roman Law and the Basilicks they who were conscious or lent the money or were surety for money to be so bestowed were guilty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And yet he who commands a son to kill his father is not guilty of Paricide Caepol Consil. 36. which may seem strange since to give poyson to kill a father seems equal guilt to giving a Son command to kill his father As these circumstances highten Paricide so there are some which restrict the punishment as if the father should find that his son had lyen with his own mother-in-law and had killed him upon that accompt though not in the very act 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lawyers think that he should be only punisht by banishment but not by death and that generally for whatever crime or fault a father may exheredat a son that the same fault will excuse the father from death if he kill his son l. divus ff de paricid Cabal cas 15. Some also think that a woman killing her husband who is banished and upon whose head a Fyne is put is not punishable by death because her husband is nullus injure and Laws allow all to kill such a person without any distinction betwixt wives or others yet other Lawyers have concluded that she should be punished by death since such sentences loose not the wife 's natural obligations but he is still her husband and the Law owns so far the relations as not to punish her for omitting to kill him or for cohabiting with him Cub consil 278. A father killing his son by accident ought not to dye and therefore much lesse he who kills him in defence of his own life for self-defence is a duty This crime is so odious that is praescribes not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE XIV Incest Sodomy Bestiality 1. What Incest is and the several kinds thereof 2. The punishment of Incest by our Law 3. Sodomy how punished 4. Bestiality how punished INcest is defined by the Civilians to be faeda nefaria maris fâ—minae commixtio contra reverentiam sanguini debitam Incest is divided into two branches viz. that which is committed against the Law of Nature and into that which is committed against the Municipal Law of the Countrey All copulation betwixt ascendants and descendants such as Grandfatheâ— Father Mother Son Daughter c. is by all acknowledged to be Incest against the Law of Nature But it is controverted whether the Brothers lying with the sister be incest against the Law of Nature And the Roman Catholicks alledge it is not Because it was allowed at the beginning and therefore they conclude that the Pope may dispense therewith And this is the first difference betwixt that Incest which is committed against the Law of Nature and that which is committed against the Municipal Law The second difference betwixt them is that the pain of incest when it is committed against the Law of Nature is death but when against the Municipal Law it is only deportation l. 5. ff de quest The third difference is that Incest committed only against the Municipal Law is excused in a woman in figura matrimonii but ignorance of the Law of Nature is not But the man is inexcusable in either Matheus hoc tit Num. 5. The fourth difference is that if a Marriage contracted be rescinded as incestuous all the committers goods are confiscat if the Incest be committed against the Law of Nature but the Tocher and Joynter are only confiscat if the Incest be only committed against the Municipal Law Matheus II. Our Law does not observe the above-written distinction but it is universally Statut. act 14. p. 1. I. 6. That whosoever pollutes his body with such persons in degree as Gods word doeth contain in the 18. of Leviticus shall be punished with death Albeit by these words of the act whosoever abuses his body it would seem that such as actually copulat are only punishable by this act Yet I think nudus conatus or endeavour is punishable by death as it is in
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
of Achingters daughter 5. Iuly 1596. yet I find that Iohn Kincaid having come in the Kings will Feb. 1601. for ravishing Isobel Hutchison a widow the King only fined him in 2500 Merks Hary Speed was hang'd 20. Feb. 1639. quia laceravit pudenda pueri which crime Iul. Clar. Gothofred and others affirms to be also capital in their Countries I find one Leivtenent Ker pursued for ravishing and away-taking Robert Cuninghame 6. Feb. 1640. but this is rather a species of Plagium then of Rapt VII Since minors are punishable by death for adultery much more ought they to be punishable by death for a rapt since the injury is there both more attorcious and more unnatural and Carp part 2. Quest. 75. gives us several instances where this Crime was capitally punished in minors where he likewise tells us that to force even a common Whore is capitally punishable though it may seem that they are infralegum observantiam and they ought not to have the protection of the Law who offend against it TITLE XVII Adultery 1. The definition of Adultery and whether the lying with an unmaried woman or with a whore be Adultery 2. The punishment of Adultery by the Law of God and our Law 3. The differences betwixt single and nottour Adultery 4. Whether death can be inflicted for single Adultery in Scotland 5. Whether the Mariage ought to be proved 6. Who can be punished as accessories in Adultery 7. What probation is requisite in Adultery 8. Whether a Dicreet of Devorce before the Commissaries is sufficient to prove Adultery in a criminal case 9. Whether he who hearing his wife was dead maried another be punishable as an Adulterer 10. Whether a pursuite being intended for nottour Adultery and single Adultery only proved if the single Adultery can be punished in that case 11. How adulterous children succeed ADultery is a Sin whereby men not only violat the second Table in wronging their neighbour by stealing from him his quiet his good name the affection and person of his wife endeavouring also ofttimes to steal his estate for the adulterous children But is likewise a breach of the first in breaking of that vow which was made to God in marriage and contemning that holy and mighty Majesty who was then called upon as Judge and witnesse I. Adulterium est vitiatio alterius thori the violation of anothers bed and is committed by a married persons lying with an unmarried or an unmarried person lying with one who is married For albeit by the Civil Law when a man who was married did lye with a woman who was free that was judged to be no adultery And albeit the lying with a Whore by the Civil Law was judged no Adultery l. 22. Cod. hoc tit Si ea quae stupro tibi cognita est passim venalem formam exhibuit ac prostitutam meritricio more vulgo se praebuit adulterii crimen in ea cessat Upon which Law the Doctors conclude that though he who first debaushed a woman with adultery be punishable as an adulterer yet these who did thereafter debaush her cannot Farr Quest. 141. num 85. Yet this is against both the Law of God and our Law for the Lying with another mans wife is still Adultery but so it is that though she be a whore yet she is another mans Wife Nor is the marriage disolved by the Adultery And yet I think that if the woman with whom the adultery is committed was at the time when the same was committed living as a common whore and the committer was a single man who knew not of her being married his punishment should be somewhat moderat upon that accompt But if the committer was married the crime is the same whether the woman was a Whore or not since it is still a violation upon the mans part To lye likewise with a mans bethrothed or promised Spouse or as we say his affidat Spouse is Adultery nam nec violare licet matrimonium nec spem matrimonii l. 13. § diu 6. ff h. t. which agrees as I conceive with Deu. 22.23 Where he who lies with a betrothed Virgin should be stoned as an adulterer because sayes verse 24. he lies with his neighbors wife And he who lies with a betrothed Virgin who is to be shortly married renders the succession as doubtful as he who lyes with a married wife The punishment of Adultery by the Civil Law was death as some think by the Julian Law relegatio or banishment as others think but certainly the pain of death was the punishment to be inflicted by that excellent constitution leg quamvis Cod. hoc tit Albeit thereafter Iustinian did by the 134. N. cap. 11. remit to the woman the pains of death and ordain her only to be imprisoned in a Monastry By the Law likewise of most Nations adultery is only punishable by pecuniary mulcts Albeit by the Law of God it was punishable by stoning both man and woman to death 20. Deut. 22. Which punishment some think likewise to have been abrogated by our Saviour because when the woman accused for adultery was brought before him he did dismisse her without any punishment but this is very groundless for our Saviour came not to be a Judge in such causes as himself declares and though he had been a Judge yet she wanted an Accuser III. Our Law divides Adultery in that which is notour Adultery and single Adultery Notour Adultery is by the 74. Act Parl. 9 Q. Mary declared to be punishable by death after premonition is made to abstain from the said manifest and notour Crime which premonition had its origin from Auth. si quis C. ad l. 1. de adult by which it was lawful for the Husband to kill him who was thrice premonish'd not to converse with his Wife And in effect the design of that Act was only to punish a horrid abuse which was then ordinar viz. the taking away other mens wives and keeping them openly as their own to the great contempt of Law Yet by the explication of this Act which is given by the 105. Act 7. Parl. I. 6. That is only declared to be notour Adultery where 1. There are Bairns one or moe procreated betwixt the Adulterers 2. When they keep company or bed together notoriously known 3. When they are suspected of Adultery and thereby gives slander to the Kirk whereupon being admonished to satisfie the Kirk they contemptuously refuse and for their refusal they are excommunicat If either of which three degrees be proved before the Justices the committers are punishable by death From which Act it is to be observed 1. That though by the first Act premonition to abstain was still to be made in all cases yet in neither of the two first cases here related it is declared necessary But since it was not lawful to kill him who was premonished and thereafter conversed except they conversed in suspect places Gribald de homicid num 11. It seems that in neither
of these Statutes conversation should be criminal even after prohibition except it be in suspect places 2. The Justices are only declared to be Judges to the notoriety of Adultery and therefore it may be controverted if Lords of Regality be Judges competent to the cognition of it 3. This Act does not exclude capital punishments in other cases of Adultery but only ordains that these three degrees shall be punished by death And since there are other cases more grievous to the party injured and more scandalous to the Common-wealth it may be argued that the punishment of death should likewise be extended to them as for instance to commit frequent Adulteries And it appears it is upon this account that the sentence of death was pronounced against Sir Iohn Stewart for three Adulteries 15. August 1628. As also Isabel Hamiltoun being pursued in Iuly 1647. for Adultery and having enacted her self never to return under the pain of death she having thereafter returned was immediatly without any other Process by an order from the Justices execute in Anno 1649. IV. And albeit there be no express Law for inflicting death in other cases upon ordinary Adulterers yet I see no reason why the Justices may not as well for the good of the Common-wealth inflict death without any express Law here as they do in Theft and other less Crimes And in effect Adultery includes Theft as I said formerly And albeit inclusio unius est exclusio alterius and that it may be argued that by the former Act appointing death in the cases above-cited the punishment of death is thereby excluded in other cases yet to this it may be answered that the foresaid rule is only a Brocard and hath only the strength of a presumption and therefore take only place in favourable cases but should not be extended in prejudice of the Law of God which expresly ordains Adulterers to die And in the foresaid 74. Act 9. Parl. Q. Mary It is declared that this Act shall be but prejudice of all other Acts and Laws already made with all rigour but I can find no other Act made prior to that anent Adultery whereby the punishment is limited and therefore I believe that that Act relates to the punishment related to by the Law of God At the least I think that the Magistrate is left to his own freedome to consider circumstances And whereas it may be alledged that if single Adultery were punishable by death these Acts had been needless To this it may be answered that the design of the former Acts was to necessitat the Magistrate alwayes in the cases exprest in that Act to inflict death and not to impower them only to do so And seing single Adultery is punishable by the Magistrate sometimes by banishment as in the case of an English woman in December 1668. sometimes with scourging as in the case of Ridpath December 1642. And sometime with fining as in the case of that woman who committed Adultery with George Swintoun in Anno 1666. though there be no express Law warranting them to inflict these punishments and whereupon the Pursuer is forced to found his Summonds upon the Law of God and Law of Nature upon which Law they are sustained without citing any Municipal Law as in the case of that English woman I see no reason why they may not by the same Laws inflict likewise the punishment of death Albeit the foresaid punishment of death be appointed in cases of notour Adultery yet the Council does use to mitigate the punishment and so they ordained only Ridpath a Tinker though he was found guilty of double Adultery in keeping another Tinkers Wife two years to be only scourged banished and burnt on the cheek Decemb. 4. 1662. But the reason here was because Tinkers are in effect vile persons who are seldome ever lawfully married And in such I find of old Adultery was not punished by death as l. 29. C. h. t. where Adultery committed with a Taverner is not punished severely quas vitae vilitas dignas legum observatione non credidit erant infra legum curam And some respect was likewise had here to that absurd custome amongst Tinkers of living promiscuously and using one anothers Wives as Concubines The Council sometimes do likewise banish persons for Adultery without suffering them to come before a Justice Court even where notour Adultery might be proved against them as in the case of Ieals Thyre an English man for committing Adultery with Margaret Hamiltoun who at her death confessed that the said Thyre had lyen several years with her and that he had alienat her affection from her Husband which induced her though without his accession to kill her Husband and that she had several Children by him all which in effect were great aggravations of the Crime and he deserved well to have dyed From this it appears that the punishment of ordinary Adultery is arbitrary and useth to be inflicted either by banishment whiping fyning or imprisonment If a person be only banished for Adultery and return again without leave here she may be execute and thus the Justices found by advice of the Council in the case of Grissel Hamiltoun Decemb. 1649. Or if Adultery be complicated with any other Crime the guilt is thereby aggraged and the Crime may be capitally punished Thus Margaret Thomson was execute for committing Adultery with a Minister and for falsifying a Testimonial to the end she might get her Child Baptized May 28. 1646. V. Since Adultery is only committed betwixt married persons it is therefore requisite that the Libel in Adultery bear that such persons were married and one of the ordinary faults committed by the Pursuer in this Crime is they seldome ever lead Witnesses for proving the marriage without which be proved or be notour to the Assize they should not fyle the Pannel though Copulation be proved But though the marriage be not just but only a supposed marriage or matrimonium putativum as Lawyers call it yet the violation even of that marriage will infer Adultery As for instance if a man not knowing the relation should marry within the degrees de fendant though there be in that case no lawful marriage yet if either of these parties who are married should ly with any other they will be guilty of Adultery Cravet Consilio 205. num 36. The reason whereof is because the committer did all that lay in his power to commit Adultery which is the main thing to be looked to in Crimes nam proposita maleficia distinguant And from this I am much inclined to think that conatus or an endeavour to commit Adultery if the Adulterer did all that in him lay to accomplish the said design makes the committer guilty of Adultery if that design was brought the length of being in actu proximo as Lawyers call it though in that case I think the rigour of the ordinary punishment should be somewhat remitted haec attentatio est
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
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.
2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But if they went with arms they were punished with death as the Scolia of the Basilicks observe It may be usefully observed that those who drive away Herdships cum gladio with arms are punished by death because they are rather Robbers then Thieves 2. These who drive away great Cattle are more to be punished then these who drive away the lesser l. 1. ff de abige 3. These are to be most severely punished who live in a countrey where that crime is most frequent and therefore our Highlanders are most severely punished 4. These that drive away cattle from the fields are more to be punished then these who drive out of the houses because Cattle in the fields have no guard but the Law XI The stealing likewise of a thing consecrated to God aggrages so the Theft as to make it punishable by death and this was called Sacriledge by the Civil and Cannon Laws and was distinguished into several degrees as 1. If a thing Sacred was stoln out of a sacred place 2. If a thing sacred was stoln out of any place 3. If a thing not Sacred was stoln out of a Sacred place But thir two last are not properly Sacriledge With us there are no formal Consecrations used of Churches Vestments Cupps c. and so we have no such formal crime as Sacriledge nor have we any act against it Yet I think to steal any thing destinat to Gods service and even to steal any thing out of a Church deserves to be punished with death And this Theft is aggraged with us not only from the nature of the thing stoln but more from the place and thus also Murder or mutilation committed within the Church or Church-yaird is more severely punished then other Murders and with us these who steal out of Churches are still hanged or who steal what is dedicated to or serves the Church as Basons c. XII The next aggravation of Theft is from the person who commits it and thus Theft when committed by landed men is punished with us as Treason Act. 50. p. 11. I. 6. the words are that if it shall happen any landed man to be lawfully and orderly convict of common Theft recept of theft or Stouthreif he shall incur the crime and the pain of Treason The reason inductive of this act was because it was easier for landed men to commit theft then for any others and so it should be more severely punished and these also wanted all pretext of necessity or rusticity and must be presumed to be extreamly mean and malicious persons whom the Common-wealth might well want and whom they should not suffer but it may be here doubted who are these who are by this act to be accompted landed men And it would appear 1. That only such as have themselves or their Predecessors been Infest are only such for nulla sasina nulla terra and so a disposition or charter or a resignation in favorem makes not a thief to fall under the compasse of this Act. Yet some think an Heir served and retoured doth fall within this signification though he be not Infest because his lying out is his own fault and so should not defend him 2. I think that a person who was once a Barron if he be thereafter denuded falls not under it for albeit semel baro is semper baro in our Law Yet that maxime holds only presumptive and if it be proved that he was actually denuded that will liberat him from vitious intromission much more a crime that deserves forfaulter and statutory crimes are not to be extended By ordinary theft in this act is meant theft without any aggravation of violence herships c. by stouthreif is meant violent and masterful theft And as this kind of theft hath the disadvantage of being treason so it is just that it should participat of all the advantages which are allowed to those who are pursued as traitors quem sequuntur incommoda eum debent sequi commoda and therefore no inferiour Judge is Judge competent to a process founded upon this species of theft as was found in Iuly 1668. where a process intented against a landed man before the Sheriff of Wigtown was Advocat to the Justices upon this reason albeit it was alledged that this act being conceived in odium and for repressing of theft it was unreasonable that it should not be quarrellable before every Judge for thereby many would be deterred from pursuits against landed men And albeit the punishment was in this theft greater then in others yet the relevancy and probation was no more intricat here then in other cases 2. It was alledged that the pursuer restricted his Libel to ordinary theft which the Justices found he could not do because the relevance and probation would be eadem utrobique and albeit the pairty would restrict as said is yet the Kings Advocat might at any time thereafter found a Process of forefaulter and needed no more probation as in the case of Iohn Wauch though the Sheriff of Selkirk had only fyned the thief yet the Lords sustained a declarator of escheat upon that same verdict whereby the thief was found by them guilty of theft for the Lords thought that privat parties could by no declaration nor deed of theirs prejudge His Majestie 's interest so that from this ground it may be debared that when a landed man is pursued for theft the pursuer cannot restrict his pursuite to a pursuite of common theft As also that the pursuer failzieing to prove in this case commits Treason because he who pursues any man for treason if he be found calumnious commits treason It may be doubted also if the Council can mitigat the punishment here seing they cannot remit Treason Yet in thir Statutory Treasons the Council ordinarily mitigats or converts the punishment Nor see I any reason why it may not be alledged that theft in landed men is not made treason by this Act but is only declared punishable as treason and Theft that is not to be judged as treason though it should be punished as such for these two are differrent XIII This crime of Theft becomes sometimes atrocious and so should be punishable by death because of the irreclaimablenesse of the offender and triple theft is capital in inferiour Courts though the things stoln be very inconsiderable because this shews a habit or double these if the thing stoln be of great moment And by the first Statute Da 2. § 4. A thief banished being taken again in these Territories from which he was banished may be proceeded against with all severity and the breaking of pink Dove coats c. is punishable by death at the third rime Act. 84. I. 6. P. 6. The way likewise whereby the Theft is committed makes it oft deserve to be capital as the stealing by false keys or breaking houses and inchantments and if it be committed masterfully as we use to speak which is called
Stouthreif with us and Roboria by the Doctors then it deseâ—ves to be capitally punished but of this afterwards Theft is likewise aggraged from the time as stealing in the night is punishable by death if the theif defend himself and be armed l. furem ff ad l. Corn. de sicar but with us generally a thief breaking houses in the night may be killed by the person invaded Act 22. Ch. 2 p. 1. loss 1. which may be extended also to such thieves as are preparing to break the house of who have done it already and to steal any thing in the time a house is burning or when a Ship is wrackt or in time of tumults or general desolation were highly punishable by the Civil Law either paena fustium cum relegatione vel in metallum And with us I think such thieves should dye for both they add affliction to the afflicted and so shew very much malice As also the committing Theft is then very easy and to these cases I may adde theft committed in time of Pestilence XIV As theft is aggraged by these so it is extenuat by other circumstances as 1. In case of necessity as said is 2. A wife stealing from her own husband is not so severely to be punished as in other cases for in effect she hath some interest and therefore by the Common Law this was not pursuable as theft sed actione renum amotarum l. qui servo § item placuit ff de furt but with us the Kings Advocat may pursue either wife or husband stealing from one another though the parties cannot For it is to be presumed that there is too much malice in such pursuites and that the pursuer designs in that case rather to be free from the marriage then to have the Crime punisht 3. He who steals from his debitor who will not pay him or steals what was robbed from him is punishable but not by death Clar. num 20. de furt 4. He who steals a thing of small value de minimis non curat lex of which formerly 5. If the party from whom the thing was stoln declare that it was not away-taken without his consent some Lawyers think the crime is thereby purged Which opinion others allow not except it be also proven that there were presumptions of a prior consent as the stealers good fame his friendship to the party accused the relation by affinity or consanguinity c. but with us if the informer swear not the Libel and depon that the thing was stoln for ought he knows the Libel will not be sustained 6. If the taker had probable reasons to presume the things taken by him to be his own then he is excused from Criminal punishment 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ad civilem questionem transmittitur l. 1. § ult 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 XV. There are with us other statutory thefts which are not so of their own nature but are to be punisht as such as the breaking of Milnes c. Act. 82. p. 11. I. 6 A Salter or Coalyer also leaving his master without a sufficient Testimonial or at least a sufficient reason given for his removal and attested by the Bailie or Magistrat of the place are to be repute and punished as thieves Act. 11. p. 18. I. 6. but it would appear that such only as receive fee and wages from others are only punishable as such but not otherwayes and really it were unreasonable that a poor Coalyer or Salter might not leave that trade either to take another trade or for sickness or any other cause and that act seems only to hinder their going from one master to another Stealers of Pyks out of stanks breakers of Dove-coats Orchards or Yards stealers and destroyers of Hives are punishable as thieves and this is ordained to be a point of dittay and the unlaw to be ten Pound and mends to the party conform to the skaith Act. 69. P. 6. I. 4. but by the 33. Act. 2. P. I. 1. stealing of green wood by night or peilers of barks of trees should pay fourty shillings to the King and assyth the Party Act. 33.2 P.I. 1. But thereafter by the 12 Act. 4. P. I. 5. the breaking of Dove-coats Coney-gairs Parks or stanks i. e. Ponds is declared to be punisht as theft but seing that appoints not that it shall be theft it may be doubted if it should be repute as theft as to the other disadvantages I find that upon the 25. of Iuly 1623. two fellows called Raith and Deane are ordained to be hanged for breaking of Yards stealing of Bee-skeps and stealing of Sybows By the 84. Act 6. P.I. 6. the destroyers of Planting haining-broom pollicie are for the first appointed to pay to the owner the avail and ten pound for the second the avail and twenty pound for the third the avail and fourty pound and if they be not responsal to be put in Prison and in the Irons for eight dayes for the second fifteen dayes for the third a Moneth and to be scourged at the end of the Moneth By which Act likewise the breakers of Dove-coats Conyingairs and Parks are to be punished the same way if they be not responsal they are to hanged for the third fault It is observable that though these persons abovenamed were hanged for breaking of Yards yet there is no warrant therefore by that Act though there be for breaking of Dove-coats and Parks and so we may perceive that the former act is not abrogated by this Act And this Act declares that the punishment here prescribed shall be without prejudice to call the defenders at Justice Courts and all the innovation introduced by this act is that the offender may be tryed in thir cases by the Barron or Lands-lord within whose Lands the wrong was committed if the offender be taken reid hand whereas Land-lords are not Judges competent and by the Sheriff if they be not taken reid hand 2. There is allowed by this Act a power to Land-lords to Judge in the case of wrongs done to their own Tennants which regulariter was not lawful It is likewise observable that this and the 12 Act I. 5. p. 4. adds still without the good-will of the owner So that I think that albeit the owners declaration be not sufficient to absolve the thief in other cases yet I think it is in this case and that for these two reasons because this statutory theft is only introduced in favours of the owners and this Clause had else been uncnecessar 2. It is presumable that the owner would not refuse his consent to kill a Deer or Coney and this we may observe that the words invito domino in the definition of theft are not absolutly â—â—â—ecessary as many Lawyers carpingly observe and that in some cases the consent of the owner may defend the Party 8. It may be observed from this Act that theft should be proved by confession or witnesses and though other crimes may be proved by presumptions yet this
or precinct thereof Thomas Crumbie was hanged and his movables escheat for offering to strike my Lady Traquair with a drawn Sword in her Garden 23. Feb. 1638. but if the place wherein the invasion was made was no inclosure and so adjoyned to the house I think that though it was at the very doore of the house that Bart. his oppinion of juxta dominum does not hold And thus a Gentle-man being pursued upon the 24. of Iuly 1663. for Hame-sucken in swa far as he came to Alexander Provests dwelling house and there called him out and forced him to yoak his Carts and scourged him The Justices would not sustain the Libel as Hame-sucken because it was not committed in the pursuers house though it was done at the house door but sustained it as oppression And yet I think that if it had been alledged in this case that this invasion was Hamesucken because the person injured was called out of his own house by the offender and so quo ad him must be repute as if he had been in it The Justices would have sustained this to have been Hame-sucken if it could have been proved that the wrong was done immediatly without any preveining provocation for the Law would have presumed that the person was called out of designe to evite the quality of that crime nec debet fraus sua quem libet adjuvare It is doubted if a mans Shop is to be accompted his house to inferre this crime and though it may be alledged that the security is to be expected as well in the one as in the other And that it is as much the publicks interest that Shops be not entered and persons disturbed therein as houses for thereby publick commerce is leised as well as privat safety yet upon the other hand it may be alledged that by the foresaid c. 19. v. 1. That is only called a mans house where he uses to rise and lye And amongst the different opinion of Lawyers I find this reconcealing distinction used that if the Shop be adjoyned to the house and be not repute a different house that eo casu invasions in the Shop inferr Hame-sucken otherwayes not Cabal ibid. where he likewise cites Saliset Albericus and others determining that if a man have two houses in one whereof he dwells not with his family that his being invaded in that house makes it not Hame-sucken which is most consonant to our own Law above-cited which requires lying and rising And thus I remember that in Iune 1669. Thomas Sydserf having pursued Mungo Murray c. for invading him in his Play-house that invasion was not punished as Hame-sucken but with imprisonment Nota the former Law against Hame-sucken takes place as well when the invasion is committed in a mans hyred house as his own if he and his family live there Skeen ibid. Bartol le ad legem jul de adulteriis It may be likewayes doubted whether the beating a man in his own Ship can be punished as Hame-sucken since a man has not his Family there and so it cannot be called properly his name But yet I belive it should be punished as such since it is the ordinary place of a Sea-mans residence And thus it hath been found with us that a Skipper may prove an injury done to him in his own Ship by his own Servants though Servants cannot prove regulariter for their Master except in the case of Hame-sucken It hath been likewise doubted whether an injury done to an Inn-keeper can be punished as Hame-sucken when done to him by such as lodged in his own Inn And though it was alalledged that this was a greater Crime then if it had been done by a person who lodged not there because that was a Hame-sucken against Hospitality yet because an Inn is a publick House and belongs as well to the Lodgers as to the Master The Justices did only sustain this as a great Ryot but not as Hame-sucken in the case of Meor of Penniglen Anno 1675. III. The punishment of this crime is the same with the ravishing of women R. M. L. 4. cap. 9 and 10. And therefore the Laws made against ravishing of women are ordinarily libelled upon there being no special punishment exprest in the Laws against Hame-sucken should be pursued within a night after it is committed which time is allowed for getting the advice of friends ibid. And yet in the former case of the Lady Traquairs it was sustained after two moneths time and doubtlesse that short prescription is now absolet and the reason of it has been because it being punishable as ravishing of women it hath borrowed from that crime the necessity of being recently pursued And I think that though the foresaid short prescription be not allowed by present custome yet the Judge should consider whether any considerable time hath interveined for else per intervallum tempóris videtur dissimulari sicut injuria dissimulatur Nor is it probable that the person offended would have sitten long with such a wrong and since that crime which was not Capital of its own nature does become such by the circumstance of the place it is reasonable that the person accused should not lye long under the hazard gravatus in uno levandus in alio This crime hath likewise this priviledge that it may be proved by the pursuers own servants friends or other witnesses who are otherwise lyable to exception which is introduced not only upon the accompt of necessity but likewise in odium of the offender Not were it possible to prove crimes of that nature by others then are in the family IV. When Hame-sucken is pursued only as an aggravation it is libelled that such a thing was done by way of Hame-sucken and the punishment thereof is arbitrary eo casu and this is so old an aggravation of a crime that David 2 Sam. chap. 4. vers 11. aggravats the death of Ishbosheth because they had slain him in his own house and upon his own bed The Libel in Hame-sucken runs thus that albeit by the Municipal Law of this Kingdom the committers of the crime of Hame-sucken that is to say who ever invades any of our peaceable Subjects and Liedges violently with weapons within their own dwelling houses or precinct thereof contrair to our peace shall incur and underly the pain and punishment of death as our saids Laws and Acts of Parliament in themselves proports Notwithstanding whereof it is of verity that upon last by-past the forenamed persons above-complained upon being bodden in fear of war with Sword and other weapons invasive came under silence and cloud of night about ten hours at even to the said A. B. his dwelling house where he was quiet and in a sober manner for the time c. TITLE XXII Breaking of Prison 1. The punishment of breaking of Prison by the Civil Law and ours 2. How the going out of Prison when broke by another is punishable 3. Whether he is punishable if he
person extant who abides simply at the writ as true as Kennedy did in this case for else the user though a singular successor must abide at the writ as a true writ simply without which any false writ might be vented securely The counterfeiter of the King's Letters for which Binnie was hanged The opener and unsealer of privat letters from which Bart. likewise concludes that Advocats Writers and others who reveal their Clients Papers to their Adversaries and the sealing other mens Letters with the Sealers own Seal and revealing the secrets of a Town commit likwise◠Falshood 5. A Nottar who draws any unlawful writ verb. gra An usurary Contract commits Falshood but not in Scotland 6. A Nottar who expresseth any thing that is false in an Instrument commits Falshood as if he say the Money was numbred where it was not or if he marked persons to be present who were not but with us a Nottar commits not Falshood though he say in the writ which he draws that the Money was payed whereas it was not I find that Iacob de sancto Georgio ad l. de quibus ff de Legib. observes that consuctudo loci excusat notarium à paena falsi eo casu III. Falshood in writs is committed by omission in not setting down what the Nottar was desired to set down in his Instrument or omitting to express the day and place when the omitting thereof might have been disadvantagious In our Law he of old who falsifyed the King or his Superiors Charter committed Treason but he who falsified only the Charter of a private man was only to be punished by loss or mutilation of a member Reg. Maj. l. 4. Cap. 13. num 4. 5. or should be in the Kings will lib. 30. cap. 8. But therefore it is determined Stat. Alexander 19. that the forger of a Charter is to lose the right hand and Clarus tells us that in the Dutchie of Millan and several other places a false Nottar is only punished for the first Crime by losse of his hand but all this is innovat with us by the 6. Parl. 80. Act Ia. 5. whereby it is appointed that those who make false Instruments or causes them be made or uses the same wittingly shall be punished for the same in their person and goods with all rigour according to the disposition of the Civil and Common Law but because that Act punished only false Notars and exprest only false Instruments therefore by the 22. Act 5. Parl. Q. M. It is extended to all evidents but it would appear that it is not extended to all persons but only to Nottars both by the rubrick and body of the Act from which it may be inferred that in criminalibus non est argumentandum à pari ultra casum à lege definilum And that criminal Laws are to be most strictly interpret for else the former Law against Instruments might well enough have been extended against other false writs which are oftimes of greater consequence then Instruments are 2. The reason why Nottars are more severely punished then others was because they were more trusted then others for of old they were Church-men and hence springs that custom that they yet design themselves Ego A. B. Notarius pub Dioceseos Andreopolitanae Rossensis c. And any Paper subscribed by them was sufficient though not subscribed by the Party 3. The punishment is declared to be prescription which is an error of the Printer put for prescription banishment and dismembering of Hand or Tongue but because it is received amongst the Doctors that a Statute punishing Falshood in a Nottar cannot be extended to any other person who is a forger fulgos consil 123. therefore by the Act 22. Parl. 23. Ia. 6. It is statuted that whosoever maketh or useth a false writ or is accessory to the making thereof shall be punished as a committer of Falshood And that these and all forgers of writs may be punisht albeit they declare in Judgement that they passe from or will not use the writ quarrelled From which it may be inferred that seing the forger is only not allowed by this Act to passe from the writ after it is used and produced in Judgement that before it be used in Judgement it may be past from and as the using in Judgement is a further prejudice and degree of impudence then a simple forgery which may be repented of So in all tryals of Falshood and particularly in Barclay's case the Lords took great pains to enquire if the writs quarrelled were produced in Judgement or made use of before any Court which had been unnecessar if simple forging had been sufficient to infer Falshood but although this may be alledged for mitigating the punishment yet Dempster was condemned for counterfeiting a subscription in a reversion though he never used the same to the hurt of any person whatsoever nor would abide thereby and a sentence was founded upon this Act 20. April 1620. These who give a false Testimonial to any man whereby it may be used as another mans Testimonial or forges one to himself is punishable by death Act 10. Parl. 20. Ia. 6. But this Act seems only to relate to the Borders and such fugitives as run in from Scotland to England Though England and some other Nations punish Theft with death and Falshood only by the pillary and confiscation of moveables Yet our own Law seems much more reasonable which punisheth Falshood with death Since Falshood is a theft and a degree of that crime which deserves a much severer punishment then ordinary Theft because I can secure my goods against a Thief but no man can against a Forger And a thief can but at most steal our Moveables whereas a forger can by a false writ take away the property of our Lands and things of the greatest consequence By the Civil Law l. 1. ff de l. Cornel. de falsis § ult paena falsi vel quasi falsi deportatio est omnium honorum publicatio siservus corum quid admisserit ultimo supplicio affici jubetur which is in terminis renewed in the Basilicks only in place of publicatio omnium honorum the Basilicks have plenae publicatio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But Theophil ommits absolutely publicatio honorum and makes it to be simply 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or capital the reason whereof seems to be because capital punishment included necessarly publication or escheat of goods l. 1. 2. ff de Bon. Dam. and albeit the former punishment exprest l. 1. holds generally in Falshood yet there are some kinds of Falshood otherwise punished because in effect they fall in to be branches of other Crimes Thus the assuming of false Arms aut qui militiam confinxit concutiendi causa is capital in Matheus judgment per l. 27. h. t. because it is a kind of Laese-majestie But I find by the Law it self that the pain of death is not exprest in that case sed pro admissi
to swear Before any debate upon the indirect manner the Lords use to ordain the pursuer to give in his articles of improbation and to ordain the defender to give in his articles of approbation And albeit there be not publicatio testimoniorum in our Law in Civil Cases yet because improbations have a criminal effect and tend to take away the life of the defender therefore the Lords use in this case to ordain the depositions of the witnesses to be seen by both parties and both parties being fully heard to debate in praesentia the Lords do either improve or Assoylzie If the Lords improve they have by the foresaid acts of Parliament power to impose an arbitrary punishment suitable to the crime And therefore they do sometimes ordain the forget to be taken to the Crosse with a paper Hat if the cheat was but small or the person in great necessity And sometimes they only ordain the forger to be imprisoned and rebuke him without discovering the falshood as they did lately to a Gentleman who being otherwayes very discreet was by his poverty driven to counterfit the subscription of his friend to a bond of Suspension Sometimes likewise they refer the forgers to the Council who upon that reference use either to condemn the forger to perpetual imprisonment as they did Captain Barclay or else they use to send them to the Mercat Crosse with a paper hat as they did Tulloch a Nottar for forging a charter 4. Iuly 1638. but this mitigation is only allowed when the forger hath been induced to commit that crime by the perswasion of others or by his own simplicity and hath ingeniously confest VII The ordinary way of procedor taken by the Lords when they have improven the papers and found them to be false is to remit the forger to the Justices against whom an indictment being drawn up and the Assize sworn the Lords Decreet is read without repeating any further probation and the Assize must condemn thereupon else they will be pursued for errour And therfore the verdict eo casu bears finds the Pannel guilty in respect of the Decreet of the Lords of Session Upon this verdict the Justices are tyed expresly to condemn the defender to be hanged as Halyday for counterfeiting a Discharge 8. February 1597. Iames Tarbet for being art and part of counterfeiting a false Charter 16. February 1600. And if the falshood be atrocious they sometimes before the execution ordain the right hand to be cut off If the Lords remit not the case to the Justices when they find the Papers to be false they ordain the Papers improven to be cancelled in their own presence but if they remit the forgers to the Justices then the Papers are carried to the Justice court and when the sentence is pronounced there against the Pannel the papers are likewise cancelled at the command of the Justices VIII The second species of Falshood is that which is committed by witnesses in their depositions which may be many wayes commâ—tted as 1. By taking money to depon or not depon Si quis pecuniam ad dicendum vel non dicendum testimonium acceperit l. 20. ff h. t. 20. by concealing the truth or expressing more then the truth though they received no money l. 16 § ult hoc tit 3. By deponing things expresly contradictory but in this case the contradiction must be palpable and not consequential nam omnis interpretatio praeferendo est ut dicta testium reconcilientur Witnesses either are such as were sworn and if they swear falsly eo casu they are guilty of perjury vid. tit perjury or else they are such as are false witnesses without an oath as witnesses in papers and these are punishable tanquam falsarii Bart. ad l. si quis ff ad l. Corn. Clar. hoc tit num 11. and of these I design to treat only at least principally in this Title He who depones falsly in one point is repute false in all his deposition whether the points be coherent or not But he who depones falsly only in extrinsick circumstances is not to be equally punish'd as if he had depon'd falsly upon the substantials of what is interrogat and yet in both cases he is falsarius And thus the Lords ordained one of Barclays Servants to be sent to the Cross with a Paper Hat because he prevaricat only in his deposition about the carrying of a Letter though that was extrinsick to the debate and was mainly used to try the Witnesses honesty Oblivion or forgetfulness excuseth sometimes à paena ordinaria falsi if it be invincibly or strongly founded but not otherwise Witnesses deponing falsly and such as induced Witnesses were by our Law punished according to the disposition of the common Law Act 80. Parl. 6. I. 5. but thereafter by piercing their tongues and escheating of their moveables to the Kings use and are never to brook honour office or dignity and are to be further punish'd in their persons at the sight of the Lords according to the quality of their fault Q. M. Parl. 6. Cap. 48. By the Lords in this Act are meant the Lords of Session who may punish Witnesses ex incontinenti during the dependence of the Process before themselves wherein the Witnesses depone falsly but if either the falshood was committed by deponing in another Court or if the Lords be functi officio as to the Process wherein the falshood was committed eo casu the Lords cannot judge the falshood or punish the false Witnesses Sometimes the Lords ordain the Witnesses to be remitted to the Council thus the Lords ordain'd the Witnesses who had confest that they subscribed Witnesses to a Disposition granted by the Tutor of Towie to his Nephew to be remitted to the Council who banâ—sh'd them And sometimes they themselves ordain them to be banish'd or to have their tongues pierc'd or to be set upon the Cock-stool with a Paper Hat yet they cannot ordain them to die because the arbitrary power granted by this Act cannot in Law be extended ad infligendam paenam mortis as is fully cleared else-where and therefore the Lords use to remit the falsarie to the Justices if the Crime deserve death But it may be questioned if the Justices can inflict the pain of death in any case upon false Witnesses since that Crime is not declared capital by any Act But to this the answer is that they may and do inflâ—ct capital punishment upon the committers of this Crime in some cases And by the foresaid Act Ia. 5. it is declared punishable according to the disposition of the Common Law by which is meant the Civil Law de practica Witâ—esses have been hang'd for bearing false witness as Croy and for suborning others to bear false Witness as Cheyn March 15. 1605. And Grahame March 8. 1615. At which time also Dunlop and some others were hang'd for offering themselves to be false Witnesses albeit they did not actually depon because they were not received
Oppression to exact more fraught from Passengers or greater prices for Weavers and handy-work then what is allowed and usual Acts 21 and 23. Parl. 5. Q. M. It is oppression to stop or make impediment of common high ways to or from Burghs Act 54. Parl. 6. Q M. It is oppression for Officers to extort the Leidges Act 33. P. 5. I. 3. Act 83. Parl. 11. I. 6. or to put out or put in the Roll of Assizours given to him by the pursuer Act 88. Parl. 11. I. 6. In which last Act common oppressors are punishable by death Oppression is also punishable by death Act. 42. Parl. 4. Ia. 4. Act 88. Parl. 11. Ia. 6. VII Because oftimes in thir cases the Pannel pretends that what he did take by force was his own or that he had a right thereto therefore except the violence be very great the Justices use to ordain the matter of right to be first discussed before the Civil Judge as was found in Novemb. 1675 in the case of Inglis of East-sheilds and in many other cases and by the 33. Act. 4. Parl. I. 5. It is declared that as for depredation masterful reiffs and spoilzies particular dyets shall be set therefore at the discretion of the Lords the matter being first Civilly discussed before them Upon which Act it is oftimes alledged before the Justices that the cause must be civilly discussed before the Session in all masterful reiffs before they can proceed to cognosc thereupon but notwithstanding of this the Justices do constantly sustain Criminal processes for Reiffs and Robberies without any previous civil precognition and they find this Act to be now in desuetude as in the case of Monimusk 27. of November 1611. And I think that by Lords in that act are not meaned the Lords of Sâ—ssion for that Act is two Years prior to the institution of the Session but that by Lords there are meant the Justices themselves for there being no Session at that time the Justices were Judges competent to many Civil cases originally such as perambulations c. and to all Civil cases if they had a necessary connexion with or dependance upon criminal cases And therefore where the person who was alledged to have committed masterful reiffs or spuilzies could pretend that what he did was in prosecution of his own right The Justices had a latitude to try the matter of right first Civilly but this was never necessary for it is by the Act left to the discretion of the Judge It remains then to be considered how far the taking away by violence what is really a mans own can infer a guilt against him Which difficulty may be cleared in these few conclusions 1. That the thing violently possessed though by a common spuilzie and much more by a masterful reiff ought to be restored nam spoliatus est ante omnia restituendus and that though he who took away what was his own could instantly prove his right and since this holds where the violence was only committed by a simple Ryot it should by a stronger consequence hold where the thing was taken away by such violent means as amounted to a crime and so this should be no good defence either against a Criminal or Civil pursuit 2. Not only ought the thing to be restored but even the true Proprietar who intrometted with his own by open force violence is punishable for the Law will not allow that any man should be Judge to himself but much lesse that he should use violence force upon any accompt and this were to invade or assume Jurisdictions which is in it self a crime The third conclusion is that if any man do by force or violence extort from another a writ or obligation which he could have obliedged him in Law to grant that force is not only punishable Criminally but the deed so extorted is reducable by a Civil pursuit as was found in Ianuary 1675. Though it was alledged there that such force might be Criminally punished yet the deed so granted could not be reduced since such deeds were only reduceable where something might be restored but here nothing was to be restored since the deposition alledged to be extorted by force depended upon a former minut by vertue whereof the granter could have been compelled to have granted the same and this was the same case as if a Creditor should compel his Debitor by force to pay him what was his own in which though the force be punishable yet the Debitor could not repeat what he had justly payed as is clear not only by common sense and reason but l. 12. ff quod met caus Iulianus ait eum qui vim adhibuit ut debitori suo ut ei solverit hoc edicto non teneri propter naturam actionis metus causa quae damnum exegit quamvis negari non possit in Iuliam eum de vi incidisse jus crediti amisse To which it was answered that there could be nothing more disadvantagious to the interest of the Common-wealth nor a greater usurpation against authority then that every man should be his own Judge and force the Executioner and the Law justly presumed that he had no legal right who would not pursue iâ— in a legal way and if this were allowed every man would discusse his own Suspension himself by forcing his Debitor to pass from it and would force the Heir of his Debitor to give him Bond or his Debitor himself to fulfil all minuts without any regal pursuits every Master would thus thrust out his Tennents and every Creditor force his Debitor to pay by carrying him away Prisoner and when he were that length he would alledge that nihil illi deest and as to the former Law it was answered that the Civil Law in detestation of force and violence did allow three several remedies to the person violented viz. Edictum praetor is quod metus causa c. Lex julia which punisheth the force as a Crime decretum divi Marci all which three are expresly mentioned in that Title and though by the old edict and the Lex julia he who forced his debitor to pay what was justly due could not be by these remedies restored quia nihil decrat vim passo as the Law formerly cited does prove yet ex decreto divi Marci which was posterior to these remedies as Marcus Antoninus was long posterior to Iulius Caesar even he who took payment of his own could not defend himself by alledging upon his right which excellent Law is set down l. 13. ff quod motus causa Quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo judice tempore possidere vel accipisse isque sibi jus in eam rem dixisse jus crediti non habebit And Faber upon that Law doth excellently conclude that this was a just supplement of the former Law and Cujacius allows this remedy not only to
lesse should he for the same reason be allowed to examine the witnesses since that is not allowed to the Advocats for the defenders Advocats with us in Criminals are called Proloquutors 3. No person should â—lead or consult in reduction of forefaulter without leave granted by the King Act 135. Ia. 6. Parl. 8. But in other pursuits of Treason no Advocat is obliedged to crave a license and even the foresaid act is abrogated Act 38. Parl. 11. Ia. 6. Which grants only liberty to plead in all Treasons pursued before the Parliament but by the 90. Act. Parl. 11. Ia. 6. Advocats are allowed before all Courts to plead without license and power is granted to Judges to compel them to plead in such cases and the former restriction has been founded upon C. falicis de paenit in 6. where to plead for Traitors is discharged nisi concedatur licentia When Advocats-assist Pannels especially in Treason they use to protest that no escape of theirs in pleading may be misconstructed since what they say is rather ratione officii then ex proprio motu as we see in Balmerinochs case and it were hard to be severe in such cases to Advocats since they are accustomed to much freedom and are oftentimes transported by the heat of opposition and zeal to there Client nor would men have any to engage in their defence against such pursuits if this liberty were not allowed and it is against reason not to allow it where they are forced to plead as they ordinarily are in cases of Treason and yet if any Advocat will defend his own escapes against authority he may be punished by deprivation but his punishment extends no further even where he speaks Treason as was found in the Senat of Savoy Cod. fabr tit de paenis defin 19. By the Civil Law Procurators were admitted for the defender where the pain to be inflicted was not corporal for the reason why personal presence was requisite viz. that the defender might undergo what was inflicted did here cease and yet with us the defender must still be present even where the pain to be inflicted is pecuniary such as in cutting of green wood stealing of Bees c. because the certification of the Letters with us is still to compear to underly the Law under the pain of Rebellion and hath not those words adjoyned or to show a reasonable cause which being added in Summonds for Civil causes is a sufficient warrand for the constituting a Procurator Noblemen likewise might by the Civil Law and the opinion of the Doctors compear by their Procurators but this is not allowed with us Procurators might likewise by that Law be admitted to propon the incompetency of the Judge even in the case where there is a Statute appointing the defender to compear personally which should much more be allowed with us where there is no such Statute but where this necessity is imposed by the will of the letters Boss. tit an incrimin num 13.14 Faâ—in de var. quest 99. num 168. and yet I have seen those who killed Armstrong the customer outlawed Iuly 1668. Albeit it was alledged they dwelt within the regality of Annandale and so they should be repledged which was repelled because they were not present yet the reason might be because the Justices were Judges competent eo casu and the replegiation was a priviledge with which the Lord of Regality might have dispensed and so was competent only to him and to the defender who should have compeared in omnem eventum Procurators are also allowed to propone excuses for absents c. sine mandato si excusationes illa sunt facti necessariae as is sickness imprisonment c. Sed ad allegandum causas probabiles necessarias absentiae such as the want of a safe conduct requiritur mandatum quia absens iis renunciare potest non constat de ipsius voluntate nisi per mandatum which distinction I think unnecessar because it is alwayes presumed that the defender would willingly have himself defended and with us a Mandat is not necessar if an Advocat be imployed for his Gown is his warrand and where an Advocat is imployed I think the Cautioner may be admitted albeit he have no warrand quia qui satisdat dicitur habere mandatum de jure farin ibid. part 2. num 283. and the Cautioner defends himself eo casu seeing if the reason of absence or Essoinzie as we call it be found relevant he will not be unlawed and where a Mandat is necessar with us which is where an Advocat is not imployed it may be doubted if the Mandat be sufficient if subscribed only by one Nottar where the party cannot write which though it be ordinarly sustain'd yet it would appear that eo casu it should be subscribed by two for the Act of Parliament requires two Nottars and four Witnesses in all cases of great importance yet seing quaelibet levis probatio absentiae sufficit it would appear that quodlibet mandatum hic sufficiat IV. Albeit where the pursuer is a privat person he is oblidged to swear the Libel yet where the Kings Advocat pursues he is not oblidged to swear the verity of the Dittay because he pursues only ratione officii but I find in the same Decisions that the Advocat is not oblidged to depone whether the party hath given partial counsel the 10. of August 1598. Advocatus contra the Laird of Dalgety nor yet to declare who is his informer the 20. of April 1599. Advocatus contra Iohn Connel and others but this seems unreasonable seing the defender should not be prejudged by the intenting of a pursuit at the Advocats instance and jure naturali the pursuer or informer which is all one should not be a Witnesse nor can it be known who is pursuer without the Advocat declare it is also a great encouragement to unjust pursuits that any person may inform at random without being known and the informer is liable in damnage and interest if he inform without any ground even though the pursuit be only raised in the name of His Majesties Advocat Act 78. Parl. 6. Ia. 6. but if the Advocat may conceal lawfully the informers name then the defender is precluded from all these just advantages This priviledge of the Advocats not swearing the Libel seems to be founded upon the opinion of the Doctors who contend that Procurator ex officio non tenetur prestare juramentum calumniae Gail obs lib. 1. obser 88. TITLE XXI Of Libels and the forms of Proces thereto relating 1. A Libel is a Sylogism 2. It ought to condescend upon time and place 3. Whether the qualities Libelled may be passed from 4. The stile of a criminal Summonds and Inditement 5. How a criminal Summonds ought to be execute 6. Whether a person who is banished may safely appear before the day in the citation 7. How criminal Actions are to be called and the forms thereto relating I. A Libel
or otherwise the pain is Arbitrary and there the pursuer cannot by his petition determine the same but must leave it to the Judge l. 1. § quorum ff ad S. C. turpil l. ff de privat delicti l. ordine ff ad unicipalem and in the form set down l. 3. ff de accusatio by Paulus there is no conclusion exprest but yet with us there is alwayes a conclusion in every Libel though it be general and I perceive that most of the practitioners are of opinion that at least a general conclusion should be added III. Whether a Libel being libelled qualificate the pursuer may passe from the quality has been thus determined by Lawyers that if the quality amount to another different crime it cannot be past from but if the quality amount only to an aggraging circumstance it may be past from As for instance if the pursuer Libel upon the Act of Parliament whereby murder under trust is Treason and subsume that the Pannel is guilty of murder under trust in so far as the person murdered was father to the murderer if when the case is to be tryed the pursuer should declare that he insists against him as a Murderer simply because he is not sure to prove that the person killed was father I think eo casu the pursuer could not so reform or declare his Libel for that makes the crimes to differ the one being Murder the other Treason and the defender was only obliedged to prepare him to defend against Treason and finding that he was secure as to the crime libelled he needed not prepare other defences or raise exculpations for that effect but these qualities which amount only to aggravations may be past from as was decided 11. November 1672. For Aikma◠having pursued Carnegy of Newgate for oppression conform to the 25. Act 4. Parl. K. I 5. because he had beat him who was a Magistrat in the exercise of his Office the Justices having found that the pursuer could not in the construction of Law be repute a Magistrat because he had not taken the Declaration it was thereafter alledged that the Libel being only founded upon the foresaid Statute conceived in favours of Magistrats and the conclusion being against oppression and not against beating the pursuer could no more insist upon that Libel which was repelled for the Justices found that the beating any man was a crime and the pursuer might insist against the defender for beating him since his being a Magistrat was only an aggraging circumstance Yet this seems a hard decision since the proposition of the Libel did not bear that beating was punishable nor did the conclusion bear that at least the Panel was punishable for beating a free Liedge if this were universaly allowed alternative Libels were unnecessary and this would occasion much looseness in Criminal Libels whereas Lawyers treating of Criminal Libels have laid it down as a principle that in criminalibus non licet vagare and the crimes of oppression and beating are different Nor can it be denyed but that a privat person differs from a Magistrat so that this quality made the persons the crimes and the medium concludendi to differ IV. For the better clearing of our custom in these cases I have set down the form both of the Criminal Letters and Criminal Indictment now in use with us A Criminal Summonds CHARLES c. humbly mean'd and complain'd to Us by Our Lovits A. the relict B. sister daughter and nearest kins-woman C. as Mr. with the remanent kin of Umquhile Main Servant to the said C. and Our right trusty and well beloved Councellor our Advocat for our interest in the matter underwritten upon Listoun without any just cause offence or injury done to him by the said umquhile Man having conceived a deadly hatred and evil will against him with an settled purpose and resolution to bereave him of his life one way or another lately upon the last day of 〈…〉 where the said Main was in quiet and sober manner for the time expecting no harme injury nor pursuite of any person but to have lived under Gods peace and ours And the said Listoun being bodden with a great Batton or rung in his hand and with knives and other invasive weapons first upbraided the said Main with words alledging that he was a common Thief and had stollen c. And thereafter because the said Main had purged himself of that calumny and said he was as honest a man as himself he thereupon ran and rushed the said Main being an aged man of 74. years of age to the ground under his feet struck him in the head craig shoulders and side with the said Batton lap upon his breast and belly with his feet and knees beat him upon the heart and thereby broke and bruised his whole intrals and noble parts thereafter heased and drew him by the heels off the saids lands by the space of a quarter of a mile to a low Vault in c. and imprisoned him therein tanquam in privato carcere he being in the dead thraw Likeas within three hours after his imprisoning in the said Vault the poor aged man dyed of the saids stroaks and hurts likeas to suppresse the Murder the said Listoun with his complices buried him in an obscure place in the night time and swa the said Main was shamefully and cruelly murdered and slain and secretly buried by the said Listoun and his complices and he is Art and Part thereof committed upon set purpose and provision and forethought Fellony in high and manifest contempt of our Authority and Laws in evil example of others to commit the like if swa be OUR WILL IS herefore c. and in Our name and authority command and charge the said Listoun committer of the said Barbarous murder in manner foresaid to come and find sufficient Caution surety to Our Iustice Clerk and his deputs acted in our books of Adjournal that he shall compear before the Iustice or his deputs to underlye the Law for the samen in our Tolbuith in Edinburgh on the Day 〈…〉 of 〈…〉 in the hour of Cause under the pain contained in Our Acts of Parliament and that ye charge him personally if that he can be apprehended and failzing thereof at his dwelling house and by open proclamation at the Mercat Crosse of the head Burgh of the Shyre Stewatry or Regality where he dwels to come and find the said soverty acted in manner foresaid with in six dayes next after he bees charged be you thereto under the pain of Rebellion and putting of him to the Horn the whilk six dayes being by past and the surety not being found that ye immediatly thereafter denounce him Rebel and put him to our Horn and escheat and in bring all his moveable goods to our use for his contemption and cause Registrat thir our Letters with the executions thereof in the books of Adjournal within fifteen dayes thereafter conform to our Act of Parliament
originally emitted in presence of the Assize or at least adhered to before them and the testimony of two Nottars and four Witnesses was not equivalent to a verbal confession seing they could not thereby know all the circumstances which are necessary to be known such as whether the confession was voluntar or extorted or if it proceeded upon a mistake or if it was founded upon promise of life c. 2. The party who confessed might have emitted that Declaration upon a confidence that the same could not operat against him being extrajudicial as said is 3. That must be accounted an extrajudicial confession quae non emanavit in judicio and this is such because there was no Court fenced here nor yet an Assize sworn whereas that is only called a judicial confession which is emitted before those who are Judges and whilst they are sitting in Judgement Boss. tit de confessis 4. The confessor here was an ignorant person and did not understand the Scottish Language and so might be very subject to mistake upon which reasons the Assize having demured the Justices made application to the Council but the case being by the Council remitted intirely back to themselves they did find the foresaid confession sufficient and Macknab was thereupon convict accordingly and hang'd but if the confession had only been subscribed by a Judge I think it could not have been valid for that were to confound the Office of a Judge Witness and Clerk and would tend to make all Judges arbitrary so that the life of the Leidges should depend upon one single Testimony which were very dangerous especially in inferiour Courts where it is very well known that persons of very little integâ—ity sit as Judges and which Judges are oftentimes interested to get the Pannel condemned because thereby the Escheat at least a part of it falls to themselves So far doth our Law require judicial confessions that it hath been debated that even a confession taken by all the Justices sitting in Judgement was not a sufficient warrand for the Assize to proceed in condemning the party except the confession had been renewed before them though the confession it self was subscribed and the subscâ—iption acknowledged for the foresaid Act of Parliament requires that the hail Probation should be used before the Assize in presence of the party accused but so it is that the emiting of the confession is a chief part of the Probation since Law has laid great weight upon the way and manner how a confession is eliâ—ite measuring exactly the degrees of constancy or fear appearing in the Pannel as well as considering the motives by which he was induced to confess and what difference is there quo ad the Assize Whether the confession be emitted before the Justices or an inferiour Judge or why should not the deposition of Witnesses or confessions of Parties taken by way of precognition proved and yet thir confessions taken before the Justices prove But to this it is answered that confessions emitted in presence of a Judge competent prove in all Nations from which the foresaid Act should not be made to derogat except it designed the same clearly but so it is that it is clear by the foresaid Act that it was not intended that any Probation that was formerly good and Probative should be discharged but only that the way of using the same should be regulat and so subscribed Papers are not rejected for we daily see that Papers prove Treason and Usury though they be not subscribed before the Assize but that Act only discharges a former wicked custom of carrying in Papers claudistinely to the Inquest which had not been openly used before the Pannel Likeas Assizers do frequently condemn with us upon such confessions The second question which may be here debated is whether when a person confesses a crime with a quality and not simply if his confession may be devided so that he may be convict upon the confession notwithstanding of the quality except he can prove the quality this was debated the 13. of March 1668. At which time one Dumbar being pursued for wounding Collonel Innes confest that he wounded him but he did it in defence of his own life being assaulted by the said Collonel upon which confession it was alledged he could not have been found guilty since a confession can no more be divided then an Oath and it is a brocard in Law that quod approbas non reprobas As also seing the crime could never be proved but by the confession the confession being qualified was no confession without the qualification and therefore there was no Probation beyond the quality I know that the Doctors do in this case distinguish betwixt such qualified confessions as are omitted sub unico structu verborum as if the confession did bear I did kill in my own defence vel sub duplici as I did kill but I kill'd in my own defence in the first they think the quality cannot be disjoyned from the confession but in the second it may yet I think this but a subtilty for poor persons especially when they are tryed for their lives take not such pains to order their expressions and their design in both is the same but I approve more that other opinion of these who think that such qualified confessions may infer an arbitrary though less punishment paenam non ordinariam sed extraordinariam as is asserted by Decius in cap. cum venerabilis extra de except vid. Far. de reo confesso quest 87. cap. 4. And albeit I think that if there were strong presumptions against the confessor as there was in the above related case he behoved cocasu to prove that quality of self-defence otherwise then by adjecting a quality because Presumptions transfer the necessity of Probation upon him against whom the presumption is brought Cod. fab de sicar def 6. non scinditur confessio in criminalibus nisi adsint contraria indicia Yet I think that such qualified confessions as this is which imply a defence should either prove the defence or else they should not prove the Libel and either should be altogether believed or altogether reprobated for as it was not the design of the confessor to bind a guilt upon himself by the confession So it is to be presumed that he who is so ingenuous as to confess a guilt against himself would be likewise so ingenuous as to confess the Truth really and sincerely or if he omited this confession by a secret impulse of a Superiour Power forcing him to confess the Truth we may rationally conclude that the same impulse would likewise have inforced him to confess the Truth in its fulness and simplicity homicidium indubio non dolose sed ad defensionem factum praesumitur sic qualitas adjecta habet pro se presumptionem Mascard deprobat l. 2. concluss 867. I do likewise think if the quality was not annexed to the first Deposition that it should not afterwards be received since
the Law for satisfying either publick or privat revenge 3. Since our Law doth punish Perjury and poinding of Oxen Usury Stellionatus and others according to the Civil Law it seems to be most agreeable to reason that as these crimes are punished according to the Civil Law so they should be extinguished by the Civil Law nam nihil est tam naturale quam unumquodque eo modo dissolvi quo colligatum est quem sequitur incommodum enim sequt debent commoda And the Act 1617. did introduce prescription with us as the Act it self bears because it was allowed by the Civil Law and the Laws of other Nations 4. It were absurd that in the case of Treason which may be inquired into after the defenders death there should be no period of time whereby Families might be secure and that it should be lawful after two or three hundred yeares to vex Families of great Honour and Interest upon pretext of crimes committed by their Predecessoâ—s 5 This prescription is very justly introduced to punish the negligence of such as will not puâ—sue crimes and it is most presumeable that if they pursue after they have delayed for so long a time that any pursuit thereafter intented is rather intented upon some supervenient quarrel and picque then upon the account of the crime 6. The fear of punishment and conscience of the guilt for so long a time is in it self a sufficient punishment And so GOD Almighty himself thought in the case of Cain and therefore to punish after so long a time were to punish twice By our Law recent crimes are more severely punisht then others as murder with red hand and the thief taken with the fang and by how much the crime grows older by so much it should be the less punished 7 The necessity of example which is the reason inductive of punishment fails in old crimes so the punishment should then also be remitted as unnecessary To the contrary arguments it may be answered to the first that our criminal law being much more founded upon the Civil Law then any other part of our Law is as shall be clearly proved there needed no particular statute in this case with us especially seing this prescription of twenty years in crimes has in effect become the Law of Nations and several other Nations who have many Statutes in other cases have yet allowed of this prescription without any particular Statute 2. There seems to be greater reason that an Act should have been necessary for prescription in civiltbus then in crimes because in civil cases the Roman Law was very various and quoad the particular periods of time was altered by all Nations according to the particular state of their affairs but in criminals their prescription was exactly observed by all Nations and was very reasonable and there being expâ—esly jus quaesitum incivilibus to every privat person it was necessary that should have been taken away by an expresse Statute but it is not so in crimes where in effect At first there was no express jus quaesitum either to the King or any privat party but only à â—otestas acquirendi for the jus qu situm is only by the sentence for before sentence the Fisk could not dispon upon and so had no right to the Malefactors goods and this answers likewise the second reason To the second third fourth and fifth it is answered that doubtless the wise Romans and other Nations could not but have these inconveniencies under consideration when they introduced the foresaid prescription in crimes and to the third it is particularly answered that if privat parties will not pursue their revenge they justly lose the capacity by their negligence and His Majesty having so many sworn Officers in every corner of the Land it is not presumeable that any inconvenience will arise through want of information but if there do it is much more reasonable that these negligent Judges should be punished especially seing there are express Laws appointing negligent Officers in such cases to be punished To the fourth it is answered that negative Arguments brought from the not being of a Law or a custome is not concluding for as in many other cases so this might have been argued as strongly as here against His Majesties Advocat when he of old crav'd that the Heirs of Traitoâ—s might be forefaulted for their Predecessors guilt And when he of late crav'd that probation might be led against Traitors in absence in either of which cases there was neither Act nor Practique nor could any thing have been alledged but the Authority of the Civil Law and the consent of other Nations To the fifth the crime being taken away by so long a time it were unjust to take away a mans life upon the former prescriptions and the fear of punishment is a sufficient punishment for all the malice arising from that prescription neither is it presumed but that if a Malefactor continue to be ill he will be pursued within twenty years and if he did for twenty years live so soberly and discreetly as that the Law thought not fit to take notice of his former crime there is little hazard of any future malice And to this opinion I rather encline because Carpzov relates that albeit by the Statutes of Saxonie prescription is only introduced by expresse Statute in moveables and heritage and that there is no express Statute as to prescription in criminals yet these prescribe also in twenty years because that prescription introduced by the Civil Law is not expresly abrogated amongst them nam non praesumendum est totam praescriptionum observationem tantis vigiliis excogitatam Saxoniae legislatorem evertere voluisse ut in simili casu dicit Imperator l. 34. C. de in offic test Petr. Heig part 1. quest 26. num 47. vid Carpzov part 3. quest 141. TITLE XXX Of Punishments de paenis 1. The design of punishment 2. Whether crucifying or banishment be lawful punishments 3. Whether a man can bind himself under the pain of death 4. Whether arbitrary punishment can extend to death 5. The loss of life is still followed by loss of moveables 6. How far can ignorance anger drunkenness or command either excuse from punishments or lessen them 7. How far doth Nobility or great Merit excuse or mitigat punishment 8. How far doth the inconsiderableness of the transgression mitigat or lessen the punishment I. PUnishments are inflicted not only to satisfy either the publick revenge of the Law or the privat revenge of the party but rather to deter others for the future and yet they are rather inflicted upon either of these designs then to punish the offender and make him insensible for what is done can no more be helped Some crimes are so horrid and so unknown to the world that it is not fit the Malefactor should be punisht publickly thus some crimes have been tryed in Scotland at midnight and the Malefactor immediatly drowned in the North-loch
alledgeances proponed be the Pannel 〈◊〉 and their Procurators and writes produced for instructing thereof that the said matter should not passe to the knowledge of an Assize and answers made thereto be Our Soveraign Lords Advocat and writes produced be him for veryfying thereof The Iustice fand the dittay relevant and did put the samen to the knowledge of an Assize of persons following they are to say 〈◊〉 whilks persons of Assize being chosen sworn and admitted and the said 〈◊〉 being accused of the dittay of the crimes above-writen which were verrified be their own depositions and confession in Iudgement they removed alâ—ogether furth of Court to the Assize house where they be plurality of vots elected and chosed the said C. reasoned and voted upon the points of the said dittay and being ripely and at length advised therewith togither with the depositions 〈◊〉 and other writes produced be His Majesties Advocat for the verification thereof entered again in Court where they all with one vot be the report of the said Chancellour fand pronunced and declared the said D. to be filed culpable and convict of the crimes respective above-writen contained in their said dittay for the whilks cause the Iustice be the mouth of 〈◊〉 dempster of Court decern'd ordain'd and adjudg'd the said 〈◊〉 to be taken to the Castle-hill of Edimburgh or Mercat Crosse and there to be hanged till he be dead and his hail moveable goods to be escheat to His Majesti's use or their heads to be stricken from their bodies and the said 〈◊〉 to be taken to the Mercat Crosse of Edimburgh and there his Tongue to be pierced with an hot botkin and thereafter banisht this Realm not to be found thereintil under the pain of death Or to be scourged and all their moveable-goods to be escheat which was pronunced for doom extracted Act of Conviction THe whilk day 〈◊〉 entered upon Pannel dilated accused and pursued be 〈◊〉 be vertue of Crimes purchast be him against them of Art and Part of demembring of 〈◊〉 of the midle finger of his left hand nearest his little finger committed the 〈◊〉 day of 〈◊〉 upon the Street of 〈◊〉 which was put to the knowledge of an Assize of the persons following they are to say 〈◊〉 whilks-persons of Assize being chosen sworn and admitted after accusation of the A. of the crimes foresaid removed altogither furth of Court to the Assize house where they be plurality of vots elected and choosed the said in Chancellour reasoned and votted upon the points of the said dittay above-specified and being advised re-entered again in Court where they all in voice be the mouth of the said Chancellour fand pronunced and declared the said 〈◊〉 to be filed culpable and convict of Art and Part of demembring the said 〈◊〉 of his midle finger nearest his little finger of his left hand committed the time foresaid whereupon the said 〈◊〉 asked Instruments Extractum c. Doom for Demembring THe whilk day c. being entered on Pannel to hear doom pronunced against them as they that were convict be an Assize in a Court of Iusticiar holden within the Tolbooth of Edimburgh the 〈◊〉 day of 〈◊〉 instant for Art and Part of he demembration of 〈◊〉 ut supra the Iustices be mouth of 〈◊〉 dempster decerned and ordained the said 〈◊〉 to content and pay to 〈◊〉 the sum of three hundred Merks in full satisfaction and assithment of the demembration of him of the said finger and to find caution for payment of the said sum to the said 〈◊〉 upon condition that the said 〈◊〉 should deliver to the said 〈◊〉 sufficient Letters of slaynes for demembring him of his little finger who fand 〈◊〉 with themselves conjunctly and severally soverty and cautioner fore-payed of the said three hundred Merks to the said 〈◊〉 in full satisfaction and assithment of demembering him of his midle finger he grant and and giving a sufficient Letter of slaynes as said is and al 's decern'd all the saids 〈◊〉 their moveable goods and geir to be escheat and in-brought to Our Soveraign Lords use as being convict of the said crime whilk was pronunced for doom and ordains Letters of Horning upon a simple charge of ten dayes and poynding to be direct hereupon Dempster our countrey-man hist. eclest pag. 235. relates this solemnity which is now in desuetude lapidem tollit magistratus signatumque quaerenti tradit ille adversarium testes citat si quid ambiguum majoris momenti ad 12. quos claves appellant refertur atque ita sine scriptis aut impensis lites dirimi sunt solitae II. By the former stiles it will appear that the debate is not insert in the Criminal Sentence as it is in Civil Process with us but it contains oft-times the whole Summonds which Decreets for Civil Causes do not These Criminal Sentences likewise express still the manner of the Probation which is the because of the Decreet as we speak in civil causes and this the Doctors confess to be the custome in other Kingdoms inferitur enim causa in sententia ut quod talis accusatus est de tali malificio quod constat per tefles vel per ejus confessionem quod illud maleficium commisit ideo condemnatus est c. Clar. 93. num 21. After the Sentence is pronunced by the Judge it is writen by the Clerk who reads to the dempster the manner of punishment and it is by him repeated and the manner of punishment is called the doom because it is pronunced by the dempster who adds after he has pronunced the punâ—shment and this I give for Doom And I find that by the custome of Italy the Clerk reads the Sentence and the Judges adds ita absolvo vel ita condemno Clar. ibid. III. Albeit the Sentence bear a punishment less then what the Statute irrogats eo casu the Sentence is not by our Law null but the Fisk hath by vertue of the convâ—ction contain'd in the Sentence â—ight to put in execution or to exact what the Law appoints though the Sentence doth not And thus Iohn Wauch in Selkirk being found guilty of theft by the Sheriff of that Shire he was ordained to pay two thousand Merks or to go to Barbodoes in obedience to which Decreet he payed the two thousand Merks Notwithstanding whereof the Exchequer gifted his liferent-escheat to Mr. Andrew Hedderweik who puâ—sued a declarature in which the Lords found that Wauch being once found guilty of Theft there was jus quesitum Regi which the Sheriff could not prejudge by any Sentence no more then he could remit the punishment altogether for in so far as he did mitigat the punishment in so far he remitted it To which it was answered that Theft was arbitrarly punished by our custome sometimes by death sometimes by fyning according to the several degrees of the guilt which was punishable and custome had in this prorogat the power of inferiour Judges 2. If the Sheriff had done wrong he
it was answered that the words of the Act of Parliament are conceived disjunctively Likeas it seems that if the Parliament had designed to add the word common to Receipt and Stouthreif they would have added the same to prevent this objection and it seems indeed that Stouthreif which is that species of Theft that we call Robery deserves to be punished as Treason in landed men though they do not commonly commit the same because it being easier for landed men to commit Robbery and it being more probable that they would Rob than steal this crime ought to be as severely punished in them as common Theft and accordingly the foresaid alledgiance being proponed for Iames Wood the 21. May 1601. it was repelled III. In this process likewise the said Iames having been pursued for robbing the writs and evidents belonging to Bonitown It was alledged that the pursuer ought to condescend upon the Lands to which these evidents belonged because if that were condescended on the Pannel would prove that the said Lands and consequently the evidents did belong to himself which alledgiance was likewise repelled nor was it found necessary that a Civil precognition should proceed in this case and in Iune 1668. it was found that a Libel was relevant bearing in general that Jewels or Pearls were stolne without condescending upon the particular number of them and it being alledged for the Macgibbons Decemb. 8. 1676. that the Libel was not relevant not condescending upon the persons from whom the goods were robbed nor what goods were robbed but only in the general that the Pannels did frequently rob the houses of Garntilly and Strathurds tennents To this it was answered that though where privat parties pursue ad interesse privatum such a condescendance is nessary because the informers may know nor can the private damnage be repaired except his losse be liquidly proved yet when the pursuit is at His Majesties instance and that an habitual and constant trade of robbing and sorning is libelled It is sufficient to libel in general and if the speciality be not proved the Pannels have no prejudice for they will not be found guilty nor will the probation be concâ—uding but it is all one to His Majesty which of His subjects be robbed or what be taken away it being His Majesties interest that no constant and habitual Robbery be committed in his Kingdoms nor is there any thing more ordinary then to sustain Libels against such as are guilty of open rebellion without condescending upon the particular persons who were killed or robbed in that Rebellion And whereas it was urged that if the particular goods alledged to be robbed were condescended on the Libel might be elided by this suitable defence viz. that they had a right to the goods or had the consent of the owner It might have been answered that they were not precluded from such defenses by the generality of the Libel for the Pannels might alledge that the taking away of such and such goods could not inferr Robbery because they had a right to these goods or were warranted to take them away by the consent of the owner The Justices sustained this Libel notwithstanding of the generality foresaid Alexander Steil being pursued in August 1669. for stealing and Robbing evidents writs and cloaths out of Captain Barclays house who was his Master at that time It was found that the pursuer behoved to prove that the saids evidents were taken away by force or breaking up of doors and that the servants having of them was not sufficient to infer Theft though he had delivered them to a third party and albeit this should be proved yet the Justices found this alledgeance relevant viz. that this deposition alledged to be stollen being given to the Pannel that he might counterfeit the subscription and he having no freedome to comply therewith he did run away to the Lord Fyvie and delivered up the same to him without any reward which alledgeance was found relevant as said is though it seems to be contrary to the Libel and as to the wearing cloaths the Libel was not found relevant except it had been proved that they belonged to Captain Barclay and were under his locks at the time since it was offered to be proved that the servant had worn these cloaths publickly in his Masters service which purged the presumption of Theft It may be doubted what a poor servant could do if he had broken up the doors really at his Masters desire who had sent him home to bring papers though he could not prove the command otherwayes then by his masters oath for his master might alwayes easily prove the breaking up of the doors IV. So odious is this crime and so frequent was it that by the 21. Act Parl. 1. Ia. 6. all such as recept fortifie maintain or give meat harbour or assistance to any such Robbers are declared art and part but it would appear that this Act strikes only where there are Letters of Intercommuning and that because the Act it self bears to the effect it should be known to what purpose they Intercommuned and because it were too severe to punish men as thieves except they were put in mala fide so to do by publick Proclamation or Letters of Intercommuning V. By the 227. Act Parl. 14. I. 6. It is declared for the same hatred against Robbers lawfull to all his Majesties Leidges to concur and joyn against Clann and Border Thieves and to take and execute them all Magistrats and Free-holders being made Justices for that effect by the said Act. But this part of the Act is now in desuetude and it appears to have been but temporary quo ad the power of executing but Robbers may be lawfully seized on without authority VI. Oppression is ordinarly but a quality of other crimes but yet there are sometimes special dittayes founded thereupon per se and there are some particular Acts declaring several species of it to be punishable as reif or by other specifick punishments mentioned in the saids Acts and thus it is oppression to compel the Kings proper Tennents to ride or do service of Avarage Carriage Shearing Leading c. and should be punished accordingly Act 21. P. 2. I. 4. It is oppression to take Caups that is to say a duty for protection to be given by privat men to such as thieves and other great men Acts 18. and 19. Parl. 2. Ia. 4. vid. de verb. signif It is oppression for a Crafts-man to take custome or any other taxation from another of that same Craft or for them to make privat Acts among themselves prejudicial to the people Acts. 42. and 43. Parl. 4. Iames. 4. Act. 111. Parl. 7. I. 5. and Act. 4. Par. 19. Ia. 6. It is oppression for Customers to exact more then their due Act. 46. P. 4. I. 4. It is oppression to molest Magistrats of Burghs and other Merchands to use their priviledges and liberties Act. 26. Parl. 4. Ia. 5. It is a kind of