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
man retains in nothing so much a desire to be like his Maker as in that he would be Supreme and no wonder that this Crime should be incident to him in this laps'd condition when his will is crooked and his judgement blind since the very Angels in their purity and Man in his innocence were tempted by it so that since men have subjected themselves to Government we may easily conclude they found a great convenience in this submission else they had never offered so much violence to their own inclination To Societies and Laws we owe every moment the preservation of our lives and fortunes which nothing but Discipline does secure and without an intire submission these Societies would be but Companies of Robbers and Laws but meer toyes How many dangers do Governours incurr And by how many cares and fears are they disquieted Wherefore it is most just that those who govern should be more secure against their Subjects then against their enemies since they may be most easily wrong'd by those who live in their own bosome and who have easie and open access to them In other Crimes one or at most few are wrong'd whereas in rebellion and Laese Majestie the whole Society is offended And therefore it was most just that those who design the ruine of the Common-wealth or the Supreme Governour which Crime we call Treason should of all others be most severely punished And the Basilicks l. 1. h. 1. observes well that Treason is a kind of Sacriledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Treason was by the Civil Law divided in Perduellionem Laesam Majestatem Perduellion was that Treason which was committed against the Prince or Common-wealth immediatly Adversus populum Romanum vel securitatem ejus Laese Majestie as opposed to Perduellion was committed by speaking against the Prince revealing his secrets c. This Crime was punish'd per legem juliam the branches whereof are the raising of Arms against the State the being in accession to the flight of such as were Hostages to the Common-wealth or to the killing of any Magistrat of the Common-wealth the keeping correspondence with the enemies the continuing to govern a Province after a a Successor was named the Levying of an Army and running in to the Enemies All which are expresly enumerat ff ad leg Iul. Majestat II. Betwixt these two Hottoman assignes these four differences 1. That Perduellion was that whereby the Common-wealth was in general wrong'd qui summam rei publicae lube factare conati sunt Laesa Majestas was that whereby the Common-wealth was only wronged in a part or by consequence as to suffer the enemies of the Common-wealth to escape or to conceal them c. The 2. is the Crime of Laese Majestie might have been pursued before the ordinary Judge in foro but Perduellion could not be pursued but in the great Meetings of the People à populo Romano comitiis centuriatis in campo martio Whence probably did arise the judging Treason by Parliaments with us The 3. was that the Crime of ordinary Laese Majestie was not punished with death as Perduellion was but with banâ—shment The 4. was that the ordinary Laese Majestie was punish'd by death but Perduellion was punishable after death III. Treason may be with us divided in Perduellion which we call High Treason called by the English Law alta proditio or rebellion which is only with us a rising in Arms against the King and in ordinary Treason and Laese Majestie such as to conceal and not reveal Treason And in Statutory Treason which is not Treason properly of its own nature but is declared to be so by a particular Statute as is that of Murder under trust Theft in Landed-men c. IV. Perduellion in the Civil Law is that which we call Rebellion in our Acts of Parliament and it was so called extravagan Hen. 7. qui sunt rebelles And there it is Statute that rebelles infideles imperii qui quom docunque aliquid machinantur contra prosperitatem imperii But I find not the word Rebellion used in the Law before that time Yet sometimes Rebellion is in our Law taken for that which is committed against the Kings Person as in the 3. Act 1. Parl. K. Ia. 1. where it is said No man shall rebell against the Kings Person openly nor notourly But the Adverb there used openly and notourly in that and the subsequent Acts interprets sufficiently the word rising against the Kings person to be the same with us that is called Perduellion in the Civil Law viz. Siquis hostili animo adversus principem vel rempublicam animatus sit To raise Arms against the King then or to rise in open rebellion is the first and highest degree of Treason Ia. 2. Par. 6. Act 25. where it is called a raising in fear of War against the King which Act comprehends all the kinds of Treason like lex prima ff ad L. Iul. Majest And therefore I will follow that method And though it be added in that Act that it shall be Treason to rise in fear of War against his Person or Majesty of what ever age he be of without the consent of the three Estates Yet the consent of the three Estates will not defend the rising in Arms against the King as was found in the case of the Marquiss of Argyle being pursued upon this Act in Anno 1662. for rising in Arms against the Marquiss of Montrose then the Kings Commissioner For the Analysis of that Act must run run so as that these words Without consent of the three Estates cannot be added to all the former treasons committed against the Kings Person which are contained in that Act For many things in that Act could not be justified by the Authority of the three Estates for else the three Estates and not the King would be Soveraign for they only are Soveraign against whom Treason can be committed But these words must only be taken as added to the last Crime prohibit which is the assailing of the Castles or Houses where the Kings Person is which may be lawfully done by Authority of the Estates For if the King being very young were taken prisoner as our Kings oft-times were in their minority it had been absurd to think that these who went to assail by the authority of the three Estates that Castle where the Kings Person was should be punish'd as Traitors because of their obedience But to suppress all pretext that might arise from that Act it is declared by the 5 Act 1. Parl. 1. Sess. Ch. 2. That the King hath the only power of making War and Peace And that it shall be Treason for any number of men less or more upon any ground or pretext whatsoever to rise or continue in Arms to maintain any Forts Strengths or Garisons or to make Leagues or Treaties amongst themselves or with forraign Princes without his Majesties authority and approbation first interponed thereto or to attempt any of these things under
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
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
advantage arising by any plea is forbidden by this Statute which the Civilians call pactum de quota litis by the 104. Act 7. Parl. I. 5. consulting or giving partial judgement is declared bribing in a Judge and such as diffame them as bribers are punisht legetalionis But because these Acts were not clear against bribing therefore by the 93. Act. 6. Parl. I. 6. the taking of bribes is discharged to the Lords of Session their Wives and Servants under the pain of infamy deprivation and confiscation of all their Moveables to all which an arbitrary punishment is adjected It is very observable that by this Act not only the taking of bribes is discharged but even the taking any goods or gear during the depending of a Plea or from such as shall have causes depending for the future and though it seem'd very reasonable that men should not be discharged of the effects of their friends liberality and should not be by being elected Lords of Session put in a worse condition then the other subjects yet so jealous is the Law of bribing that it is afraid that if Judges be allowed to take at any rate or upon pretext of their friends liberality they might abuse this pretext to meer bribing l. ult c. h. t. l. 4. ff eod And yet the Glosse ad l. 1. ff h. t. allows a Judge to take from his relations within the sixth degree nor is it lawful to take any thing even by way of remuneration though remuneration be rather a paying then a gilting Matheus P. 619. But I conceive that this must be understood of a remuneration made for services done during a Plea or upon the accompt of a Plea or upon any publict accompt But it seems against reason to think that if a brother or brother in Law should entertain his brothers family whilst he is a Judge that he may not receive a remuneration for that or the like kindnesse The second observation from this Act is that it is not lawful for their wives or servants to take bribes or good deeds which is consonant to l. 1. C. h. t. by which the Judge is lyable to pay the quadruple of what his servants take but it would appear that none is lyable by this Statute for what his servants take except he know that his servants take by command or ratihabition for this Statute discharges Judges to take by themselves or their wives or their servants which implyes some Act of the masters for qui facit per alium facit per se but he who is absolutely ignorant of what his servants doth cannot be punished for anothers fault against the common rules of Law else the master should be made a slave to his servants who might at his pleasure force him to what he decided or else by taking bribes might ruine both his masters estate and reputation Since this Statute discharges only the Lords of Session it may be doubted if it should extend to bribes taken by other Judges For Laws in criminal cases use not to be extended and since the Lords of Session may by bribing do moâ—e unjustice and prejudge the Leidges more then others it may be alledged that other Judges ought not to be so severely punished as they and yet since the Crime of bribing is punished by the Civil Law and Law of Nations in all Judges it seems just to extend this Act to all Judges and the other because though lex julia was made contra principales magistratus yet it was by the Roman customes extended ad magistratus urbanos Math. P. 617. III. The taking of bribes or good deeds was punished by the Civil Law Per. l. jul Repetundarum By which tenebatur qui in magistratu potestate curatione legatione vel quo alio officio munere ministeriove publico quid acciperit quo magis aut quo minus officium faceret l. 1 3 4 6. ff de l. jul Repet The punishment of crimen repetundarum was death if Money was taken to pronounce a capital sentence unjustly l. 7. or banishment and confiscation of goods in case no such criminal effect followed ff 38. de paenis and though some Doctors teach that albeit it be capital to condemn an innocent man yet to absolve a guilty man who deserved death is only punishable by banishment But if the Judge received Money or committed gross iniquity that should be punishable by death also for l. 7. h. t. doth not distinguish these two cases This Crime is by the Doctors called banatria nam baratriam committit qui propter pecuniam justitiam baractat Farin Q. 3. art 10. And they conclude that by the present customes of Nations it is only punished arbitrarily not exceeding banishment Boss. de offic corrupt num 6. He also who corrupts the Judges is punishable with the punishment of falshood gloss ad l. qui explicandi C. de accus which holds though the Judge accept not the bribe he is punishable if the endeavour pervenit ad actum proximum Menoch de arb cas 343. He also who corrupts the Judge or Clerk loses the cause Far. num 126. But I differ from him in that he thinks that a Pannel who corrupts the Judge in a criminal cause ought not there after to be allowed a liberty of proponing a defence for an innocent man may by fear be driven to offer to redeem his own life to which inclination the Law indulges very much The Judge who judges unskilfully per imperitiam is punishable by a fine beside that he payes the expences of the plea l. fin de var. extr crim But Bossius and others are of opinion that he is never to be corporally punished and by the 17. Act 6. P. Ia. 2. only such Judges are to be punished as trespasse wilfully in their office Arbiters bribing are punished as other Judges but some Doctoâ—s do justly conclude that arbiters are not liable for their unskilfulnesse since they were choosed by the parties who should blame their own election Delegat Judges such as these to whom the Lords recommend perambulating of Marches are punishable for bribing but for the same reason they are not punishable for their unskilfulnesse Assessors taking bribes are also punishable but some think them not punâ—shable for unskilfulnesse since the Judge is not obliedged to follow their opinion and though some think that an Assessor gettâ—ng a sallary is liable even for his unskilfulnesse Curt. Iun. ad l. 2. ff quod quisque juris and he should have known that he was named Assessor to supplie the unskilfulnesse of the Judge Yet I differ for he gives only his advice and so is liable only as an Advocat is V. Judges negligent in putting Laws to execution are punishable for their remissnesse and negligence c. 14. R. 2. by the escheating of their moveables and their life is to be in the Kings will which seems too severe a punishment for meer negligence but by the 26. Act 5. Par. Ia. 3. a Iudge found culpable which
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
dead and dye of the falling Sicknesse 17. May 1615. but in this the words were maliciously spoken for the speaker utterred them because he had lost a Plea But sometimes the speaker is only Scourged and Banished as Tweedy was 13. March 1612. for abusing Constables and bidding the King the Council and them kiss his arse and swearing he cared not a fart for them which words appeared both by the speaker and the contexture of the words to have rather flowed from folly then design And Spotswood in his History relats that the School-master of Edinburgh was hanged for dispersing Libels against the Regent wherein he charged him with being guilty of capital Crimes Leasing makers VI. Like to this Crime if not the same with it is Leasing making whereby hatred and discord may be raised betwixt the King and his people which was punished with tinsel of life and goods by the 43. Act Parliament 2. King Iames the 1. Likeas any misrepresentation or evil information as our Law calls it of the King to his people is punishable in the same way by the 83. Act Parliament 6. King Iames the 5. And though the slandering of His Majesty might have been punished by the reason of the first Act yet we see that our Predecessors did not think paritas rationis sufficient in punishing Crimes Upon which Acts a great person was found guilty of death for writing a Letter wherein the Parliament was slandered Anno 1662. But this was thereafter rescinded by his Majesty Likeas by the 20. A. of the 14. P. KI 6. the hearing and not revealing and not apprehending of such Leasing makers if it be in the hearers power is equally punished with the Leasing making but because these Acts could not reach to slanderers of His Majesty to His people in England or misrepresenting them to the King or abusing any Privy Counseller of that Kingdom therefore the misrepresenting them is declared punishable at His Majesties pleasure by the 9. Act 20. Par. K. Ia. 6. By the same last Act dispersing or making Cockalands or other infamous Libels against Counsellours of England is punished as Leasing making TITLE XXXI Poinding of Oxen in time of labouring 1. How this Crime is punished by our Law 2. How by the Civil Law 3. The explication of our Act of Parliament in this case 4. How the Civil Law and ours differs in this point BY the 98. Act 6. Parl. Ia. 4. it is Statute that no Sheriff or Officer shall poind or distreinzie the Oxen Horse or other goods pertaining to the Plough and that labours the ground the time of the labouring of the same where any other Goods or Lands are to be Apprized or Poinded according to the Common Law II. The Common Law to which this relates is l. 8. C. quae res pig oblig possunt pignorum gratia aliquid quod ad culturam agri pertinet auferri non convenit and by the subsequent authent ibid. agricultores terrarum securi sunt ita ut nullus inveniatur tam audax ut personas boves agrorum instrumenta aut si quid aliud quod ad agrorum rusticorum operam pertineat invadere aut capere praesumat siquis hoc statutum violare praesumpserit in quadruplum ablata restituat infamiae notam ipso jure jucurrat imperiali animadversione nihilominus puniendus and Maranta de ordine jud part 6. Act 3. num 31. relates that this Law is confirmed in Sicilie by an expresse Statute and all these Laws seem to be founded on Deut. 24. vers 6. No man shall take the upper nor nether milstone to pledge for he taketh a mans life to pledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Grotius observes out of Philo. which are called mola catillus l. cum de lanionis § idem consultus ff de instructo vel instrumento legato III. By the foresaid Act of Parliament the Poinding of such Goods is forbid in the time of labouring but it is not declared to be a Crime and the Lord Renton haveing in Ianuary 1666. pursued the Officer of the Court of Coldinghame for poinding one of his Plough Oxen when they were labouring before the Criminal Court is was alledged that no criminal pursuit could be founded upon this Act seing nothing could be criminally pursued but that which was made a Crime by a special Statute and to which a special sanction was annex'd Likeas by the constant custome many actions of Spoilzie were founded upon this Act but no criminal pursuit was ever thereupon intented To which it was replyed that the contempt of a Law was in it self a Crime seing disobedience to Authority was in effect the basis of all Crimes 2. Illegal intrometring with another mans Goods was a Crime especially ubi lex non solum non assistebat sed restistebat for theft is nothing else but an unwarrantable intromission and as the taking of His Majestie 's free Liedges is a Crime where the same is not warranted by Law so the poinding of these Goods should infer a Crime that being another species of unlawful execution 3. This Act discharges such executions conform to the Common Law And by the Common or Civil Law this is a Crime as is clear by the Law above cited and whereas it was alledged that no sanction was annex'd It was replyed that where the Law annexes no sanction the punishment is there arbitrary and there are many Crimes both in the Civil Law and outs to which no sanction is annext The Justices sustain'd the Libel and ordained the Pannel to go to the knowledge of an Inquest The expresse words of the Interloquutor were that the poinding an Oxe in the time of labouring is an injury and wrong punishable by the Law paena aplicanda filco And thereafter the three Pannels were found guilty though it was not expresly proved that the Oxe was labouring actually the time of the poinding but only that he used to labour and was in the Plough the week before and the Countrey was then labouring all which are necessary qualifications of this Crime and so are necessary interrogators after pronouncing of which doom the Justices fined each of the three Pannels in fourty Pound Scots And yet in Iune 1674. a reply against lawfully poinded being proponed in a pursuit for theft the case was by the Justices referred to be first civily pursued It was here also alledged that by the 34. Act. 4. Parl. I. 5. where Crimes may be criminally and civily pursued the civil pursuit ought first to be discus'd which was repelled because though a civil pursuit of spoilzie were intented there could no defence such as lawfully poinded authore praetore c. which are usual in other cases be proponed here seing though the executions were formal and the Decreet whereupon they proceeded irreduceable yet to poind a labouring Oxe in labouring time is in all cases unlawful itacessat hoc casu ratio legis 2. The defender could not plead the benefite of this
were punishable as Menoch observes de arbitr casu 331. Yet the Parliament inclined not to punish him if nothing else could be proved But whatever may be said of ratihabition in general yet certainly ratihabition of Treason is punishable as Treason and it may be also contended that the excepting of a reward by one as if the Crime had been committed by him is punishable since that reaches further than a naked ratihabition so that certainly Assint had been punisht as a Traitor for that accession if he had not been secured by an Act of Indemnity IX There remains yet two practical questions to be resolved The first is whether such as are accessory can be pursued till the chief actors be first discust and either found guilty or assoilzied And that the chief or principal actors ought to be first discust seems most reasonable 1. Because it is the nature of what is accessory to follow and not to preceed that to which it is accessory 2. The principal party might have a defence which the assister doth not know at least cannot prove As for instance if a man be pursued as art and part of driving away Cattel possibly he was but a servant to the person who did drive them and who if he had compeared had proved that the goods were his own or if he were pursued as art and part of convocating the Liedges or of rising in Arms possibly if the principal convocator were pursued he would alledge he had done so by warrand from Authority and would produce his warrand which none else could have in keeping 3. By the opinion of Clar. quest 90. num 6. and other Doctors quando proceditur contra aliquem tanquam quod prestiterit auxilium delicto debet primo in processu constare principalem deliquisse 4. By the 26 Chap. 4. Book Reg. Maj. entituled Of the order of accusing Malefactors for Crimes it is said that the principal Thief should be pleaded and discust before him who commanded the same to be done or before the resetter And in the 4. vers of that Chap. it is generally said and swa it is manifest that the commander or resetter shall not be charged till the principal doer be first convict by an Assize From which words and from the general Rubrick it is clear that this conclusion holds not only in Theft but in other Crimes Likeas Skeen in his Annotations upon these words observes from this Text that complices criminis non possunt accusaâ—i ante pricipalem malefactorem nam sicut reâ—â—oto principali removetur accessorium ita absoluto malefactore absolvuntur complices consentientes and cites for this opinion Gloss. in cap. 1. de offic jud de legat which conclusion is also clear as to Theft from the 83. Chap. quon attach Upon which Law a verdict fyling George Grahame as receptor of Theft was rescinded by warrand from the Council because the principal Thief was not first discust And as to all Crimes by the 29. Chap. Stat. David 2. entituled The complices should not be punished before the principal malefactor It is also observable from the last vers 26. chap. lib. 4. Reg. Maj. that the principal malefactor should be not only accused but convict by an Assize before the complices can be accused so that it is not enough the principal actor be declared fugitive which is likewise conform to Clar. quest 90. num 6. nam non sufficit saith he contumacia ficta which answers to our denouncing fugitive as I formerly observed I find likewise that by the Law of England the principal ought to be attained after verdict or confession or by outlawrie before any judgement can be given against the accessory but the principal must be surely kept until the accessory be attainted Bolton cap. 24. num 38. Notwithstanding of all which Charles Robertson being pursued as accessory to the casting down of a house belonging to Iollie which house was libelled to have been cast down by his sons and servants at his command The Justices found that he might be put to the knowledge of an Inquest albeit the children and servants were not first discus'd because the Act appointing a Libel to be relevant bearing art and part did abrogat the foresaid 4. vers 26. Chap. l. 4. R. M. since such as are pursued as art and part are all principals And the Advocat alledg'd that it were absurd that the King should be prejudg'd by the absence of the principal party To which it was answered that the Act of Parliament and the Law cited out of R. M. were in materia diversa and very consistent since the one determined only the manner of procedure and the other what Libel was relevant since that Act it was constantly found that the Thief behov'd to be punish'd before the Resetter which shews the foresaid Law of the Majesty is not abrogated nor was the King prejudg'd seing if the principal party were discus'd and denounced fugitive the accessory might be proceeded against but on the contrary the Liedges would be much prejudged if this order were not observed for probation might be led against absents eo casu contrair to the fundamental Law of the Nation V. g. if A. B. were pursued as hounder out of C. D. to commit a Murder probation behov'd to be led that C. D. committed the Murder albeit absent else the hounder out could not be punish'd nam primo debet constare de corpore de licti Nor can any man be guilty of hounding out except where the Crime is committed And it were not only against our Law but against reason to suffer Witnesses to be led for proving that the person who was absent committed the Crime For in that case his greatest enemies may be led as Witnesses and his strongest defences may be omitted and though the probation led against him in absence will not be concluding yet semper gravat famam and leaves still a disadvantagious impression In this case it was likewise found that ratihabition of a Crime might be inferred from the said Charles Robertson his resetting the committers of the Crime though they were neither declared fugitives nor Letters of Intercommuning against him And his saying these words They did too little and I wish that they had taken a Collop out of his Cheek was a ratifying of the Crime since the Crime was committed by his own sons and servants X. The second Question is whether the complices and such as are art and part of a Crime should be punished by the punishment due to the principal Malefactor That they should seems clear by the Act 151. Parl. 12. K. I. 6. where the Libel bearing art and part is ordained to be found relevant which implyes that art and part should inferr the punishment concluded in the Libel for that is only relevant which can inferr the conclusion 2. It is said cap. 38. quon attach and then it shall be conform to that which is said Consenters and doers should be
prima instantia during Popery and this is conform to the opinion of almost all the Doctors who think heresie crimen mere Ecclesiasticum Alcia in c. 1. num 37. de offic ord but they justly conclude as in this Statute that the cognition belongs to the Church and the punishment to the Secular Judge and this Canonists calls tradere hâ—reticum brachio Seculari and Clarus do's so far appropiat this tryal to the Ecclesiastical Judge that he allows not so much the Secular Judge as the power of mitigating the punishment and yet now the Justices are Judges competent in prima instantia to such as hear or say Mass but the reason is because such are in general condemn'd by the Church as guilty of Heresie and yet the Popish Church are still Judges to the Protestants thogh they be condemn'd in general as Hereticks for the Hereticks are try'd and condemn'd first by the Ecclesiastick Judge among them The second thing remarkable in this Act is that amongst Ecclesiasticks the Bishop is the first Judge in Heresie which is also conform to the opinion of the Canonists Clar. h. t. num 5. After the Reformation there was a Confession of Faith made and is set down by King Iames in his first Parliament and Ratified Act 4. And they who profess not the true Religion may not be a Judge but this is not extended to Heretable Offices Procurator nor Member in any Court Ia. 6. pa. 1. c. 9. and such Church-men as will not subscribe that Confession are deprived Ia. 6. Pa. 3. Act 46. and all such as refuse to subscribe are to be repute Rebels and enemies to the King and his Government Act 47. IV. Our Law fearing the pains taken by the Romish Church more then the hazard arising from any else have been more severe to these than to others And therefore the sayers or hearers of Mass or such as are present thereat are punished 5. Act 1. P. I. 6. by confiscation of all their goods moveable and immoveable and an arbitrary punishment of their persons for the first fault banishment for the second fault and death for the third fault It may be doubted if such as hear Mass for curiosity may be thus punished which is very ordinary abroad and it seems that Heresie must be an act upon design and yet this Law makes no distinction here 2. It may be doubted if by confiscation of Goods immoveable be meant Land and Heritages for they are call'd bona immobilia and yet I rather incline to think that this should only extend to Heritable Bonds and such like but not to Lands for Heritage uses alwayes to be exprest distinctly when the confiscation of it is design'd And if Heritage were forefaulted by the first fault the punishment of the first would be greater then the punishment of the second fault which is only banishment Nor do's Heritage use to be exprest under the word Goods But thereafter the sayers of Mass and trafficking Papists and the receivers of them against the King's Majesty and Religion presently profess'd are declared guilty of treason Act 120. Pa. 12. Ia. 6. But from these words Against the King's Majesty and Religion presently professed it may be argu'd that only such Jesuits and others as traffick to the prejudice of the King's Person and Government such as these who attempted the Gun-powder-treason or to kill the King or raise Rebellion are only guilty of Treason which seems the rather because it were hard to make simple endeavouring to perswade others in meer matters of Religion to be treason It is also observable from this Act that such Jesuits or trafficking Papists or receipters of either as satisfies the King and Kirk are not to be guilty of treason so that here treason is taken away by repentance but it may be doubted if though they be not guilty of treason they may not be punish'd as Hereticks conform to the above-cited 5. Act. 1. Pa. Ia. 6. for the Act only declares that the penalty foresaid shall not strike against them And though as I observed formerly such as are guilty of Heresie may by repentance save themselves from the punishment of death yet are they still declar'd lyable to other punishments such as perpetual imprisonment But yet since our Law appoints no other punishments against Traffickers and receipters of Jesuits but what is exprest here and that the punishment here exprest is taken off in case of repentance I rather believe that no punishment can be inflicted in case of repentance against these And it is very reasonable that meer errors in faith should be pardon'd by meer repentance but as to the sayers and hearers of Mass the former Act seems to stand The Sellers also and dispersers of erronious and Popish Books are to be punish'd arbitrarily by the Rubrick of the 25. Act 11. Pa. Ia. 6. but the statutory words run only against the home-bringers of such Books the Books also are to be destroyed and warrand is given to Magistrats of Burghs with a Minister to intromet with them without hazard of spuilzie But yet de practica other Officers such as Sheriffs and Lords of Regality do intromet with such Books though they be not warranted And though inclusio unius est exclusio alterius and though the Act ordains a Minister to be present which was certainly apointed that it might be known whether the Books were Popish yet de praxi Magistrats use to intromet without having a Minister present I find no express punishment against other Hereticks in our Law nor de praxi are other Hereticks punish'd corporally but whether they may not be punish'd conform to the common Law and upon that general Act of K. Iames the First I will not determine As also it is ordinary to banish only Jesuits and sayers of Mass as was done December 9. 1573. Mr Iohn Robertson was banished by order from the Council he enacted himself under the pain of death never to return to Scotland V. The common Law or Doctors have introduced many specialities in the tryal of this Crime as first that less clear probation is admitted in proving Heresie then other Crimes Clar. § Haeresis num 20. And by an old Act of Sederunt socii criminis Women and Pupills are to be admitted with us to prove hearing and saying of Mass else that Crime could not be proved 2. A Heretick may be try'd after death Alber. in rubr h. t. which they say holds not only in a Heretick found guilty by probation Haereticus verus but in these who were cited to compear for Heresie but compeared not whom they call Haereticum praesumptum but this holds not with us no not in these who are guilty of Treason as being Traffiquing Jesuits or Papists for only Perduellion is by our Law to by try'd after death But though the Heretick cannot be punish'd after death yet his opinions may be condemn'd as Heretical even after his death TITLE V. Simony Baratry 1 What is Simony 2 How it
is probable 3 The nature and punishment of it in Scotland 4 Baratry Ecclesiastick 5 Baratry Civil SImony is the selling or buying any Church Office cupiditas emendi aut vendendi aliquid spirituale aut spirituali annexum So called from Simon Magus who offered to buy the Grace of God And the Canonists teach that it is Simony to paction for any advantage in administrating the Sacraments but not to take reward after they have administrate them II. In this Crime infamous persons whoors and other witnesses who are not habiles or at least who are not omni exceptione majores are here receivable cap. sicut de Simon because it is ordinarly carried on with much privacy and clandestine dealing for which reason likewise Lawyers conclude that it may be proved by presumptions It is crimen mere ecclesiasticum and cannot be punished by Laicks the punishment is depravation III. With us Simony is once mentioned and that is Act 1. Par. 21. Ia. 6. Wherein it is Statute that if the Arch-Bishop or Bishop deprehend that the person who is presented hath made any Simonaical paction with the Patron whereby he hath so hurt the Benefice as that he hath not reserved a sufficient maintenance for himself and his successors suitable to the value of the Benefice that the Bishop may refuse the presentation and the Lords of Session are declared to be Judges to any debates arising betwixt the Bishop Patron and Person upon that account From which Act it is observable 1. That it is implyed and tacitly acknowledged that Simony is a Crime by our Law seing this is punished as a Branch thereof and therefore I conceive that what ever is punisht as Simony by the Canon Law is punishable with us and that a Minister or other Benefic'd Person who bargains or transacts with any to get them a Church or Benefice and gives or promises Money therefore is punishable even by our Law 2. That by this Act a paction whereby the incumbent reserves to himself a competencie suitable to the Benefice is not Simony and what this conpetencie is is left arbitrary to the Judge because it is not determined 3. That this Crime is probable with us by Oath because of its clandestine convoyance as said is By the Stat. Eliz. 31. the person committing Simony is declared uncapable to enjoy that Ecclesiastick Office IV. Baratry is a kind of Simony Socinus reg 55. Bald. part 5. Consil. 21. which with us is committed by these who go to Rome to buy Benefices without licences from the Chancellor or their ordinar I. 1. P. 7. cap. 106. the pain of it is banishment and never to bruik honour or imployment for the future within the Kingdom This word comes from the Italian word Baratry which signifies corrupting of Judges for our Law presumed that these who went to Rome to get a Benefice designed to get it by corruption But though Baraters are called canpones beneficiorum by the Doctors as Craig observes pag. 371. Yet our Kings being of old very submissive to the See of Rome durst not directly at first forbid application to Rome but did only forbid the carrying abroad Money out of the Kingdom knowing that nothing could be done there without Money But thereafter this Crime growing greater the Parliament did by the 84. cap. P. 6. I. 3. forbid expresly the going to Rome to purchase Benefices or to be its collectors under the pain of being demean'd as Traitors and never to bruik Benefice or use Worship which is ratified by the 53. Act 5. P. I. 4. But though the punishment is that of Treason by these Acts yet by the 2. Act 1 P. I. 6. the punishment of Baratry is declared to be prescription banishment and never to bruik Honour nor Office within the Kingdom and all applications to Rome are punishable as Baratry This Act being after the Reformation And by this last Act it is declared that Baratry may be punisht either by the Justices or Lords of Session And upon this Act Iames Arch-Bishop of Glasgow was exauctorated after the Reformation for going to Rome V. The Sons of Noble Men and others passing to Schools beyond Sea's without the Kings Licence are also said to commit Baratry I. 6. P. 6. cap. 71. And the Council uses to ordain Noble Men who breed their Children abroad in Popish Schools to bring them home under a great fine as they did lately to the Lords of Mordingtoun and Semple in anno 1668. Before which Act also all Laicks going out of the Kingdom without consent of the King or Licence from the Chancellor committed Baratry I. 4. P. 5. cap. 53. And though Craig debates pag. 371. whether the punishment of this be the same with Treason because it is said to be punishable as Treason cap. 84. Pa. 6. I. 3. Yet it is clear that this punishment is restricted by the Act 2. P. 1. I. 1. To the being declared incapable of Trust and Banishment This Prohibition of Laicks going abroad was first at Carthage and is now in vigour at Naples and many other places And though it be now in desuetude at least is not punisht except in Privy Councellours Yet I see no reason why any should say that this Crime takes only place in Vassals holding immediatly of the King for the Act is general And yet Merchants are warranted by divers Acts of Parliament to Traffique abroad and so fall not under this Prohibition TITLE VI. Treason Laesa Majestas 1 Treason is divided by the Civil Law in Perduellion and Laese-Majestie 2 The differences betwixt Perduellion and Laese-Majestie 3 Treason with us may be divided in Perduellion Laese-Majestie and Statutory Treason 4 The nature of Perduellion or rising in Arms which is the first species of Treason 5 The second species of Treason is committed against the Kings Person 6 The third is the recepting such as have committed Treason 7 The fourth is to hold out Houses against the King 8 The fifth is to assail Castles where the King resides 9 The sixth is to raise a fray in the Kings Host. 10 The seventh is to trouble any who kills a declared Traitor 11 The eighth is to impugn the Authority of the three Estates 12 The ninth is to decline the King or Councils Authority 13 The tenth is to conceal and not reveal Treason 14 The eleventh is to desert the Kings Host. 15 The twelfth is to deny the Kings Prerogative in having the sole power in calling and dissolving Parliaments 16 How the killing Counsellors is punishable 17 The several branches of Statutory Treason 18 To accuse any man for Treason if the accused be assoilzied is Treason 19 Treason is not Baleable 20 Summonds of Treason ought to be execute by Heraulds 21 Whether less probation be sufficient in Treason then in other Crimes 22 Treason may be pursued after the Committers death 23 Traitors may be forefaulted in absence 24 How disobeying the King is punishable 25 The punishment of Treason in general UNhappy
by imprisonment during life forfeiting of goods and of the profit of Lands during life For this Crime the Earl of Morton was execute by King Iames 6. for having conceal'd the design'd death of King Henry his Father And it may be doubted whether concealing be Treason where the King is not in a condition to repress or punish the Treason that is intended for there the end of revealing seems to cease which is information in order to resistance It hath been likewise doubted whether the not revealing Treason was punishable where the Treason was design'd by the Prince or Queen But since they are likewise Subjects and may commit Treason therefore there can be no doubt but it is Treason in any others to conceal their treasonable designes XIV The eleventh point of Treason is to flee from his Majesty or his Lievtenant which is not extended only to such as are sworn to Collours but even to such as are warned to and do attend the King's Host vid. tit the jurisdiction over Souldiers XV. The twelfth point of Treason is to deny his Majesties having the only power of calling and dissolving of Parliaments Act 3.1 Parl. Ch. 2. XVI By the common Law it is Treason to kill any of the Princes Counsellors because they are a part of the Princes own body l. quisquis C. h. t. But with us the pursuing or invading any of the Session Secret Council or any of his Majesties Officers for doing his Majesties service is only punishable by death but not as Treason Act 4. Parl. 16. Ia. 6. By Officers here are meant only Officers of State else it might be extended to Messengers And I heard it resolved that this Act extended not to such as invaded the Lyon And these words Any of the Session are not extended to Advocats Clerks Macers or any else besides the Lords as is clear by the narrative of the Act. But I think the quality adjected that they were invaded for doing his Majesties service may be proved by circumstances and presumptions as if a pursuer who had lost a Cause should invade the next day a Lord who had voted against him And the words This being verified and tryed import so much But the Stat. Edward 3. is much more clear making it Treason to kill the Officers therein mentioned only viz. Chancellor Thesaurer chief Justice of either Bench or any Judge of either Bench sitting in Judgement only and from this Statute of our Neighbouring Nation we may argue that the killing none below a Lord of Session should infer the punishment of this Act. The killing a Member of Parliament is not in England Treason though the Parliament be a higher Judicatory then any exprest in the Act. And Cook tells us that they allow not argumentum à fortiori to infer Crimes And with us the killing a Member of Parliament would not infer death by this Act since they fall under no qualification therein specified In England killing Officers falls only under the Statute but with us invading or pursuing them is death though it take no effect Quaritur If to invade them when they are out of the Kingdom would fall under the Statute since they are not under that character elsewhere Or if he who invaded them during their being suspended would fall under this Act since during that time they retained the character and the exercise is only suspended And it is resolved by the Doctors that a Statute punishing such as invade Magistrats is only to be extended to such Magistrats as are once admitted but not to such as are only named or elected for such Statutes are extended in gratiosis yet they are restricted in such odious points as thir Cabal cas 148. Treasonable words vid. t. Injuries and Libells XVII The third branch of the division is Statutory Treason which comprehends under it several other points of Treason which because they relate to other Crimes therefore I shall also refer the Reader to these Titles wherein these Crimes are principally treated of But it will appear by these Acts that these Crimes are not declared to be Treason but only to be punishable as Treason and therefore these Statutory Treasons have not at all the other priviledges competent to Treason as that they may be proved by Women alios testes inhabiles or that he who accuses in these will commit Treason if he prove not his accusation Thus wilful Fire raising is Treason Ia. 5. Parl. 3. cap. ultimo Theft in Landed-men is Treason Ia. 6. Parl. 11. cap. 50. vid. tit Theft Murder under trust is treason Ia. 6. Parl. 11. cap. 51. vid. tit Murder sayers of Mass Jesuits trafficking Papists and their resetters commit Treason Ia. 6. Parl. 12. cap. 120. vid. tit Heresie To buy or bring home poyson is treason Ia. 2. Parl. 7. c. 31. vid. Poyson Thieves who take leill men upon Bond to re-enter them commit treason Ia. 6. Parl. 1. cap. 21. But though this Act speaks generally of the taking of any Scottish-man yet it may clearly appear by the narrative and the whole strain of the Act that the same strikes only against such Thieves as kept correspondence with the English and took Scottish-men prisoners into England But custom hath interpret this otherwise for Duncan Macgrigor was 15. Iuly 1643. convict and hang'd as a traitor for arte and part of taking Iames Anderson and Iohn Mackie and the taking of Captain Cairns found relevant as an Article of Treason against Assint To usurp any Prelats place after his decease is likewise treason Ia. 5. Parl. 7. cap. 125. XVIII This Crime hath in it many specialities wherein it differs from other Crimes As first He who accuses any man for treason doth incur the pain of treason if the defenders be acquit which is occasioned as the Act bears because of the odiousness of treason But since the the Act sayes expresly that this shall take place where the party calumniat is called accused and quit of the Crime of Treason therefore it may be inferred that though the pursuer raise Summonds of treason and should pass from the same before the Pannel go to the knowledge of an Inquest that eo casu though the pursuer might be punished poena extraordinaria yet he could not be punished as a traitor It may be likewise doubted if this holds in Statutory Tâ—eason as Theft in Landed men c. And since the reason inductive of that Act is the odiousness of treason it would appear that this rigid Law should not take place in these points of treason which are not so odious of their own nature Another speciality in treason is that it can only be tryed by the Justices Reg. Maj. lib. 1. e. 1. v. 1. and that because of the Kings immediat interest since it is not presumable that the Fiscal in Inferiour Courts would be as careful as his Majesties Advocat who cannot appear there and because of the intricacies and great consequence of that Crime but it may be
other instances of this I shall only cite Robert Lauder who was only banished for theft and pickry anno 1638. but theft joyned with violence and rapin stouth-reif is atrocious 2. It is observable from that text that in crimes that are not atrocious per argumentum à contrario obedience to the husband excuses the wife VI. It is statuted v. 9. that servants are obliedged to reveal their masters theft else they are guilty From which it may be debated that a servant who left his masters service immediatly though he was in company with him at the coÌ„mitting of theft is not punishable for his being in company since he might have been brought upon the place without knowing his Masters design and being there durst not to have refused concurse upon such accompt I saw some servants Assoilzied by the Council from death they having left their Masters service as said is though they revealed not the Theft which they might have omitted either through fear or want of probation VII Recept then is punished as Theft which must be meant only of immediat recept for the mediat sellers of goods belonging to thieves or inobedient persons who dare not come to Mercat themselves are only punishable by banishment and confiscation of their moveables the half whereof is to belong to the King and the other half to the Suiter And from this act may be raised these two doubts 1. If this act should strike against the receptors of any other goods then these of Highland Thieves seing the act speaks of thieves who cannot come themselves to Lowland Mercats whereby the acts made against Sornars of Clans cannot be put to execution yet surely this Act strikes against all sellers of goods belonging to any thieves seing the reason is the same Theft being thereby promoved and the statutoâ—y words run disjunctively against the Sellers of goods belonging to Thieves in general ubi lex non distinguit nec nos or inobedient persons and Clanns 2. It may be doubted if this act should reach the sellers of goods belonging to any other Malefactors seing the Rubrick speaks generally of sellers of goods belonging to Malefactors And some think that if any Malefactor be at the Horn the sellers of his goods may be punished by this act TITLE XXI Hame-sucken 1. What priviledge the Romans gave to a mans own house 2. What is Hame-sucken and the several kinds thereof 3. The punishment of this crime 4. How Hame-sucken is punished when it is only pursued by way of aggravation BY how much the person offended lives securely by so much all invasions made upon that security are the more severely punishable and therefore seeing a man expects more security and is least guarded against violence whilst he lives peaceable at home the Law punishes more severely injuries done him there then elsewhere and it is very presumable that no person would enter anothers house with a designe to offend him or would offend him there upon any accompt except he who had very much malice and prejudice against him For by injuries committed against a person in his own house not only the publick peace but even the Lawes of hospitality are offended I. According to the Civil Law no man could have been drawn out of his ownhouse nor could have been cited therein l. ff 18. de injus vocando plerique putaverunt nullum de domo sua injus vocare licere quia domus tutissimum cuique refugium receptaculum est eumquequi inde in jus vocaret vim inferre videri But I believe the reason of this Law was because vocatio in jus was at that time used not by a simple citation as now but obterto collo and by dragging the defender to the Court. For else it is not imaginable how the citing a person at his house could infer violence or ryot against the citer but though this Law is now so farr antiquated by custom that any person whatsoever may be cited in his own house and may be violently drawn forth thereof by Captions in Civil cases and warands in Criminal Yet so pungent is the reason insert in that Law that domus cuique tutissimum refugium atque receptaculum est which is likewise repeated l. 1. C. de pretor honor pretor That it being joyned with the former reasons above expressed hath introduced that by the statutes of the greatest part of the world gravior estimatur injuria alicui facta in domo sua quam alibi ideo ut plurimum duplicatur paena malificii commissi in domo offensi Cabal consil criminal casu 13. Which is likewise consonant to the Civil Law whereby of old the entering another mans house invito domino was punishable as a crime l. Corn. de injuriis and thereafter was punishable actione injuriarum l. 23. ff de injur II. The invading a person in his own house with us is called Hame-sucken and is defined to be when any person violently enters into another mans house without licence or contrary to the Kings peace or seeks him or assaults him there and comes from a Dutch word Haime which signifies a house and Sucken which signifies to seek or pursue Concerning which crime it is observable That 1. It either may be pursued as a seperat crime or as the aggravation of another crime when it is pursued as a formal crime the pursuer must Libel that he was invaded violently or sought after in his own house for if the offender did come in upon invitation or accidentally and thereafter upon an emergent offended or invaded the Master of the house this is not properly Hame-sucken seing the offender did not invade or sease 2. The wrong must be done to a person in his own house that is to say where the pursuer was staying lying or rising night and day Reg. Maj. l. 4. cap. 9. v. 1. Upon which place Skeen observes qui insultum fecitjuxta domum hac lege punitur Bartol in authent de appell § ad haec And I find that Clar. quest 82. determins that a Statute which doubles the pain of invasion when the invasion is made in the house of a Judge or Magistrat takes place not only against invasions made in the house it self but likewise made in the confines thereof And Albericus de statutis l. 2. quest 35. extends to crimes forbidden in places to crimes committed within the confines thereof which though it be contradicted by Vincen. de fran decisione 402. Because rigid and special Laws are strictly to be interpret yet I think that if the invasion was made in any place that properly belonged to the house such as the Porch Court Inner Court or Office-houses that invasion should be punished as Hame-sucken because a man is said to be at home there and expects as much security there which is the reason inductive of the Law as any other else And thus the ordinary form of Libels with us bears that the pursuer was invaded within his dwelling house
as they think fit And this is very fitly made a crime because it is absolutely destructive to the conveniency of the people But because this as all designs are a latent act of the mind and so is hard to be proved where the Fore-stallers have not entered into a Society therefore this guilt is quo ad this qualification and design inferred from presumptions as if a person should offer to buy all the Salmond in Scotland and deal with all persons who have any to sell that they should not sell to any other 2. If any of these universal buyers should give extraordinary prices which is presumed he would not do but upon some design 3. If he should boast that none else had that Commodity to sell or such other words as might be ground for a Judge to infer the design yet it may be doubted here if the universal buying of any of these Commodities in order to a forraign transportation and where none of them are vended at home within the Countrey can inferr the Crime of Fore-stalling seing strangers are only prejudged by hightening the prices in that case But seing the Countrey would be likewise thereby prejudged by being absolutely deprived of that Commodity certainly the guilt will be extended even in that case which will hold likewise in strangers who buy up the Commodities of the Countrey upon that design who may be likewise therefore punished within the Countrey where they commit the guilt being lyable to that Jurisdiction ratione loci delicti IV. The second kind of Fore-stallers is of these who buy any Goods coming to Mercats before they come to the publick stall or place where they should be vended and this is the reason of the denomination And the reason why this is made a Crime is because Mercats being institute for the good of the Common-wealth every thing by consequence behoved to be discharged which is absolutely destructive to it and the buying any thing before it come to the Mercat is such But it may be doubted here whether Commodities may not be bought by Merchands in publick Burgh though they be going to the Mercat of another publick Burgh As for instance if a Merchand in Burntisland may not buy Skins there from one who sayes he is carrying them to the Mercat of Kinghorn And if this were not allowed it would occasion much trouble both to sellers and buyers 2. It may be upon the same ground doubted if one may sell finding that he is not able to stay to a Mercat day which it may be will be but once in a week in some places As to which difficulty my opinion is that these can only be accounted Fore-stallers against whom something of design against the common good can be proved As if the Burgesses of one Town should be proved to have entered into a Contract to buy up the Commodities which were going to another adjacent Town or should stand in the way every Mercat day upon deesign to buy up the Commodities that were going to the next adjacent Town And I know this to have been the opinion of some learned Lawyers in a case betwixt the New and Old Towns of Aberdene but to make that the buying of things generally before they come to a Mercat should infer a Crime were most hard and inconvenient And because the design is the great thing to be look'd to non effectus sed affectus therefore both the Act of Parliament and Criminal dittay in this case speak only of Fore-stalling and Regrating for by the doing any thing of this nature commonly and frequently animus delinquendi is most probably inferred And by the same reason I conclude it probable alwayes for the defenders in this case to alledge by way of exculpation that what they did was done either ignorantly or necessarily or generally alio animo quam delinquendi v. g. If one in Burntisland were pannel'd for buying Skins that were coming to the Mercat of Edinburgh he might alledge that being oblieged under a failzie to deliver such a number of Skins betwixt and such a day that therefore he was necessitate to buy â—hefe Or if any were alledged to have bought Stockings that were coming for a Mercat he might alledge that he bought them for his own use or that he knew not there was a Mercat upon the place And I conclude generally that the buying any thing for our own privat use makes not the buyer in no case culpable of this Crime since he does that tanquam qui libet non tanquam Mercator and Fore-stalling is a Crime in Merchandizing V. The third degree of it is the advising these who are to sell to hight the price or the disswading the sellers to come to any particular Mercat VI. The fourth is the buying Commodities in a Mercat of design to sell the same again in the same Mercat or in any other Mercat within four Miles thereof VII All which species are expresly enumerat Cap. 20. Parl. 4. K. Ia. 5. By which the punishment is appointed to be imprisoning of their persons and the Escheating of their goods bought and sold the two part thereof belongs to the King and the third to the Sherriffs or other Judge by whom they are condemned From which Act it may be concluded that any Judges are competent to punish Fore-stalling albeit of old the Chamberlain was in his chamberlain air the proper Judge of Fore-stallers as is clear by the Chap. 35. st K. Wil. vid. cap. 78. leg burg And in the 143. Act Par. 12. K. I. 6. where the punishment is ordained to be 40. Pound for the first fault 100. Pound for the 2 And Escheat of all his moveables for the third I find several persons convict of this crime as Cairncrosse and others 9. Iune 1596. Anderson 12. Iune Young and others 11. of Iune that Year And Halyday 6. August 1596. But I find no punishment to have followed in this or any other case Though this crime cannot be said to be in desuetude seing thre are some instances of it Yet mitius puniri debent Because these cases are so few and no punishment has followed upon them I find it was alledged for Young 11 Iune And Halyday 11. August foresaid that the Lybel was not relevant not condescending upon the persons to whom the goods Fore-stalled were sold nor the place nor time which was repelled because Fore stalling was unlawful in all places and all times But certainly this reply was not relevant for else neither time place nor person needed be condescended on seing these are still unlawful at all times But I think the true reason why it should have been repelled was seing common Fore-stalling and Regrating was libelled which is nomen habitus and not founded upon any particular Act and therefore the particular Acts needed not be libelled though even in this case they must be expresly proved But certainly sometimes the time and place is necessary as where it is Libelled that goods were
sum and so was no more debitor and could expect no advantage and so the fear of perjury ceased And as to the foresaid seventh Act It was answered that it was only made not to exclude the debitor absolutely but to correct the 257. Act 15. P. K. I. 6. whereby the Oath of Party was declared to be receivable as decisive of the cause As to other witnesses our ordinary distinction is that pactions in Usury are either extrinsick to the Bond or writ as are the taking Bud or Bribe for continuing a Sum and these may be proved by any witnesses albeit by the foresaid 7. Act. It is said that Usury shall be proved by the Oath of the Party and witnesses insert But pactions which concern the writ it self as that whereby more is promised then is contained in the bond these cannnot be proven but by the Witnesses insert for else writ might be taken away by Witnesses As to oath of Party it is ordained to be taken by the former acts against the common rules of Law by which nemo tenetur jurare in suam turpitudinem And the Justices accordingly do force the Pannels to swear as in the case of Wilson above cited But it may be doubted if this act should not extend only to Civil and not Criminal cases For that act sayes that litis-contestation being made it shall be lawful to receive But so it is that there is no litis-contestation in Criminals go This Act cannot be extended to these cases VII Usury was allowed by the Civil Law as the proper product or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecuniae but by the Canon Law it was punished and most Lawyers think it may be punished criminally Decius Consil. 130. And it is called crimen utriusque fori because it is punishable Civilly and Ecclesiastically The pain of Usury with us is That the debitor shall be free from his obligation or have back his pledge or if the debitor conceal then the revealer shall have right to the sums Act 222. K. I. 6. Par. 14. And by the 248 Act P. 15. K. I. 6. It is appointed that the Usurary Bond or Contract shall be reduced and being reduced the sums shall belong to His Majesty or his Donator and the Party to have repetition of the unlawful Annualrent payed by him in case only he concur with the Donator in the reduction TITLE XXV The Dribing Partiality and Negligence of Judges 1. What is bribing by the Civil Law 2. What by our Law and how our Law punisheth it 3. Crimen repecundarum Barratriae 4. Whether Arbiters Deligats or Assessors be punishable for taking Bribes 5. How negligent Iudges are punishable IT is to no purpose to make good Laws if the execution of them be not committed to just and diligent persons as it is to no purpose to have an exact ballance if that ballance be not put in a good hand and therefore as the Law hath been very liberal of its priviledges to just Judges and severe in punishing such as offended them so it hath punish'd with the same rigour such Judges as transgress either by bribing negligence or partiality which are three distinct species forbidden by the common Law and ours I. Bribing is the taking of money or other good deed either for doing of justice or committing of unjustice There are indeed some Lawyers who think that a Judge taking money in a Civil Cause to do justice doth not thereby commit a Crime but is only lyable to restitution Menoch 2. Arb. 342. n. 6. but this is expresly contrary to sound reason since if taking upon any terms be allowed the Law may be eluded and Judges will be thereby tempted not only to take bribes but to take pains to justifie what they have done but yet I think that this opinion is neither proved per l. 4. ff de l. jul repetund For there it is not only said non excipiet quo magis aut minus quid ex officio suo fecerit which prohibits only an excess in justice and not the doing justice for money nor perl 3. c. eod since that Law doth only in the general forbid the taking of money but this is expresly forbidden l. 2. § 2 ff de condict obturp caus where it is declared a Crime but the punishment there seems only to be litem suam facere and Skeen ad Stat. 25. Wil. says that non licet judici vendere judicium justum II. By our Law the Kings Judges were to those an Assize upon what they had done as Judges and if they were convict they were to be punished by the King and his Council according to the measure of their fault Cap. 13. Stat. Rob. 2. and the Judges of inferior Courts such as Regalities were to those an Assize before the Justices and if they were found either culpable or remiss they were to escheat their moveables and their life to be in the Kings will or in the will of the Lords of the Regality cap. 14. ibid. And by the 26. Act Ia. 3. Parl. 5. a Sheriff or any other Officer of Fee that is to say any Heritable Officer is to be put from his Office for three years if he be found partial and an ordinary Judge if he be found partial loseth his Office forever And though his person 's being punished at the King's will and the paying of the expence of the party injured be only added to the punâ—shment expressed against a Judge who is not Heritable yet I conceive that being added in the last place it is applicable both to the Heritable Judges and others Likeas it is observable that though by all these Acts the King and His Council are only exprest to be the Judges competent yet de practica the Justices are Judges competent if partiality be committed in any criminal cause as for instance if a Sheriff should execute any Pannel upon a Crime proved only against him by the pursuers brothers or other inhabile witnesses or upon a Libel which were palpably irrelevant in these and in such other criminal cases the Justices and not the Council would be only Judges competent nor is partiality in civil cases a Crime by our Law though it be punishable by this Act paena arbitraria and by resounding of the dammage sustained by the pursuer The foresaid Laws strike only against partiality in general but bribing is expresly discharged by the 25. Chap. Stat. K. William but there is no punishment there exprest and therefore Skeen adds in his observations the punishment of l. 1. cum aut hent c. de paen judic And thereafter by the 22. Chap. 1. Stat. Rob. 1. all Judges are forbidden to take Land or any thing else to Champart either for giving deferring or prolonging of justice and the offenders are to be in the Kings will and to lose their office for all their life Champart is a French word signifying part du champs a part of any Land so that by a Metaphor the taking any part of the
word may comprehend negligence is to be put from his office for three years if he be an Heritable Officer and if he be not Heritable he loses his office Which distinction I find also observed by Bald. ad l. manicipia ff de serv. fugit where he says that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo and Farin Q. 3. n. 423. is of opinion that majores officiales non removetur sed minores facile removeri possunt TITLE XXVI Deforcement 1. To whom was the execution of Law committed by the Romans and to whom by our Law 2. What is Dâ—forcement and what are the several degrees thereof 3. The Messenger must have his Blason and give an execution of Deforcement 4. Whether may a Messenger be deforced who wants his Caption or transgresses his power 5. What witnesses can prove a Deforcement or if the Messengers execution can prove it 6. These who deforce may be pursued Civilly for the debt LAws are only the idea or picture of Justice but execution is its life and though those who have the execution of Laws and Sentences committed to them be ranked but amongst the lowest servants of Justice yet they have the happinesse to be these who compleat that great work and amongst whose hands it becomes perfect and therefore the Laws having committed its most excellent part to them it should be and is in a most eminent way careful of them and in providing for their safty it secures its own honour I. The execution of sentences was committed amongst the Romans to the apparitors mention'd of the Codex in three several Titles and these were erected in a Colledge which was stiled collegium or familia apparitorum as our Heraulds are in a fraternity by the 125. Act. Parliament 12. K. I. 6. The Italian Doctors call them now Beroarii so that these who would know what the doctors hold in cases of deforcement must look to the Indexes at these words According to the Roman Law it was a species of laesae-majestie to resist the execution of sentences l quisquis ad l. Iub majest l. Iulianus ff de officio ejus cui mandata est jurisdictio and Guid. Pap. quest 557. observes that from these Laws does rise the practique of France qua puniuntur capitaliter verberantes apparitores in exe cutione officii nam qui mandata principum exaequuntur videntur vivae principium imagines ac adeo graviter puniri debent ac injuriantes Statuas principum With us the execution of sentences is committed to Heraulds Pursevants Messengers Macers and the execution of sentences of inferiour Courts to the respective officers of these Courts and the resisting beating or wounding of these in the execution of their office is in our Law that Crime which we call Deforcement Leg. Burgal cap. 135. II. Deforcement then is defined to be that Crime which is committed in opposing Macers Messengers or any others who use to execute sentences whilst they are executing their office And upon that accompt so that if either the Officer was not in execution of his office or if the Officer be beat upon any other accompt as if a scuffle should arise occasioned unjustly by himself this would not infer a deforcement as shall be said hereafter Though this crime be amongst the most attrocious because the King and Soveraign power is in their person despised and therefore this crime is called Dispectus Regis stat Williel cap. 4. verse 5. And Justice is after much pains taken by the Judges and expences layed out by the Parties disappointed yet it is only punished by confiscation of moveables and an arbitrary imprisonment and the one half of the Moveables so escheated falls to the King and the other half to the Party at whose instance the Letters were execute I. 6. P. 12. cap. 150. The words whereof are If an Officer of Armes or Sheriffs in that part or other person whatsoever be deforced molested invaded or pursued to the effusion of their blood by any person or persons whom they shall Summond or others of his causing and command the time he is executing of any Summonds Letters or Precept direct by His Highnesse or other Judges that he shall loss c. From which Act it is to be observed 1. That Deforcement is committed by troubling of any Officer belonging to any Court 2. That those words to effusion of their blood seem to be a quality put in a sentence by it self and so may be thought to relate to all the former words molested invaded or pursued yet the words of the Act are only wrong pointed and these words or pursued to the effusion of their blood should all be put in one sentence for de practica simple opposing or molesting the Messenger though without blood will infer a Deforcement 2. Though by the Act it would seem only these against whom Letters and Charges are raised or such as they hound out can be guilty of Deforcement yet if any others do deforce a Messenger though they be neither the parties interested themselves or hounded out by them yet they are likewise guilty of Deforcement As is clear by the 4. cap. stat Williell vers 1. And by the 84. Act 11. Parliament K. I. 6. And seeing the crime lies in the opposition to the Messenger whoever is guilty of that act commits this Crime 3. Though this act make only causing or commanding a crime yet certainly if any person interested does ratihabit the Deforcement committed by any other person by either giving him good deed or by receiving his Letters or Blason taken from him he is eo ipso guilty of Deforcement As the Council found in the case of the Earl of Seafort against the Lord Mackdonald anno 1669. upon full debate In which 〈…〉 lords in the Highlands should be lyable for deforcement committed upon the grounds if they did not deliver up the offenders 4. Though the execution be disappointed and stopped yet is declared by the Parliament to be as sufficient as perfected and it were unjust that the party having done all that in him say that the disappointment eo casu should be prejudicial to him 5. Seing the punishment of this act is only confiscation of Moveables and imprisonment whereas by the Act 84.11 Parl. K. I. 6. The lives and goods of the offenders were to be in the Kings will It may be doubted whether the Judge may punish by either of the Acts seing the last does not expresly abrogat the first or whether both should stand in vigour and force Concerning which question the general Lawyers have very many learned debates but the most solid and approven conclusions are that when a crime is punished by several pains in several Laws or Acts which Acts do not derogat one from another expresly that it is in the election of the Judge to punish the delinquent by either of the pains l. quoties ff de actionibus obligationibus But
the Judge making election of one of the pains cannot thereafter make use of the other l. ff senatus de acusationibus vid. Cabal resol criminal cap. 3. where this general question is fully handled and to the considerations there adduced by him I would adde this that where there are several punishments appinted by Laws whereof the one derogats not from the other that the Judge should follow that of the two which is most in use And therefore seing Confiscation of moveables and imprisonment is alwayes used in this case that punishment should be certainly followed by the Juge for since custom may antiquat Laws and is a warrand for a Judge to proceed criminally where there is no Law it should much more determine betwixt two Laws which of them should be followed But there is the less difficulty in this case that none of the acts makes deforcement to be capital And these words that their lives shall be in the Kings will do not infer de jure the pain of death as is elsewhere fully debated but it may be doubted if their persons may not likewise be punishable seing not only by the former act are their lives to be in the Kings will but likewise by the seventh Act 17. Parliament I. 6. It is declared that deforcement of Officers shall be punished by the escheat of their moveable goods and punishment of their person according to the Laws of before So that there is geminatio legum which makes the Law much stronger And I remember that some Sea men in Bruntisland having rowed off their Boat when the Customers Officers were about to poynd some unfree goods bought out of Captain Dewars Ship by rowing off of which Boat the Messenger who was to Poynd fell in the Sea The Commissioners of the Thesaury did summarly in Iuly 1669. ordain the Sea-men to be whipt which was accordingly done III. Messengers have as the Badge of their Office a Blason bearing the Kings Armes and a Wand of Peace if they bear not the Blason it is believed and that is the first objection against the conception and relevancy of the Lybel they may be deforced because by that act only people are obleidged to know that they are Messengers and the Wand of Peace is that whereby they touch a Rebel and declares him to be their Prisoner and when they are deforced they use to break the Wand of Peace but though their Libel bear alwayes that the Wand of peace is broken yet if the troubling of the Messenger be proven though this quality be not proven the assize will still find guilty as was found in the case betwixt Murray and French 13. Iuly 1669. where it was likewise found that albeit ordinarily the Messenger who was deforced doth give in with his Libel an exemption of deforcement wherein after the ordinary form he relates how he execute the Letters and how and by whom he was deforced yet that execution is not absolutely necessary for proving the deforcement but that the deforcement may be proven by witnesses for else there could be no deforcement if the Messenger were killed so that he could make no execution or if he were bribed by the deforcer and so would give none but that an execution of deforcement was only necessary to the effect the Letters might be repute as validly execute as if they had been really execute It uses sometimes to be alledged against the relevancy of the Libel in this crime that the Libel is not relevant because it bears not that the Messenger had the letters of Caption in his hand and shew them to the Party whom he apprehended be vertue of that Caption for without seeing of the Letters the Party is not obliedged to obey and if it were otherwayes any man might take a free Liedge and keep him till he should get a Caption though he had none at the time of the execution But upon the 19. of February 1672. Gordoun of Braco was found guilty of deforcement though the Messenger his having a Caption was neither libelled nor proved and that because the Rebel did not crave to see a warrand and the Messenger was answerable if he did execute without a warrand Neither did the Lords think that the Messenger was bound to put the warrand in the Rebels hands left he should destroy it But he was bound to shew it to any disinteressed person who was present In the same Process it was likewise found that a Messenger might execute a Caption under silence of night though it was pretended that this might give a colour to Robbers to enter in to honest mens houses under night upon pretext of executing of Captions though Poyndings indeed cannot be execute after the Sun is set because a Poynding is a sentence and requires formam judicii and no Court can be kept under silence of night Some Judges ordain Officers to take Raes from a Mast and arrest Ships without a written order the haste of the executâ—on so requiring and therefore I think that though such have not a written warrand they cannot lawfully be opposed for it is the duty of all good Subjects to enquire first if he who pretends to have authority have it already though he see no written warrand but not rashly to oppose what may be lawful Another ordinary objection against the Libel is that the Messenger and his assisters did transgress their power and warrand and so it was lawful to resist them and thus upon the 18. of Novemb. 1667. Mr. Archibald Borthwick being pursued for deforcement it was alledged that he compeared as Procurator for the Lord Borthwick who had arrested Sandilands and the Tennents Corns as Master of the Ground and so alledg'd the Messenger could not poynd the Corns till the Master was payed wherein the Messenger did unjustly and so he had good reason to stop the poynding This alledgiance was found relevant but if justly it may be doubted And Lawyers are very positive that no man can stop any execution upon such pretence of unjustice where the unjustice can be no otherwise redressed by appellation or otherwise which they call resistentia licita per subsidium Menoch de recup possess remed 8. num 30. 31. Cabal resol crim cas 132. And their opinion seems most just for it were dangerous to make private persons and such also as are interessed Judges to the justice of what is done against themselves 2. Nunquam recurrendum est ad remedium extraordinarium quamdiu locus est ordinario but so it is that if a Messenger do any wrong in the execution of his Office he is lyable therefore ad damnum interesse and finds caution for that effect to the Lyon at his entry 3. Messengers are Judges in poyndings and it is not lawful to resist Judges upon pretence that they judge unjustly And this suggests to me another distinction which is that either a Messenger or Executer doth wrong the party interessed via juris as in omitting formalities and repelling
within degrees defendant to the party were received witnesses even where the pursuit was pursued by their own friend 13. Iuly 1669. Murray against French Upon a new pretext that brothers and servants c. are habil witnesses where they are testes instrumentarii and witnesses in executions are testes instrumentarii but in my opinion there is a great difference betwixt these two for the reason why testes instrumentarii are received though they be otherwayes in habiles is because they are chosen of common consent of both parties who are present at the subscription but that cannot be alledged in such as are witnesses in executions who are only chosen by the Messenger himself After this crime is proven the ordinary verdict is The Assize finds the Pannel guilty of Deforcing such a Messenger But yet where the Assize find only the Pannel guilty of troubling the Messenger in his office and would not find him guilty of deforceing The justices finds these termes to be equivalent and punished the Pannel as a deforcer in the case of Robert Herris Iuly 1667. VI. The party deforced has beside this Criminal action a Civil action for deforcement against such as have been accessory to the deforcement for payment of the debt which debt is ordained by the 117. Act 7. Parl. Ia. 6. to be payed together with the modification of his expences out of the first and readiest of the deforcers escheat And it is declared that he shall be preferred to the King From which Act these two doubts may arise 1. Since by the Act it is declared that the persons convict of deforcement shall be lyable for payment of the debt by this Civil Action that therefore this Civil Action is not competent until the Parties pursued be first found guilty of deforcement But yet it was found the 25. of Iuly 1663. in the case of David Mitchel that the party injured might pursue either Civilly or Criminally and that this priviledge was introduced by that Act as a further advantage to the party deforced but because this Action was founded upon a Criminal ground therefore they ordained the deforcement to be proved by most unsuspect Witnesses The second doubt is whether by this Act the deforcers other Estate be lyable to this Action as well as his Moveables And though it may be urged that that Act appoints only the Creditor to be preferred to the King and to be payed out of the first end of the deforcers Moveables Yet it was found the 13. of December 1672. in this case Murray against French that this Act did allow Action for payment simpliciter For the Lords thought that the Act did in the first place ordain payment of the debt and expence that the preferrence was a new superadded priviledge And it were against all reason that the Creditor should be frustrat of his Action because the Deforcer had no moveables though he had an opulent heritable Estate In this case it was likewise found that the Party deforced might pursue either ad vindictam publicam Criminally or might pursue Civilly this Action for dammage and interest and that the one Action did not consume or exhaust the other And therefore though the Pursuer here had prevailed in a Criminal pursuit against this Defender quo ad vindictam publicam that yet he might pursue this Civil Action for dammage TITLE XXVII Falsum Falshood 1. The several species of Falshood by the Civil Law 2. The producers or users of false Writs commit Falsehood 3. The punishment of Falshood by our Law 4. The Lords of Session are only thereto in the first instance 5. The Lords proceed in the tryal of Falshood either summarly or by way of action 6. The direct and indirect manner of probation 7. After the Writs are improved the forger is remitted to the Iustices 8. False witnesses how punished 9. False Coyners how punished 10. False Weights how punished 11. The assuming a false Name suppositio personae falsae how punished FAlshood is by the Civilians defined to be a fraudulent suppression or imitation of Truth in prejudice of another it was by them divided in falsum quod ipsa lege Cornelia vindicatur quasi falsum quod senatus-consulto constitutiâ—nibus vindicabatur Matheus hoc tit But suitable to our practice I shall divide Falshood in these four Branches 1. That Falshood which is committed in writ 2. That which is committed by witnesses 3. The forging and falsifying of Money 4. The using of false weights and measures I. As to the first Branch he commits Falshood who either expresseth in writ that which was not done or omits to expresse that which was done So that Falshood in writ may be committed either in commission or omission Falshood is committed by commission either by fabricating a false writ or by signing it or causing another sign it qui instrumentum falsum dolo malo scripserit signaverit vel signare curaverit recitaverit mutaverit subjecerit amoveritcelaverit deleverit interleverit resignaverit all which species of Falshood are enumerat by Ulpian leg 2. ad leg Cornel. 9. § penult l. paulus Cod. ad legem Cornel. de falsis which are prettily exprest but much more fully l. 2. Basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In these termes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with which Theophil differs much inst § 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the punishment of Falshood was very different according to the several kinds and degrees of guilt as will hereafter appear II. Falshood in writ is committed by producing a false writ if they know it to be false which some Doctors think punishable only if the writ produced by them was suspect and it is said to be suspect if either it appear vitiat by occular inspection or if the writer or producer used to produce false writs or if it contain things that are improbable The user of false writs is said to commit Falshood l. majorem Cod. de fals which only holds if he knew the writs produced by them to be false and therefore Clarus relates a caution used by the practitioners which is that the user of the writ gets a dyet affixed to him to deliver at if he will abide thereby and at the day affixt he must either simply abide thereat without any qualification quo casu if it be improven the user is punished as a forger Albeit the Doctors commonly are of opinion that even in that case the user is to be more meekly punished then the fabricator Paena foilicet relegationis which caution is likewise in use with us but in this we differ that by our practique the user will be allowed to abide by the writ though not simply as a writ true yet as a writ really made over to him and in the forging whereof he had no interest as in the Earl Levins case 1665. but though this qualified abiding at the writ be allowed in an Heir or singular Successor yet that it is only allowed where there is some
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
sine juramento est perjurii reus Nor is a person deponing for the information of the Council oblieged before an oath be administrat to consider what she is deponing as lyable to the certification of Perjury and if it were otherwayes there needed no oath be administrat so that before the administration of an oath the deponer being neither a witness nor sworn can neither be guilty of perjury nor false witnessing much less can she be guilty of perjury in having deponed falsly which is a complicated crime made up of perjury and falshood 3. She is but one single witness and so could not have prejudged by her testimony the persons against whom she deponed semper perpendendum est damnum quod ex perjurio resultat Carpz quaest 46. n. 47. Likeas here she retracted her own deposition her self before any pursuit was or could be intented against those Gentlemen and that she deponed was the result of the confusion she was put in by her appearance before the Council being a young Girle not exceeding 18. so that her age and sex should excuse her si quis calore iracundiae aut forte lingua lapsus aut praecipitatus perjurium commisit ei eo casu ignosci debet Rens lib. 3. decis 2. And there is nothing more natural or less dangerous then that a guilt arising from a deposition and meer words should be taken off in the same way especially before any person be thereby prejudg'd as in this case 4. This Libel could not be warrantably founded upon the Act of Q. M. which punish'd only perjury committed in marrying two wives but no other species of perjury To which it was answered that as to the first defence it was not relevant since she being cited before the Council ought to have depon'd truly even for informing the Supreme Judicatory of the Nation who use and must examine women for the good of the Common-wealth especially in such atrocious and occult crimes as in the burning of the House of Frendraught And though the defender may in some cases cast a woman from being witness yet that excuses her not if she be examined To the 2. Lawyers are clear that a witness may depon without being sworn for the swearing them is not essential since the pursuer may remit it And yet the witness who depones falsly even though not sworn is a false witness Bart. in l. si quis ff ad l. Cornel. de fals Clar. h. t. num 11. To the 3. it was not relevant since she inform'd against these Gentlemen in a treasonable point and might have prejudg'd them nor did her retraction proceed from repentance but confrontation nor did she accidentally only or by confusion lapse into this error she having spread these misreports before she was cited and having reiterated her confession after citation To the 4. the practice of the Kingdom was oppon'd which is the best interpreter of Laws And in Anno 1615. Grahame of Long-boddom and in Anno 1622. Turnbul of Belshes and lately Dempster of Muresk were punish'd with death for deponing falsly or seducing others to depon But these points were not decided VII The punishment of Perjury by the Civil Law was Banishment l. ult ff de crimine Stellionatus fustigatio or Scourging l. si duo § si quis perjuraverit By our Law Act 19. Parl. 5. Q. Mary Bigamy is declared punishable as Perjury which is declared to be confiscation of all their moveable Goods warding of their Person for year and day and longer during the Kings will and that as infamous persons they shall never be able to bruik Office Honour Dignity nor Benefice in time coming As to which Act it is observable 1. That Perjury is not formally punishable with us but only declaratorly Perjury being in it self so heinous a Crime but the reason of this seems to be that Perjury was before this Act punishable after this manner for by the 4. cap. lib. 1. Reg. Maj. it was appointed that temere jurantes super assisa spoliabuntur mobilibus in carcerem detrudentur per annum diem adminus infamiae notam incurrent amittent legem terrae which Skeen interprets to be non habère personam standi in judicio and not to be receivable as witnesses either in judicio or extrajudicium which Act is likewise ratified by the 47. Act Parl. 6. K. I. 3. where it is said that wilful or ignorant Assizers Man-swearing shall be punished after the Kings old Law in the first Book of the Majestie Where Perjury is to be inferred from a Deposition either as Party or witness it is necessar that the Deposition be subscribed by him and the Lords found that Mr. Iames Row could not be convict of Perjury upon his Deposition subscribed by the Clerk Sometimes the Council change the punishment of Perjury into banishment as in the case of Galbraith who came in will for Perjury 23. Iuly 1625. TITLE XXX Of Injuries Personal and Real And of infamous Libels 1. Injuries are either verbal or real 2. The requisits in Libelling verbal injuries 3. What are real injuries 4. Who are Iudges to verbal or real injuries 5. Infamous Libels how punished 6. Leasing-makers how punished by our Law I Have oftimes thought that men should walk legally not only in obedience but gratitude to Law since the Law takes so much pains to secure not only our lives and estates but even our honour and reputation and will humour us so far as that because we will think railery a misfortune it will therefore punish even these who offend our imagination I. Injury then in its more comprehensive sense may give a name to all crimes for all crimes are injuries but injury as it is the Subject of this Title is the same thing with contumely or reproach It is divided by Lawyers into such as are committed by thoughts deeds words and gestures but the more received division is that injuries are either verbal or real II. Verbal injuries are these which are committed by unwarrantable expressions as to call a man a cheat or a woman a whore but because expressions vary according to the intention of the speaker therefore except the words can allow of no good sense as Whore or Thief or that there ly strong presumptions against the speaker the injuriandi animus the designe of injuring as well as the injuring words must be proved and the speaker will be allowed to purge his guilt by declaring his intention l. 5. § octavo ff de injur and his declaration will without an oath be sufficient except the offender be burdened with contrary presumptions Berlich conclus 60. num 18. Lawyers therefore require in Libelling injuries 1. That the particular expressions be distinctly condescended upon nor is the general you called me a Cheat or said some such thing sufficient seing not only words but even the pointing of them does alter the estimat of Injuries 2. The pusuer should Libel the design of injuring
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
blame who did not either preveen or repledge Bailies of Regalities may likewise repledge from the Kings Lievtenent as was found the 19. of August 1596. And as is clear by the foresaid Act of Annexation and likewise from any Commissioners appointed by the Council as was found in May 1568. And from the Justices of Peace in Riots and Bloods as was found by the Lords of Session Iuly 1617. though these causes being of small moment and requiring summar and unexpensive cognitions seem to require easier and less solemn tryals in the procedor then repledgiations will allow And yet by c. 11. de appell I find that licebat in remimina appellare nor can the parties injured complain since they might have made their application to the Lord of Regality Nor should their errour prejudge his jurisdiction VII The manner of repledgiation from any Court is that either the party himself who hath the power of repledging or some other having a Procurator from him compears and produces his Charter of Erection from the production of the Seasing is not sufficient seing that is but assertio Notarii yet sometimes without production of the Charter repledgiation will be sustain'd because it is notour that the repledger hath a Regality as in the Duke of Lennox case 1637. As also repledgiation will be sustain'd upon production of the criminal Register bearing that it was formerly sustain'd to the same persons May 1668. Arducaple against the Commissioners of the High-lands Yet it may be doubted whether the production of a Lord of Regalities retour will be sufficient to instruct that he hath a Regality and it appears it should since a retour is a sentence and so is a sufficient instruction till it be reduced He who offers to repledge must find Caution of Culrach to do justice within year and day upon the person whom he repledges and if the Judge to whom he is repledged doth not justice within year and day he tines his Court as we call it for year and day and the Culrach for so the Cautioner is called who hath upon his becoming Cautioner borrowed the Defender is in an unlaw and the Judge from whom he was borrowed or repledged may proceed to do justice as formerly Skeen de verb. sig The Pannel likewise who is repledged must find Caution for his own appearance before the Lord of Regality to underly the Law for the crimes laid to his charge the 16. of May 1599. Patrick M ckalla against the Regality of Lennox No person can be repledged except he be present at the Court from which he is desired to be repledged for a party who is absent cannot find Caution to sist himself before the Court to which he is repledged as was found in the case of Armstrong who being pursued for murdering some Customers was desired to be repledged by the Earl of Annandale Anno 1666. Nor can a person be repledged after defences are proponed for him for this being recusatio judicis it must be ante omnia propon'd dum res est integra VIII When Regalities are erected there is a Burgh of Regality expressed therein and though that Burgh may choose Bailies yet the Bailie of Regality hath still a cumulative jurisdiction with those Bailies of the Burgh of Regality in that same way that other Superiours retain still a cumulative jurisdiction with their Regality as was found the 24. of Ianuary 1668. betwixt the Bailie of Killimure and the Burgh thereof This Burgh is oblig'd to maintain a sufficient Prison not only for Criminals but for Debitors by the 273. Act 15. Parl. Ia. 6. And all Captions bear the Letters to be direct to Bailies of Regalities c. And yet by that Act these Burghs seem only to be oblig'd to intertain Prisoners where there are Provost Bailies and Common-good Nota that these words of that Act by the Sheriff to Stewarts and Bailies of Regalities are ill printed for the word to should be or The Lords likewise decided thus against the Bailies of Regalities the 7. of Iuly 1668. Hamiltoun contra Callender In this Burgh all Courts must be holden Yet defenders are oblidg'd to compear at any other place within the Regality to which they were expresly cited As Had observes in a case the 16. of March 1622. Or if the Lord of Regality was in use to hold his Court else where for a considerable time without interruption the Vassals or any other Defender is oblidg'd to appear thereat though it be not the place design'd in the Charter of Erection as Had. observes December 1624. And if the party who is desired to be Repledged dwelt within the Regality the time of the committing of the Crime the Repledgiation will be sustain'd though at the time of his being accused he be removed without the Regality as was found the 21. of November 1632. in the case of one Weems who was desired to be Repledged to the Regality of Methwen Lords of Regality are oblidged to hold Justice-Courts twice a Year 3. Parl. K. Ia. 2. Act. 5. and if they be negligent in causing rest and stolen Goods be restored the Sheriff may fulfil their place Act 11. Parl. 15. Ia. 2. And when Erections fall into the Kings hand the Inhabitants thereof may be justified id est judged by the Justices Act 26. Par. 6. K. I. 6 but this Act can only take place till a Stewart or Bailie be appointed For Regulariter the Kings own Stewarts of Regalities may repledge from the Justices A Lord of Regality cannot fit himself in his own Court but must administer by a Bailie who is sometimes admitted by a simple Commission during his life or otherwise he is admitted to be Heritable Bailie which Right passes by Infestment but this Bailie is in Lands belonging to the King and is properly call'd the Stewart of the Regality though sometimes the Kings Deputs in Regalities are likewise call'd Bailies as in the 5. Act. 3. Parl. K I. 2. IX Lords of Regality cannot cite Witnesses without their own jurisdiction but they must have Letters of Supplement for that Office though generally they may proceed in the same way that the Justice-General doth but they may exact Caution to enter as Law-will from the defenders after sentence is given as was found the 7. of October 1668. betwixt Mr. Iohn Prestoun and Mr. Iohn Pape which seems to be a greater priviledge then the Justices have who cannot presently exact Caution of any person for paying an unlaw but can only raise Letters of Horning upon the Act of Adjournal The Lords of Regalities have right to the single Escheat of rebels living within their jurisdiction as also to the Escheats of all persons condemned for crimes committed by the Inhabitants within their jurisdiction albeit condemned by the Justices from which general rule Hope in his lesser Practiques excepts only the case of Treason but it may be doubted whether exception may not be likewise made of all other Pleys of the Crown seeing the Lord
person without an accuser for Inquisition was by that Law an extraordinar remedy and no recourse could be had to an extraordinar remedy till accusation which was the ordinary remedy were first tryed But by the Canon Law Inquisition was declared to be an ordinary remedy and all the Doctors conclude that generally a Judge may now by the practice of Nations inquire ex officio in all crimes Farin de inquisit quest 1. num 10. which is consonant to our Law by which the Council or Justices may inquire into all crimes without waiting for an accuser which is done with us without citation of the party or other formalities but nothing can follow till after information be taken an Enditement or Summonds be raised which is followed according to the ordinar rules But yet I think that the Judge should not enquire or take any previous tryal even in our Law where an accuser offers to insist except he has just reason to fear collusion for non recurrendum est ad extraordinarium remedium dum locus est ordinario and albeit Inquisition be declared by the Doctors to be an ordinary remedy yet it is only declared so to the effect that a Judge may inquire without any accuser and that the Inquisition so taken be not ipso jure null but naturally every man should have liberty to pursue the privat wrong done to himself which may be prejudged either by the want of information or zeal of the Judge ordinar and sometimes by collusion and thus I have seen many Decreets of inferiour Courts wherein the defender was by collusion fin'd at the Procurator-fiskals instance reduced by the Lords and not sustain'd by the Council when it was alledged that the party wronged appeared and offered to pursue but was not admitted And albeit because of the wrong which is done to the publick a Judge may likewise inquire yet he who is principally wrong'd should be allowed to be chief in the prosecution And therefore albeit the Council may in publick crimes where the peace of the Countrey is chiefly concerned take precognition of it and stop accusations raised before the Justices at a privat parties instance as they did in the pursuit at the instance of the Stranaver men against the Earl of Caithness And others for Fire raising and Depredations in August 1668. yet they refuse to stop accusations and will not grant precognitions in privat murders or such like crimes where privat persons are principally wronged except the rigour of Law require some abatement II. It appears also that pursuits at His Majesties instance are only subsidiary Ia. 1. Par. 13. cap. 140. by which Act it is clear that crimes may be punished at the Kings Majesties instance if no privat follower appears and Ia. 6. Parl 11. cap. 76. where it is Statute that the Thesaurer and Advocat may pursue privat crimes although the parties be silent or would agree From which Acts two things may be concluded 1. That of old it was doubted if the King could pursue privat crimes without an accuser 2. That pursuits at His Majesties instance for privat crimes are yet only subsidiary and allowable if parties be silent or collude Which distinction doth in my oppinion solve that great debate amongst the Doctors utrum accusatio cessare facit inquisitionem Nota that albeit by the said Act it is Statute that the Thesaurer and Advocat may pursue without concourse of the party yet de practicae the pursuit is only raised at the Advocats instance and so the particle and seems to be disjunctive as and is very oft in the Civil Law And it is probable that a pursuit at the Thesaurers instance would be sustain'd without concourse of His Majesties Advocat if the Advocat should refuse his concourse III. The Doctors conclude that a Judge cannot enquire summarly necesse est ut vel indicia vel delator vel diffamatio à periant viam inquisitioni for else every Judge might diffame the best and most innocent men at their pleasure so that if a Judge have not some rise for his inquiry I really believe he is punishable in our Law for putting a person to Inquisition for a crime sindicandus est ex eo capite but the malice of the Judge must be very clearly proved in that case Of old Judges did appoint Delators whom might inform denunciatores dicebantur but of late this employment doth belong to the Fisk ejus sindicis And by our Law to His Majesties Advocat in the Justice Court and to the Fiskal in inferiour Courts and they may pursue or inform in Inquisitions sine paena calumniae quia cessat in iis suspicio calumniae ex eo quod denunciant ex officio By the 13. Act 10. Par Ia. 6. Charges super inquirendis are discharged but it is a mistake to think that by that Act the King or other Judges cannot examine men without a formal Process for the design of that Act is only to discharge the denouncing men Rebels upon such charges without previous tryal and yet if the chief Officers of State or at least four of them concurr It would seem that by that Act even such charges are yet lawful And where the King or Magistrat has previous information of crimes latent it were against the interest of the Common-wealth that they should not be allowed to clear themselves of these by particular interrogators TITLE XIX Of Accusations and Accusers 1. The difference betwixt an accusation by way of Summonds and an inditement 2. Who may accuse by our Law 3. A minor cannot pursue without the consent of his Tutors and Curators 4. In what cases a woman may pursue 5. Whether a person excommunicated or at the horn may pursue 6. Infamous persons cannot pursue and who are such 7. Whether moe crimes may be pursued at once 8. The pursuer must find caution and be punished if he be calumnious 9. The pursuer must aliment I. AFter inquisition is taken which is not necessary but is still arbitrary with us the party is either imprisoned and then he is proceeded against by way of inditment or he is still at liberty and then he is proceeded against by a formal Summonds Inditement comes from the French enditer deferre nomen alicujus and by the Law of England it differs from accusation in that an inditement must be alwayes at the Kings instance and is but a bill and the preferrer of the bill is no way tyed to the proof of it upon any penalty except there be conspiracy vid. Blunt dict Angl. verb. enditement But an enditement with us is a scedule containing the accusation given to the defender so called as Skeen sayes from the French word dict tu what sayest thou for alter the inditement is read the Judge asks the Pannel what he can answer to it and it differs only from a Libelled Summonds in that it begins thus A. B. Ye are indited and accused that albeit by the Laws c. yet ye c. or
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
knowledge yet the truth of that principle may be doubted upon these reasons 1. Because by the foresaid Act of Parliament par 11. K. Ia. 6. All Probation should be led in presence of an Assise and Pannel but so it is that the privat knowledge of Assisers cannot be laid to be led before them 2. If Probation were led publictly defenders might propon interrogators whereby the matter of Fact might be more fully cleared and even the Witnesses own mistakes might be removed of all which just advantages he is precludit by that principle 3. The great reason why by the act Probation should be led in presence of the Pannel is because in Law it s presum'd a Witness will stand more in aw to depon falsly in presence of the Pannel then otherwise for which cause confronting of Parties and Witnesses amongst themselves when they are contrary is much used and treated of by the Doctors 4. If assisers may give their verdict upon privat knowledge then they could never be pursued for error because if privat knowledge be the rule I can hardly understand how men can be convict as having transgressed against that rule seing albeit it be easier to judge what a man should know yet it is impossible to judge what a man doth know 5. By the Civil Law and the opinion of almost all Divines and Nations judices debent judicare secundum allegata probata IX From the foresaid Act Parl. 11. ordaining all Probation to be received and used in the presence of the Assisers and Pannel it may be deduced by a necessary consequence that no Witness should be examined in criminals ad futuram rei memoriam and that no witnesses should be examined by Commission and albeit it may be objected that in crimine falsi the Probation led before the Lords is not repeated before the Justice and Assisers before whom nothing is used to instruct the falshood but the Decreet of improbation pronounced by the Lords for in that case the Lords being by Act of Parliament declared Judges competent to the cognition of Falshood their sentence habetur pro veritate and is probatio probata so thaâ— the producing of it is the leading of Probation before the Assise This priviledge that no Probation should be led but in presence of the Pannel and Assise may be past from by the Pannel seing it is introduced in his favours and therefore it was found the 9. of March 1671. that the diet could not be continued against Charles Robertson because of the absence of the Witnesses seing he was content to stand to the Depositions formerly taken but they caused him subscribe his consent After the Probation is closed the Pannels Advocats makes a speech to the Assise wherein the termes they use to them is good men of inquest and after they have ended His Majesties Advocat speaks but there are no Duplys or Triplys used and it was the priviledge of His Majesties Advocat to be the last speaker which priviledge was assumed likewise by all other Advocats for the pursuer but by the tenth article of the Regulations 1670. the defenders Advocat is now the last speaker except in the case of Treason and Rebellion so that this priviledge holds only in Perduellion but not in ordinary Treason X. When both these discourses are ended then the Assize are inclosed but before they be inclosed they should endeavour to be satisfied of any doubt for if after inclosing any person speak to them or if any of them come out of the place where they are inclosed until the verdict be pronounced the Pannel is eo ipso clean and innocent Act 91. Parl 11. Ia. 6. the reason inductive of which act seems to be fear of impressing or suborning the Assize and therefore the practice allows Assizers sometimes to send out some of their number to the Justices to receive informations in matters of fact and finds that in so doing they transgress not this act as in Kennedies case August 1662. And after a full debate upon the 24. of December 1672. It was found that any of the Assizers disclosing and coming out of the house after they had past a vott though the verdict was not subscribed be the Chancellour was not sufficient to annul the verdict albeit it was here alledged that there might be great debate upon the wording of the verdict and so the Assize should not have disclosed until the verdict was subscribed By this act likewise the Assizers and not the Justices are Judges competent to this exception against the verdict as was found in the foresaid decision 1672. wherein the Justices found that themselves were Judges competent to the relevancy of any such alledgeance but that it belonged to the Assize to judge the Probation of that exception though it was alledged that the Assizers could not at all be Judges thereto seing they were the delinquents in that case and if most part of the Assize had disclosed it were absurd that they should be Judges to their own Delinquency At that time the Lords did likewise declare that if any Assizer should disclose before the vots were compleat so that the vrdict might be thereupon anulled they were punishable by the Justices and should be obliged to repair the loss which either the King or Party incurred So that Assizers are allowed to speak to Judges or Advocats but are not allowed to make any address to them after inclosure as said is It is likewise observable from this act that albeit the Clerk be discharged to enter in where the Assize sits after they have chosen their Chancellour yet defacto the Clerk sits still with them and it was thought fit he should do so because they being oft ignorant and unaquanted with the forms and procedure of that Court they should have some person to regulat them and none so fit to do it as the Clerk yet by the late Regulation 1670. it is appointed that the Clerk shall not be present and sure the Clerk was worth ten and did influence too much XI After the Assize are inclosed they choose a President who is called Chancellour of the Assize and proceed to read and thereafter to reason upon what is debate and their determination is called the verdict of the Assize which is subscribed by the Chancellour it is called verdict quasi vere dictum and sometimes it is called warda curiae quon Attach cap. ubi aliqua thereafter the Assizers enter again into the Court and there the verdict is read and the Chancellour stands up and owns the same after the verdict is read it should and is by the 9. Act of Regulations 1670. closed and sealed with the Seals of the Court of the Chancellour of the Assize and of so many of their number as the Chancelour shall think fit never to be opened but by orders from the Judge of which verdict the Clerk is to have the keeping and if he open the same he is to be deposed and further punished as the
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
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