Earl of Forth be said to be a loser by E. C. seing the Estates for the time would have brought it in and converted it to their own use in which case Forth would not have goâ— repetition against the persons to whom it were payed To these grounds it is my Lords replyed â—or the Earl of Forth that there is a difference stated in Law betwâ—xt restitutions by way oâ— Grace and restitutions by way oâ— Juâ—tâ—ce in restitutions by way of Grace the guilt remains though the punishment be remitted and the person forfeited is restored not to his Innocence but to his Estate and therefore he recovers only what â—s extant of his Estate But in restâ—tutions by way of Justice the Sentence forfeiting is declar'd never to have been a Sentence and therefore it can never be sustaâ—n'd as a Warrand to an◠〈◊〉 Sed comparatur juri postliminii fingitur nunquam 〈◊〉 〈◊〉 tantum restituit 〈◊〉 quanâ—um abstuliâ— injusâ—â—ia And 〈◊〉 not only what is extant but all that belonge◠〈◊〉 〈◊〉 there is restoâ—ed But Sentences foâ—â—eâ—tâ—ng may be 〈◊〉 〈◊〉 as B 〈…〉 s obseâ—ves 〈◊〉 d 〈…〉 med 〈◊〉 into 〈◊〉 as though they were â—njust yâ—t every p 〈…〉 t person was not obâ—â—egeâ— to know the injustice oâ— the â—orâ—eiture as if a man had been forfeited in a Justice-court for murder under trust or a Landed-man for theft against which sentences though the person forfeited were restored yet it might seem hard that such as intrometted by vertue of Warrands or Assignations from the Estate should be forc'd to restore all they received but others may be forfeited as the Earl of Forth was by vertue of Sentences which were no sooner pronounced then they became Treason by an execrable inversion not in the Pannel but in the Pronouncers and were not only Treason of their own nature but behoved to be acknowledged treasonable by all such as heard of them and such sure was that Sentence pronounc'd against the Earl of Forth which was against the fundamental Laws of this and all Nations and which is declared by the Act of Parliament restoring him to have been at the time it was pronounc'd an Act of Rebellion and an invasion upon his Majesties Royal Prerogative This being the state of this restitution It is my Lords answer'd to the Defence that it is defective in the aplication of all its parts For that this money was not res fungibilis appears because the Law distinguishes all Estates in mobilia quae sunt fungibilia immobilia nomina debitorum Nomina debitorum are Bonds due to the Creditor which are of a middle nature betwixt movables and immovables and these fall certainly under restitution by way of Justice even according to the Defenders own Principles for they bear the nâ—me and impressa of him to whom they belong and so the Intrometter is warned to bewar of them and that this money crav'd here to be repeated was such is very clear for it was due upon â—n heretable Bond to the Earl of Forth by the Earl of Errol and hâ—s Cautioners and came never in nor was confounded with the Publick Treasure for E. C. got a Precept upon â—t before the Publick obtain'd a Sentence for it and got a W 〈…〉 nd for that specifick sum owing by that Bond to the Earl of Forth and got payment of it from the Earl of Forths De 〈…〉 s 〈◊〉 Debitors to him so far did just Heaven allow this hast to be its own punishment As to the second member of the Defence which is founded upon his bona fides to intromet with the sum for payment of a Debt due to him he having been General at that time from an Authority then in being It is reply'd that Bona fides in the Intrometter doth not extinguish and take away the Right of the true Proprietar nam quod meum est sine facto meo à me auferri nequit And Lawyers determine that to denude a man of his Property there must be some fact of his either se obligando or delinquendo neither of which can be alledged in this case and if the Earl of Forth was never denuded then Calendar could have no Right for duo non possunt esse domini in solidum unius ejusdem rei which maxim holds still in specibus nominibus debitorum for though sometimes it may fail in numerat money the dominion whereof is for the good of Commerce sometimes transmitted by simple numeration yet it never fails in specibus seu corporibus and that money due by Bond is not of the nature of pecunia numerata is clear from l. si certus ff de legat 1. And if a Robber take away may Cloak and give it to a Stranger yet I would per rei vindicationem get it back notwithstanding of the Defenders bona fides but here there was no bona fides seing E. C. was oblieg'd to know that the Earl of Forth was injustly forfeited and that the Act of Parliament against which there is no disputing has declar'd it to have been Treason and if E. C. were pursued for opposing His Majesty at that time or for concurring to the forfeiting of the Earl of Forth he could not defend himself otherwayes then by the Act of Indempnity Ergo in the case of restitution of Forths Estate which is excepted from the Act of Indempnity That Warrand proceeding upon forfeiture cannot defend him for how is it imaginable that his bona fides which could not defend him against the losse of his own Estate shall be able to defend him against the restoring of Forths to which he had aliunde no Right There is no bona fides but where it is founded upon a Title Et ubi non subest Titulus ibi non est admittenda bona fides But so it is that E. C. his Title viz. The forfeiture of the Earl of Forth is declar'd by Parliament never to have been a Title But E. C. who was a Member of that Parliament which forfeited the Earl of Forth and General of that Army which defended them is in the same case as if two Robbers had taken a Bond from a free Liege and had given it to one of their own Society who was at least a spectator in which it is most certain that the free Liege so robbed would recover payment from him who intrometted By this unwarrantable intromission with the Earl of Forths money E. C. became his Debitor and the supervenient Act of Indempnity could no more defend E. C. against this then it could against his other Debts Indempnities are design'd to secure against the Princes Pursutes who gave them but not to ruine Innocents else were these Indempnities Acts of Injustice not of Clemency Si criminaliter caeptum judicium interventu indulgentiae scriptum est habes tamen ressamen indagationem potes de fide Scripturae civiliter quaeri l. 9. C. ad L. Cornel. de fals Amnesties are but general Remissions and so
excuse It is my Lord now alledg'd that E. C. is not liable in payment of Annual-rent to the Earl of Forths Successours because Money is of its own nature res sterilis and in Law bears not naturally Annual-rent and therefore an Intromettor though predo though male fidei possessor is not liable for Annual-rent for no man is oblieged to improve another mans Money and by the civil Law which was more ready to give Annual-rents then ours In corporibus ex quibus fructus naturaliter proveniebant malae fidei possessor was liable in fructus productos but in corporibus quae non producebant fructus de sua natura nec predo nec latro tenebatur in fructus and though a person who impropriated publick Money was punishable ratione repetundarum vel ex residuis and so was there most unfavorable of all Intrometters yet he was not liable in usuras nor by our Law are Annual-rents ever due sed ex lege vel ex pacto neither of which can be alledged in our case and the Act of Indempnity hath made Intrometters with publick Money liable in repetition and though their intromission be most unwarrantable yet are they not made liable by that Act in Annual-rents Likeas though these Moneys due to the Earl of Forth did at first bear Annual-rent yet they being once uplifted became a sum lying in Cash which E. C. was not oblieg'd to re-imploy upon Annual-rents and by the Act 1662. whereby His Majesty was to repay the Earl of Forth he was only to be repayed of his principal sum but not of his Annual-rent To which my Lord it is answered for the Earl of Forth That since your Lordships have found E. C. his Title to have been unjust we must debate now against him tanquam at least male fidei possessorem for the Act of Parliament has declared this forfeiture an invasion upon His Majesties Prerogative and you have by your Sentence found it not to be shelter'd under the Act of Indempnity Let us therefore in the first place consider that the Law never design'd to favour oppressors nor suffer the innocent to be prejudged it never design'd that men should enrich themselves by their guilt and be rewarded for their violence And since the fear of punishment is scarcely able to restrain that wickedness to which we are naturally prone it were absurd to highten our vitiousnesse by rewards whereas if malae fidei possessores should not be lyable to repay Annual-rents they should be enrich'd by their oppression and should be baired to commit violence and to maintain themselves in it for they should be sure lucrari at least usuras rei per vim injuste ademptae And therefore my Lords though the Law makes a distinction Etiam in malae fidei possessore inter corpora ex quibus fructus naturaliter proveniunt corpora sterilia yet they do not this upon design to favour vitious or violent Intrometters but in order to the several wayes of taxing the restoration of the person injured for where the Bodies unjustly intrometed with bear fruits they ordain the fruits to be restor'd but where they bear not naturally fruits the Law doth not ordain the Intrometters to be free but to be lyable in damnum interesse in omnem causam this the Law defines to be all the advantage could have arisen out of the thing intrometted with this being an uncontraverted principle I humbly conceive E. C. should be lyable to these Annual-rents acclaimed and that upon these three considerations First This Sum intrometted with by E. C. was a sum bearing Annual-rent and therefore Forth being restored by way of Justice he ought to be put in the same case he was in before the forfeiture and if the money were now lying unuplifted Forth would be preferred to E. C. quoad these Annual-rents which clears that they were never due to E. C. and if they were not his he ought to restore them The forfeiture is declared to be no Warrant and so though E. C. were in the same condition as a stranger is who intrometts with another strangers Money without a Warrant yet sure he would be lyable in Annual-rents if he intrometted with a sum bearing Annual-rent much more then ought he to be lyable who hath intrometted with a sum which was unjustly and predoinously intrometted with For here E. C. is in the same case as if a man had broke my house and had taken away my Bonds with blank Assignations lying beside me and had uplifted for many years the Annual-rents of these sums or if a man had upon a false token taken up my moneys which bear Annual-rent in which cases it is most undenyable that the vitious intrometter would be lyable in re-payment of the Annual-rents and to invert one of the Defenders own instances it is not imaginable if any should uplift a sum belonging to a person lately forfeited and which did bear Annual-rent that the Exchequer would not exact Annual-rent from the Intrometter I might hear urge likewayes that a Minors money intrometted with bears Annual-rent by the civil Law and ours and it is most clear that pinguius succuritur restituto per modum justitiae quam minori as Bossius well observes tit de remed just num 3. Jason ad l. Gallus ff de liber postlim for as they are equal in that neither did consent to the intromission so he who is forfeited for his Countrey deserveth more favour then a Minor doth and many things are in Law allowed ob bonum Rei-publicae but we are not here in the case of corpus sterile for money bearing Annual-rent is not corpus ex sua natura sterile but habet fructus ex se facillimè provenientis usura est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu partus pecuniae and should rather be restor'd then fructus prediales ought to be for in these the Intrometter bestow'd his industry but here Annual-rent doth grow very easily and that Annual-rent is due even where it was at first sterilis is clear from § quid si l. item veniunt ff de haered petit quid si post venditam haereditatem hic ipse res venient fructusque earum sed si forte tales fuerunt quae vel steriles erant vel tempore periturae hae distractae sunt vero pretio tunc potest petitor eligere ut sibi pretia usura praestentur Upon which Law the Doctors observe that malae fidei possessor tenetur rem ipsam restituere si extet vel pretium usuras si non extet but much more where money bearing Annual-rent is â—ntrometted with for there the proper damnum interesse is Annual-rent and our Law calls Annual-rent the interest of money So that though the money had been sterile yet the vitious Intiometter would have been lyable in damnum interesse and the damnage and interest of money is Annual-rent nor is this money of the nature of that money which the Law makes sterilis
that the world both learn'd and unlearn'd have hitherto believ'd that such a pursute as this would not be sustain'd in that though interest and malice did prompt men to such pursutes yet not one such as this has ever been intented for ought I could ever read save once at Grenoble where an Advocat did pursue a Smith to transport his Forge from the Chief-street because it did by its noise disturb not only him but the people who frequented that street from which pursute the Smith was absolv'd as Expilly observes in his Pleading Yet my Lords the Fishers upon Tweed want not some apparent reasons which give colour to the pursute and it is urg'd for them that no man is so Master of his own but that the Common-wealth has still an interest with him in it and Law being invented to protect the interest of Societies as well as to secure the property of privat persons therefore though every privat man inclines to satisfie his own humour and advantage in the use of what is his own yet it is the interest of the Common-wealth that he do not abuse his own property and therefore it is that the Law doth interdict prodigalls nor will the Law suffer that a man use his own in emulationem alterius l. 3. ff de oper pub and a man is said to do any thing in emulationem alterius when others looses more by what is done then the Proprietar can gain As in this case though quilibet potest facere in suo yet non potest immittere in alienum which is their case and all the Arguments brought for Haining do not meet seing they only prove that a man may use what is his own as he pleases ubi nihil immittit in alienum as is clear by the instances given of throwing down his own Wall or the digging up a Well in his own Land which differs very much from our case wherein Haining doth pour in his poysenous Water into the River of Tweed That men are restrain'd for the good of the Common-wealth in the use of their own property is very clear from many instances in our Law as men are discharg'd by Acts of Parliament to burn Mures to kill Smolts the way and manner of fishing upon Lochleven is prescribed to the Heretors by Act of Parliament and men are forbidden to steep lint by publick Acts likewayes Likeas the common Law will not suffer men so to use Water running through their own Land as that they may thereby prejudge Milns belonging to their neighbours which use to go by that Water and whatever may be alleadged in favours of any innovation in running Waters yet Lakes being appointed by Nature seem to have from Nature a fix'd beeing nor should they be opened to the prejudice of others contrary to their Nature These objections may my Lords be thus satisfied To the first it is answer'd that the only two restrictions put upon men in the free exercise of their own are ne in alterius emulationem fiat vel materiam seditionis prebeat as is clear by the foresaid l. 3. ff de oper pub neither of which can be subsumed in this case And when the Law considers what is done in emulationem alterius it acknowledges illud non factum esse in emulationem alterius quod factum est principaliter ut agenti profit non ut alteri noceat l. fluminum 5. ffin ff de dam. infect and the gloss formerly cited upon that Law determines that Animus nocendi is not presum'd if any other cause can be assigned and in this case Haining can ascribe his opening this Lake to the prejudice it did to his Land and to his Health whereas it cannot be alleadg'd that he ever exprest any malice against the fishers upon Tweed many of whom are his own Relations As to the instances given wherein the Law doth restrict the free use of Property the Principle is not deny'd but it is misapply'd For the Law only bounds the Proprietars power in some cases wherein his loss may be otherwayes supplied as in Mureburn and killing of Smolts at such a season of the year and in steeping Lint in running Waters which may be as commodiously done in standing Pooles but these Pursuers crave this Lake to be stopt at all times nor is there an apparent Reason here as there this Pursuit being sounded only upon a conjectural prejudice and in these cases the Prohibition is made necessar by the generality and frequency of Occurrences and yet though so circumstantiated there is still a publick Law necessar And when a publick Law discharges the free exercise of Property it ordains him in whose favours the Prohibition is to refound his Expences who is prohibited Nor is the Common-wealth here prejudg'd so much by this as it would be by the contrare for thereby all Coal-heughs Lead-mines and the winning of other Minerals would be discharg'd whereas it is uncertain if this water chaseth away the Salmond which are at best but a casuality and which will go but from Tweed to other Rivers in Scotland for they cannot stay in the Sea Salmond-fishing is but an accident to Rivers but there being the common porters is their natural use Thus my Lords you see that we contend for what is natural to Rivers they for what is but casual we are founded upon the nature and priviledge of Property they upon meer conjectures The Lords enclin'd to sustain Hainings Defence but before answer they granted Commission for examining upon the place what prejudice was done For the Viscount of Stormont against the Creditors of the Earl of Annandail SECOND PLEADING Whether a Clause prohibiting to sell will prejudge Creditors THe deceast Viscount of Stormont having by his Majesties favour and his own industry acquired the Lordship of Scoon he did tailie the same to Mungo Viscount of Stormont and the Heirs-male of his body which failing to John Earl of Annandail and the Heirs-male of his body which failing to Andrew Lord Balvaird and the Heirs-male of his body and to prepetnat his own memory as the reward of his industry he did cause insert this Provision in the Charter and Seasine viz. That it should not be lawfull to the said Mungo to dispone or wodset any of the saids Lands so tailied or to do any deed whereby the saids Lands might be evicted or apprised from them without the consent of all the persons contained in that Tailzie or their Heirs which if they contraveened that they should ipso facto loose all Right or Title to the saids Lands and the Right should accress to the next Heir The late Earl of Annandail having very profusely and unnecessarily spent not only his own Estate but likewayes contracted debts for which the Lordship of Scoon is apprised this Viscount of Stormont as immediat Heir of tailzie craves that it may be declared that the Right to the said Lordship of Scoon is devolved upon him by the forsaid contravention and that he should
defend Trade against this dishonour and prejudices Guildries were appointed in Burghs to supervise the conduct of Merchants and restrain abuses which Burghs of Regality and Barrony wanted and so were lyable to many escapes To this it is answered that though at first these rules were necessary yet now when Trade is raised to some consistency this necessity fails with its occasions for there are no where poorer Traders then within Burghs to which ordinarily the meanest and poorest amongst the people retire when they cannot live elsewhere and when they are once setled there they because of the easie conveniences of Trading do indiscreetly run upon it whereas none who live either in Burgh of Regality Barrony or in the Countrey will be tempted to adventure upon Trade except they have considerable Stocks and be secure of a full vent And without debating what was the design of our Legislators in erecting Guildries yet we now find by experience which is a much surer guide then project that Guildries have conduced so little to advance Trade that they tend rather to secure the Monopoly which they at first procur'd and to establish by mutual compacts those exorbitant prices for Commodities which are now exacted And if Deaconries amongst Malt-men and others were discharged to prevent combinations I see not why Guildries which are but Deaconries amongst Merchants should not be discharged for the same reason But may it please your Grace the great refuge against these convincing reasons is that these might have been urg'd in jure constituendo but not in jure constituto for reasoning ends where Law begins omnium quae fecerunt majores nostri non est reddenda ratio But this may I humbly conceive be easily answered if we consider 1. That Laws are mortal like their makers and they who would bind up their reason to a constant adhering to what was once made a Statute behov'd to renounce that reason by which they should be govern'd and leave off to be reasonable men that they might be Lawyers and therefore it is that because Legislators might take an untrue prospect of future events Lawyers have determin'd that where Laws never grew unto observance they did really never become Laws the being once observed is one of the greatest essentials of a Law Statuta usu non recepta nec observata pro non factis reputantur Voet. de statut cap. 2. Sect. 12. arg l. 1. § 9. C. cad toll alex. consil 6. vol. 1. And if the not observance of Laws for ten years after they were made is in the opinion of Lawyers sufficient to repudiat them much more ought they to be rejected after they have for many hundreds of years languished in a constant contempt for els they are but like these idols of which the Scripture tells us that they had eyes and saw not ears and heard not and feet but could not walk and if we consider these Laws we will find that even Authority of Parliament which can do all things in Scotland has not been able to maintain them in those for these Statutes oftimes begin That for asmuch as there had been diverse Acts of Parliament made in favours of the Royal-Burghs ordaining they should have the only benefit of sailing abroad c. Yet these Laws have not been in observance therefore c. as is very clear by the narrative of the 152. Act 12. Parl. I. 6. and why should the Act have been renewed so oft if the former had been observed And if in spight of all these Acts the Subjects could never be brought to compliance with them why should we offer so much violence to our Native Countrey as to force upon them that from which they have so much aversion If Acts which have been strengthened by obedience and observation may be repell'd bydesuetude and a contrary custome how much more may desuetude overcome Acts which are not yet arrived at their due strength and perfection 2. Though these Acts had been once in observance yet they are now antiquated by desuetude and non-observance that desuetude may antiquat and abrogat Laws is very clear from reading our Acts of Parliament of which the full half are in desuetude and are only considered now by us as matters of Antiquity as Roman Medulls or old Histories and particularly can the Burghs-royal deny but most of these Acts limiting their Trade and Government are gone in desuetude as that Officers within Burgh should not be continued from year to year I. 3. Par. 5. Act 29. They should not sail in winter nor oftner then twice in the year to Flanders I. 5. Par. 4. Act 30. Nor should they sail except they be worshipfull men and have at least three serplaiths of Wool or half a Last of Goods I. 3. Par. 2. Act. 13. I. 2. Par. 14. Act. 168. Frustra opem Legis implorant qui in Legem peccant and it were injust that they should obliege others to obey what they will not submit to And that the Acts whereupon the priviledges now craved are founded are gone in desuetude appears very convincingly from the constant practice of all the corners in the Nation not by single or clandestine Acts but openly upon all occasions and in all places and ages even under the neighbouring observation of whole fleeces and of all their succeeding serieses of Magistrats Have not Musselburgh and Borroughstounnesse near Edinburgh Hamiltoun near Glasgow the greatest Burghs of this Kingdom exercised this freedom which is now contraverted And though they made frequent applications to your Lordships yet till now was their never a Decreet in foro in their favours and Decreets in aâ—sence are rather founded upon the omissions of the Defender then the justice of the Pursute So that it appears clearly that the Magistrats have been ashamed to crave the Judges unwilling to allow and the people stiffly refractory from submitting to the priviledges here crav'd to be declared To this it is replyed for these Burghs-royal that desuetude cannot abbrogat Laws under Monarchies though it could under Common-wealths Nec potest tacitus populi consensus abrogare quod expressus populi consensus non introduxit l. 32. ff de leg Nam cum ipsae Leges nulla ratione nos teneant quam quod judicio populi sint receptae merito ea quae populus sine ullo scripto probavit tenebunt omnes 2. Though desuetude might abrogat such Laws as respect only privat Rights yet the people by breaking penall Statutes cannot by repeated transgression secure themselves against Laws made for restraining their insolencies else by frequent Usury or attending Conventicles these delicts might passe in desuetude and by the Acts founded upon the half of the offenders Goods are declared to belong to His Majesty and these Laws are in effect penal Statutes 3. Where Laws may run in desuetude it is required that the desuetude or contrary consuetude be founded upon clear and open deeds and not upon clandestine or precarious Acts as in
this case wherein all the Trade with Forreigners to which these Burghs-royal or of Barrony can pretend was either carry'd on under the name of free Burgesses or was tollerated by the neighbouring Burghs-royal 4. It is requisit that the consuetude which is oppos'd to Law be judicio contradictorio vallata which cannot be alleadg'd in this case where not only no Decreet can be instanced finding these Laws to be abrogated but where there are Decreets produced conform thereto To the first of which it is answered that though those Laws seem to respect a Common-wealth yet it is generally received now that a contrary desuetude may abrogat even Laws introduced by Monarchs and that the taciturnity or connivance of the Prince is equivalent to a consent Thus Perez tit Quae sit long consuet sunt qui scientiam principis desiderant quia in illum omnis potestas condendi juris translata ego tamen existimo sufficere ne Princeps contradicat and for this he cites c. 1. de constitut de 6. where a consuetude is sustained to abrogat Law though the Pope who is a soveraign Prince in his own Dominions did not expresly allow it dummodo sit rationabilis legittime praescripta and with us do not our old Laws die out by desuetude and do not new consuetudes dayly spring up without any other warrand then meer reason and prescription but in our case His Majesâ—y has so far allowed this custom and has so far contributed with it to the abrogation of these Laws that he has under his own Royal Hand granted many Signatures in favours of Burghs of Regality and Barrony allowing them to Trade with Forreigners and extending their priviledges as far as those of Burghs-royal which Signatures are pass'd in His Exchequer and authorized with His Seal which states this consuetude in a very different case from consuetudes which may abrogat penal Statutes or such publick Laws as are made against Conventicles the one His Majesty opposes in the other He concurrs And this likewise answers that other objection founded upon the clandestinnesse of these Acts for what Act can be more publick then these which passe His Majesties hand the publick Judicatures and common Seals and as to extrajudicial Acts contrary to the Laws they have been too many and universal to be latent but it is offered to be proven that Burghs-Royal and Burghs of Barrony have been in use openly and avowedly to drive on this Trade which they endeavour to maintain And whereas it is alledged that consuetudinis non vilis est authoritas verum non usque adeo sui valitura monento ut aut legem vincat aut rationem l. 2. C. quae sit long consuet To this some Lawyers answer that though it cannot over-power a Law whilst the Law stands yet it can abrogat and make the Law fall Cont. ad dict l. and others interpret so this Law as that they extend it only to a growing and unripe consuetude which cannot indeed abrogat a Law that has not fully lost its vigor as Cujac and others affirm As to the fourth objection it is answered that a contrary consuetude can abrogat a Law sine judicio contradictorio for judicium contradictorium is not that which abrogats the Law but only finds that the Law is thereby abrogat and it doth not strengthen but declare the consuetude and the Lords of Session by refusing frequently to declare this priviledge have therein done what was equivalent to a judicium contradictorium and if this be not sustain'd then the Burghs-Royal may crave that all the Lieges may be debarr'd from tapping Wine Spices or other things absolutely necessar for the accommodation of Travellers for the selling of those is as expresly prohibited by the Laws founded on as is the trading with Forreigners Nor is the consuetude whereby these are abrogat any otherwayes firmata judicio contradictorio then this is and though the Burghs-Royal declare that they insist not at this time to have their Priviledges quoad these extended yet certainly when they have prevail'd in the one they will crave the other And what an absurd thing were it that all Travellers behoved either to lye in Burghs-Royal or to want that accommodation which is necessar or to buy it at exorbitant rates and that not so much as a Candle or Penny-point should be sold for the conveniency of the Countrey outwith a Burgh-Royal I may likewise represent to your Grace and Lordships that His Majesty is not only because the Author therefore the absolute Arbiter of this Priviledge and may dispose upon what he hath given but that likewise by the 26. Act of the 3. Session of His Majesties first Par. It is declared that His Majesty has the sole Prerogative of ordering and disposing Trade with Forreigners and therefore since His Mâ—jâ—sty has granted to all Burghs of Regality and many Buâ—ghs oâ— Barrony as full liberty in trading with Forreigners â—s Hâ—â—â—th granted to any Burghs-Royal I see not who in Law can dispute this Privledge with them at least how the Burghs-Royal can in gratitude debate the extent of a Priviledge with their Prince who at first gave it Nor can these concessions in favours of Burghs of Regality and Barrony be alledged to be subreptitious as is pretended since they are not only past in the ordinary way but are frequently past actus geminatus facit actum censeri non esse subreptitium but likewise after it hath been represented to His Majesty from the Burghs-Royal and their Agents in Court that this concession was contrary to the Priviledges granted to them by the Parliament notwithstanding of all this His Majesties Predecessors and Himself have still continued to grant these concessions And that the Burghs of Regality and Barrony have enjoyed this priviledge of Traffique and Merchandizing is very clear by the 29. Act 11. Par. I. 6. wherein it is declared That for somuch as divers Burghs of Barrony and Regality were in use to exerce the Trade and Traffique of Merchandize therefore that Priviledge and Freedom shall be continued to them It hath been oft inculcat that this Priviledge granted to the Burghs-Royal of the sole Trade with Forreigners is not the meer effects of His Majesties favour and is not only founded upon the Parliaments concession but that it is granted to them upon the account they pay the sixth part of all the publick Impositions of this Kingdom which makes their Contributions within Burgh to rise so high that if they had not this Priviledge to ballance that inconvenience they would not be able to ease the Countrey by paying so great a proportion and if Burgesses within Burgh had no special Priviledge above others they would not live within Burgh for it were unreasonable to imagine that when they might Trade as well elsewhere as within Burgh that yet they would continue to live there under great Burdens and without any Priviledges To this it is answered that the 111. Act of
that though where passions are to be excited as they are by the Pulpit and Theater or where States-men endeavour to reclaim a mutinous multitude There Eloquence is not only allowable but necessary Eloquence being the true key of the passions yet since no passions are allowed in judging and the object of that excellent Science being truth and not humor Eloquence should not be allowed in discourses there And I imagine it will be objected to me that at the first institution of our Senat It was appointed by an Act of Sederunt That all Argunning which term was us'd in that Age for arguing should be Silogisticé and not Rhetoricé To which my answer is that Eloquence do's not only consist in trops figures and such extrinsick ornaments whereby our fancy is more gratified then our judgement and our discourse is rather painted then strengthned but when I mean that an Advocat should be eloquent I design thereby that he should know how to enliven his Discourse with expressions suitable to the Subject he treats that he should choose terms that are significant and which seem full of the thing which they are to express and so lodge his reasons handsomly though when his Subject looses him from the strict terms of a Statute or Authority and that he is to debate upon probable Theams to enquire into publick utility or to enforce or answer presumptive Arguments he may use a more florid and elegant Stile his great design is to conciliat favour to his Clients Cause and sure caeteris paribus even the learnedst and most severe Judges love to be handsomly informed and he must be very just who is not somewhat bribed by charming expressions But that the greatest part of Judges are taken with that bait is most undenyable and as in Mariages we find that even those who desire rich Portions are yet pleased to have a beautiful Mistris and the severest man alive will be content to abate somewhat of the Portion to gratifie his fancy So I am sure that a Papinian or Ulpian would when the scales seem to stand even encline to that side upon which Eloquence stands Eloquence raises the attention of a Judge and makes him follow the speaker closely so that nothing which he sayes in favour of his Client passeth unregarded whereas another may say what is very reasonable and which if it were notic'd might weigh much and yet the Judge who is not allured to hear attentively may easily miss it I may likewayes add that Eloquence thaws like the Sun the speaker himself who when he is warm and pleas'd will thereby have his invention stirr'd up and his memory and all his faculties opened by which many excellent and apposite reasons may be suggested to him as we see the Earth when warm'd casts up many new and profitable fruits and herbs as well as flowers whereas we may dayly observe that a stiff and cold pleader do's omit oftimes even what he knowes By the same Eloquence also the hearers being warm'd and thaw'd have their Judgements thereby open'd and doe receive more easily impressions of what is spoke and I conceive Eloquence the fitter for Advocats that others think it should be banish'd as that which may bryb and corrupt Judges and methinks it should be pardon'd some little dangerousness that way since it pleases so much another nor can I think but that Providence has ordain'd it for the Barr to soften and sweeten humours which would els by constant sticking at meer Law become too rigid and severe and to divert and ease the Spirits both of Judges and Advocats which are too much upon the rack and bended for the service of their Countrey As to our Act of Sederunt which appointed that all pleading should be sylogisticè I need not reflect upon the ignorance of those times which was very excuseable amongst us since it did at that time blind even Italy and France who do now smile with pity upon the customs and productions of their countrey-men in that Age but I conceive that our Session having been at first constitute of an equal number of Church-men and Laicks and the President being an Ecclesiastick these Church-men having the advantage of Learning and Authority did form that Act of Sederunt according to their own breeding by which they were tyed in their Theology-schools to debate by Syllogismes but after-ages having found this upon experience to be very unfit and pedantick they did not only suffer that Act to run in desuetude but allow'd of this auguster and more splendid manner of debating which is now used And therefore I conclude that not only is that way not warranted by the Authority of that Act but that it has the less preference because of that Act for if that Act had not been made we might have been induc'd to believe that such a way might take but now since experience has reform'd us from it and since even the Authority of a Statute could not maintain it we must think it was not fit nor suitable as indeed it is not if we consider these few remarks All Sciences have an expression which is suitable to them the Mathematicks require demonstration and discover themselves to the eye Medicine and natural Philosophy require experiments Logick Metaphysick and alas now Theology must wrestle by syllogismes but the Law argues by a discourse free and unconfined like those who debate from its principles It is the nature of a syllogisme to have the subsumption in the second proposition but in pleading the matter of fact must come first for it stands in the state of the case and therefore though it be proper for Lybells which are but a Sylogisme yet it suits not with a Defence and it were very ridiculous and impossible to wrap up a long story many circumstances presumptions and probabilities in a syllogisme and oftimes there are many defences propon'd and joyned together The most ordinar and most allow'd way of arguing in Law is by similies instances and parallels and it is improper to drive those into syllogismes but he will best confute this way of arguing by Syllogismes who will sit down and plead any of the causes I have set down in a Syllogistick way which if any man do I shall renounce pleading except he take syllogistick debating in a very large sense As for instance in Kenedies case the pursuer behov'd to say He who is guilty of forging Writes should be hang'd but so it is Kennedy has done so ergo The Defender behoved to deny the minor and then the pursuer behov'd to say he who is burden'd with such and such presumptions is guilty of falshood but Kennedy is guilty of these and there he behov'd to insist upon all the indirect Articles or Presumptions but how should the Defender answer all these by a distinguo or if this way were introduced how little would this shorten Debates and are any creatures alive so litigious as some Divines and Philosophers who debate only by Syllogismes
those with whom they contracted without any design to vex Commerce or to preclude those successours from being relieved in their honourable and necessar occasions Prohibita alienatione tantum voluntariae prohibitae censentur non vero necessariae necessitas enim Legem non patitur as Reiters observes tract de alien cap. 6. sec. 4. which may be further clear per l. 5. ff de pet haered l. 69. § 1. ff de legat 2. And suitably to this though in our Law Ward-lands recognise if they be voluntarily dispon'd without the consent of the Superiour yet he is allowed to sell the less half of his Lands without the Superiours consent which is allowed by the Law to relieve his necessities and though he cannot voluntarily alienat the greater half yet all the Few may be apprysed from him by his creditors for satisfaction of his just debt And therefore seing the late Earl of Annandail was known to be a judicious person and to have lived very soberly and that these debts can be instructed to have been contracted for relieving him out of the necessities unto which he was thrown by the iniquity of the times and his constant adhereing to his Majesty It is by these Creditors pretended that these debts cannot be annull'd as contrary to that prohibition which they neither did nor were oblieged to know And since our Law has thought that Inhibitions and Interdictions should be published and registrat for putting the subjects in mala fide It can never allow that such clauses as these which are neither published nor registrat should produce the same effect To these Arguments they add that God Almighty has oftimes testified his displeasure against such Clauses whereby his Providence is insolently bounded by vain man who endeavours to build himself a Babel against Heaven and by which Clauses likewise man will endeavour to perpetuat his own memory here and call his Land to all Ages by his own Name against the express advice which the Scripture gives I do confess my Lords that those specious pretences especially when prest with so much zeal and eloquence may make impressions upon such as are not intimatly acquaint with the principles of Law but I hope where we have such Judges as your Lordships there can be little hazard from such objections but before I endeavour to satisfie these I crave leave to lay out before your Lordships those grounds whereupon my Client founds his pursute It is an uncontraverted and first principle of Law that quilibet est Dominus arbiter rei suae and therefore may dispose upon his own as he thinks fit nor can any thing less then a Law bound the exercise of this Power and every man being Judge of his own conveniency Lawyers do very properly term the conditions adjected by a disponer leges contractus and the Feudalists call the conditions under which a Few is dispon'd leges feudi feuda saith Zasius à pactis contra naturam suam sunt transmutata pacto praegravante naturam feudi and albeit our Law has defer'd very much to equity and to the principles of the civil Law yet privat transactions betwixt parties are not to be limited by those But pactions are to be observed amongst them in their full extent as is ordain'd with us by an Act of Sederunt 1573. Law may be receded from by privat Pactions and therefore much more must privat Pactions bind where they are contrary to no express Law and since pactum in refamiliari aequipollet juri publico Reg. Maj. lib. 3. cap. 10. lib. c. cap. 31. It necessarily followes that as a Law or Decision might have establish'd their pactions de non alienando non contrahendo debitum which is acknowledged by the Creditors themselves that a condition insert in a Charter may do the same as effectually and if the pretence of publick Equity and Commerce might alter the destination of a Disponer or mutual pactions of privat Persons what uncertainty would this occasion in Humane Affaires or who could be secure that the Transaction he made should hold For there are few men who do not differ in their conceptions about Publick Commerce this were to unhinge all privat Pactions which persons had at first suited to their own necessities and inclinations and to make Judges who should be ty'd to a fixed rule unrestrain'd arbiters over the affairs and fortunes of the people for they might almost in all cases recede from privat transactions upon pretext that they are contrary to publick good equity or commerce But if any conditions adjected by Disponers are to be observed surely those which are adjected in a free gift and donation are most to be observed and it is certainly contrary to reason that he who needs not dispone his own Land except he please may not dispone it as he pleaseth As the Law hath been very tender of the interests of all Proprietars so of all others it hath been most tender of those rights whereby men have declared how their will should be obey'd and their memory perpetuated after their death Law designing thereby at once to encourage men to be frugal because they may know that what they have gain'd by their industry shall be disposed of according to their will and to comfort men against death because they may know that their will shall be as exactly execute as if they themselves were still alive Uti quisque de re sua legassit it a jus esto The Law in all Contracts considers most what was the design of the contracters and when any thing is dispon'd for a particular cause when that cause fails the disposition falls as causa data causa non sequuta si ea lege donavi defectus causae impulsivae resolutionem contractus inducit quia ea lege donavi cum alias non essem donaturus l. cum te c. de pact inter empt That such pactions as these are very lawful and ordinary is clear both from the civil and feudal Law For by the civil Law though there were tailzies yet the Romans had their fideicommissa which did very much resemble them and by which the Person cujus fidei res erat commissa could neither dispone nor impignorat and if he did dispone or impignorat that person in whose favour the fidei commissum was granted might not only pursue the disponer for damnage and interest but might likewise annull what was done contrary to the trust as is clear l. fin cod de reb alien non alienand Sancimus sive lex alienationem inhibuerit sive testator hoc fecerit sive pactio contrahentium hoc admiserit non solum dominii alienationem vel mancipiorum manumissionem esse prohibendam sed etiam usus fructus dationem vel hypothecam vel pignoris nexum petitus prohiberi similique modo servitutes minime imponi nec emphytenseos contractum nisi in his tantummodo casibus in quibus constitutionum auctorit as vel testatoris voluntas vel
extended to this case wherein the Vassal certainly knew that his Few held Ward and though the Law sometimes doth excuse a Vassal who had reason to doubt the condition of his own Few because of some mysterious Clause or because he was a singular Successor and had not recovered the Writes of the Few as to which he transgressed or was necessitate to do the deed for which he was challenged by poverty or such other occasions yet that in the general ignorance did not excuse delicta feudalia is very clear by the opinion of the learnedest Feudalists Laur. Silv. de feud recog quest 60. praepos in cap. 1. § praeterea de prohib feud alienat And in our Law it was never found that ignorance did defend against recognition the falling of an escheit disclamation c. And if the Superiour were oblieg'd to prove the Vassals knowledge it were impossible ever he could prevail in any pursute knowledge being a latent act of the mind which can never be proven but by oath and to refer knowledge to the oath of the Vassal were not only to frustrate the Superiour but to tempt the Vassal to commit perjury and albeit the Feudal Law did allow the Vassal to purge his guilt by deponing in some cases upon his design yet that was only allow'd in cases where the external act was of its own nature indifferent such as the speaking of contumelious words that were to receive their genuine interpretation from the design of the speaker and that did never take place in clear acts such as this is wherein the Vassal hath sold his Few without the consent of the Superiour The thrid Defence was that where there is no contempt there can be no recognition But so it is that as the presumption of contempt is taken off by the constant tenor of the Earl of Dirletouns respect for his Master the King So the Disposition is given to be holden of the King and that implyes as much as if it had been expresly provided that the alienation should be null if the Superiour should not consent and confirm the same and such an express Provision should have certainly in the opinion of all Feudalists defended against recognitions To this it is answered first That the clause si Dominus meus consenserit doth not defend against recognition though exprest verbis geminatis pregnantibus and unless it be resolutively conceived bearing that it shall not be valid alias nec alio modo and although all these cautions be adhibit yet many Feudalists are clear that this will not defend against Recognition where the person to whom the Few is disponed attains to possession as Cranburn here did for they think that in that case it is but protestatio contraria facto plus valet quod agitur quam quod simulate concipitur and if this were sustain'd to defend against recognition no Few should ever recognize for the Vassal should still defraud his Superiour of any advantage by inserting a clause si dominus consenserit upon which considerations your Lordships predecessours have by a decision the 16. of February 1631. found that Lands may recognise notwithstanding of this condition 2. The disponing of Lands to be holden of the Superiour is not equivalent to the clause si Dominus consenserit for the disponing Lands to be holden of the Superiour provâ—nit non ex facto vassali sed ex natura feudi ex stilo all Fews being given in Scotland to be holden either of the Superiour or the Disponer à me vel de me as shall best please the receiver So that the disponing the Lands to be holden of the Superiour doth not shew any clear design the Vassal had to require the Superiours consent and consequently cannot defend against Recognition To fortifie this point it is urged by the Defender that where there is no prejudice to the Superiour there can be no recognition and there is no prejudice to the Superiour in this case seing the Superiours prejudice is either upon the account that the Vassal redditur pauperior or that the disponing without the Superiours consent obtiudes upon the Superiour a stranger ex al ena familia inimica whereas in this case the Disponer was not pauperior having reserved his own liferent and in effect the Bee it self and power to burden the same and contract debt and alter the tailzie and dispose of the Estate notwithstanding of the same and the Lord Cranburn cannot be said to be a stranger being descended of the Earl himself and being his Grand-child To this it is answered that in Law all such persons as are not alioqui successuri sunt extranei ex tenore investiturae and by two express decisions related by P. Spotswood and Hope it was found that Dispositions made to the Brother or Grand-child did infer Recognition though they were likewayes ex familia Nec licet saith Craig pag. 345. Vassalo anum ex liberis suis eligere sed vel naturae vel juris ordo sequendus vel domini electioni res est permittenda The fourth alledgeance was that only perfecta translatio domini can infer Recognition whereas the Sasine here is null because it is given to be holden of the Superiour and Sasines of that nature are intrinsically null quo ad omnes effectus except the Superiour confirm the same To this it is answered that si vassalus fecit omne quod in se erat to alienat the Few without the consent of the Superiour that alienation will infer Recognition though the alienation was null otherwayes as is clear by Craig pag. 344. Quod si traditionem Vassalus fecerit ea tamen sit invalida nulla exempli causa si chartam dederit de fundi alienatione tenendam de domino Superiore quam Sasina sequatur Et dominus Superior neque confirmaverit neque ratam habuerit videtur hanc alienationem nihil periculi secum trahere cum conditionalis videatur sub hac conditione contracta si dominus ratam habuerit aut confirmaverit quae conditio cum non evenit alienatio nulla sit ex defectu consensus Superioris paria sunt in jure omnino non fieri non jure fieri sed profecto in hoc casu puto etiam feudum domino aperiri nam quandocunque vassalus id omne fecit exequutus est quod in se erat licet factum illud de jure non teneat tamen quatenus in se est domini mutationem se velle testificatus est fidemque fregit in hoc etiam casu a feudo cadet licet alienatio nulla sit Suitable to which Baldus has very well observed that licet alienatio sit nulla ob vitium litigiosi feudum tamen fit caducum quia in prohibitis non requiritur juris effectus quod enim prohibitum est effectum sortiri nequit and if only effectual alienations could infer recognition it could never be inferred for all alienations to
which the Superiour doth not consent are null and by the Act of Parliament 1633. all Seasines of Ward-lands granted to be holden Few are declar'd null and yet are declar'd to be the ground of recognition And whereas it is alledged that Craig pag. 344. relates the case betwixt Mackenzie and Bain In which it was found that Lands did not recognise because not registrat within fourty dayes It is answered That there the Vassal non fecit omne quod in se erat not having registrat the Sasine timeously and so the tradition was compleat nor did the person to whom it was disponed possesse in the case cited the Land disponed as Cranburn did in this and by the opinion of Rosenthal capite 9. conclus 4. Feudum inquit ille absque domini consensu aperitur etiamsi alienatio ex alia aliqua causa forte omissa solennitate legis aut statuti aut simili esset nulla modo possessio vera actu tradita sit nam doctores in hac materia considerant prejudicium ipsius domini magis in traditione reiquam in alienatione Vide Curtium Jun. de feudis pag. 4. num 85. Whereas it is alledged that the Sasine is null as given upon a general Letter of Atturney out of the Chancellary nor are general Mandats sufficient in prejudicialibus and that this Sasine was given to a Minor who was extreamly laes'd To both these the former answers are oppon'd wherein I have endeavoured to prove that the alienation may be null and yet may infer recognition our Law considers not Minority as to casualities competent to the Superiour as is clear in the cases of Non-entry and Rebellion and since the Act of the Disponer is that which only infers recognition it imports not what the condition of the Person was to whom it was granted It is also pretended that the Sasine is null as being actus legittimus qui non recipit aiem nec conditionem l. 77. ff de regjuris for since executione actus statim perficitur its inconsistent that actus should be perfectus exequutus and yet should be suspended upon a condition as this Sasine is which bears failing Heirs-male of the Earl of Dirletouns body To this it s answered that this Sasine cannot be call'd actus legittimus that being ordinarily a term appropriat to judicial Acts whereas there is nothing more ordinar then that Sasines should be conditional as we see in Sasines given upon warrandise Lands and in Sasines following upon Wodsets nor is it denied that Sasines may bear resolutive conditions and if so why not other conditions these being of all others most severe Nor have any Lawyers written upon this subject who have not divided Sasines in puram conditionatam The fifth alledgeance was that there can be no recognition where the Vassal had power to dispone and the Earl of Dirletoun had by his Charter power to dispone for these Lands are disponed in his Charter haeredibus assignatis which implies potestatem alienandi which the Defenders learn'd Advocâ—â—s do found upon tit 48. lib. 2. feud Si quis enim ea lege alicui feudum dederit ut ipse sui haeredes quibus dederint habeant qui sic accepit poterit vendere vel alienare sine consensu Domini for which likewayes they cite Craig dicta diag 3. Clarus Hottoman and other Feudalists To this it is answered that this general clause haeredibus assignatis is only meer stile and the word assignatis is used here improperly as it is used in Bonds in which a man binds himself his Heâ—â—s and Assignayes whereas it is impossible for a man to bind his Assignayes Argumentum a stilo is not still probative especially in this Age wherein stiles are become too laxe and in our eldest stiles there is a luxuriancy which deserves rather to be corrected then allowed thus Inhibitions forbid us to alienat Moveables and single Escheits give right to Reversions albeit our Law reprobats our stile in both these and this clause was not designed to import a liberty to alienat for els there could be no recognition in Scotland seing all Charters bear that clause and such as have that clause have oftimes been found to recognise generales clausulae non extenduntur ad illicitum and that by the Feudal Law the word Assignatis is not equivalent to quibus dederit is clear seing the Feudalists use no such term as assignati and in our Law haeredibus legittimis assignatis must not be interpreted as if it were equivalent to quibus dederit but to that clause used by Doctors quibus legittime dederit and all Feudalists are positive that the clause quibus legittime dederit implies necessarily that the Superiours consent is still necessar Likeas Generalis clausula non extenditur ad prohibita ubi fieri potest congrua interpretatio But so it is that the word assignati may be understood of Comprisers or of such to whom the Vassal should dispone the lesser half of the Few So that when a Few is granted haeredibus assignatis it is lawfull for Creditors to comprise that Few or for the Vassal to dispone any part thereof not extending to the half but that Clause can never import that it should be lawfull for him to dispone the whole without the Superiours consent that being an interpretation which the parties themselves never designed and priviledges which are inherent in the nature of a Few as this is are never understood to be discharged except where they are discharged expresly The Defender my Lords hath told you that he propones all these Defences jointly which may discover to you how frail his own Advocats judge these Defences to be Arguments which are weak being join'd may by their mutual assistance plead pitty but they can never astruct the proponers Right no more then many cyphers can make a number nor many uncertainties a certainty This is a shift which Eloquence not Law has invented and may prevail with Arbiters but should seldom convince Judges The Lords found that these Lands though holding only Taxt-ward did recognize and repell'd also all the other Defences For Alexander Carmichael against the Town of Aberbrothock FOURTH PLEADING How far the Borrower in commodato estimato is lyable if the thing be lost vi majore WHen the Town of Dundee was so fortified that its inhabitants had reason to expect security to the Ships which lay under their walls either by way of defence or capitulation the Town of Arbroth did crave the lend of some Cannons from Alexander Carmichael but because the said Alexander as a Burgess in Dundee might have expected from the foresaid Garrison or from his being able to sail his armed Ship where he pleas'd perfect security to his Guns he therefore refused to lend the same till Patrick Wallace and other privat Burgesses of Arbroth should estimat the Guns and oblidge themselves to re-deliver the saids Guns free from all skaith harm or
to their Horses sell his Corns take in his Accounts and writ long Letters all with his own Hand in which Letters he shew a former design he had to make that Disposition Likeas former Letters can be produced long prior to his sicknesse wherein he shew'd his design whereas your Lordships have by former decisions found that equipolent acts were sufficient as in the case betwixt Sym and Grahame in anno 1647. Wherein it was found that the writing of the Disposition of a sheet and a half of Paper all with the Disponers own hand was sufficient to sustain the same and to defend against the reason of Reduction upon death-bed and in February 1668. in the action Pargillis against Pargillis it was found that the riding on Horse-back though the Disponer was proven to be sick and that he was supported upon his Horse were sufficient qualifications of health And if the going to Kirk and Mercat were still requisit the Lieges could never be in tuto when a Disposition is made to them seing very many men who are in perfect health do oft die suddenly before they have occasion to go to Kirk and Mercat and when the persons to whom the Dispositions are made cannot suspect there is any need of their going there But though Kirk and Mercat were requisit yet it can be proven that the Lord Coupar went to both and albeit he was supported yet that was only in a piece of the way which was rough and at which he used to be supported at other times when he was in health and was therein supported now not because of the sicknesse but because of the way To which it is replyed 1. That the Law and continual decisions having fixt upon Kirk and Mercat as indicia Sanitatis no other acts can be sustain'd as equivalent for where the Law requires solemnities such as these are solennia non possunt per aequipolentia adimplere thus earth and stone being required as symbolls in Sasines three oyesses at Mercat-croces c. Acts equipolent to these would not be sustain'd and the Law having appointed that a Child should be heard cry to the end Marriage may not be dissolved though the woman die within year and day the Law sustains not that the Child was a lively Child or might have cryed for saith that Law It was fit that some certain sign should be fix'd upon to prevent the arbitrarinesse of Witnesses And seeing it would not be sustain'd to elide the reply of Kirk and Mercat and the alledgeance of health founded thereupon that the Defunct was not in health though he went not to Kirk and Mercat so the reason of Reduction founded upon sicknesse because he went to Kirk and Mercat ought not to be elided by alledging that the Defender was in health though he went not to Kirk or Mercat and if equivalent acts were sustain'd this Law might be easily eluded and the effect of it would become altogether arbitrary 2. The acts condescended on are not equivalent signes of health to the going to Kirk and Mercat 1. Because these acts of going to Kirk and Mercat are fixt upon by a long tract of decisions and so are solennia jure recepta but these other acts are not such as have been found equivalent by any former decision but on the contrar acts of more adjusted equipolency then these have been repelled when propon'd to take off the reason of Death-bed and thus in the foresaid decision February 1. 1622. It was alledg'd that the Disponer was able to go to Kirk and Mercat and that he went about his affaires within doors and came to his own Table as formerly And though it was alledg'd upon the penult June 1639. that the granter of that Disposition then quarrel'd and which was made upon most deliberat grounds was able to mannage his own affaires as formerly having only a palsie in one arm which did not affect the judgement And the 1. July 1637. It was alledg'd that the Disponer who had granted a Bond of provision to his own Son had no disease which could be impedimentum rebus agendis and that he lived 28. Months thereafter and went about his affairs yet all these condescensions upon health were repelled though the time of surviving were much longer there then here the case of the granting of the Disposition much more favourable and indeed none can be lesse then this Defenders case and the persons who did dispone of a much greater consistency both of health and spirit then the Lord Couper who was known to have needed little sicknesse and much lesse importunity and design was used in this case to make him do acts both irregular and unwarrantable As to the decision Sym against Grahame It is answered that it was proven there that the Defunct went upon his own feet to the Apothecaries Shop and to his Physitians House which implyes necessarily in Edinburgh a going thorow the Mercat whereby the Law is satisfied and a publick act was done which might be proven by unsuspect Witnesses And as to Pargillis case the Disposition there was made in favours of a Grand-child with whose Mother the Grand-father had promis'd the Estate at the contracting of the Marriage he having been Party-contracter for her though that promise was not insert in the Contract likeas the Disponer went to the ground of the Lands unsupported and gave the Sasine himself and albeit he rode to the Mercat because he was Goutish which is the only disease that was proven and which is in the opinion of the Physitians rather a Pain then a Disease yet he went to the Mercat unsupported from his Lodging 3. All these acts condescended on were done at several times and might have been very easily done singly by a person who was sick and none of them are such acts as require health both of body and mind as doth the going to Kirk or Mercat nor did they require the coming abroad to open air which is the severe tryal of health and all these acts were transacted intra privatos parietes and so subject to suggestion and collusion the Witnesses being such as were under the power of the Defender who did elicit the Disposition and the appearand Heir being absent and very remote as is ordinar in such cases whereas the going to Kirk and Mercat are acts wherein the appearand Heir may hear a conjunct probation and wherein though the Witnesses to be led for the Defender design to prevaricat yet the fear of being control'd by a multitude would hinder them to adventure upon the deponing an untruth 4. All the acts condescended on seem to be done ex affectata diligentia affectata diligentia pro negligentia habetur nor can any acts be esteemed equivalent except they were such as clearly evidence that if he had design'd to have gone to Kirk and Mercat he could have done the same whereas in this case when the Defunct design'd to go to Kirk or Mercat unsupported as Law requires he could not
Victual to the enemies yet he forgets to tell whether the enemies were besieg'd but he expresly relates that there the carrying in Victual was expresly prohibited Neither was there any such considerable quantity of these Stock-fish carryed in here as might shew any design of assisting the Hollanders by Victuals seing it was carryed in a very small quantity and might have been necessar for the Pursuers own Company and if they had design'd to have carryed these as Commodities they had carry'd them in greater abundance and Tar is the product of Sweden and so Commerce in it is necessar for them And whereas it is contended that the Ship had formerly carried enemies Goods and consequently had transgressed that Article of the Treaty whereby bona hostiam tuto advehere non licet It is answered that if they had been taken carrying these enemies Goods the Goods could have been confiscat but not the Ship it being very clear by the Law of all Nations that it is lawfull even for Allies to fraught their Ships to strangers in order to civil Commerce and that to hinder this liberty is a breach of the Law of Nations as is very clear by the Constitutions of several Nations printed lately at Venice where amongst other Articles it is determined Si navis merces hostium sint fieri ea capientium si vero navis sit pacem colentium merces autem hostium which is our case cogi posse ab his qui bellum gerant navem ut merces eas in aliquem portum deferat qui sit suarum partium ita tamen ut vecturae pretium nautae solvat Since then by the Law of Nations the Skipper behoved to have had this fraught pay'd though he had been taken carrying enemies Goods it were against all sense and reason that his Ship could have been confiscat for carrying them and Camden in the year 1597. tells us that Pole did by their Ambassador complain that the Law of Nations was violat in that the English had in their War with Spain challenged their Natives for carrying their Goods to Spain And Serviens relates a decision 12. December 1592. wherein some Hamburgers were declared free though they were taken carrying Corns and other Commodities to Spain and because they were Allies for the Parliament of Paris thought that Allies deserved better then others If we consider the Treaty with Sweden we will find that Ships carrying Contraband-goods are only to be seiz'd on si deprehendantur which like all words in Treaties amongst Princes must be taken in augustiori sensu nor suits it with the generosity of Kings to take little airy advantages of one another and to debate like pedantick Formulists who ensnare one another in thin cob-webs as spiders do flees but in no sense can these words si deprehendantur be extended to the Ships being taken in any former Voyage for els they had been superfluous and impertinent since no Ship can be adjudg'd except she be taken in some voyage the genuine interpretation of words is interpretari secundum subjectam materiam and therefore since these words are insert in a Treaty wherein His Majesty is to indulge favours to the Swedes they must be in reason so interpret as that they may be a favour and there is no favour indulg'd here if these words be not taxative and if they declare not any Ship free which is not seiz'd carrying Contraband the time of the seizure By our Law it has been very wisely provided that we should use strangers in our Admiral Court as they use us in their Countrey Act 24. Ia. 1. Par. 9. And it is offered to be proven by the Law of Sweden Tar is not esteem'd Contraband nor can Ships be declared Prize for what they carryed in a former Voyage and since our Natives would complain of such usage in Sweden let them not meet with it in Scotland which is very suitable to that excellent Title in the Digests Quod quisque juris in alterum statuerit ut ipse eodem jure utatur by the Law also of England as Judge Jenkins reports in a return to your Lordships Commission no Ship is confiscated upon this ground Be pleased My Lords to consider what great prejudices would arise to Trade if Ships might be seiz'd upon pretext that they carryed Contraband in a former Voyage for by that allowance all Ships might be seiz'd upon since this pretext might lye against all and every poor Merchant might be left a prey to the ravenous Privateers who might force them to ransome themselves from the very hazard of a seizure in which case whatever were the event of the confiscation yet still their time and expense would be lost and their Secrets and Papers would be made open which is so great a prejudice to Merchants that by the Rhodian Law Secreta 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 non licebat introspicere introspicientibus ultimum supplicum irrogabatur It was likewise very fit that the Swede and all Princes should tye the Privateers to a probation that fell under sense and such is the having Contraband-goods presently aboard ubi constare potest de corpore delicti and not lay poor Merchants open to the hazard of the testimonies of two rogues who being tempted by malice or avarice might depone falsly that the Ship carryed Contraband-goods formerly in which they might the freelier transgresse because they could not be control'd whereas no such falshood is to be fear'd if only actual carrying can confiscat a Ship since there the existence of the Goods precludes all possibility of error or falshood Were it not also very absurd to seize a Ship which possibly carryed Contraband in a former Voyage and thereby ruine a great many Merchants who were the present fraughters of her and who neither did nor could know what she had carryed formerly and yet she being seiz'd their Voyage would be broke and their Fortunes ruined Or if another Skipper or Owners had bought her from the first offender were it not injust to seize the Ship and yet the Ship were Prize if this opinion could take place this were to pnnish ignorance and Commerce requires more latitude then such Principles can allow It is I preceive urg'd for this opinion that the Commissions granted now and of old bear expresly a power to take Ships which have carryed enemies Goods and there is a Commission produced in Anno 1628. of this tennor together with two decisions of our Admiralty to the same effect neither of which are concluding for Strangers and Allyes are not obliegd to take notice of privat Commissions which are not leges belli promulgâ—â—ae these may warrand against damnage and interest but not against restitution and as to the decisions they are founded upon other grounds also It is also urged that the carrying Contraband being a crime against the Prince or State who make the War there is jus quaesitum to them by the very commission of the crime though the Defender
whom they represent be merited but so augustly and opulently as may bear a proportion to the greatnesse of him who dispenses them as Clarus and all the Feudalists observe and if the word can admit a large interpretation the grants of Princes ought to have it So that since these general clauses would carry all Casualities in Gifts granted by privat Superiors much more ought this to be allowed in augustioribus principum concessionibus especially in Discharges granted by them of all former incumberances which being of the nature of Indempnities ought like them to be interpret all possible wayes to defend the poor Vassal Nor do I deny but the negligence of His Majesties Officers should not prejudge His Interest yet Gifts granted cannot be called negligence for the one is an omission and the other a commission the one is a privation and the other a positive act the design of that Statute was to defend His Majesty against the omission of His Officers such as the suffering His Rights to prescrive or omitting to propone Defences for him and the words of the Act 14. Par. 16. Ja. 6. are that in the pursuing or defending any of His Actions or Causes the negligence of His Officers omitting any exception reply c. shall not prejudge him But God forbid that every Gift granted by His Majesty and past by his Exchequer might be thereafter questioned because a sufficient composition was not payed or that it was not founded upon a sufficient cause for else all our Signatures and Rights might be questioned this were to unhinge all our Securities and to endanger all His Majesties Officers but how can what is past His Royal Hand be thought to be past by the negligence of His Officers And how impertinent were it for his Officers alwayes to stop what His Majesty commands I confesse that the Gift of a Ward per se would not carry Marriage but if His Majesty did grant omnia proficua ratione Wardae contingentia though in a single Gift I think it would give right to the casuality of Marriage and yet that case would not be so strong as ours for in single Gifts it is proper to expresse Casualities dispon'd but in a Novo aamus it is otherwise for the design there is by the enumeration of all special Casualities and by subjoining a general to these thereby to secure against all these Casualities To what is founded upon the errors that are in many of our Stiles I need only answer that regulariter stilus aequipollet juri pro Lege habetur l. si quando C de injur Bart. in l. peritos ff de excus tut And therefore though as Laws may be abrogated or restricted so Stiles are subject to the same frailty yet unlesse it can be made appear that these Stiles are restricted by the constant current of Decisions or by some expresse Laws certainly Stile must rule us Stiles are the product of common consent and are introduced after much experience by such as understand they are to Lawyers what the Cart is to Geographers or the Compass to Sea-men and this is so far from being convell'd that it is established by the instances adduced by the Donator for Gifts of Escheats and Non-entries did take place according to the latter till they were restricted by expresse Acts of Exchequer and sure these Acts had been needlesse if the Stile had not been binding before these Statutes drawn backwards but having a future obligation only every man knew how to compone or transact for them accordingly As to the instance of Reliefs by-gone Few-duties Taxtduties of Ward and Marriage which was Pierstons case it is clear that the reason why these passe not under general Gifts is because they are liquid and so cannot be compon'd for in Exchequer as Hope well observes for these are no contingencies and since the Law gives right to any thing in a Signature because it is compounded for therefore in justice these things cannot be comprehended in a Signature which are not compounded for We have likewise an expresse Act of Parliament appointing that Reliefs should not be compounded for which draws out these from the common objection and states Reliefs in a case far different from ours And though it be much urg'd that His Majesty having taxt the casuality of Ward and Marriage in this Gift it is most presumable that He would have exprest the casuality of Marriage if he had designed to have transmitted it since that casuality was then under consideration Yet this is but a remote conjecture and must cede to the stronger presumptions urg'd in the contrair and since the Signature is not drawn by His Majesties order but by the Vassal the presumption ceases and it is more presumable that the Vassal would have exprest this casuality had he thought it necessar and whatever might be urg'd if this casuality of Marriage had been exprest but had been delet yet there can be little difficulty where the Signature was presented without it and where the Vassal rested upon the general Clause All the Lawyers of our Nation have advised that this Novo damus did seclude Marriage though not eâ—prest all the people have esteem'd so and upon that esteem they have bought and sold accordingly Rights carrying such a Novo damus So that whatever may be done as to the future yet since so many have compon'd with His Majesty for such Gifts in contemplation they carryed all Casualities and that so many have given considerable sums to such as had compon'd for them upon that consideration Since this opinion was so old and universal and since ignorance in it if it be an error was so invincible being warranted by the advice of the ablest Lawyers I cannot see how in Law quoad preterita it can be otherwise interpret whatever fate it may have for the future The Lord found that a Right granted by the King with a Novo Damus did not only secure the Property but secluded all Casualities that were exprest but that it did not defend against Casualities which were not exprest For John Johnstoun againstJames Hamiltoun XIII PLEADING Whether a Contract entered into by a Minor who averr'd himself to be Major and swore never to reduce be revocable THe Law might seem a severe Master if it only impos'd upon us what we were to obey and exacted from us an intire submission to what it did command but in recompence of our submissions it returns us its protection it doth supply want of strength in the weak when they are ingaged against the strong want of wit in the simple when they are ingaged against the subtile and want of age in Minors who would otherwayes be very easily circumveened it appoints its Judges to be their Tutors and whilst such as rely upon their own wit may be circumveened they are by its assistance plac'd beyond all hazard Amongst those other Minors who dayly come to crave from you the reduction of what they did in their Minority
such reductions for either the Minors with whom they contract are laes'd and then they will not be restor'd and therefore such as contract with them cannot be prejudg'd but if they can make it appear that they are prejudged it will necessarily follow that the Minor is not laes'd and so the Contract will not be lyable to reduction and thus these Oaths will infallibly prove to be either unnecessar or unjust This Cause came not to a Debate Against Forfeitures in absence XIV PLEADING My Lord Chancellour WE have subjected to our consideration an Overture which ought to be seconded by very convincing arguments before we pass it into a Law seing it innovats a custom which is as old as our Kingdom and older then our positive Laws And customes like men may be thought to have had excellent constitutions when they last long and this Act if past seems to infer the greatest hazard upon the two highest of our concerns for such are our Lives and Fortunes The old inviolable custom of Scotland was that no probation could be led against absents either in Treason or any other Crime in any Court save the Parliament but the only certification in all criminal Letters was the being denunced Fugitives or out-law'd as the English speak which custom hath maintained it self for many hundreds of years by its own reasonablenesse without the necessity of being fenced with any other Authority and albeit the Parliament did reserve to themselves a liberty to proceed against Traitours in case of absence yet they never granted that to any other Court whereby it clearly appears that our Predecessors have thought that power incommunicable to all such as were not Legislators that procedure being rather a priviledged transgression then an execution of the Law But it is now craved by this Act that in case of perduellion and rising in Armes against the Prince it shall be lawfull to the Justices to lead probation against absents and forfeit them accordingly which seems to me most inconvenient for these reasons 1. Because the Stiles in all Courts are equivalent to fundamentals and by an expresse Act of Parliament with us Stiles are not to be altered But so it is there is no Stile in the Justice Court bearing any other certification against absents but the being denunced Fugitives 2. There was never any Instances of it since the foundation of the Justice Court and a negative Practique being so old and uniform as this is most binding especially where all the conveniences reasons and advantages which are now prest were then obvious our Predecessors were sure as Loyal as we and let us not be more cruel then they were 3. The old custom was founded upon most convincing reasons for when persons are proceeded against in absence they want the benefit of exculpation for proving those just defences which are of so great consequence to them and their posterity such as are That though they were present upon the place yet they were taken prisoners and carried there and were only going loose upon parroll or fell accidentally amongst those Rebells who had gathered themselves together or went there by a command from some of His Majesties Officers for reclaiming those who were in Armes with many other defences which the party being absent none can know and though known none dare propone it being a maxime in our Law that none dare propone any thing to defend one who being pursued for Treason is absent Another great disadvantage under which these will fall who are pursued in absence will be that such witnesses may be received against them as are lyable to just exceptions and whom they would decline if they were present which objections likewayes none know nor dare propone and it is likewayes very well known that there are many witnesses who will depone upon suggestion very many things which they durst not assert if they were confronted with the party against whom they were to depone being sometimes overawed and sometimes through pitty driven to speak only truth when they look upon his countenance who is to live or die by their depositions Upon which accompt confrontation of witnesses and parties hath in the civil Law been used as a successful remedy and in ours the witnesses are ordain'd to look upon the pannells face when they depone And albeit it may seem that there is little hazard of a probation where the case is so notour as that of rising in Armes yet the mistake lyes in this that though the rising in Armes be notour it may be it is not notour who were present and the persons may be doubtfull though not the thing it self A third great inconvenience is that whereas those who are present may by interrogators restrict or explain what seem'd disadvantageous in the deposition of such as depone against them they will by this innovation forfeit this advantage amongst other losses 4. No other Nation receives concluding probation against absents many instances whereof might be given but I shall satisfie my self with that of Freisland cited by Sand. lib. 5. def 2. Praxis nostra habet ut Criminosus si fuga se substraxerit ad instantiam procuratoris generalis citetur si praefixa die non comparet fiducialiter bona in contumaciae paenam annotantur which is exactly our custom and by the civil Law Tantum annotabantur bona rei non comparentis ita ut si post annum venerit satis dederit de stando juri ea recuperat si non bona perdit non tamen de delicto habetur pro confesso l. 1. gloss l. pen. fin ff de requiren reis which Title begins thus Divi-fratres rescripserunt ne quis absens puniatur hoc jure utimur ne absentes damnentur And Hottoman tells us that Majestatis crimen in foro apud suum praetorem perduellio vero à populo Romano comitiis centuriatis in campo martis judicabatur which was much more reasonable then our present overture seing the greater the crime is it should be the more solemnly and slowly judg'd from which procedure of the Romans in Perduellion it seems our old practique of judging only absents in the matter of Treason by a Parliament hath taken its origine for Comitiae centuriae was to them what a Parliament is to us I might here likewayes alledge the authority of Mathaeus the Learnedst Civilian who ever wrote upon that subject tit 2. num 6. whose words are Denique cum leges vetant absentem damnari crimen perduellionis non excipiunt erit igitur hic observandum quod in aliis crimintbus ut absens requirendus adnotetur bona obsignentur publicentur denique si intra annum non responderit L. absentem 5. C. de poems l. absentem 6. C. de accusat l. ult D. de requir vel abs damn Nam quanquam Perduellio gravissimum crimen est videndum tamen ne in occasionem sevitiae atque calumnie habeatur pag. 371. dicit Math. Falsum esse
absentem in hoc crimine posse damnari nec ullo juris loco excipi crimen Majestatis Dicitque supradictam extravagantem Constitutionem nullam authoritatem obtinere apud interpretes juris civilis 5. By the 90. Act. Parl. 11. Ia. 6. It is most justly statute that all the probation should be led in presence of the Pannal and the Assyze which showes clearly that our Law hath been alwayes jealous of probation led in absence and that probation is only to be led in presence This innovation is recommended to us upon these reasons 1. That these who are contumacious and flee from justice should be in no better condition then those who appear and they cannot complain of any of the foresaid disadvantages seing these are occasioned by their own absence and fault To which it is answered that a person who is pursued for Treason may be absent not upon the accompt of any guilt but because the citation never came to his knowledge as if he be at the time abroad in Forraign Countryes where citations at the Mercat-crosse of Edinburgh and Peer and shore of Leith which is all our Law allowes seldom reach and sometimes the persons summoned may be either sick or in prison and not be able to appear or being lyable to other accusations or fearing rather the present influence of some enemies then their own guilt dare not For though Treason as the most comprehensive of all other crimes to us be of all others most abominated when proven yet of all other crimes most Innocents are by either malice or design oftest ensnared upon pretext rather then by the guilt of Treason For as Lipsius observes of the times wherein Tacitus wrote Fraequentatae tunc temporis accusationes majestatis unicum crimen eorum qui crimine vacabant Tertullian in his apol sayes non licere indefensos omnino damnari à Carolo Magno institutu est lib. 7. cap. 145. Ne quis absens in causa capitali damnetur Plutarch in Alcibiades life makes Alcibiades to have given this prudent answer to one who challenged him for not appearing to defend himself Cetera inquit omnia libenter sed de capite meo ne matri quidem ne forte is pro albo atrum calculum imprudenter injiciat Notat Liberius Pontifex Romanus Constantio Imperatori Judicem non posse absente reo de crimine ejus judicare nisi aut iniquus Judex sit aut privato odio saevit Hist. tripart l. 5. cap. 16. Seneca saith lib. 6. de Beneficiis cap. 38. Quantum existimes tormentum etiamsi servatus fuero trepidasse etiamsi absolutus fuero causam dixisse And as Cicero very well observes these who are accused before any Judge for life consider oftner what that Judge may do then what in justice he ought to do Oratione pro Quintio And thus we find that Athanasius and Chrysostom would not appear at Councils to which they were cited albeit they feared their Judges more then their guilt Niceph. lib. 8. c. 49. It were therefore very hard in any of these cases to forfeit an absent of his Property seing in these innocence and absence are very compatible Nor doth His Majesty suffer great losse by this as is urged for if he who is pursued for Treason compear not he is denunced Fugitive and by that denunciation His Majesty possesses his whole Estate till he die or compear and after death he may be forfeit The second Argument is by the 69. Act. Par. 6. Ia. 5. Traitours may be forfeit after their death in which case they are absent and want all the advantages above related But to this the answer is that the Law is so just and mercifull that after a person is denunced Fugitive in the case of Treason it allowes him all the dayes of his life to purge his contumacy by appearing to reclaim his innocence and it never dispaires of the one till the other be elapsed and when it proceeds against any man to forfeiture after his death it ordains the nearest of Kin to be called to exculpat him by proponing defences or objections against the witnesses and for doing every thing els which is usual in such cases or which might have been done by the Defunct himself whereas he who is pursued in his own lifetime cannot defend after that manner as said is After death likewayes death it self which is the greatest half of the punishment is over and there is not so great hazard as there is in his case who is forfeit dureing life who is by that Sentence without any possibility of hearing execute immediatly upon his being apprehended After death also malice and design ordinarily ceases so that the errors or prejudices of either pursuer or witnesse are not so much to be feared The third Argument is that probation may perish in the mean time if it cannot be received till after death To which it is answered 1. That this Argument aut nihil aut nimium probat for upon this account Pursutes should be sustain'd for all other absents this prejudice being common to all But 2. It is safer that a just probation should perish then that a suspected one should be received and this one inconvenâ—ence should not weigh down the many which are laid in the ballance of the other side Parliaments are ordinar and necessaâ—y aâ—tâ—r publick Rebellions wherein that horrid Crime may receive its legal as well as its just punishment or if they meet not this may be otherwayes remedied for probation may be led ad futuram rei memoriam though the party be absent reserving to him all his other defences by which the Kings right may be preserved and the Lieges rights not prejudged and of all probations that can least perish which is to be led in the case of publick rising in Armes The fourth Argument is that the civil Law admits forfeiture in absence in the case of Perduellion for so the common Law names that kind of Treason which is committed against the Prince or State and our Criminal Law being founded upon the Civil Law ought in this as in most other cases to be squared by it To which my answer is that there is no warrand for that assertion from the Law of the Romans for by that Law bona tantum annotabantur as hath been said in place whereof banna hodie locum obtinent which is equivalent to our Denunciations But because citations of the Civil Law would resemble pedantry too much I shall recommend to such as doubt this the 16. verse 25. Chap. of the Acts where Festus a great Roman Lawyer sure as all their Presidents of the Provinces were tells us That it is not the manner of the Romans to deliver any man to die before he who is the accused have the accuser face to face and be heard to defend himself concerning the crime laid against him I confesse that forfeiture in absence is allowed per extravag Henrici septimi and it is well called an extravagant
Constitution but that is accompted no part of the civil Law and if we follow its model we ought to allow forfeiture in absence in all points of Treason as this doth and even that Constitution acknowledges that this was not allowed by the Romans and if it had this Constitution had been unnecessar as it is now unreasonable And I remember that App. Alex. in his third Book of the civil Warrs relates an eloquent Harrangue made by Lucius Piso in favous of Antonius maintaining that no person who is absent could be condemned though upon probation which was accordingly found by the Roman Senate And though our Parliaments use to proceed against absents in case of Treason yet that is so seldom and solemnly done that there is little hazard to the Pannals and every man hath still some friends in so great a number who may defend him nor is it probable that the Parliament who are the great Curators of the Common-wealth and who are so much entrusted by us as to have reposed upon them the Legislative Power will prejudge any privat party remembering it may be their case one day which is now the Pannals and that being a supream Court is not stinted to follow a probation which is suspect though privat Assizers might for fear of an Assize of error which makes a vast difference and disparity of reason Let us then My Lord consult the interest of our Posterity which is a generous kind of self-defence for the Italian proverb observes well that it is better to live in Countries which are barren then in Countries where there are rigid Laws Let us guard against what is cruel as we wish what is just and let us lawfully be carefull now of these our Lives and Fortunes of which we have been too often unnecessarily anxious God himself would not condemne Adam till he heard him and though he knew the sins of Sodom and Gomorrah he would not pronunce sentence against them till he went down and saw their abominations Let us not then make snares in place of Laws and whilest we study only to punish such as are Traitors let us not hazard the Innocence of such as are Loyal Subjects The learned reasons adduc'd for this Overture and the opinion of the Session prevail'd against this Discourse and the Parliament did ordain that absents might be proceeded against in the Justice-court for publick rising in Armes For the late Marquess of Argyl immediatly before his Case was advised XV. PLEADING Whether passive complyance in publick Rebellions be punishable as Treason My Lord Chancellor I Wish it may be the last misfortune of my Noble Client that he should be now abandoned to the patronage of so weak a Pleader as I am whose unripenesse both in years and experience may and will take from me that confidence and from your Lordships that respect which were requisit in an Affair of this import In our former Debate which is now closed we contended from the principles of strict and municipal Law but here I shall endeavour to perswade your Lordships from the principles of equity reason conveniency and the custom of Nations which is the more proper way of Debate before a Parliament who make Laws but are not tyed by them and who in making Laws consider what is fit and equitable and then ordain what shall be Law and Justice and if your Lordships consider strict Law in this case it were in vain for the loyalest Subjects who liv'd in these three Kingdoms during those late confusions and rebellions to defend his own actions by that rule for since intercommuning with Traitors concealing of Treason and acknowledging their Authority are by strict Law in regular times undenyable Acts of Treason I am no more to debate abstractly my Clients Innocence as to these for who amongst us did not share in that guilt All did pay Sesse all did raise Summonds in the Protectors name we were all forc'd to be the idle witnesses of their Treasons and therefore I shall only contend that in such irregular times as these were wherein Law it self was banisht with our Prince meer compliance can amount to no crime in him and that as to this he lyes under no singular guilt Especially seing His Majesty has by a Letter under His Royal Hand declar'd that he will not have His Advocat insist against him for what was done by him or any els preceeding the year 1651. in which time he was only an eminent Actor having retired himself from all publick imployments under Cromwels Usurpation being known for nothing all that time but a sufferer and being forc'd by self preservation to do those things for which he is now accused which being undenyably acknowledged by all the Nation cannot but recommend these few particulars which I am now to offer for him Complyance as the very word imports is only a passive connivance Et praesupponit crimen in suo esse hactenus constitutum and in Law when a multitude offend as in our case the contrivers and such as were most active are and should only be punish'd detrahendum est severitati ubi multorum hominum strages jacet and therefore this Noble Person being acknowledged to be none of the first plotters nor having been singular amongst that vast multitude of complyers cannot be brought in amongst such as ought to be punished For albeit where many may commit a crime there the multitude of offenders should highten the punishment yet where the crime is already commited collectively by a multitude there the number of offenders takes off the guilt and in such cases none should be punished saith Aflictus but in flagranti recenti crimine or with rid hand as our Law terms it dum durat crimen nec sine quorundam nece extingui potest seditio or where the renewing of the crime is justly to be feared for punishments being of their own nature inflicted not for what is past seing that cannot be remeeded but for example in the future certainly where the rebellion is extinguished and needs no more be feared as in our case God be praised it were cruelty to punish ordinar complyers It is remarkable that in the 13. 14. 15. Acts of the 5. Parliament of Queen Mary such Scots-men as did ride with English-men even where her Majesties Authority stood in its integrity are ordain'd only to be lyable for what skaith they did to Scots men who served the Country and that they being charged to leave assurance with English-men and disobeying should have no action againg true Scots-men for any wrong done to them If then such lenity was us'd and such commiseration extended to such as were involved in a publick opposition to lawfull and standing Authority and in a compliance with the English who were at that time born and sworn enemies both to this Crown and Countrey what may such expect as complyed only when no visible Authority was able to protect such who were forc'd to comply not out of any design
to defend Usurpation but rather out of a design to preserve themselves for doing His Majesty furder service And as in the Body-natural the ordinar rules of Physick take no place when there is a violent and universal conflagration of Humors so the ordinar rules of Law should have as little place in the Body-politick when a whole Nation have run themselves head-long into a common distraction To which purpose I cannot but represent to your Lordship that excellent Law made in the Reign of Henry the seventh of England and with consent of that excellent Prince wherein it was enacted That no Subject should be guilty of Treason for obeying one who was called King though known to be an Usurper because the people do there not rebell but submit Necessity may likewise be adduc'd for extenuating this complyance which is therefore said to have no Law because it is punished by none without complying at that time no man could entertain his dear Wife or sweet Children this only kept men from starving by it only men could preserve their ancient Estates and satisfie their Debts which in honour and conscience they were bound to pay and without it so eminent a Person as the Marquess of Argyl and so much eyed by these rebells could not otherwise secure his life against the snares were dayly laid for it and so this complyance did in effect resolve in a self-defence which inculpata tutela seing it can exempt a man from murder and these other crimes that are contrair to the Law of Nature it should much more defend against the crime of Treason which is only punished because it is destructive to the government of our Superiours and Statutes of our Country and since crimes are only punishable because they destroy Society and Commerce how can this complyance be punished which was necessar for both these Mans will is naturally so frail and man because of that frailty so miserable a creature that to punish even where his will is straight were to add affliction to the afflicted the want of this will defend mad men against paricide and the degrees of this distinguisheth slaughter from murder and in the Acts of Parliament whereupon the Lybel as to compliance is founded it is requisite that the compliance be voluntar thus in the 37 Act 2. Parliament Ia. 1. It is statute that no man willâ—ully receipt Rebels and by the 205. Act 14. Par. Ia. 6. these who apprehend not such as mis-represent the King are as guilty as the Leasing-makers if it be in their power to apprehend them as the Act very well adds Likeas by the 144. Act 12. Par. Ia. 6. The Lieges are only Prohibited to intercommune with such Traitors as they might crub for that Act as it forbids all Commerce with Rebels So it commands all the Subjects to advertise His Majesty of their Residence and to apprehend them whereby it is clear that this last Act is only to have Vigour when the Authority of the Soveraign stands in force per argumentum à contrario sensu seems to excuse such as submit to Traitors when there is either nothing to be advertised or when Advertisments of that nature are either imprestable or at least unprofitable as in our late troubles at which time the residence of these Rebels was notour and all correspondence betwixt the King and His People was daily betrayed and intercepted Consonant to which is that excellent Law l. 2. ff de Receptatoribus where it is said that Ideo puniuntur receptatores quia cum apprehendere potuerunt dimiserunt and Bald. ad l. delictis ff de noxal act is most expresse that receptans rebelles non voluntarie sed coacte quia sunt plures rebelles simul eos expellere non potest sine suo periculo non punitur aliqua paena Thus likewise in the Statutes of King William cap. 7 § 2. it is said Pro posse suo malefactores ad justitiam adducent pro posse suo Justitiarios terrae manu tenebunt And § 5. it is ordain'd Quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores ad vindictam de illis capiendam By all which it is clear that not only should complyance be voluntar before it be criminal but that likewise it must be a complyance against lawfull Authority able to protect such as revolt from it I remember in anno 1635. James Gordoun being challenged for corresponding with Alexander Leith and Nathaniel Gordoun declared Traitors for burning the House of Frendraught they were assoylzied because the intercommuning challenged was not lybell'd to have been-voluntar and thereafter the Assize who assoilzied them having been pursued for wilfull error for absolving as said is they were likewise absolved from that Process of error in the which Process that same argument was urg'd but not so strong in point of fact as in our case and because the design is that which differences the actions of men propositum crimina distinguit and seing designs being the hid acts of the mind are only guessed at by the concomitant and exterior circumstances I shall only intreat your Lordship to consider these few presumptions which being joyned may in my apprehension vindicat this Noble Person from the design of voluntar complyance 1. He is descended from a stock of of Predecessors whose blood hath prescribed by an immemorial possession the title of eminent Loyalty and that same Law which presumes that the blood and posterity of Traitors is infected with a desire to revenge the just death of their Predecessors and an inclination to propagate their crimes doth likewise presume Loyalty and a desire to be thankfull in the the children of such as have received great favours and performed great services to such as have been the Benefactors 2. These with whom he is said to comply were known and avowed enemies to Nobility had quite exterminated in England and begun to exterminat in Scotland all memory of Nobility and badges of Honour so that in this complyance he must be thought to have plotted against his own interest nor can I see what advantage he could expect from a Common-weath which valued nor preferr'd none but Souldiers a Trade which suited neither with his breeding nor years 3. They were enemies to Presbyterian Government of which he has alwayes shewed himself so tenacious and of all Governments they did most abominat that one for which he had exposed himself to so many hazards 4. That Usurper had never oblieged him neither by reward nor complement 5. He was sworn their enemy both in Parliament and Councel and charity as well as Law presumes against perjury 6. He was pursued by them most unjustly both at Councel of War and elsewhere and was known to have been hated extreamly by their Commander in chief for complyance with whom he is now challenged By all which it is most improbable that his Lordship would have linked himself with that abominable crew of miscreants by
undenyable that Witchcraft cannot be inferr'd from such a presumptive conclusion as is clear by Farin quaest 36. num 11. Perkins Bodin and others above-cited and if it were otherwise Judges might condemn upon guessing or malice and so moe would be in danger to die by injustice then by Witchcraft and may you not as well punish such as stay bleeding by applying a Stone or who prevent abortions by gliding the woman with a Belt now much in fashon And therefore it is very remarkable that by the 73. Act 9. Par. Queen Mary Witchcraft Sorcery Negromancy and sicklike arts for abusing the people are only forbiden nor can it be subsumed that any Art or exterior thing whereby people use to be abused were here used and therefore this Article cannot be said to fall under the prohibition of the Act of Parliament The second Article is that my Client did cure the said person whom she had formerly distracted by â—pplying a Plantane leaf to the left side of her head and binding a Paper to her Wrest upon which was write the name of Jesus Which being done by her who was an ignorant person being done to the person who formerly distracted upon her whisper and the Cure being perfected in lesse time then Nature uses to take for composing such gerneral and horrid distempers might necessarily infer that this Cure was performed by Witchcraft Against which Article it is alledged that the conclusion here should demonstrat that necessarily this cure was performed by no natural cause whereas the mean here used viz. the applying of a Plantane leaf is a natural thing and may cure in a natural way it being known that there is nothing so cold as a Plantane leaf and so it might have been very fit for curing a distraction which is the most malignant and burning of all feaverish distempers Or who knows but that this distraction having been occasioned by the excessive fear she had of my Clients revenge but that how soon she was reconciled to her and that she had by the same strength of fancy which made her sick conceived that she would likewise restore her against that sicknesse her distraction might have abaited with her fear 2. The Law-givers having punished crimes because these crimes are destructive to their Subjects and Common-wealth have for the same reason only punished such indifferent inchantments as did either kill men or ensnare them to unlawfull lusts but not those Arts where the health of man and the fruits of the ground were secured against diseases and tempests as is clear Per l. 4. Cod. de Malef. Math. Eorum est scientia punienda severissimis merito legibus vindicanda qui magicis accincti artibus aut contra hominum moliti salutem aut pudicos ad libidinem delexisse animos detegentur nullis vero criminationibus implicanda sunt remedia humanis quesita corporibus aut aggrestibus locis ne Maturis vindemiis metuerentur imbres aut ventis grandinisque lapidatione quaterentur innocenter adhibita suffragia quibus unius cujusque salus aut existimatio lederetur sed quorum proficerent actus ne divina munera labores hominum sternerentur Which Law being a Statute made by Constantine who was a Christian Emperor being conceived in so devote terms and insert by Justinian who was a most Christian Prince amongst his own Laws cannot but be a Law very â—it to be observed in a Christian Common-wealth And though it be allegded that this Constitution was abrogat by Leo nov 65. yet it is very remarkable that this Constitution made by Leo is not insert in the Basilicks so that it seems it has been thereafter abrogated It is not probable that the Devil who is a constant enemy to mankind would employ himself for their advantage and the Name of Jesus being used so much respect ought to be had to it that the user should not be punished with death except it could be clearly proved otherwise that she had received this Charm from the Devil in which case the Author and not the thing occasions the punishment or else if she had been discharged by the Church or any Judicatory to use that Cure as that which was in it self dangerous but to burn a poor ignorant woman who knew not that to be evil which she used were to make ignorance become Witch-craft and our selves more criminal then the person we would condemn And all these Laws and Citations which can be brought to prove that magical Incantations are punishable by death though imployed for the well-fare of mankind must be interpret so as to relate only to some of these unlawful cases above related And I admire that those who inveigh so much against this Constitution of Constantine have never taken notice that these Charms are only allowed even for the wellfare of man and beast ubi sunt innocenter adhibita suffragia where devotion was used though erroniously as in this case And we know that a whole Family in Spain pretend to be able to cure Diseases by the toutch as being descended from St. Katharine and are therefore called Saludadores and that another Family in France who alledge they are descended from St Hubert do cure such as are bitten by mad Dogs and yet neither of these are punished by any Law since they ascribe their Cures to Devotion And there are but few men who have travelled any where but use some Charm or other out of innocence or railery and to burn these or the common people who think they may follow their example were an act of great cruelty And since the Cross is allowed by the Canonists to be applyed to any part of the body per c. non licet 26. quaest I see not why the Name of Jesus may not be applyed in the same way Nor can I think that the Devil would allow the using of that sacred Name at which he is forc'd to tremble and by the very naming whereof all Ecclesiastick Histories tell us that the Devil has been dispossest and therefore Ghirland de sortil num 23. gives it as a general rule that ubi alia nomina ignota ultra Dei nomina inveniuntur tunc superstitiosa dici possunt ita puniri Cassiodorus relates that multis efficax remedium fuit trina recitatio versiculi Psal. 115. dirupisti vincula mea c. and Bartholinus in his Anatomy defends that these Verses repeated with a loud voice in the ear of one affected with the Epilepsie will cure him Gaspar fert mirham thus Melchior Balthasar aurum Haec tria qui secum portabit nomina regum Solvitur à morbo Christi pietate caduco And though some have disallowed even pious Sentences or Names when joyned to superstitious circumstances as when they are only to be writ upon Parchment and cut too in such a figure or bound by so many threeds only yet to condemn the users as Witches when they are used simply as here seems to be the other extream In
murder by the Divine Law to kill a Wife taken in the act of adultery yet the Civil Law allowes it and though it be unlawfull by that Law to cheat our Neighbour in buying or selling yet the Civil Law allowes all such bargains except the cheat amount to the value of the half Thus the one of the Laws respecting mainly the good of Souls and the other the good of Commerce as they have different ends so they take different measures and therefore it is that politick Laws have allowed cures even by suspected means which principle is also allowed by Bartol Salicet Azo and others ad dict l. 4. and even according to the principles laid down by Divines except there were a paction prov'd or confest all remedies should rather be ascribed to nature then to Witchcraft Consider how much fancy does influence ordinar Judges in the trial of this crime for none now labour under any extraordinar Disease but it is instantly said to come by Witch-craft and then the next old deform'd or envyed woman is presently charged with it from this ariseth a confused noise of her guilt called diffamatio by Lawyers who make it a ground for seizure upon which she being apprehended is imprisoned starved kept from sleep and oft times tortured To free themselves from which they must confess and having confest imagine they dare not thereafter retreat And then Judges allow themselves too much liberty in condemning such as are accused of this crime because they conclude they cannot be severe enough to the enemies of GOD and Assisers are affraid to suffer such to escape as are remitted to them lest they let loose an enraged Wizard in their neighbour-hood And thus poor Innocents die in multitudes by an unworthy Martyredom and Burning comes in fashion upon which account I cannot but recommend to your Lordships serious consideration that excellent passage of a Learned Lawyer Baldwinus ad § Item lex Cornelia jnstit de publ juâ— Sed quo gravius ab hominis ingenio magis alienum est hoc malum co major adhibenda est cautio ne quis ejus praetextu ab adversariis temere obruatur facile enim hic quid vis confingere potest ingeniosa simultas ut multitudinem credulam statim emoviat judices irritet adversus eum quem cum demonibus rem habere mentietur Ante annos sexaginta sensit infoelix nostra patria magno suo malo hujusce generis calumniis magna erat Waldentium mentio quos adversarii jactabant nesciâ— quid commertii habere cum innumeris spiritibus hujus criminis praetextu optimi quique statim opprimebantur sedtandem senatus Parisiensis causa cognita vidit meras esse sycophantias infoelices reos liberavit For Titius accused before the Secret Council for beating his Wife XVII PLEADING AS nothing but the last degree of passion could have provockt my Client to correct this unfortunat Woman so no creature which doth not feel his grief can expresse the reasons which forced him to it Nor could the fear of punishment if it were not joyned with the sense of honour move him to lay open before your Lordships the sad story of these persecutions he has for seven years suffered and the dishonourable secrets of his own family which during all that time he has laboured to conceal Nor can I my Lords but regrate that I should be forced to lead your reflections into my Clients house and to shew you there a Woman burning not with flâ—mes of love but revenge embracing her Husband not out of kindnesse but to throw him into the fire watching him in his sleep but that she might even disturb him in his rest inviting his Friends to her house but that she might highten his infamy in letting them hear her rail against him and all this done not for a day or under the excuses of passion but for seven whole years nor done so passingly as that he could entertain any hopes of her reconciliation to allay his grief but she begun to torment him the next day after the Marriage beating him with her Slipper so that only his Marriage wanted its honey-moneth and so malitious was her humour that she could not bridle it for one day And these affronts were dayly continued most deliberatly and owned after all the remonstrances her friends could make for reclaiming her at which occasions she used to speak kindly of nothing to him or them but her passions justifying her lying of him as Wit her railing against him as Eloquence her revenge as Justice and her obdurednesse as Constancy This being the person against whom I am to plead I am oblieged to give your Lordships some character of him for whom I appear who was not only born a Gentleman but by being a Souldier has made himself so and by both these qualities has so strong an aversion against beating any Woman that the great respect he had for that lovely Sex made this Pursuer after ten years intimat acquaintance choose him for her Husband and for seven years he hath not only suffered but concealed his wrongs to that depth that his hair hath by grief changed its colour twice the strength of nature and grief overcoming each other by their several turns Nor doth he think himself concerned to answer his Wifes calumnious reproaching him as having been her Husbands servant for it is most true that after he lost his Estate in his Majesties service her first Husband choos'd him for his Friend and after his death she choosed him for a Husband which shews that he had some worthy qualities about him which were able to supply that great want the want of Riches and is it not clear that when Women begin to complain of so sacred a relation they will make faults where they cannot find them and these Wives who would divulge what is true would invent what is false I confesse my Lords that there is very much due to that excellent Sex when they are what they ought to be but our love to Wine must not hinder us to call it Vinegar when it corrupts nor should we flatter Tyrants because we love Monarchies But Judges must look more to Justice then complement and therefore I must beg pardon to alledge for my Client that he cannot be punished for beating his Wife because The Wife is by Law under the power and authority of her Husband which subjection is not only the punishment of her sin nor will all this power repair to man the losse he had by the injury done him when he got this power but this power is put in the Husbands hands for the good not only of the Common-wealth but of the Women themselves as to the Common wealth it was fit that in every Family the Husband should be empowered to correct the extravagancies of his Wife and not to bring them before the Judge and in publick this would have divided families raised publick scandals and many will be content to
Law after it hath punished the first two small thefts punishes the third with death and after it hath punish'd breaking yards with small pecunial mulcts maketh the third capital may not the hundreth offence in beating a Husband and laying snares for his life deserve all done where the former faults were also to be punished And since no Judge could have refused to have burnt her in the Cheeck for three such riots sure the Husband cannot be punished for punishing a hundreth at the same rate and I hope your Lordships will imagine that a Husband who suffered so many affronts would not have been too violent in punishing the last and that she hath her self to blame having contemned the warning given her by her Husband and in giving of which warning it clearly appears that he was master of his passion and proceeded both kindly and judiciously or though he did deserve a punishment yet by-past-sufferings torments and affronts may do more then satisfie her for that one injury of which she can only complain and as in ballancing accounts so in ballancing mutual crimes we must not look to the debt and credit of one day but considering all that either party can lay to one anothers charge we must at the ballance only determine who owes most and if that method be followed then sure your Lordships will find that as injuries may be compensed amongst the parties themselves in so far as concerns their privat interest so here my Clients Wife having been more guilty towards him a thousand times then he can be said to have been towards her though this riot were acknowledged her interest ceases and her complaint doth become thereby most unjust Though the Law designs to restrain our vices yet because it cannot root out our passions it pitties them it employes its justice against our crimes but its clemency against our passions and so high did this clemency run in the Roman Law that he who in passion kill'd his Wife being taken with her adulterer was not punished as a murderer qui impetu tractus doloris interfecerit and the reason the Law gives for remitting the crime is cum difficillimum sit justum dolorem temperare l. 38. ff ad l. jul de dult And if any passion deserves pardon it must in him who has bestowed pardons for seven years or if it may plead against any it must be against her who raised injustly the passion of which she complains Injuries from a Wife are crimes and if injuries can justifie passion amongst strangers much more can they do it in a Husband I hope your Lordships will likewise consider that self-defence is not only a priviledge introduced by Law but a duty imposed upon us by nature and without this this world were nothing but a scaffold and every man with whom we conversed might prove an executioner Nor doth this self-defence only secure us when we kill such as would attacque our life but it secures us likewise when we chastise such as would stain our honour for life without honour is but as a dead carcass when the Soul is fled or a King when he is dethroned And since the Law has p 〈…〉 lel'd life and honour in every thing it is most just that seing we may kill such as invad the one we may at least chastise such as invad the other especially seing these who are here punished have only themselves to blame as the authors and occasions of all those accidents of which they complain and therefore my Lords I shall intreat you to figure to your selves what a man could do if his Wife should constantly resolve to spit in his face when he were amongst strangers or constantly awake him when he resolved to rest were it not ridiculous to put the Husband alwayes to complain to a Judge in those cases and yet to suffer such injuries to be unpunished were not only to make a man miserable but to force him to an impertinent clemency which might breed up his Wife to an insufferable insolence And if mean people who wanting generosity and vertue are curbed by nothing but awe and fear should come to know that the Councill allowed such an indulgence to Women and that there were no place for the justest complants of injur'd Husbands what ruptures would this occasion in privat Families what numerable suits before your Lordships and how many separations betwixt Husband and Wife Do then my Lords by this decision let the people see that as vertuous and deserving Women may expect the highest and purest respects imaginable so such as shew themselves unworthy of these favours may expect punishment answerable to their crimes Nor is it a small aggravation of their guilt that they endeavour as far as in them lyes to draw contempt and disgrace upon that amiable and deserving Sex Thus good Women will be complemented when they find they owe not the respect they get to the Law only but to their own merit and unworthy Women will find they may expect a happier life by taming their own insolencies and by living in concord with their Husbands then they can from their insolent and outragious abusing of them The Counsel imprisoned the Husband for one night For Charles Robertson and his two Sons XVIII PLEADING How far Minors may be punished for crimes 2. Whether Complices may be pursued before the principal Party be found guilty 3. Whether Socius criminis may be received in Riots and lesser Crimes THe crime for which my Clients are accused is that in January 1660. the said Charles Robertsons Brother and two Sons did convocat the Lieges and throw down a house belonging to Elizabeth Rutherford which they did at their Fathers desire or at least that their Father did ratihabit the same Against this Indictment it is alledged that the two Sons the one being of the age of fourteen and the other of fifteen cannot go to the knowledge of an Inqueist for throwing down this house since they offer to prove that they were informed by their Uncle that this house belonged to their Father and that it was their Fathers desire they should go along with him to throw it down for though Minors may be punished for attrocious crimes committed against the Law of Nature such as Murder Incest c. and to abstain from which the youngest conscience doth advise yet such acts as cannot be known to be criminal but by such as understand positive Law are not punished as criminal but in such as are oblieged to understand that Law None will contravert that the throwing down such a little house not exceeding six pounds Scots of value and to which they and all the Countrey had heard their Father pretend right cannot be called a crime against the Law of Nature and it is only a crime in positive or municipal Law when it is done by such as are oblieged at the time to understand they are doing an injury and that the house belongs not to him at whose command they
are throwing it down and these Children were not oblieged to know this for since they are not in Law oblieged to understand their own rights till they be Majors much lesse are they oblieged to understand the rights of other men and in this case the undestanding the matter of rights is that only which infers the crime for if the Father had right this had been no crime in him nor them I am sure there is a great distinction betwixt acts which are of their own nature indifferent such as throwing down of houses taking men prisoners c. and these which are of their own nature vitious and criminal and need no extrinsick thing to clear that they are so such as murder and robbery the first doth require the knowledge of something that is extrinsick to the act which is done nor is the guilt infer'd but by reasoning and judgement and therefore that guilt should not fall upon Minors except they are dolosi and are presumed to have done it intentionally and upon design and how can design be presumed in these Minors since the committing this act did not take its rise from them but from their Uncle and Father and they were to gain nothing to themselves immediatly by it nor can it be imagined why the Law will for want of understanding lessen the punishment in the most attrocious crimes such as Witchcraft murder c. in such as are thriteen years of age if it will not remit absolutely the guilt in such cases as these where the guilt was neither palpable nor the prejudice great And if Minors be to be restored adversus delictum in any case as is clear they are they ought to be restored against this where the guilt doth consist in a punctilio or nicety of Law such as that though the Father had right to the house yet he could not have thrown it down by his own authority a principle which few countrey men understand when they have reached twenty one years si delictum fuerit commissum sine dolo potest minor juvari ope restitutionis in integrum etiam ad hoc ut à totapaena excusetur Clar. quaest 60. Anan in cap. 1. num 8. de delict puer Nor can I see a reason why crimes by the unanimous opinion of Lawyers are said not to be punishable in Minors when they are perpetrat non committendo sed omittendo if it be not because omissions are juris and fall not under sense and proceed from a weaknesse of the judgement but yet I think the former distinction more just since omissions of what nature requires should bind them but nothing should bind them which proceeds from a weaknesse in judgement since Law allowes Minors to have no judgement But whatever be alledged against other Minors yet these having obey'd their Father in an act which was of its own nature indifferent they cannot be punished for the guilt though he may for that were to make poor Children unhappy in subjecting them to double punishments for if they obeyed not their Father they could not escape their Fathers anger or if they did obey they fall under the Laws revenge And it were very unjust that the Law which has subjected them to the power of their Father should not secure them when they obey that power to which it has subjected them And upon the other hand it would lessen much that power which the Law hath taken so much pains to establish in the persons of Fathers and Masters over their Children and Servants if it gave them occasion to debate their commands and though a Son or a Servant are not obliegd to obey their Father or Master in things palpably attrocious and wicked yet where the thing commanded is not necessarily and intrinsecally unjust they should either obey there or no where and what a great prejudice were it to the Common-wealth if a Son or Servant should refuse to assist in bringing back Cattle which others were driving away to labour Land or assist Poindings or even throw down houses at their Father or Masters desire because they might pretend his right were not sufficient and so the Father and Master should be still oblieged to give an account to his Son or Servant of his right and title upon all occasions and his commands which require oftimes a speedy execution should be delayed in the interim To prevent all which the Law hath for the good of the Common-wealth allowed Sons nor Servants no will of their own making them in effect but the tools and instruments of their Fathers and Masters will Non creditur velle qui obsequitur imperio Patris vel Domini l. 4. ff de reg jur And if the Law allowes them to have no will of their own it cannot punish them when they obey their Master for all guilt is only punished because it is an effect of the will and therefore John Rae was not put to the knowledge of an Inqueist as art and part of theft because he went only along with his Father when he was about twelve years of age 1. of Januar 1662. And by the 19. cap. num 9. stat Will. the servant is only declared punishable if he do not detect his Master or desert his service and per. l. lib. homo ff ad l. aquil it is expresly decided that si jussu alterius manu injuriam dedit actio legis aquiliae cum eo est qui jussit si modo jus imperandi habuit quod si non habuit cum eo agendum est qui fecit Though Minors may be punished for a guilt yet they ought not to be indicted till they attain to the years of Majority because if they were to be tryed in their lesse age they might by want of wit and experience omit their own just defences and mismannage the debate in which they were ingaged as to which our old Law appears to be very clear R. M. lib. 3. c. 32. lib. 2. cap. 41. quia dicere vel tacere potest calore juvenili quod ei nocere potest Suitable to which Skeen doth in his Annotations observe a decision betwixt His Majesty and the Abbot of Parbroth anno 1312. l. pen. cod de autor tut l. 1. S. occisorum ad S. C. Sillan cap. 2. de delictis puerorum extrav Since a Minor may be restored against such omissions or against a confession omitted by him quando non potest aliter contra eum probaricrimen or may omit to object against Witnesses it is more just and convenient that he should not be tryed till he be Major For if he be tryed he must be once punished and then his being restored is both impossible and improfitable and it were very inconsequential for our Law to have so far priviledged Minors as that they are not oblieged to debate super haereditate paterna and that too upon these same reasons I here alledge and that it should not much more secure them against criminal tryals in the
same minority where the hazard is greater especially where the Common-wealth is not concerned as here to have the guilt immediatly brought to open punishment and where the crime is not attrocious reaching no furder then privat revenge and a pecuniary punishment Nor is the publick in this case disappointed of a just revenge for it can reach the Father or Uncle who are alledged to be the principal actors For the Father I alledge that he cannot be pursued as he who was accessory to the committing of the crime in commanding or ratihabiting it except it were condescended from what particular acts his ratihabition can be inferr'd whether by words deeds concealing or otherwise and it is not sufficient to lybel in the general that he did ratihabit no more then a Lybel would be relevant bearing that my Client were guilty of treason without condescending how as is clear by the opinion of all Lawyers who require that Lybels should be special which is required by them to the end that the relevancy of the Lybel may be debated and determined by the Judges before it go to a tryall which should be rather done amongst us then any other Nation because the probation is in this Kingdom tryed only be an Assize and these are ordinarly men who understand not the intricacies of Law whereas if the particular way and manner of ratihabition be not condescended on and discust by the Judges it must come to be debated after the probation before the Inqueist and thus not only relevancy and probation matter of Law and matter of Fact but even the distinct offices of Justices and Assizers will be here confounded As for instance if the pursuer should prove that the Father said that all was well done we would be forced to debate before the Assize that such passing words as these cannot infer a crime for else many thousands in a Nation might be found guilty of crimes to which they had no accession Or if it were only alledged that he received his Sons into his house it would be likewise debated that the receiving of a mans own Sons into his house cannot infer a crime in delictis levioribus though it may be debated to be criminal in Treason and more attrocious crimes Upon which and many other points the Doctors have writ very learnedly and to debate such points before ignorant Assizes were very dangerous It is likewise alledged for the Father that he being only pursued as accessory to this crime committed by his Brother in so far as he did either command or ratihabit it is therefore necessar that the Brother be first pursued and discust it being a rule in all Law that the principal should be pleaded and discust before him who commanded the same to be done or before the receipter as is clear by R. M. lib. 4. cap. 26. intituled The order for accusing malefectors for crimes which agrees likewise with the opinion of the Civilians and particularly Clar. quaest 20. num 6. whose words are Scias etiam quod quandoque proceditur contra aliquem tanquam quod praestiterit auxilium delicto debet primo in processu constare principalem deliquisse Mars quaest 26. gives an example of it just in our case a Father is pursued as accessory to his Sons guilt in which case he alledges the Father could not be tryed till the Son was first discust Alexand. consilio 15. vol. 1. dicit quod nisi prius constet de manaatario procedi non potest contra mandantem with which the English Law agrees fully by which the principal ought to be attainted by verdict confession or by outlawry before any judgement can be given against accessories Bolton cap. 24. num 38. And therefore except the Uncle who was the principal actor here were first found guilty by an Assize my Client as commander and ratihabiter cannot be punished To this it is answered that the foresaid Law of the Majesty holds only in theft but not in other crimes and that as to all crimes it is abrogat by the 90. Act. 11. Parliament Ia. 6. by which it is appointed that all criminal Lybels shall be relevant bearing art and part without making any distinction betwixt principal and accessories and the Father is called here as a principal having given a warrand as said is for else the giving warrand for doing treasonable deeds or to commit murders could not be punishable though nothing followed whereas in all Law such deeds are criminal in themselves and the mandant might be immediatly punished To which it is replyed that this Maxim holds not only in theft but in all other crimes for as there can be no reason of disparity given to difference theft from other crimes as to this point So the rubrick of the former Chapter 4. is general and in the fourth Verse of that Chapter it is said generally That 〈◊〉 is manifest that the commander or receipter shall not be châ—rged to answer till the principal Defender be first convicted by an Assise Which is likewise quoad all crimes ordained indefinitly by the 29. Act. Stat. David 2. Nor can it with justice be pretended that these Laws are abrogated by the foresaid Statute of King Iames the sixth for these reasons 1. That Act doth not expresly bear an abrogation of the former Laws and standing Laws cannot be abrogat by consequences nor can it be but if the Parliament had designed to abrogat so old and fundamental Laws and Customs they would have exprest their design especially since in criminal cases all Lawyers endeavour to make their Laws clear and perspicuous 2. No Laws are interpret to abrogat one another except they be inconsistent so infavourable is abrogation of Laws and it is generally received that Leges in materia diversa sese non tollunt nec abrogant but so it is that these Laws here founded on are most consistent with the Act of King Iames the sixth and these two are materiae diversae for it is very consistent that a Libel bearing art and part should be relevant and yet that the principal should be first discussed for though the principal be first to be discussed yet when the accessories are to be accused it is sufficient that it be generally libelled against them that they were art and part the one of these regulats only the way of procedure ordinem cognitionis the other regulats the relevancy and shows what Lybel shall be sufficient Nor was there any thing more designed by that Act Ia. 6. but that Lybels in criminal cases should not be cast as irrelevant as is clear by the narrative of the Act. And by the civil Law ordo cognitionis accusatio eorum qui opem auxilium prestiterunt are alwise accounted different Titles and are differently treated so that these two Laws are very different and very inconsistent 3. If that Law Ia. 6. had abrogat the former Laws whereby it is appointed that the principal should be discust before the accessories then
it had followed by necessar consequence that these Laws could not have taken place after that Act but so it is that Defences are dayly sustained upon these Laws as in the case lately of George Graham which shewes very convincingly that they are not abrogated The reasons likewise whereupon that Law was founded ordaining that accessories should not be pursued before the principal be discuss'd are still in vigor and are so just and necessar that it were injust to abrogat a Law founded upon them for the Law considered that if the principal were called he might know many defences which iâ— they were known to these who are alledged to be accessories would certainly defend them as in this case if the Uncle were called who threw down the house it may be he would alledge that he did not throw down this Cottage till the accuser had consented which consent he possibly hath and this may be necessar in a thousand cases as if a person were pursued for having been accessory to the driving away Sheep or Neat he might be convicted though he were innocent if the principal were not called which principal if he were called might produce a Disposition from the party or a legal Poinding either of which being produced would defend both whereas upon the other hand if it were lawful or sufficient to accuse any persons as accessories without pursuing the principal the accuser might collude with the principal and suffer him to go unpunished providing he would keep up the Defences and Warrands and so suffer the innocent accessories to be condemned Is it not a principle in Nature that accessorium debet sequi suum principale And doth not the Law still require that prius debet constari de corpore delicti And how can a man be pursued for hunding out another to throw down a house untill it were first known that the house was thrown down Nor is the giving an order to throw down a house criminal though it were proven except the house were according to that order thrown down and that it was thrown down by vertue of that order and upon no other account By all which it clearly appears that the throwing down of the house which is the principal guilt must be first tryed before it can be enquired who gave the command The last and one of the great arguments I shall use to prove that the principal who threw down the house must be first discust before my Client can be pannell'd for commanding or ratihabiting is that by this method probation should be led against absents contrar to the known principles of our Law and by the connivance or ignorance of the accessories the fame of an absent person may be wounded and witnesses suffered to depone who dared not have deponed if he had been present and though that probation led against him in absence would not be concluding yet it would leave a stain and would engage the deponers to adhere to these prejudicat and false depositions in another Process to secure themselves against perjury Whereas it is pretended that sometimes command is a crime though nothing follow It is answered that where a mandat is of it self criminal though nothing follow as in Treason there the giver of the mandat must not be pursued as a Complice or accessory but as the principal transgressor nor would the King be prejudged as is alledg'd if the principal behoved first to be discust because it is pretended that that principal might abstract himself and thereby cut off the publick revenge which would otherwise justly fall upon the accessories if they could be apprehended For to this it is answered that it is easie for His Majestes Advocat to raise a pursute against the principal and if he compear to proceed against him or if he compear not he may be denunced fugitive which is a sufficient discussing of him as a principal and will open sufficiently a way to proceed against the Complices It is likewise alledged that the witnesses which are offered to be adduced against my Clients for proving that they committed this crime are not testes habiles and cannot be admitted because I offer to prove by their own oath that they were at the pulling down of the house and did actually pull it down and so are socii criminis and consequently are repelled from witnessing by the 34. cap. stat 2. Rob. 1. where there is an enumeration made of those who cannot be admitted to be witnesses amongst whom are socii participes ejusdem criminis To which exception the accuser answers that though Socius criminis cannot be admitted pro socio yet he may be admitted contra socium that he may be witness against though not for those who were ingaged with him 2. Though socius criminis may not be admitted as a witnesse contra socium where the crime in which they were ingaged fixes infamy upon the committers as Treason Witchcraft Murder c. yet in Delicts or rather Riots such as is the casting down of a house that tends to infer a pecuniary and not a capital punishment there socii criminis may be received as witnesses for the reason why they are ordinarily repell'd is because in deponing they confesse a crime against themselves se infamant which reason ceases in Delicts or lesser crimes quae non infamant It is likewise represented that it is most clear from Law that the only reason why socii criminis are repelled from being witnesses is because deponendo se infamant and so they forfeit the capacity and confidence of integrity that the Law reposes upon all persons that ought to be believed as witnesses by the whole contract of the whole Titles ff C. de testibus And by Clar. quaest 21. num 8. Dictum socii criminis ad hoc ut fidem faciat requiritur ut sit confirmatum in tormentis cum enim ex proprio delicto sit infamis nec debet admitti pro teste sine tortura and the foresaid Text of the Majesty ought as is alledged to be interpret only so as to take place ubi crimen infamat and that dilicta non infamant is endeavoured to be provâ—d by the Statute of King William de his qui notantur infamia where it is said that fures sacrilegii homicidii and others qui sunt irretiti capitalibus criminibus repelluntur a testimonio 〈◊〉 witnesses in delicts and riots should not be admitted because they are socii criminis no delict sayes the pursuer should ever be prov'd for ordinarly none are present but the committers And since after their confession they may be pursued themselves it is not probable that they will depone against others falsely especially when they may be overtaken upon their own deposition To which it is duply'd that it is a rule in Law that socius criminis nec pro nec contra socium admitti potest l. quoniam C. de test Mascard conclus 1418. by which it is clear that the Law
makes no distinction whether he be adduced for or against his Commorads whether he be adduc'd in crimes or delicts and socius criminis is not only repell'd from being a witnesse because he stains his own fame whilst he depones against his companions but because the Law presumes that being himself under the mercy of the pursuer he will by an unjust deposition ransome himself from the event of the pursute and therefore the Law casts him as a witnesse for the Law is unwilling to use those who hath offended it and Lawyers have alwise been unwilling to tempt men by forcing them to depone upon their own errors for they judged that these who would commit a crime would easily forswear it And the Law of the Majesty formerly cited doth repell à testando socios criminis infames whereas it needed not have exprest both if it had comprehended the one under the other and only repelled socios criminis because they were infames I perceive by Lawyers that sometimes they allow witnesses in attrocious and great crimes whom they would not have admitted to prove crimes of lesse consequence which proceeds both from the hatted they carry to these great crimes a part of whose punishment it is that the crime can be easily prov'd but likewise to the end the Common-wealth may be the better secured whose great concern it is that Judges be not too nice and scrupulous in receiving witnesses against its enemies Nor did the Law think that men would be so base and malitious as to seek the death of their enemies by a false deposition even where possiblie revenge would be content to reach their Estates Therefore by the common Law of Nations in attrocious crimes such as treason simonie or sacriledge socii participes criminis admittuntur l. quisquis C. ad l. jul majest glossa in l. ffin C. de accus specul tit de prob § 1. Boer quaest 319. and according to our Law it is appointed by an expresse Act of Sederunt anno 1591. that socii criminis may be witnesses in the cases of Treason and Witchcraft but I do not at all read that socius criminis is allowed to be led a witnesse in delicts and all the reasons that militat for the former cause do militat against this Nor is it possible to believe that the Law which allowes socii criminis to be witnesses in great crimes because they are great would likewise allow them to be led witnesses in small crimes because they are small for so the Law would contradict it self and would build contrarieties upon the same foundation and since the foresaid Act 1591. allowes them to be led witnesses in crimes of Witchcraft and Treason they ought not to be admitted in any other crime how small so ever for in privilegiatis inclusio unius est exclusio alterius It is very clear that the Law would not admit the testimony of a partaker of the crime to have the force of a presumption nor to be the ground of an accusation Salicet in l. ffin C. de accus nor gives it any credit to his deposition though he were otherwise esteem'd a most credible person probatissimae fidei Grammat consil 21. num 3. nor doth it believe him though he were deponing against a person suspected to be guilty Bert. consil 268. nor doth it believe a thousand such witnesses though they agreed in their depositions for all these joyned together weigh not one presumption Mascard ibid. num 8. By all which it may appear very clearly that the Law which respects socios criminis so little doth in no case design to receive them in a criminal Court what ever may be debated for receiving them in civil Courts for proving civil conclusions As to the inconvenience adduced wherein it is contended that if such witnesses were not admitted no crime could be proved it is answered that this Argument would urge Judges to receive socios criminis to be witnesses as well in all crimes as in small crimes for it is a Brocard commonly received amongst the Doctors that quod admittitur ob incommodum eo magis admittitur quo magis urget incommodum and yet here it is confest that they could not be admitted witnesses in murder and those greater crimes But the only natural conclusion that could be drawn from this inconvenience is that socii criminis should be admitted witnesses in occult crimes such as conspiracies but not in such crimes as this where there could be no penury of witnesses being alledged to be commited in open day in the midst of a Town and with a convocation But to conclude all I need only say that my objection against these witnesses is founded upon an expresse Law and therefore it cannot be taken away by this distinction except this distinction can be establisht upon and maintained by another Law as expresse The Justices found that these Minors being puberes might be try'd and so found that they should passe to the knowledge of an Inqueist 2. They found the Father should passe to the knowledge of an Inqueist as art and part though the principal actors were not yet discust 3. They found that socius criminis could not be received a witnesse in any criminal pursute though the punishment could only reach to a pecuniary mulct AN ANSWER To some REASONS printed in England against the overture of bringing into that Kingdom such Registers as are used in Scotland IN the first Ages of the World when man had not fallen so intirely as now from his original innocence Laws were made rather to govern reasonable men then to prevent cheats But when fraud did begin to grow up with subtilty Legislators being warned to guard against future abuses by these they had seen committed did in all places endeavour to reform their people by reforming their Laws sic ex malis moribus bonae ortae sunt leges and because wise men look upon themselves as sprung from the same divine original therefore they have still been intent to borrow from one another what excellent constitutions they found to have been invented by them Thus though Scotland did adopt the Laws of the Romans called now the civil Law into the first place next their own yet such esteem hath that Kingdom alwayes had for their neighbours of England that they have incorporated into the body of their own Laws very many English Forms and Statutes And as some Sciences Trades and Inventions flourish more because more cultivat in one Nation then another humane nature allowing no universal excellency and God designing thus to gratifie every Countrey that he hath created So Scotland hath above all other Nations by a serious and long experience obviated most happily all frauds by their publick Registers And though they are not furder concerned to recommend this invention to their neighbours then in so far as common charity leads them yet finding their Registers so much mistaken in a discourse entituled Reasons against registring Reformation
perform the same but behoved to be supported as said is by which it clearly appeares he did not any acts that were equâ—polent To his actual going abroad to the Kirk or Mercat I make no answer since our Law requires his going unsupported which cannot be alledged in this case for as going to Kirk and Mercat is an exception which takes off the reason of Death-bed so the being supported elides the exception of going to Kirk and Mercat And so unfavourable have their Reductions alwayes been in our Law that the Pursuer offering to prove supported is preferred to the Defender who offers to prove unsupportable as was found 27. July 1629. albeit regulariter the Defender is preferred to prove his own defence not needs the Pursuer debate from what cause the supportation proceeded for it cannot be known to Witnesses upon what account he was supported and that might have proceeded from infirmity as well as from the ruggednesse of the way and so this Law would in its execution and application return still to be arbitrary if Witnesses or Judges might guess at the occasion of the supportation But without debate the Pursuer contends that this priviledge of eliding a Reduction ex capite lecti being only competent to the going to Kirk and Mercat unsupported he who is supported gains not the priviledge because he fulfills not all the qualities and it is very well known that the way is ordinary Calsay and that the House and Mercat are not distant three pair and the Lord Coupar used ordinarily to walk there unsupported So that when he took support especially at a time when he designed so much to go unsupported it shewes convincingly that his infirmity though not himself remained still disobedient to all their designes and though they could force him to dispone yet they could not force him to be sound and your Lordships may easily judge that these who were at so much pains to make this Disposition subsist were not wanting to use all indeavours for carrying him over this last difficulty so that this support proceeded not from chance but from necessity Seing then your Lordships have been so rigid observers of the Law in prejudice of poor Children and poor Relicts who were unprovided I hope you will not prostitute it in favours of a stranger who had formerly gotten all the Defuncts Estate in Jointure Reward not thus the importunity of Wives and bryb not avaritious persons to trouble us at a time when we shall think all time too short to be imployed in the service of Him whom we have so much and so often offended And take not from us in one decision the protection of the Law when our judgments are frail the quiet of our Souls when we are sick and the love of our Successors when we are dead The Lords reduc'd the Disposition For the Countesse of Forth c. against E. C. EIGHTH PLEADING How far restitutions by way of Justice are prejudged by Acts of Indempnity I Might stand in the next degree of guilt to those who forfeited the Earl of Bramford if I thought that his Merit or your Lordships Loyalty needed that I should urge much the favour of his case He was a person who carried the honour of our Nation as far and as high as could be expected from the happiest Subject in much better times for after that his Merit arm'd meerly by his own Valour had rais'd him to be a General in Sweden he was chosen General in England in a War wherein all his Nation were suspected and did there actions worthy of our Praise and their Wonder But whilst he had refus'd to draw a Sword against his Country-men even whilst they were Rebels they forfeited him for fighting in a Kingdom over which they had no jurisdiction and forfeited him by His Majesties Lawes and at the pursute of His Majesties Advocat when he was hazarding his life for His Majesty by His own command and in His own presence and the very day after he had gain'd that Battel for Him which if prosecuted according to that brave Generals advice might have secured to Him that just power which those Rebels were scruing out of His hands The Earl of Forth being with His Majesty restor'd to his own his Lady and Daughter pursue such as intrometted with his Estate and insist now against E. C. who for being General to the then Estates got 40000 pounds out of the Estate of the Earl of Forth which was a part of that Sum which was due to his Lordship upon an heritable security by the Earl of Errol and his Cautioners In which Debate if I use terms which may seem indiscreet and zealous I must be paroned since I shall use none but what are forc'd upon me by that Act of Parliament by which I plead since E. C. is a person to whom I wish much success in every thing save this Debat and to whom my respects are above jealousie It is alledged for E. C. that though such as are restored against forfeitures by way of justice may by vertue of their restitution repeat all that is extant of their Estate yet they cannot repeat what money belonged to them for money being res fungibilis and naturally subject to consumption it passeth from hand to hand without bearing any impressa whereby such as intromet with it may know how it came and whose it was Nor doth the nullity of a Title in the first obtainer infer repetition of money from such as derive a right from them as may be clear'd in many instances for if money had been payed to one who obtain'd an unjust sentence from the late Usurpers yet they would not be liable in repetition after that sentence were revived and declared null If one should serve himself Heir unjustly and as Heir assign a Sum to one of his Debitors though his service were thereafter reduc'd as unjust yet could not his Assignay be oblieged to restore what he recovered by vertue of that Assignation If the Exchequer should presently gift an Escheat though the Escheat and Horning whereupon it proceeded were thereafter reduc'd yet a sum payed by vertue of that Gift when standing could not be repeated and if this Principle were not sustain'd all Commerce would be destroyed and though E. C. his Title be now â—educ'd yet it was valid the time of his intromission which is sufficient to astruct his bona fides and Lawyeâ—s even in intromâ—ssions with money which was at fiâ—st â—obbed consider only Vim illam quae intervenit tempore numerationis whereas here though the Estâ—tes did most unwarrantably and rapinously forfeit the Earl of Forth yet his money being broughâ— in to the publick Tâ—easure and confounded with their Caâ—h it ceas'd to be his and became theirs and therefoâ—e E. C. being Creditor to them as he might have taken any Precept justly from them payable out of their Treasure So might he have taken Pâ—ecepts upon his Estate which ceas'd to be his Nor can the
things that are abstruse and dubious the Law should still favour that which tends to the good of the Common-wealth yea and though it sometimes may punish Charms when used to the disadvantage of men though it know them not certainly to be unlawfull yet it doth not follow that it should punish that which may tend to their advantage except they know it to be certainly unlawfull And though our Act of Parliament punishes such as seek help by unlawfull meanes of Sorcerers or Necromancers yet they must first be prov'd to be Sorcerers or Necromancers who make a trade of abusing the people as that Statute sayes which cannot be drawn at all to a dubious Cure used in one case and by the application of natural means and therefore though Drummond was burnt as a Witch albeit he had never committed any malefice but had only cured such as were diseased yet having in a long habit and tract of time abused the people and used Spells and Incantations which had no relation at all to Devotion and having continued that trade albeit he was expresly discharged his case was very far different from this and deserved a far more severe punishment The same may be likewise answered to the condemnatory Sentence pronunced against John Burgh who was convicted of Witchcraft in anno 1643. for pretending to cure all diseases by throwing into water an unequal number of pieces of Mony and sprinkling the patients with the water so that it may be justly said that these died rather for being publick cheats falsarii then for being Witches venefici Upon which account ars Pauliana also is punishable by which some Cheats pretend to cure diseases by Spells and pious Characters revealed as they pretend to S. Paul when he was carryed up to the third heavens for here the foundation makes the cures known to be cheats I might likewise alledge here that it is against the confest principles of all Criminalâ—sts that una venefica non potest esse ligans solvens in eodem morbo cannot both put on and take off a disease for it seems that the Devil thinks that it were too much to bestow such favours upon one of his favourits so that he is juster then those who affect plurality of Benefices or else he thinks it would lessen too much the esteem of those faculties if one could exerce both or else it is not probable that she who had the malice to lay on the disease would condescend to serve in the taking it off But however I find much weight hath been laid upon this principle by those who did debate Margaret Hutchesons Process and so let it have its weight The third Article of my Clients endictment is that it is deponed by two dying and penitent Witches that she flew like a Dove with them to their meeting places This Article seems to me very ridiculous for I might debate that the Devil cannot carry Witches bodily as Luther Melanchton Alciat Vairus and others assert because it is not probable that God would allow him the permission constantly to work this miracle in carrying persons to a publick place where they joyn in blaspheming His Name and scorning His Church Nor is it proper either to the nature of heavy Bodies to flee in the air nor to Devils who are spirits and have no armes nor other means of carrying their Bodies but I may confidently assert that he cannot transform a woman into the shape of a Dove that being impossible for how can the Soul of Woman inform and actuat the body of a Dove these requiring diverse Organs and administrations and to believe such transmutations is expresly declared Heresie by the Canon Law and to deserve excommunication cap. Episcopi 26. quaest 5. and is condemned by St. Augustin lib. 18. de civit Dei delrio lib. 2. quest 18. Girland § 7. and though the Scripture tells us that Nebuchadnazor was transformed from a man to a beast by God yet it follows not that the Devil hath that power or as some Divines assert he did but walk feed and cry like a beast and had brutish thoughts We must then conclude that these confessions of Witches who affirm that they have been transformed into beasts is but an illusion of the fancy wrought by the Devil upon their melancholy brains whilst they sleep and this we may the rather believe because it hath been oft seen that some of these confessors were seen to be lying still in the room when they awak'd and told where and in what shapes they had travell'd many miles Nor is this illusion impossible to be effectuâ—ted by the Devil who can imitate nature and corrupt the humours since melancholly doth ordinarily perswade men that they are Wolves Licanthropi Dogs and other Beasts Since then these confessions are but the effects of melancholy it follows necessarily that the depositions of these two Witches amounts to no more but that they dreamed that my Client was there and were it not a horrid thing to condemn innocent persons upon meer dreams as is concluded by Frans Ponzan tract de lamiis cap. 1. num 52. Sunt illusae ergo non est standum ipsorum confessionibus confessio enim haec deficit in suiâ— principiis est contra naturam ita impossibilis I confess that such confessions may be a ground to condemn the confessors because though they were not actually where they dream'd at these meetings yet it infers that they had a desire to be there and consented to the Worship and believed that transformation to have been in the Devils power but all these are but personal guilts in the confessors and cannot reach others And besides this it is very clear that the depositions even of confessing and penitent Witches are no concluding probation for they are sociae criminis and such are not to be believed they are infamous persons and such ought not to be believed and they can give no sufficient causa scientiae and reason of their knowledge the want of which doth in Law enervat the deposition of a Witness and with us the depositions of dying Witches were repell'd in the case of Alison Jolly pen. Oct. 1596. Divines whose punishments reach no furder then Ecclesiastick censure may punish not only certain guilt but scandal yet Lawyers being to inflict so severe a punishment as Buâ—ning and loss of all their moveable Estate should not punish but what they know infallibly to be a real guilt nor should they punish that guilt till it be convincingly prov'd For though this woman were guilty yet if she be so she will suffer by the sting of her conscience here and will be reserv'd for a greater fire hereafter then you can ordain for her whereas if she be innocent your sentence cannot be reformed And why should you take pains to augment the number of the Devils servants in the eyes of the world Nor doth the Civil Law punish alwayes what Divines condemn for thus though it be