decisions then Philosophers to continue in the errors of their Youth But yet when the arguments pro and contra weigh equally and reason seems puzled where to encline the authority even of our former decisions should cast the ballance especially where the same reason then urg'd was there pressed and in the interpretation of Laws of which decisions are the best interpreters if a whole tract of decisions can be produced it would infallibly bind wherein Craig diag de jure quo utimur agrees with Callistrotus l. 38. de leg in ambiguitatibus quae ex legibus profisciscuntur consuetudinem aut rerum perpetuo judicatarum auctoritatem vim legis obtinere Where these decisions have proceeded upon a debate by which the reason of Judges is much ripened and the future inconveniences fully considered for as Pomponius well observes l. 2. § his legibus ff de origine juris his legibus latis caepit ut naturaliter evenire solet ut interpretatio desideraret prudentium authoritate necessariam esse disputationem fori And Durie in the case of Hoom of Cowdoun-knowes shewes us how the L. of Session thought it not derogatory from their honour to retreat a sentence after debate which they had pronounced when no Advocats were compearing We follow the Civil Law in judging Crimes as is clear by several Acts of Parliament wherein the Civil Law is called the common Law And Robert Leslies Heirs are by the 69. Act. Par. 6. Ia. 5. ordained to be forefaulted for the Crime of Treason committed by the father according to the Civil Law And forefaultor in absence was allowed by the Lords of Session in Anno 1669. because that was conform to the Civil Law and falshood is ordain'd to be punisht according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. And by Craig l. 1. diog 2. As also from our own Historians Lesly l. 1. cap. leg Scotor Boet. l. 5. hist Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as Forcat lib. 1. hist. Angl. Petr. diamitis Geograph Europ tit D. Escosse and Duck de auth jur civ lib. 2. cap. 10. and though the Romans had some customs or forms peculiar to the genious of their own Nation Yet their Laws in Criminal cases are of universal use for Crymes are the same almost every where as Boet. well observes leges Romanas à Iustiniano collectas tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhorrens quae eas non fuerit admirata And K. Ia. 5. was so fond of the Civil Law as Boet. observes lib. 17. that he made an Act ordaining that no man should succeed to a great Estate in Scotland who did not understand the Civil Law and erected two professions of it one at Saint Andrews and another at Aberdeen And when Iames the 2. did by the 48 act of his 3. Parliament ordain that his Subjects should be governed by no forraign Lawes he designed not to debar the respect due to the Roman Lawes but to obviat the vain pretences of the Pope whose canons and concessions were obtâ—uded upon the people as Laws by the Church men of these times The 4th branch of our Criminal Law are the Books of Reg. Maj which are in criminalibus lookt upon as authentick Thus the Thief must be punisht before the recepter and assysers must be pares curiae c. For which and many other maximes there is no warrand besides what is contained in these Books of Reg Majest But why should this be doubted seing they are cited as such Act 47. Parl. 6. Ia. 3. where it is said that wilful and ignorant Assysers shall be punisht after the form of the Kings Law in the first Book of the Majesty and by the 98. act 14. p. l. 3. transgressions of that act are to be punisht conform to the Kings Laws and of Regiam Majestatem likeas by the 54. P. 3. I. 1. a Comittee of Parliament is ordained to meet and examine the Book of the Law that is to say Regiam Majestatem and Quoniam atta chiamenta which is repeated 115. Act. 14. P. I. 3. And albeit they contain many things which are not in use with us yet they have been in use and this objection would conclude the Acts of Parliament not to be our Law It is then my opinion that K. Ia. the 1. hath brought down some of these collections from England with him Nor find I these books cited before this time It is doubted whether the Secret Council can by any Act or Proclamation either introduce a cryme which can infer tinsel of life or escheat for the Parliament can only dispose upon our lives and fortunes And it being the representative of the Nation every man is in Law said to have consented to what the Parliament doth I find Craig to have been of opinion that no Act of Secret Council can infer a Crime pag. 38. Nor can the Council by their Acts warrand any to do what would be otherwise a Crime for ejus est nolle cujus est velle And none can take away a cryme but such as can introduce a cryme and therefore M r. Archb Beath being pursued for killing some men he alledged that these men were bringing Meal from Ireland And that by Act of Council it was lawful to sink or kill such as contraveened the Act. To which his Majesties Advocat did reply that the Acts of Secret Council could not warrand the killing of a free Leidge and the committing of murder which reply was found relevant But since the Council are to secure the peace and that many accidents may emerge wherein the publick peace cannot be preserved without this power it were hard to limit them too much IV. Whether dolus or a wicked designe be requisite in all crymes is largely treated of by the Doctors and is most fully debated in the process of Ochiltrie Balmerino and the Marquiss of Argyle And by the texts § placuit just de furt l. 3. ff De injur l. pen. ff ad Leg. jul de Adult It seems that the wickedness of the designe makes only an action criminal but in my judgement this inquiry may be resolved in these conclusions 1. That seeing man can only offend in what is voluntar to him it must follow that the will is the only fountain of wickedness And consequently it was at first the designe of Law-givers only to punish such Acts as were designedly malicious 2. Because design is a private and conceal'd act of the mind which escapes the severest probation Therefore in some cases this dolus is allowed by Law to be inferred from conjectures and presumptions where the act is
sine juramento est perjurii reus Nor is a person deponing for the information of the Council oblieged before an oath be administrat to consider what she is deponing as lyable to the certification of Perjury and if it were otherwayes there needed no oath be administrat so that before the administration of an oath the deponer being neither a witness nor sworn can neither be guilty of perjury nor false witnessing much less can she be guilty of perjury in having deponed falsly which is a complicated crime made up of perjury and falshood 3. She is but one single witness and so could not have prejudged by her testimony the persons against whom she deponed semper perpendendum est damnum quod ex perjurio resultat Carpz quaest 46. n. 47. Likeas here she retracted her own deposition her self before any pursuit was or could be intented against those Gentlemen and that she deponed was the result of the confusion she was put in by her appearance before the Council being a young Girle not exceeding 18. so that her age and sex should excuse her si quis calore iracundiae aut forte lingua lapsus aut praecipitatus perjurium commisit ei eo casu ignosci debet Rens lib. 3. decis 2. And there is nothing more natural or less dangerous then that a guilt arising from a deposition and meer words should be taken off in the same way especially before any person be thereby prejudg'd as in this case 4. This Libel could not be warrantably founded upon the Act of Q. M. which punish'd only perjury committed in marrying two wives but no other species of perjury To which it was answered that as to the first defence it was not relevant since she being cited before the Council ought to have depon'd truly even for informing the Supreme Judicatory of the Nation who use and must examine women for the good of the Common-wealth especially in such atrocious and occult crimes as in the burning of the House of Frendraught And though the defender may in some cases cast a woman from being witness yet that excuses her not if she be examined To the 2. Lawyers are clear that a witness may depon without being sworn for the swearing them is not essential since the pursuer may remit it And yet the witness who depones falsly even though not sworn is a false witness Bart. in l. si quis ff ad l. Cornel. de fals Clar. h. t. num 11. To the 3. it was not relevant since she inform'd against these Gentlemen in a treasonable point and might have prejudg'd them nor did her retraction proceed from repentance but confrontation nor did she accidentally only or by confusion lapse into this error she having spread these misreports before she was cited and having reiterated her confession after citation To the 4. the practice of the Kingdom was oppon'd which is the best interpreter of Laws And in Anno 1615. Grahame of Long-boddom and in Anno 1622. Turnbul of Belshes and lately Dempster of Muresk were punish'd with death for deponing falsly or seducing others to depon But these points were not decided VII The punishment of Perjury by the Civil Law was Banishment l. ult ff de crimine Stellionatus fustigatio or Scourging l. si duo § si quis perjuraverit By our Law Act 19. Parl. 5. Q. Mary Bigamy is declared punishable as Perjury which is declared to be confiscation of all their moveable Goods warding of their Person for year and day and longer during the Kings will and that as infamous persons they shall never be able to bruik Office Honour Dignity nor Benefice in time coming As to which Act it is observable 1. That Perjury is not formally punishable with us but only declaratorly Perjury being in it self so heinous a Crime but the reason of this seems to be that Perjury was before this Act punishable after this manner for by the 4. cap. lib. 1. Reg. Maj. it was appointed that temere jurantes super assisa spoliabuntur mobilibus in carcerem detrudentur per annum diem adminus infamiae notam incurrent amittent legem terrae which Skeen interprets to be non habère personam standi in judicio and not to be receivable as witnesses either in judicio or extrajudicium which Act is likewise ratified by the 47. Act Parl. 6. K. I. 3. where it is said that wilful or ignorant Assizers Man-swearing shall be punished after the Kings old Law in the first Book of the Majestie Where Perjury is to be inferred from a Deposition either as Party or witness it is necessar that the Deposition be subscribed by him and the Lords found that Mr. Iames Row could not be convict of Perjury upon his Deposition subscribed by the Clerk Sometimes the Council change the punishment of Perjury into banishment as in the case of Galbraith who came in will for Perjury 23. Iuly 1625. TITLE XXX Of Injuries Personal and Real And of infamous Libels 1. Injuries are either verbal or real 2. The requisits in Libelling verbal injuries 3. What are real injuries 4. Who are Iudges to verbal or real injuries 5. Infamous Libels how punished 6. Leasing-makers how punished by our Law I Have oftimes thought that men should walk legally not only in obedience but gratitude to Law since the Law takes so much pains to secure not only our lives and estates but even our honour and reputation and will humour us so far as that because we will think railery a misfortune it will therefore punish even these who offend our imagination I. Injury then in its more comprehensive sense may give a name to all crimes for all crimes are injuries but injury as it is the Subject of this Title is the same thing with contumely or reproach It is divided by Lawyers into such as are committed by thoughts deeds words and gestures but the more received division is that injuries are either verbal or real II. Verbal injuries are these which are committed by unwarrantable expressions as to call a man a cheat or a woman a whore but because expressions vary according to the intention of the speaker therefore except the words can allow of no good sense as Whore or Thief or that there ly strong presumptions against the speaker the injuriandi animus the designe of injuring as well as the injuring words must be proved and the speaker will be allowed to purge his guilt by declaring his intention l. 5. § octavo ff de injur and his declaration will without an oath be sufficient except the offender be burdened with contrary presumptions Berlich conclus 60. num 18. Lawyers therefore require in Libelling injuries 1. That the particular expressions be distinctly condescended upon nor is the general you called me a Cheat or said some such thing sufficient seing not only words but even the pointing of them does alter the estimat of Injuries 2. The pusuer should Libel the design of injuring
what consists the nature of a Cryme may be doubted and l. 1. Reg. Maj. c. i. A civil Action is defyned to be that which concerns Lands or Goods And a Criminal Action that which concerns Life or Limb. But Skeen in his observations upon that place do's confess all that to be a Cryme which concerns the publick good whether a corporal punishment or pecuniary mulct be craved but this is also too general especially since the Law divides Crymes in publick and privat Crymes and therefore I offer these considerations 1. All transgressions of Law are not Criminal v g. to make a disposition in defraud of Creditors is not criminal though it be prohibited 2. That is not only to be accounted a Cryme which bears expresly to be punishable by corporal punishment or pecunial mulcts for in my Lord Renton's case against Hoom it was found that poynding of Oxen in time of labouring was Criminal though it be not appoynted by the Act whereby it is prohibited to be punished by a definit punishment Nor is it exprest to be a Cryme likeas single Adultery is punishable albeit it be not declared to be a Cryme by any expresse Law with us 3. That cannot only be thought a Cryme which is committed against the Law of Nature for poynding of Oxen is no more such than making fraudulent dispositions III. The true nature then of a Cryme may be comprehended under these general conclusions First that is a Cryme which is declared such by an express Statute as Murder Treason and it were to be wisht that nothing were a Cryme which is not declared to be so by a Statute for this would make Subjects inexcuseable and prevent the arbitrariness of Judges And I find by the general consent of Criminalists nothing is to be accounted a Cryme or punisht criminally but what is forbid by the Law under an express pain or punishment for they observe that as there can be no punishment inflicted but where a delict is committed so there can be no delict but where the Law hath appoynted a punishment Cabal Cas. 1. And this is clear l. at si quis § divus ff de Religios sumpt fun l. haeres ff de usufr. leg Surd. consil 301. And yet Lawyers assert that such as disobey and transgress any prohibiting Law may be punisht arbitrarly as contemners of the Law sutably to the degree of their contempt though they cannot be punisht Criminally as guilty of a Cryme Cabal ibid. 2. The transgressing any Municipal Law which prohibits that which either the Law of God or the Civil Law punishes criminally by corporal punishment or a pecuniary mulct is a Cryme and thus the poynding Oxen in time of labouring was declared a Cryme in the former decision because though it was prohibited by an express Statute which did bear no punishment yet it ought to have been punisht according to the Civil Law whereby it is declared to be a Cryme 3. That is a Crime whereby the publict peace is immediatly disquieted Or whereby the Law of Nature is violated Thus Incests and Rapts were accounted Crymes with us before they were declared to be such by an express Law And Bestiality and Sodomy are Crymes though yet we have no Statute against them 4. That is a Crime which long custome hath punisht by corporal punishment or by a pecuniary mulct in the Justice Court as single and not manifest Adultery From all which it appears that the Law of God is the first fountain of our Criminal Law And thus the lybel in single Adultery is only founded upon the Law of God And in usury we lybel upon the Municipal Law and the Law of God joyntly 2. Our Statutes or Acts of Parliament are our proper Law but even these may run in desuetude so far that they cannot be the foundation of a criminal pursuit for former transgressions since the people who know not Law so much by reading the Books of Statutes as by seeing the daily practice of the Countrey should not be ensnar'd by pursuits upon old buried Laws which scarce Lawyers study or know Nor can the people be thought to have contemn'd what they cannot be presum'd to have known And our Judicators by ordaining such ancient Laws to be renewed by proclamations do confess that before these proclamations these Laws were not binding for else the renewing them had been unnecessar and if it were otherwise we have so many paenal Statutes now in desuetude that the Leidges would be certainly ruined by them And thus Collonel Borthwick having pursued the Maltmen Criminally for contraveening the 92. Act. 6. Parliament Ia. 4. The Councel upon a supplication representing thir grounds sisted that pursuit But desuetude must be universal ancient and notorious else the want of any of these three qualifications will alter this conclusion And yet I think that desuetude cannot in futurum abrogate a Cryme and enervate the Law altogether since the Parliament only can rescind their own Laws nor should the people nay nor our Judges be made legislators consuetudinis ususque longavi non vilis est auctoritas verum non usque adeo sui valitura momento ut aut rationem vincat aut legem l. 2. C. quae sit long Consuet which should rather hold in Crimes then in any other subject because it seems absurd that it should be lawful to the people to loose themselves from the Laws made against themselves and to gain impunity by frequent repetition of their faults or to be able to free themselves from punishment by contemning these Laws by which they are inflicted The decisions of our Criminal Court as of all our other do bind the same or succeeding Judges rather out of decency then necessity for nothing tyes Judges but Laws and none can make Laws but the Parliament which is very suitable to l. Nemo C. de sent inter where Iustinian doth expresly command ne ullorum judicum sententiae pro jure reputentur The reason whereof given in that Law is quod non exemplis sed legibus est judicandum and the other reason L. ult C. de legibus quia imperator est solus legum conditor And if we consider how much circumstances influence particular cases how Judges may fail where parties are nam'd and that decisions pass necessarily upon less premeditation then is necessary to Laws it will be found reasonable not to trust decisions too much Likeas our Judges do make express Acts of Sederunt as we call them when they resolve to regulat future cases which were unnecessar if all decisions did of themselves bind Nor doth the decisions of the very Parliament of Paris bind even the pronounters themselves for the future as Conan observes lib. 1. c. 15. And so frail and fallible a thing are mens judgements especially where votes are numbered and not weigh'd or where experience may discover the errors which the sharpest reason could not foresee that therefore Judges should no more be tyed from altering their
prima instantia during Popery and this is conform to the opinion of almost all the Doctors who think heresie crimen mere Ecclesiasticum Alcia in c. 1. num 37. de offic ord but they justly conclude as in this Statute that the cognition belongs to the Church and the punishment to the Secular Judge and this Canonists calls tradere hâ—reticum brachio Seculari and Clarus do's so far appropiat this tryal to the Ecclesiastical Judge that he allows not so much the Secular Judge as the power of mitigating the punishment and yet now the Justices are Judges competent in prima instantia to such as hear or say Mass but the reason is because such are in general condemn'd by the Church as guilty of Heresie and yet the Popish Church are still Judges to the Protestants thogh they be condemn'd in general as Hereticks for the Hereticks are try'd and condemn'd first by the Ecclesiastick Judge among them The second thing remarkable in this Act is that amongst Ecclesiasticks the Bishop is the first Judge in Heresie which is also conform to the opinion of the Canonists Clar. h. t. num 5. After the Reformation there was a Confession of Faith made and is set down by King Iames in his first Parliament and Ratified Act 4. And they who profess not the true Religion may not be a Judge but this is not extended to Heretable Offices Procurator nor Member in any Court Ia. 6. pa. 1. c. 9. and such Church-men as will not subscribe that Confession are deprived Ia. 6. Pa. 3. Act 46. and all such as refuse to subscribe are to be repute Rebels and enemies to the King and his Government Act 47. IV. Our Law fearing the pains taken by the Romish Church more then the hazard arising from any else have been more severe to these than to others And therefore the sayers or hearers of Mass or such as are present thereat are punished 5. Act 1. P. I. 6. by confiscation of all their goods moveable and immoveable and an arbitrary punishment of their persons for the first fault banishment for the second fault and death for the third fault It may be doubted if such as hear Mass for curiosity may be thus punished which is very ordinary abroad and it seems that Heresie must be an act upon design and yet this Law makes no distinction here 2. It may be doubted if by confiscation of Goods immoveable be meant Land and Heritages for they are call'd bona immobilia and yet I rather incline to think that this should only extend to Heritable Bonds and such like but not to Lands for Heritage uses alwayes to be exprest distinctly when the confiscation of it is design'd And if Heritage were forefaulted by the first fault the punishment of the first would be greater then the punishment of the second fault which is only banishment Nor do's Heritage use to be exprest under the word Goods But thereafter the sayers of Mass and trafficking Papists and the receivers of them against the King's Majesty and Religion presently profess'd are declared guilty of treason Act 120. Pa. 12. Ia. 6. But from these words Against the King's Majesty and Religion presently professed it may be argu'd that only such Jesuits and others as traffick to the prejudice of the King's Person and Government such as these who attempted the Gun-powder-treason or to kill the King or raise Rebellion are only guilty of Treason which seems the rather because it were hard to make simple endeavouring to perswade others in meer matters of Religion to be treason It is also observable from this Act that such Jesuits or trafficking Papists or receipters of either as satisfies the King and Kirk are not to be guilty of treason so that here treason is taken away by repentance but it may be doubted if though they be not guilty of treason they may not be punish'd as Hereticks conform to the above-cited 5. Act. 1. Pa. Ia. 6. for the Act only declares that the penalty foresaid shall not strike against them And though as I observed formerly such as are guilty of Heresie may by repentance save themselves from the punishment of death yet are they still declar'd lyable to other punishments such as perpetual imprisonment But yet since our Law appoints no other punishments against Traffickers and receipters of Jesuits but what is exprest here and that the punishment here exprest is taken off in case of repentance I rather believe that no punishment can be inflicted in case of repentance against these And it is very reasonable that meer errors in faith should be pardon'd by meer repentance but as to the sayers and hearers of Mass the former Act seems to stand The Sellers also and dispersers of erronious and Popish Books are to be punish'd arbitrarily by the Rubrick of the 25. Act 11. Pa. Ia. 6. but the statutory words run only against the home-bringers of such Books the Books also are to be destroyed and warrand is given to Magistrats of Burghs with a Minister to intromet with them without hazard of spuilzie But yet de practica other Officers such as Sheriffs and Lords of Regality do intromet with such Books though they be not warranted And though inclusio unius est exclusio alterius and though the Act ordains a Minister to be present which was certainly apointed that it might be known whether the Books were Popish yet de praxi Magistrats use to intromet without having a Minister present I find no express punishment against other Hereticks in our Law nor de praxi are other Hereticks punish'd corporally but whether they may not be punish'd conform to the common Law and upon that general Act of K. Iames the First I will not determine As also it is ordinary to banish only Jesuits and sayers of Mass as was done December 9. 1573. Mr Iohn Robertson was banished by order from the Council he enacted himself under the pain of death never to return to Scotland V. The common Law or Doctors have introduced many specialities in the tryal of this Crime as first that less clear probation is admitted in proving Heresie then other Crimes Clar. § Haeresis num 20. And by an old Act of Sederunt socii criminis Women and Pupills are to be admitted with us to prove hearing and saying of Mass else that Crime could not be proved 2. A Heretick may be try'd after death Alber. in rubr h. t. which they say holds not only in a Heretick found guilty by probation Haereticus verus but in these who were cited to compear for Heresie but compeared not whom they call Haereticum praesumptum but this holds not with us no not in these who are guilty of Treason as being Traffiquing Jesuits or Papists for only Perduellion is by our Law to by try'd after death But though the Heretick cannot be punish'd after death yet his opinions may be condemn'd as Heretical even after his death TITLE V. Simony Baratry 1 What is Simony 2 How it
a subvassal by a subvassal and a Burges by a Burges but a lower person may be judged by a higher and by the chap. 2. Stat. Alex. 2. A Knight should be judged by Knights or free holders but by an Act of Sederunt 1. Iune 1591. The Lords of Session declared all such as were landed men sufficient to passe upon Assizes of Error though the old Laws required noble men and Gentlemen only in such cases And albeit of old it was uncontravertedly received that none should passe upon the Assize of Noblemen except Noblemen Nor upon the Assize of Barrons except Barrons yet of late it hath been much debated and especially in the case of Douglasse of Spot 9. May 1667. at which time he being accused for killing Home of Ecles it was alledged that Spot was a Barron and so could not be judged but by Barrons holding of the King conform to the citations above duced It was replyed by His Majesties Advocat 1. Neither the books of quon attach or the Statutes of King Alexander are binding Laws but only books of Apocripha 2. Though they were Laws yet they are not in viridi observantia seing Burgesses and others are daily admitted by the late practique to passe upon Barrons Assizes and at the time of the making of these Laws Assizers were Judges both to the relevancy and probation whereas now in effect they are but witnesses and therefore since the Law reposes much lesse confidence in them now then formerly it should not now be so scrupulous in their election 3. Burgesses are in Parliament allowed to sit upon the Assize of and forefault Noblemen and it were against reason that they should be admitted to the more solemn Judicators and be rejected in Judicators where cases of less importance are ordinarily judged and in which the Sentence pronounced may be easier repealed 4. Dyets before the Justice-Courts being alwayes peremptor it is probable that dyets behoved very frequently to be deserted if only Noblemen were to be Judged by Noblemen Barrons by Barrons 5. By the state of King Alexander above cited it is only requisit that Knights be judged by Knights but it is not added there that Barrons should be judged by Barrons which shews that that priviledge was not allowed to them even in those dayes and lastly seing all mens lives are of extraordinary concernment it is not reasonable to think that he who can be judge of any mans life may not be Judge of the lives of all men To which it was duplyed as to the first That debate is opponed whereby it is evinced in the Title by what Laws Crimes are judged in Scotland and the Books of quon attach and Reg. Majes are our Law and the Act of Sederunt above-cited dispencing with that priviledge in some cases doth demonstrat that regularly this priviledge taketh place with us Likeas Skeen in his Treatise concerning the procedure before the Justice General cap. 4. sect 3. cites these Laws as binding and gives for a rule that no man can be judged in that Court but by his peers To the second it was duplyed that this being a declinatur and being arbitrary for parties to plead the benefite thereof it cannot be said to be antiquated unlesse it had been alledged that it had been pleaded and repelled But as this citation out of Skeen who is but a late Author did show the same to be in viridi observantia so Noblemen have lately had the same indulged to them as in the cases of the Earl of Traquair and Lord Ochiltree which was allowed to them upon the Laws here cited To the third founded upon Burgesses sitting upon forefaulters in Parliament the same doth not meet the case seing the Parliament may abrogat Laws and so are not in their procedure tyed to them and though Burgesses singlie be not Peers to Noblemen yet the collective body of the Parliament by which they are condemned are much more their Peers To the fourth it was duplyed that inconveniences are only to be looked to in the making of Laws but not after and the inconveniences of the other side are much more pressing it being very inconvenient that an Assize of 15. mean Tradsmen should be admitted to try a Duke or Marquesse and it was a vast mistake to think that Assizes are only witnesses and not Judges seing they vote and their verdict is called a Sentence and if Art and Part be Libelled the relevancy is in these cases which uses to be of all cases most intricat Simply referred to them without any debate To the fifth it was duplyed that the inference is meerly conjectural but if the Text be considered it will appear that by Knight there is meaned Vassal or free holder for the Latine translation renders the word Knight not eques but miles and it is said there that a Knight shal be judged by Knights or free holders So that the particle or is in that place exegetick and not disjunctive And to the Last it is duplyed that all mens lives are not equally precious in the eyes of the Law for even by the Roman Law mean people were judged to dye for many crimes which were not capitally to Noble Romans and though with us the punishment may be the same yet the way of procedure against Noblemen is justly allowed to be more solemn Upon which debate the Justices ordained a new Assize to be summonded whereof the most part should be Barrons and the remanent landed Gentleman It was thereafter doubted whether an apparent Heir of a Barron has the same priviledge so that none can passe upon his Assize who are not Barrons or Landed men and it was alledged that the apparent Heir had this priviledge and was a Barron in the construction of Law for his marriage or escheat would fall though not entered and as a Barron though denuded remained still a Barron or a Prelat though for age demitting would be still a prelat so the apparent Heir of a Barron though not entered should be still a Barron as was found 23. December 1674. To which it was answered that an appearent Heir was not nomen juris and priviledges ought to be strictly interpreted and the appearing Air of a Barron would not have an Heir as was lately found in Sir Allexander Seatons case quē sequitur in comodum c. Whereas in Law all Barrons may have Heirs nor did the instances adduced from the Casualities of marriage or escheat militat in this seing these proceeded ex natura feudi non ex vi privilegii and was introduced in favours of the superiour and not of the appearent Heir Upon which debate the Justices 19. of Iuly 1675. repelled the objection against the Assizers and found the priviledged extended not to the appearent Heirs of Barrons Mackintosh contra Frazer of Culbokie Not is this priviledge extended to Landed men though infest if their Lands be not erected in a Barrony VIII Albeit it be ordinarly received that Assisers may Judge upon their proper
punished after the form of the Kings Law in the first Book of the Majestie Skeen observes upon that place Reg. Maj. that amittere legem terrae is the same with non habere personam standi injudicio and they can never be admitted thereafter as Witnesses neither in Writs nor in Judgement vid. tit perjurie But to the end it may be known which of the Assize assoilzied it is by the 9. Article regul 1670. appointed that the Chancellor of the Assize mark upon the same Papper upon which the verdict is write who condemned and who assoilzâ—ed which Paper is to be sealed and kept till a Summonds of errour be raised The Council sometimes rescinds verdicts without any action of errour in criminalibus as in George Ghrahams case where they ordain'd the verdict of the inquest whereby he was found to be Art and Part of recept of stoln Bonds to be unjust and restored him against the same but it may be doubted whether these who are unjustly condemned may be restored against that verdict though it be found unjust seing these who are unjustly assoilzied cannot be thereafter pursued though the absolvitur be found unjust per argumentum à contrario vid. titl of the Council where this question is fully debated and determined TITLE XXIV Of Probation by confession 1. Probation defined 2. Probation by confession if judicial is the strongest of all Probations 3. In what case is an extrajudicial confession allowable 4. What are the effects of a qualified confession 5. The effects of a confession emitted before an incompetent Iudge 6. How far a minors confession obliedges PRobation is so fully treated of by the Civilians and Cannenists and we differ so little from them that I shall only treat of it here in relation to our own Law I. Probation is defined to be that whereby the Judge is convinced of what is asseâ—ted and it may be divided in probation by confession by Oath by Writ by Witnesses and by Presumptions II. Probation by confession is the most secure of all others and therefore it is said in Law that in confitentem nullae sunt partes judicis suitable to which such as confesse are oftimes codemned without the knowledge of an Inquest as I have more fully treated in the Title of Assizes but because men will sometimes confess a Crime rather out of wearinesse of their life then a consciousness of guilt therefore the Law hath required that if there appear any aversion for life taedium vitae or any signs of distraction or madnesse that these confessions should not be rested upon except they be adminiculat with other probation as also because confessions are oftimes emitted negligently the confessors thinking that their privat confessions cannot prejudge them therefore the Law doth only give credit to judicial confessions and not to these that are extrajudicial extra bancum which maxime is stronger with us then elsewhere because by a Particular Act of Parliament Ia. 6. Parl. 11. cap. 90. All probation should be led in presence of the Assize III. This Maxime doth admit in Farin icius opinion many limitations as 1. That if the extrajudicial confession be adminiculat by other presumptions it is sufficient but except the presumptions be very violent I cannot allow this limitation seing confessio extrajudicialis in se nulla est quod nullum est non potest adminiculari and therefore some approve Bossius who admits this confession though adminiculat only to infer paenam extraordinariam Sed non ordinariam for certainly such prevarication and abusing of truth and Judges deserves some punishment The second limitation is that if the confession be admitted in presence of the accuser and accepted by him then it is valid though extrajudicial but this I allow not because it is still extrajudicial and the confessor knew that he should not die upon such a confession for which reason likewise I approve not the third and fourth limitations which are that if the extrajudicial confession be geminata and reiterated or emitted in presence of a multitude or ad exonerationem conscientiae that then it should be valid and I remember that though Major Weir confest Sodomy and Incest to Ministers and Magistrats joyntly for exoneration of his Conscience in presence of many persons that His Majesties Advocat took great pains to bring him to a judicial confession as thinking the former not sufficient and yet Frazer was condemned upon a confession emited before the Assembly at Aberdene and other Noble men though retracted 1641. where this limitation is alledged upon out of Farinacius and this being represented to the Parliament they refused to give their opinion and referred all back to the Justices who sustained the confession adminiculated as said is The sixth limitation is that an extrajudicial confession is valid if upon Oath but I allow not this seing Oaths are not allowed in criminal cases nor can the Pannel be forced thereto and if he swear ultroniously and undesired the confession would appear to me to be suspect as emited either per surorem vel ex taedio vitae The seventh limitation is that an extrajudicial confession is sufficient when the crime confest consists in animo as for instance if it were doubted upon what reason a person accused fled or shot a Pistol c. But I neither allow this limitation for else it should be as large as the rule seing all crimes require animum delinquendi and yet I think that some circumstances of a crime may be proved by an extrajudicial confession and so this limitation may be true in that sense All these limitations are largely rather then exactly set down by Farin de reo confesso quest 81. Reg. 10. Confession though extrajudicial may be sufficient if adminiculat to subject the confessor to the torture but this is rarely practized with us But I remember to have seen Mitchel lately tortured upon his retracting a confession emitted by him in presence of His Majesties Privy Council and a confession extorted by torture is in no Law sufficient so that except it be adhered to after the person tortured is removed from the Rack for two or three dayes it makes no Faith Farin de reo confesso cap. 3. The custome with us is that the Advocat doth in presence of the Justices examine the party to be accused and if he confesse either he subscribes his confession if he can write or else the Justices subscribes for him or which is securer makes two Nottars and four Witnesses subscribe and albeit a confession thus subscribed by two Nottars before four Witnesses was found sufficient upon the 7. of December 1669. in the case of Finla Macknob who was pursued for Theft yet it was then alledged that the confession was not sufficient and that for these reasons 1. Because all Probation should by the Act of Parliament foresaid be led in presence of the Assize and therefore when the Probation was founded upon confession the confession should have been
EDINBURGH The seventh of April 1677. IT is ordered by the Lords of His Majesties most Honourable Privy Council that none shall Re-print or Import into this Kingdom this Book Entituled The Laws and Customs of Scotland in Matters Criminal By Sir George Mackenzie of Rose-haugh for the space of Nineteen years after the Date hereof under the pain of Confiscation of the same to Thomas Brown George Swintoun and Iames Glen Printers hereof and further punishment as the Council shall think fit to inflict upon them Extracted be me Thomas Hay THE LAWS AND CUSTOMES OF SCOTLAND In Matters CRIMINAL Wherein is to be seen how the Civil Law and the Laws and Customs of other Nations do agree with and supply ours By Sir GEORGE MACKENZIE of Rose-haugh EDINBVRGH Printed by Iames Glen Anno Domini MDCLXXVIII TO HIS GRACE JOHN Duke of LAUDERDALE Marquess of March Earl of Lauderdail and Guildford Viscount Maitland Lord Thirlestane Musselburgh Boltoun and Petersham President of His MAJESTIE' 's most Honourable Privy Council of SCOTLAND Sole Secretary of State for the said Kingdom Gentleman of His MAJESTIE' 's Bed-Chamber and Knight of the most Noble Order of the Garter May it please Your Grace THough the number and wit of such as use to write Dedications may seem to have exhausted all that can be said upon such occasions yet I have a new way of address left me which is to write nothing of you but what is true by the confession of your enemies who admire more the greatness of your Parts than of either your Interest or Success And how you have made so great a turn in this Kingdom without either Blood or Forfeiture shewing neither revenge as to what is past nor fear as to what is to come continuing no longer your unkindness to any man than you think he continues his opposition to his Prince All have at sometime confest that you have been the Ornament as well as Defence of your Native Countrey to whom every Scottish-man is almost as dear as every man is to his own Relations And I am sure that your enemies will find it easier to put you from your Office then to fill it and none of them can wish you to be removed without being himself a loser by it Nor can I be so unjust even to such as oppos'd you as not to acknowledge that I have heard them talk of you so advantagiously when design and interest oblidged them to dissemble as almost convinced me that the most of them opposed you only in publick rather from the glory of having so great an Adversary than from the justice of the undertaking And your Countrey has in their late Confluences where they crouded in mighty numbers and with a remarkable joy to meet you when a privat man shew'd greater respect to your naked merit then to the highest Characters by which others were marked out for publict honour Having writ this Book to inform my Countrey-men and to illuminat our Law I could not present it more justly to any than to your Grace who has derived your Blood from a Noble Family which has been still eminent in our Courts of Justice since we had any and who are your self the greatest States-man in Europe who is a Schollar and the greatest Schollar who is a States-man For to hear you talk of Books one would think you had bestowed no time in studying men and yet to observe your wise conduct in affairs one might be induced to believe that you had no time to study Books You are the chief man who does nobly raise the study of the Civil Law to a happy usefulness in the greater and general Affairs of Europe and who spends the one half of the day in studying what is just and the other half in practising what is so All which may be easily believed from me who am as great an instance of your generosity as an admirer of it Especially since you have left me nothing to wish so that what I say needs not flow from flattery and so must be presumed to flow from conviction and gratitude in Your Graces most faithful and most humble Servant George Mackenzie THE DESIGN THe great concerns of men are their Lives Fortunes and Reputation and these three suffering at once in Crimes it is the great interest of mankind to know how to evite such accusations and how to defend themselves when accused And yet none of our Lawyers have been so kind to their Countrey as to write one Sheet upon this pleasant and advantagious Subject which made it a task both necessary and difficult to me In prosecuting this design I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers and having added to them these Observations I have my self made during my twenty years attendance upon that Court either as Iudge or Advocat I collationed all with our Statutory Law the Civil Law and the Customs of other Countreys and the opinions of the Doctors And as I may without vanity say that few valuable Authors treat of Crimes whom I have not read So there is nothing here which is not warranted by Law or Decisions or in which when I doubted I did not confer seriously with the learned'st Lawyers of this Age and yet I doubt not but in some things others may differ from me as the best Writers do amongst themselves And having only designed to establish solidly the Principles of the Criminal Law I wanted room for treating learnedly each particular case or even for hinting at all such cases as may be necessary And without wearying my Readers with Citations which was very easie I have furnished the Book with as much reason as is ordinarly to be found in Legal Treatises The reason why I have so oft cited the Basilicks Theophil and the Greek Scholiasts was not only because none before me have used them in Criminal Treatises but because I conclude them the best Interpreters of Justinians Text For these Books having been Writ in the same Age and place and some of them by those who compiled the Latine Text they must understand it best of all others of which I have given many instances in this Book and shall here adde one there forgot which is that the Latine Interpreters doubt much what is meant by remittendum in the constitution Si quis Imperatori male dixerit some interpreting it pardoned some to be sent back to the Emperour But the Basilicks render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies only ignoscendum I cannot but admire much the wisdom of God who gives not only inclination but pleasure to such as toyl for the good of others for I am sure few men would have from any weaker impulse bestowed so much time and so many thoughts upon an imployment which without bringing gain will certainly bring envy and censure For I find it is the genius of this Age to admire such as make the publick good bend to their designs and to
genere malitiae So that every ones having power to pursue a Cryme or a Crime being declared publick by an express Law are not the true constitutive differences betwixt a publick Cryme and a private but are only the effects thereof for when the Kingdom or State doth find that any Cryme is of dangerous and universal consequence then they allow very justly that every privat man may accuse With us in Scotland the vestiges of this distinction are yet to be seen for albeit his Majesties Advocat may pursue without the concurse of the party injured Yet no other person will be allowed to pursue any Cryme nisi suam vel suorum injuriam prosequatur and that every privat person may not pursue in all Crimes is clear from c. 2. lib. 4. Reg. Maj. where in Treason it is said that every man may pursue which had been unnecessar if every person might pursue in every Crime and thus M c cal having raised Letters in his own name against Charles Lindsay for killing his Father in Iuly 1668. the Justices would not sustain the pursuit at his instance because he could not prove that he was son to the defunct and since his Majesties Advocat represents in all criminal pursuits the publick and as it is presumeable that he will not refuse his concurse so he will be punished if he refuse the same It were therefore inconvenient and unnecessary that every privat man should be allowed the liberty of pursuing Crimes in which he were not interested this distinction is much abused in the Books of Reg. Maj. For in them publick Murder is defined to be that which is committed by forethought fellony and private Murder which is committed without being known to any but the persons who were complices stat Malcom 2. c. 15. II The Civil Law likewise divides Crimes in ordinary and extraordinary extraordinary were these wherein the Law had appointed no particular punishment ordinary crimes were such as were punishable by a liquid pain determined by the Law and was therefore called crimen legittimum III. Crimes are likewise divided into such as were capital or not capital Capital crimes are such as are punishable by death banishment or loss of liberty so called à capitis diminutione but with us these crimes are only called capital which are punishable by loss of life or limb IV. Crimes are either occult or manifest occult crimes are these which either are occult of their own nature as Hamesucken Conspiracy Adultery or such as are occult by accident such as Murders committed by Inn-keepers upon their Guests Though murder of its own nature be not occult since it is oft-times openly committed This division is considered by Lawyers either in order to probation because in occult crimes less exact probation is accepted And thus with us the being rob'd at Sea was found probable by these in the Ship because no other probation could be had there And it is against the interest of the Common-wealth that Crimes should pass unpunish'd Or they consider this division with respect to prescriptions because it is debated whether when a Statute appoints a Crime to be pursu'd betwixt and such a day that time should run in occult crimes from the time the crime was committed or from the time it was known In occult crimes also torture is admitted more easily then in other crimes V. Crimes are divided in such as are atrocious and such as are not Atrocious crimes are these wherein the guilt is very great VI. In Scotland crimes are divided in statutory and such as are not punished by an express Statute as common Adultery Bestiality c. And albeit it was controverted in the Lord Rentouns case Ian. 1666. that the poynding of Oxen in the time of labouring could not be accounted a crime because it was not declared punishable by an express Statute yet the Justices found that eo ipso it was forbidden by a Statute It was in so far a crime because Authority was thereby contemned especially having been formerly declared a crime by the Civil Law And it were unreasonable to think that Adultery albeit it be not notour should be a crime albeit its penalty is not exprest by a Statute And with us especially of old it was most ordinary to forbid crimes without express sanctions as may be seen in several Acts of Parliament Likeas by the Civil Law extraordinary crimes were declared to be such as were forbidden by Law but where the penalty of the Law was not determined from all which it appears that the essence of a crime consists in its being forbidden and not in having its punishment stated by an express Statute though I wish it were otherwise What Crimes are called Crimes of the Crown or Pledges of the Crown is treated largely Title Regalities What Crimes are called Crimina excepta is declared in the Title Treason TITLE III. Blasphemy 1 What is Blasphemy 2 The several kinds of Blasphemy 3 Whether Ignorance Repentance or Railery be good defences against the punishment 4 What is the punishment of Blasphemy by the common-Law 5 What by our Statutes 6 Cursing of Parents and swearing how punished BLasphemy is called in Law divine laese Majesty or Treason and it is committed either by denying that of God which belongs to him as one of His Attributes or by attributing to him that which is absurd and inconsistent with his Divine Nature II. These who swear by the Head or Feet of God are guilty of this Crime by the common Law c. 51. si quis per dei capillum 22. quest 1. videntur enim amplecti anthropomorphitarum haeresin quae membra deo tribuebat By that Cannon they are also punishable who delate not Blasphemers Albeit regularly what is spoken in passion be more moderately punished yet it lessens not a Blasphemers Crime Hostien tit de maled except he speak at such a rate as clearly indicats that he is furious or somewhat distracted or if he recover himself and testifie immediatly his contrition thus Socin relates consilio 102. that a Jew who had denied the Omnipotence of God was absolved from a pursuit of Blasphemy because he immediatly threw himself upon the ground and kist it and testified an extraordinar horrour which Lawyers say is an extraordinar punishment and oftentimes exceeds the fear of Death And there are some Lawyers as Abbas felin ad cap. 13. de jure jur who conclude that either he who blasphems passionatly is unlawfully imployed when he falls into that passion as in playing at Cards Drinking c. and then his passion doth not lessen his Crime But if he be honestly employed as doing business treating for his Friend and then if he blaspheme only in passion it lessens his guilt and should mitigat his punishment but why should passion excuse Blasphemy more then Murder if it be not because the fall cannot be repaired by Repentance a man being killed but the fault in Blasphemy may be extinguished by Repentance III. Clarus thinks
Dalkeith he immediatly distracted which Article was likewise found relevant being joyned with fame and dilation Which decisions are in my opinion very dangerous for they want a sure foundation and are precedents whereby Judges may become very arbitrary And against these I may oppone a third alledgiance used in the former Process against Agnes Finnie wherein it was alledged that the conclusion of all Criminal Libels should be necessarily inferred from the deed subsumed and that conclusio semper sequitur debiliorem partem nam libellus est syllogismus apodicticus sed non probabilis and therefore except the Libel could condescend upon some means used by the Pannel from which the malefice were necessarily infer'd it could not be concluded that these Malefices were done by her or that she was guilty of the wrong done Thus Bodin lib. 4. does conclude that veneficae non sunt condemnandae licet sint deprehensae cum bufonibus ossibus aliisque instrumentis egredientes exovili licet oves immediate moriantur And Perkins cap. 6. asserts that neither defamation nor threatnings albeit what is threatned does follow nor mala fama nor the Defuncts laying the blame of their death upon the person accused called inculpatio by the Doctors can infer this Crime though all these be conjoyned for in his opinion nothing can be a sufficient ground to condemn a Witch except the Pannels own confession or the depositions of two famous Witnesses deponing upon means used by the Pannel And it is remakable that in the Chapter immediatly subsequent to that wherein Witches are ordinarily to be put to death GOD hath expresly ordained that out of the mouth of two or three Witnesses every word shall be established And in the Process deduced against Isobel Young for Witch-craft Feb. 4. 1629. and against Katherine Oswald Novemb. 11. 1629. This point is likewise debated it being Libel'd against the said Katherine that by her Witch-craft she caused a Cow give blood instead of milk and caused a Woman fall and break a rib in her side Against which it was alledged that there was no necessar connexion there inter terminum à quo ad quem inter causam effectum But on the contrary the Cowes giving blood for milk might proceed from another natural cause viz. from lying upon an Ant or Emmot hill and therefore I think that because we know not what vertue may be in Herbs Stones or other things which may be applyed it were very hard to find Cures performed by the application of these without the using Charms or Spells to be Witch-craft But when these outward applications are used to do hurt as for instance if the said Margaret Wallace being at enmity with Iohn Clark and after she was forbidden to frequent his House did continue to frequent the same and did throw in blood or any unusual thing upon his Wifes Pap if the Child who suck'd the same had thereafter died I think this Article joyned with preceeding defamation of her by another Witch might have been found relevant because she was there in re illicita And since the Law cannot know exactly what efficacy there is in natural causes it may very well discharge any such superstitious forbidden Acts as it pleases under the pain of Witch-craft Nor can these who are accused complain of severity since sibi imputent that use these forbidden things against the express commandment of the Law and therefore since the Law and Practick hath forbidden all Charms it is most just that these who use the same should be severely punished whatever the pretext be upon which they are used or after whatever way or manner or to whatever end whether good or bad X. Albeit per leg 4. Cod. de mal Math. these Magick Arts are only condemned which tend to the destruction of mankind but not these whereby men are cured or the fruits of the ground preserved yet I have oft-times imputed this constitution to Tribonian who was a Pagan and a severe enemy to Christians or else that it behoved to be so interpret or that thereby remedies assisted by Godly Prayers were allowed else what mean these words suffragia innocenter adhibita But since I am informed from the Ecclesiastick Historians as Zozim lib. 2. that Constantine was not yet turn'd Christian when he past that constitution but however this constitution is omitted in the Basilicks and the Gloss sayes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was not thought fit to be mentioned in the repurgation of the Law And that constitution was very well reprobat by Leo's 65. Novel And by the Canon Law tit de sorti-legiis And the general Sanction of the former Act of Parliament leaves no place for this distinction Suitable to all which Iohn Brough was convict for Witch-craft in Anno 1643. for curing Beasts by casting white stones in water and sprinkling them therewith and for curing Women by washing their feet with South-running Water and putting odd money in the Water Several other instances are to be seen in the Processes led in Anno 1661. And the instance of Drummond is very remarkable who was burnt for performing many miraculous Cures albeit no malefice was ever proved XI Consulting with Witches is a relevant Ditty with us as was found against Alison Iollie per. Octob. 1596. and this is founded upon the express words of the Act. The professing likewise skill in Necromancy or any such Craft is by the foresaid Act of Parliament a relevant Article For the full clearing of which Act it is fit to know that Divination was either per daemono-mantiam the invocation of Pagan Gods or Nanganiam which was the Prophecying for invocation of some Sublunary thing Mangania is divided in Necromantiam which was a Prophecying by departed Spirits Udromantiam which was a Divination by Water c. All which species and kinds of Divinations by any thing is comprehended under the general prohibition of Necromancy and such like Acts So that Predictions and Responses by the Sieve and the Shear and by the Book and all such cheats and species of Sorcery are punishable by death in this Act Yet these forbidden practices may sometimes be excused by ignorance or if it can be cleared by circumstances that the user designed nothing but an innocent jest or recreation Delrio lib. 4. cap. 1. quaest 4. XII The last Article in Criminal Libels useth ordinarily to be the being delated by other Witches which the Doctors calls diffamatio and we common bruit and open fame which are never sustained as relevant per se but only joyned with other relevant Articles as is to be seen in the foresaid Process of Margaret Hutchison though I think that Interloquutor very severe since if any of the former Articles be per se relevant they need not the assistance of fame and delation Sometimes likewise but with much more reason Articles that are of themselves irrelevant are sustained relevant being joyned with fame and delation an example whereof is to be
and the power of giving of quarter is naturally inherent in all Souldiers as such and as the Council without expresse remission from the King upon submission might have secured their lives so might Souldiers by quarter for they have as much power in the field as the others at the Council Table 2. Lawyers are very clear that quarter should be kept though given to subjects who are Rebels Grotius lib. 3. Cap. 19. where after he hath fully treated that question de fide servanda concludes that sides data etiam persidis rebellibus subditis est servanda And this hath been observed in the civil Wars in Holland and France and by his Majesty and his Father at home during the late troubles 3. Quarâ—er is advantagious to the King and so should be kept for these who were taken might have killed his Majesties General or Officers and by giving quarter to his enemies he redeemed his Servants and if the only effect of quarter were to be reserved to a publick tryal none would accept quarter Notwithstanding of which reply the defence was repelled and the Pannels condemned and thereafter execute The second question was that which was debated in Haddo's case 16. March 1642. At which time that Loyal Gentleman Haddo being pursued for killing Mr. Iames Stalker Servitor to the Lord Frazer he alledged that the said Mr. Iames was killed in the open field in a conflict betwixt the Convenanters and Ante-Covenanters All which Acts of ostility were remitted by the pacification To which 〈◊〉 was replyed that the Pacification did only secure against acts of hostility which were done in furore belli but this was a privat murder for the said Mr. Iames having been taken a Prisoner Haddo did come up to him and asked whose servant he was and hearing that he was servant to the Lord Frazer he said your masters man is the person that I am seeking and thereupon ordered to kill him which was accordingly done by which it clearly appears that this was a privat murder done in cold blood and upon premeditat malice and Mr. Iames Stalker being a Prisoner any who killed him was liable for his murder ex jure militari and the pacification could no more defend the committer then if he had gone into a prison and killed a prisoner or if he had committed a Rapt upon a woman likeas Murderers are expresly excepted from the pacification 2. Haddo was no general person and so could not give order for his execution and so the killing of the defunct was not warrantable by the Law of Armes To which it was duplyed that the pacification did secure against all deeds whatsoever done upon the field by persons engaged in either party without debating whether the deed was lawfully or unlawfully done and the occasion and not the manner of killing is to be considered And as to the manner it is answered that Mr. Iames had never got any quarter and so was not a Prisoner in War and therefore might have been killed by any engaged in the quarrel whether general person or other But the truth is the said Haddo did command that party which was equivalent to his being a general person and albeit the pacification did expresly except murders yet that behoved only to be interpret of such murders as had no contingency with the troubles nor were occasioned by them this debate was not decided but was remitted to the Parliament and that worthy Gentle-man executed for rising in arms against the Estates of Parliament III. I find that there was a Commission granted by the Parliament in Anno 1644. to two Bailies of Edinburgh to sit and hold justice Courts upon such Souldiers as were runaways and that upon this Commission Iames French was condemned by them for running away from his Collours contrary to the Act of Parliament 1644. and was hanged accordingly From which these observations may be made 1. That the Justices are not Judges competent to crimes that are meerly Military 2. That we have no standing Law for executing runaways beside the Martial Law nor was there any Law founded upon this inditement except the Act of Parliament 1644. which is now abrogat 3. It is observeable that one Mr. Alexander Henderson as Procurator Fiscal and not His Majesties Advocat was here pursuer From all which it seems somewhat strange that this Process should have been insert in the Adjournal Books IV. But albeit deserters were here punisht with death yet regulariter milites gregarij or listed Souldiers are only punishable in time of Peace with degredation and in time of War with death because the hazard is then greater l. 5. § 1. ff de remilit and by that Law they may be killed by any man lib. 2. Cod. quando liciat unic c. But this arbitrary killing is not now in use as Voet de jur militat very well observes if superiour Officers leave their charges they commit Treason l. 2. ff ad leg jul majest vid. tit Treason V. Constantine having extinguisht the Office of praefectus Praetorio who was the Supream Judge in all Military cases The Magistri militum succeeded and were sole Judges of all crimes committed by Souldiers both in Civil and in Military cases and if Souldiers had offended the Civil Magistrat might have secured but he was obledged to remit them cum elogio to their own Officers l. 9. ff de custod reor vid. tit C. de remilit TITLE XVII Advocations of Criminal Causes 1. Advocations defined 2. No Advocation from the Iustices 3. How Advocations are raised from inferiour Courts and the forms thereto relating 4. The ordinary Reasons of Advocations examined 5. Whether the Iustices are proper Iudges to their own competency I. ADvocation is the away calling of an intended cause or pursuit from an inferiour incompetent judicatory to a higher and more competent and is the same thing with us that recusatio judicis was with the Romans and is by the Doctors call'd advocatio or evocatio which is by them defined to be litis pendentis coram inferiore ad superiorem absque provocatione facta translatio Gail lib. 1. obs 41 num 7. and is founded upon cap. ut nostrum de appell l. jud solvitur ff de jud II. Their is no Advocation raised of pursuits intented before the Justices but if ther be any design of stopping a pursuit depending before them there useth to be a Petition given in to the Lords of Secret Council who if they find the desire of the Petition just will ordain the Justices to stop all further procedor or will remit the inquiry to any other Court as they did in a pursuit intented at the instance of the Earl of Caithness against some Vassals of the Earl of Sutherland which they stopt as to the Earl himself and ordained his Vassals to be pursued before his own Regality Court sometimes also they ordain Assessors to be Justices so that there is never a cause formally Advocat from before the Justices
but though a person be at the horn for a civil cause it appears most unreasonable that because a person is not able to pay a great Sum for which he is denounced that he shall not therefore be admitted do defend his own innocence against a crime laid to his charge It seems likewise reasonable that some distinction should be made betwixt a pursuer and a defender in this case for it seems unreasonable that he who accuses another for a crime should debar him from self-defence though the debarring him from pursuit be not so unfavourable and upon this accompt in a case betwixt Ninian Spence and Hector Bannatine the Justices found that the pursuer in a Criminal pursuite could not by horning debar à defendendo the person whom he himself had called It may be likewise alledged that though the Kings Advocat may debar a Pannel from his defences when he is at the horn that no privat party can seing they are not prejudged by the Rebellion as the Fisk is but this last distinction is rather reasonable then legal and therefore I mention it rather as a good overture then a standing Law VI. Infamous persons cannot accuse according to our Law and what persons are accompted infamous is particularly enumerat in the foresaid 11. cap. Stat. Willielm 1. Infames dicimus omnes illas personas esse qui pro aliqua culpa damnantur notabili 2. Et omnes qui christianae legis normam abiiciunt ecclesiastica statuta contemnunt omnes sures sacrilegio 3. Omnes capitalibus criminibus irretitos Sepulchrorum violatores Apostolorum Successorumque eorum Reliquorum Sanctorum Patrum libenter violantes Statuta 4. Et omnes qui adversus Patres armantur qui in omni mundi parte infamia notantur 5. Similiter incestuosos perjuros homicidas receptatores malefactorum adulteros raptores maleficos de bellis publicis fugientes eâ— qui injusta vel indigna sibi petunt loca teneri aut sacrae ecclesiae auferunt facultates qui accusant non probant et qui contra innocentes principum animos ad iracundiam provocant omnes qui pro suis sceleribus ab ecclesia expelluntur 6. Et omnes quos ecclesiasticae seculares leges infames pronunciant Item servos ante legitimam libertatem abeuntes publice paenitentes bigamos omnes qui non sunt integro corpore qui sanam mentem non habent vel intellectum qui furiosi manifestantur 7. Hi omnes supra dicti nec ad sacros ordines promoveri debent nec ad accusationem vel Testimonium admitâ—i VII A person accused was not oblidged to answer of old but for one crime in one day except there were several pursuers quoniam attachiamenta cap. 65. by which accumulation of crimes was expresly unlawful sed hodie aliter obtinet for now there is nothing more ordinar nor to see five or six crimes in one Summonds or Inditement and to see one accuser pursue several Summonds and yet seing crimes are of so great consequence to the defender and are of so great intricacy it appears most unreasonable that a defender should be burdened with more then one defence at once and it appears that accumulation of crimes is intented either to laese the same of the defender or to distract him from his defence VIII To the end that persons may not be unjustly pursued the Civil Law did appoint two remedies 1. That the pursuer should find Caution to insist 2. That he should be pursued as a calumniator if his pursuit was found to be malicious As to the first the form amongst the Romans was that the accuser was oblidged de ferre nomen rei apud praetorem atque se inscribebat libello judici porrecto vel incodice publico quaerela deposita cui inscriptioni subscribebat ad talionis paenam se obligabat in casum calumniae Inscriptionis formula à pparet l. 3. ff de accus Consulibus illis die illo apud praetorem illum Titius professus est se Meviam legem julia de adult ream deferre quod dicat eam cum seio in civitate illa domo illius mense illo consulibus illis adulterium Commisisse Which inscription was only necessar in attrocious but not in lighter crimes nam illa de plano discutiebantur l. levia ff de accus but in some cases the necessity of inscription was remitted even in attrocious crimes as when a Woman suorum injuriam prosequitur parentes filii necem è contra And generally where the pursuer could not be pursued for calumny he needed not in scribere because inscriptions were onlâ—â—â—â—essar to the end the pursuer might be punished if he were found guilty of Calumny Nor were these inscriptions necessar in reconventions ante categoriis because in these the pursuer intended not to calumniat but only to defend himself by recriminating the pursuit The inscriber was according to the Civil Law oblidged to find Caution se perseveraturum in accusatione usque ad sententiam l. 7. ff de accus the reason whereof is by one of the Greek Scoliasts said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne facile quis ad accusationem per currat Suitable to this our Law has ordained that the pursuer when he raises a criminal Libel shall find Caution to insist in the intended pursuit and this Caution is found either by the Cautioner enacting himself in the Journel Books which Act is to be subscribed by him or else if the Cautioner be absent he sends a Bond bearing a clause of Registration in the Journal Books which is accordingly therein Registrat this Caution was first appointed by the 34. Act Parl. 4. Ia. 5. by which the Justice-clerk is oblidged to take sicker surety that the pursuer shall bring back the criminal Letters indorsed and execute but the Cautioner is not oblidged with us as he is by the Civil Law that the pursuer shall insist and the penalty appointed by that Act is an Earl or Lord two thousand Merks a great Barron one thousand Merks a Fermer five hundred Merks an unlanded Gentle-man two hundred Merks a Yeoman two hundred Merks But of old accusers behoved to find Caution to insist Reg. Maj. cap. 1. l. num 6. and if he cannot find a Cautioner it is said there that his Oath may be taken in all cases of fellony and the reason given is lest too much severity in exacting of Caution deterr the prosecution of a publick crime and it may be doubted if Cautio juratoria cannot properly come in under the notion of sicker security and there can be little hâ—zard to the Common-wealth seing the Law presumes that His Majesties Advocat will be still so just as to pursue the publick revenge where the party is unable Whereas by admitting this cautio juratoria ansa praebetur perjurio and the defender is disappointed of his damnage and interest if the party fail By the 29. cap. Stat. Rob. 3. pursuers before
the Sheriff should still find Caution to insist but with us those ubi suam vel suarum injuriam prosequuntur etiam in anticategoriis the accuser must still find Caution wherein we do very reasonably differ from the Civil Law for the defender is as much prejudged and may be as easily troubled if these pretexts were allowed to palliat the pursuers malice as generally he could be in other cases in this likewise we differ from the Civil Law that the defender is oblidged to find Caution for his compearance which he is commanded to do by the Letters by which the Messenger is commanded to denounce him Rebel if within six dayes after the Summonds is execute against him he find not Caution in the Books of Adjournal to the effect foresaid which Caution though it be found yet if it be not intimat to the Messenger the Messenger may still denounce him Rebel for not finding of Caution And though by the Civil Law and ours the Advocat may pursue without consent of the privat party yet he is not oblidged to find Caution nam in eo non praesumitur calumnia yet the Advocat in our practique doth ordinarly oblidge his informer to find Caution else he refuses him his concourse If the accuser be found to have been calumnious or as our Law termes it in the wrong he is oblidged to pay to the party an unlaw of ten Pounds Ia. 3. Parl. 6. Act And if there be moe deeds then one he is liable in twenty Pounds and likewise to pay the defenders expence Act 78. Parl. 6. Ia. 6. Which Acts speaks only of not prevailing though there be no malice and though there be no probabilis causa litigandi but if their pursuit be found to be 〈◊〉 it is arbitrary to the Justices to inflict what punishment they please either in that same sentence wherein the defender is absolved or upon a separat Bill or pursuit as also he is by the Justice constantly ordained to pay what damnage and interest or expence the Justices pleases both to the parties and to the Assizers And albeit according to the Civil Law Procurator fisci non praesumebatur calumniosus yet si procurator fiscalis calumniose instigat judicem ad inquirendum tenetur in damna actione injuriarum concremari debet l. universi C. ubi causa fiscal c. And according to the opinion of the Doctors hodie judex procurator fisci affectate consequentes crimen extraordinarie sunt punendi Q. IX The Justices ordain that because many poor persons were maliciously or ignorantly imprisoned that the Magistrates of Edinburgh should imprison none but where one should find caution in the Books of Adjournal to insist against them and to aliment them and that they should appoint a Procurator dwelling within Edinburgh to whom the Justices might intimat when they desired the pursuer might insist the 5. of Iuly 1661. which should be done and exped very speedily and for this end the Bishop was appointed to visit the Prison every Friday and Wednesday 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 celeriter judicari Basil. l. 21. de custod reor TITLE XX. Of Advocats and Procurators 1. Whether a Procurator should be admitted for the pursuer in his absence 2. His Majesties Advocat may deput when he is pursuer he has also other priviledges 3. In what cases Procurators are admitted in defence 4. What Oath of Calumny is allowed in Criminals THe Doctors make a difference inter simplicem allegatorem who can only propon what is nottour as that the party cited is known to be sick procuratorem who must have a mandat and may propon declinators or dilators defensorem innocentiae who not only can propon dilators but may likewise defend et Advocatus semper neputatur defensor and needs no mandat but his Gown is his warrand and yet in Criminals he must have a Procuratory I. According to the Civil Law Procurators were neither admitted to pursue nor defend l. ult § ad crimen ff de publ jud but by the Law of most Nations a Procurator is admitted to pursue for paena talionis is now taken away which was the reason the pursuers personal presence was requisite Clar. fin quest 14. N. 22. the defender must still be present ne judicium reddatur elusorium With us Procurators are admitted for the pursuer and yet this appears not to want difficulty for if the defender should desire that the pursuer should swear the Libel the dyet would desert if this were refused by the Procurator and though in Civilibus a day may be taken to produce the pursuer to give his Oath of Calumny which Oath of Calumny is the same thing we call swearing the Libel in Criminals yet seing all Criminal dyets are peremptor so that there cannot be a day allowed to the pursuer to give his oath it were unreasonable but he should be present for else the defender is precluded from a very great advantage such as is the pursuers oath of Calumny which if the pursuer himself were present and refused no pursuit would be sustained at his instance likeas if the pursuer were present it might be referred to his oath that he gave the witnesse good deed or that he knew the defender to be alibi by all which it would seem the pursuer should still be present yet this was expresly repelled 4. August 1652. Where Ballindalloch was pursuing Iohn Grant but there it was answered that Ballindalloch was one of the pursuers himself and the remanent were his Servants II. Albeit the Kings Advocat be pursuer in most cases yet he uses ordinarily to constitute a deput who should produce a written warrand under his own hand else cannot be admitted and this deput can desert a dyet though his Procuratory do not instruct him with a particular power for that effect 29. November 1638. Mr. George Norvel Procurator for Mr. Iohn Rollo which is constantly the opinion of the Doctors His Majesties Advocat uses not to pursue a Summonds of Treason without a special warrand under his Majesties hand or a particular order from the Council which he uses to produce ante omnia and is still marked by the Clerk as may be seen in all adjournal Books but particularly in the cases of the Lords of Ochiltree and Balmerinoch His Majesties Advocat with us examines parties and witnesses before the Process be intented which he doth upon pretext that he may thereby know how to Libel exactly and to the end he may not vex parties if he find no ground for the pursuit but many learned Lawyers have alwayes thought this Procedur dangerous for his Majesties Advocat is still a party interested and so should not be allowed to deals with the witnesses for thereby he may strain from them what otherwise they would not depon And if in our last reformation of the Justice Court it was found that the Kings Advocat should not make the roll of Assizers because he is too much interested much
or otherwise the pain is Arbitrary and there the pursuer cannot by his petition determine the same but must leave it to the Judge l. 1. § quorum ff ad S. C. turpil l. ff de privat delicti l. ordine ff ad unicipalem and in the form set down l. 3. ff de accusatio by Paulus there is no conclusion exprest but yet with us there is alwayes a conclusion in every Libel though it be general and I perceive that most of the practitioners are of opinion that at least a general conclusion should be added III. Whether a Libel being libelled qualificate the pursuer may passe from the quality has been thus determined by Lawyers that if the quality amount to another different crime it cannot be past from but if the quality amount only to an aggraging circumstance it may be past from As for instance if the pursuer Libel upon the Act of Parliament whereby murder under trust is Treason and subsume that the Pannel is guilty of murder under trust in so far as the person murdered was father to the murderer if when the case is to be tryed the pursuer should declare that he insists against him as a Murderer simply because he is not sure to prove that the person killed was father I think eo casu the pursuer could not so reform or declare his Libel for that makes the crimes to differ the one being Murder the other Treason and the defender was only obliedged to prepare him to defend against Treason and finding that he was secure as to the crime libelled he needed not prepare other defences or raise exculpations for that effect but these qualities which amount only to aggravations may be past from as was decided 11. November 1672. For Aikma◠having pursued Carnegy of Newgate for oppression conform to the 25. Act 4. Parl. K. I 5. because he had beat him who was a Magistrat in the exercise of his Office the Justices having found that the pursuer could not in the construction of Law be repute a Magistrat because he had not taken the Declaration it was thereafter alledged that the Libel being only founded upon the foresaid Statute conceived in favours of Magistrats and the conclusion being against oppression and not against beating the pursuer could no more insist upon that Libel which was repelled for the Justices found that the beating any man was a crime and the pursuer might insist against the defender for beating him since his being a Magistrat was only an aggraging circumstance Yet this seems a hard decision since the proposition of the Libel did not bear that beating was punishable nor did the conclusion bear that at least the Panel was punishable for beating a free Liedge if this were universaly allowed alternative Libels were unnecessary and this would occasion much looseness in Criminal Libels whereas Lawyers treating of Criminal Libels have laid it down as a principle that in criminalibus non licet vagare and the crimes of oppression and beating are different Nor can it be denyed but that a privat person differs from a Magistrat so that this quality made the persons the crimes and the medium concludendi to differ IV. For the better clearing of our custom in these cases I have set down the form both of the Criminal Letters and Criminal Indictment now in use with us A Criminal Summonds CHARLES c. humbly mean'd and complain'd to Us by Our Lovits A. the relict B. sister daughter and nearest kins-woman C. as Mr. with the remanent kin of Umquhile Main Servant to the said C. and Our right trusty and well beloved Councellor our Advocat for our interest in the matter underwritten upon Listoun without any just cause offence or injury done to him by the said umquhile Man having conceived a deadly hatred and evil will against him with an settled purpose and resolution to bereave him of his life one way or another lately upon the last day of 〈…〉 where the said Main was in quiet and sober manner for the time expecting no harme injury nor pursuite of any person but to have lived under Gods peace and ours And the said Listoun being bodden with a great Batton or rung in his hand and with knives and other invasive weapons first upbraided the said Main with words alledging that he was a common Thief and had stollen c. And thereafter because the said Main had purged himself of that calumny and said he was as honest a man as himself he thereupon ran and rushed the said Main being an aged man of 74. years of age to the ground under his feet struck him in the head craig shoulders and side with the said Batton lap upon his breast and belly with his feet and knees beat him upon the heart and thereby broke and bruised his whole intrals and noble parts thereafter heased and drew him by the heels off the saids lands by the space of a quarter of a mile to a low Vault in c. and imprisoned him therein tanquam in privato carcere he being in the dead thraw Likeas within three hours after his imprisoning in the said Vault the poor aged man dyed of the saids stroaks and hurts likeas to suppresse the Murder the said Listoun with his complices buried him in an obscure place in the night time and swa the said Main was shamefully and cruelly murdered and slain and secretly buried by the said Listoun and his complices and he is Art and Part thereof committed upon set purpose and provision and forethought Fellony in high and manifest contempt of our Authority and Laws in evil example of others to commit the like if swa be OUR WILL IS herefore c. and in Our name and authority command and charge the said Listoun committer of the said Barbarous murder in manner foresaid to come and find sufficient Caution surety to Our Iustice Clerk and his deputs acted in our books of Adjournal that he shall compear before the Iustice or his deputs to underlye the Law for the samen in our Tolbuith in Edinburgh on the Day 〈…〉 of 〈…〉 in the hour of Cause under the pain contained in Our Acts of Parliament and that ye charge him personally if that he can be apprehended and failzing thereof at his dwelling house and by open proclamation at the Mercat Crosse of the head Burgh of the Shyre Stewatry or Regality where he dwels to come and find the said soverty acted in manner foresaid with in six dayes next after he bees charged be you thereto under the pain of Rebellion and putting of him to the Horn the whilk six dayes being by past and the surety not being found that ye immediatly thereafter denounce him Rebel and put him to our Horn and escheat and in bring all his moveable goods to our use for his contemption and cause Registrat thir our Letters with the executions thereof in the books of Adjournal within fifteen dayes thereafter conform to our Act of Parliament
in criminalibus as is allowed by the Civil Law and Doctors seing with us they are excluded from being witnesses even in Civil cases ergo à fortiori they ought to be rejected in Criminal cases for albeit the Doctors allow them sometimes to prove in Civil cases yet they reject them in the same causes when they are Criminally pursued as in Furto c. Farin quest 56. num 31. and by an expresse Act 1. Agust 1661. The Justices ordained that no women should be examined as witnesses in Theft for the future except ex officio cum nota and that same day they receâ—ved Elisabeth Watson as witness in Theft against Bruntfield 2. Women are sometimes received witnesses in some cases ob atrocitatem criminis as in Treason by an expresse act of Sederunt 1591. And in Witch-craft most ordinarily as is to be seen by the Books of Adjurnal and particularly in the Process of Margaret Wallace the 20. of March 1662. where Margaret Grahame and Marion Wear are received witnesses 3. They are admitted in criminibus domesticis because of scantness of probation and thus they were received against George Swintoun who was accused for murdering his own wife within his own house 21. Agust 1664. 4. Women are received witnesses where women use only to be present as in the being brought to bed murdering of Children in partu supposititio c. very many instances whereof are to be seen in the Adjurnal Books And yet Farin quest 59. sayes mulier non potest esse testis quo ad suppositionem partus si inde agitur criminaliter ad suppositionem corporaliter puniendam And by these we may conclude that women are not regulariter admitted witnesses in Scotland Likeas by the 34. cap. Rob. 1. These are expresly excluded from witnesse bearing yet Matheus concludes they may be received witnesses ex hoc quod mulier adubterii condemnata non admittatur ergo in aliis mulieres admitti debent But this opinion is contrary to all the Doctors vid. Farin quest 59. casu 1. where he gives it for a rule that mulier in criminalibus testis esse nequit which rule extends so far that according to his judgement three or moe women cannot prove a crime num 29. The reason why women are excluded from witnessing must be either that they are subject to too much compassion and so ought not to be more received in Criminal cases then in any Civil cases or else the Law was unwilling to trouble them and thought it might learn them too much confidence and make them subject to too much familiarity with men and strangers if they were necessitated to vague up and down at all Courts upon all occasions V. Minors if they be past fourteen years of age and no otherwise may be admitted to be witnesses by the foresaid Act of K. Robert and it being alledged in the Proces of Margaret Wallace 1622. That Margaret Graham could not be received a witness because she was not past eighteen years of age this was repelled because a Testificat bore that she was past fourteen years of age and might be man'd The reason of this objection is because Minors understand not to answer all circumstances which must be necessarily considered by the Judge nor yet the nature of that Oath which should over-aw them and they are very subject in their youth to corruption a clear instance whereof I saw my self in a little boy against Towie who after he was received did first depon mâ—ny improbabilities and sâ—emed terrified with every question and thereafter confest that he was bribed with a very small and childish bribe In many cases likewise witnesses are to depon upon that which requâ—res judgement as in proving self-defence ratihabition c. And in these cases it is repuisit that the deponer be of a more advanced age then fourteen VI. By that Act likewise of K. Rob. such as are Furious Adulterers Robbers Thieves Perjured Scourged and Servants cannot be received witnesses not yet Laiks against Church-men nor yet Church-men against Laiks whereas according to the Cannon Law cap. de cetero decret de testib Laiks are forbidden to be received against Church-men sed non contra The reasons of which constitution are given to be partly the reverence due to Church-men and partly the hatred whereby Laiks do persecute them but this objection is justly reprobat by our custome by which likewise Servants are received to be witnesses notwithstanding of the former Law against it but not for their Masters but whether he who hath redeemed himself from Justice by a Remission should be received a witness may be contraverted and that he should not be received may be argued 1. Because of this Law of K. Rob. which doth expresly repel him 2. A Remission takes not away the guilt but is only a defence against the punishment l. Fin. C. de gener abolit And semel malus semper praesumitur malus which wicked disposition cannot be altered by a Remission and since the King cannot make a man good it follows that he cannot make him a sufficient witness 3. It hath been found by several Decisions that a person convict and brought off by a Remission redemptus à justitia as this Law calls him hath been therefore set from being a witness as in the case of Tossoch who was condemned as a false Nottar and was thereupon set from being a witness in the Proces for burning the House of Frendraught and yet I my self have objected this against an English Captain in Argiles case it was repelled But to reconcile these two opinions I think we should distinguish betwixt such as make use of the Remission before they be convict and these who are convict and thereafter make use of the Remission for those who propon upon the Remission do eo ipso acknowledge the guilt yet that it is only fictione juris And therefore the foresaid Law sayes copulative that convicti redempti à justitia non possunt esses testes Guiltiness which casts a man from being witness must be proved by a sentence and it was not found relevant that the Theft was offered instantly to be proved the 10. of February 1673. in Ashintillies case but it would appear that sometimes the Theft is so recently committed that there could be no time for convicting him and yet it were hard that a person so guilty should be received The dependence also of a criminal pursuit against a witnesse should cast him if it was intented before his citation to be a witness else every witness might be cast by intenting a criminal pursuit against him VII These within degrees defendant by blood or affinity are likewise repelled by the foresaid Act. Degrees defendant are by our Law the fourth degree or Cousen Germans as is expressed in the foresaid Chapter and this term comes in my opinion from the French word defendre to forbid so that degree defendu is the true expression though we say defendent by
post condemnationem judices functi sunt officio yet all Lawyers are of opinion that even after sentence criminals may be Tortured for knowing who were the complices IV. One of the priviledges of Minors is that they cannot be subjected to Torture lest the tenderness both of their age and judgement make them fail 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eclog. de quest cap. 9. ad yet l. 15. ff de quest Judges are discharged only to Torture such as are under fourteen persons very old were not to be Tortured for the same reason l. 3. ff ad S. C. sillan which was by some extended to women sick persons and such as had been eminent in any Nation for Learning or other Arts but all this is arbitrary with us V. These who Torture if the person Tortured die are punishable as murderers but though they die not yet by the Civil Law they were punisht deportatione in insulam or by banishment and with us they are punisht according to the quality of the crime TITLE XXVIII Of Remissions 1. Whether he who uses a Remission acknowledges the crime 2. How Remissions are granted 3. For what should no Remissions be granted 4. Letters of Slames and Assithments when necessary 5. Persons condemned are sometimes restored by way of justice WHen the Judges has pronounced his Sentence he is functus officio and the punishment irrogat by him can only be remitted by the Prince though the Council may moderat or delay it The party condemned is restored either by way of grace or of Justice restitution per modum gratiae is with us called a remission I. Remission then is the pardon of the crime graciously allowed by the Soveraign and it may be given either before or after the Pannel is convict If it be given before conviction the Pannel by making use of it doth per fictionem acknowledge the guilt and it he do not acknowledge the same the Remission is null and will not stop the execution as was found in Alexander Kennedies case and this is a received maxime with us yet ex sententia Doctorum non videtur fateri crimen qui gratia utitur Alexander consil 70. Bossius de remed ex clem num 29. nec potest judex dicere ei qui vult ea uti oportet fatearis delictum alias non uteris yet Bossius tells us that by the custom of Milan he who uses a Remission must acknowledge the crime ibid. but our Law in its foresaid maxim may be reconciled with these Doctors for even with us the taking a remission doth not prove the crime since that may be done sometime rather upon the accompt of security then guilt licet se redimere à lite and therefore Braids escheat as an adulterer was not declared Ianuary 1662. by the Lords of Session there being no probation of the Adultery but the Adulterers taking a remission but the using a remission doth certainly prove as was formerly observed from these Statutes This Remission is granted by a signatur under his Majesties hand and is presented in Exchequer which is equivalent with us to that iterinatio mentioned by Perez ad tit de sent Passis num 16. Clarus â— fin quest 59. Num. 10. quae est approbatio senatus quae in causa cognitione versatur ne impetrentur gratiae per obreptionem vel subreptionem and therefore if the Remission be granted upon a misrepresentation the Council will upon a Bill stop the same till his Majestis further pleasure be known as they did in Murray of Burghtouns case and though by the 13. Act. 10. Par. I. 6. The writer of such signatorâ— should subscribe his name upon the back of the signator to the end that he may be answerable if it contain any thing that is unallowable yet the said remission granted to Burghâ—oun was sustained though it had not been so subscribed when it past his Majesties hand yet being aledged to be in desuetud but rather because the writer did thereafter subscribe Ian. 1666. and these remissions are ordained to pass the great Seal of design that the Seal should be a check upon them but if they passe the Seal they cannot be recalled tanquam surreptitia Boss. ibid. num 36. for sayes he they are ordained to be presented in senatu ne sint surreptitia ut inquiratur And therefore it is appointed by the fourth I. 4. Par. 6. c. 62. that the Remission should contain the greatest crime for which the Remission is craved and if the greatest crime be not exprest the general clause remitting all crimes will not defend against a pursuit for any crime that is greater then the crimes specified in the Remission suitable to which Lawyers assert that qui petit gratiam debet non solum delictum exprimere sed qualitates ejus aliter uti subreptitia nihil valet sed non debet exprimere omnia delicta separaâ—a Boss. ibid. num 33. III. Remissions should not be granted for Slaughter committed premeditatly or by Fore-thought-fellony Stat. Dav. 2. cap. 50. where it is ordained that no Remission shall be granted for homicide till inquisition be first made whether the Slaughter was committed by fore-thought-fellony and if it was so committed the Remission shall be null hoc concessit rex as the Text sayes This is confirmed by K. Ia. 4. P. 6. c. 63. which Act is declared to endure till his Majesty recal the same and yet it is repute a temporary Act and notwithstanding thereof remissions are ordinarily past for murder as in the Erle of Caithness remission 1668. Against which this was objected but repelled Yet in Flanders and other places this Law is still in force No Remissions should be granted for burning of corns in stacks or barns Act. 18. P. 7. I. 5. Which Act is not temporary and yet is not observed as was found in the foresaid remission All Remissions should be componed and subscribed by the Thesaurer Regâ—strat in his Books I. 6. P. 13. c. 169. Albeâ—t his Majesty may remit what injury is comitted against him yet he cannot prejudge thereby the interest of third Parties This satisfaction is by the Civilians called reparatio damnorum by us an Assithment and the obtainer of the remission must find caution to refound the party injured of all his damnage and interest within fourty dayes after he produces his Remission else his Remission is null Act 75. P. 14. I. 2. Act. 136. P. 8. I. 6. Act. 154. P. 12. I. 6. but these Acts are only temporary But by the Act 174. P. 13. I. 6. Remissions granted to any persons passing to the horn for Theft Rief Slaughter Burning or Heirship are declared null if the party laesed be not first satisfied and albeit it would seem by this Act that Assithment subsequent to the remission is not sufficient yet the meaning of the Act is that the Remission shall be of no avail till the party laesed be satisfied Notwithstanding of these Acts it is de practica very
Judges shall think fit It was thought of old that Assizers behoved presently to determine after Probation was led and that it was not lawful to dismisse them until they did enter and return their verdict and the reason of that opinion is because after the Probation is led there may be hazard of suborning the Assizers if the matter were continued to a new day and it were to be feared likewise that the pursuer finding that the Witnesses which he had led did not prove he might be tempted to suborn others and I think this opinion strongly founded but yet in Anno 1665. c. a Baxter being pursued for Sedition the Justices did at my Lord Advocats earnest solicitation dissolve the Court after Probation was led and continued the matter to a new dyet but the accusation was never further prosecute and that procedure was thought mali exempli yet thereafter His Majesties Advocat continued an Assize who sat upon Macknab for theft for not being clear to condemn upon an extrajudicial confession they proposed the case after they were inclosed whereupon the Justices continued the dyet till the next day and having consulted the Council they thereafter found the confession sufficient and inclosed the Assize notwithstanding of this objection November 1669. XII When the Advocat closes his discourse for the pursuer he protests for an Assise of errour against the Inquest if they assoilzie which Protestation he causes to be marked by the Clerk and it may be doubted if the pursuer or His Majesties Advocat can pursue the Inquest for errour if this Protestation be not used even as a qualified Oath is not allowed except it be protested for And it was debated in the case betwixt the Lady and Laird of Milntoun if a reprobator could be raised where the party laesed protested not for it seing Protestations were such solemn Acts as the Law required in such cases and they were unnecessary and superfluous if what were protested for could be allowed without being protested for and the party to whom such Protestations were competent doth eo ipso passe from his right and seems to acquiesce in what is to be done if he use them not vid. Durand specul tit reprobat in initio but this case was not decided yet the Lords inclined to allow a reprobature if there was reason for it though no Protestation was used and I believe that action of errour may be raised though it be not protested for if the verdict be quarrellable though a Protestation be both more secure and formal and really there is good reason why it should be used seing the Inquest is by that solemn denunciation and intimation warned of their hazard and their errour because it becomes thereby more wilful then otherwayes it would be A Summonds of errour is alwayes raised in Latine and upon Parchment and is direct out of the Chancery Wilful errour is that crime which Assizers commit in pronouncing an unjust verdict and by our Law an Assize condemning cannot be pursued tanquam temere jurantes supra asisa as is commonly believed by the 63. Act 8. Par. Ia. 3. the reasons of which opinion may be three 1. It is not presumeable that indifferent persons would condemn an innocent out of feid or favour though there be some reasons to be jealous that they might be induced out of either pitty or clemency to assoilzie from a crime fully proved 2. No person would be found to go upon an Assize if they might be punished for condemning 3. The penalty of such as temere jurarunt super asisam is only confiscation of the moveable goods cap. 14. lib. Regiam Maje whereas death would be oft-times the punishment if such as condemned might be punished yet I am of the opinion that if the Assizers did condemn an innocent without any Probation or by palpable iniquity that eo casu they might be punished And my reasons for this opinion are 1. That else the people would be stated in a very unfortunat condition if not only they lay open to the hazard of being condemned upon the deposition of any two men but likewise to the arbitrarinesse of an Assize who might condemn without any clear probation 2. Assizers are Judges and Witnesses and therefore must be liable to all the errors for which these are accountable but so it is that if a Judge condemn unjustly or if a person be condemned upon the deposition of any Witnesse who depones falsly that Judge or Witnesse so deponing are liable to a capital punishment why then should an Assizer be exempted seing there is no expresse Law upon which he can found that exemption And in answer to the contrary arguments it may be contended That as to the first it is not concluding seing else it might by the same argument be concluded that no Judge or Witnesse could be pursued when they condemned unjustly seing omnis homo praesumitur bonus at least Perjury should never be punished in a Witnesse nor injustice in a Judge deciding unjustly and by that unjust decision murdering the person pannelled before them because forsooth it is not presumeable that a Witness or Judge would murder an innocent by their sentence or deposition To the second it is answered that all men may be forced to passe upon Assizes upon their perril and thus Assizers are forced though there is hazard also in assoilzing and Witnesses are forced though there be great hazard in Perjury if they depon falsly To the third it is answered that there needs no Law to punish Assiâ—ers condemning unjustly seing they are punishable by the Common Law But that it was necessary there should be a particular Statute to punish such as assoilzied unjustly both because the Common Law was not so express as to this and because men might be induced to think that there was no great hazard in it This errour in Assizers is to be tried by a great Assize of twenty five Noble Persons Act 63. Parl. 8. Ia. 3. but the person assoilzied is to be free ibid. And by an act of Sederunt of the Session Anno 1591. it is declared that all landed Gentlemen shall be in a capacity to pass upon an Assise of errour though they be of Quality and Estate inferiour to the Pannel and wilful errour is only punishable in this case quaelibet probabilis causa ignorantiae excusat Spot tit Retours Ker against Hartwood-mires and by the 47. Act Par. 6. Ia. 3. It appears that no Probation can be adduced to infer this action of errour but what was at first produced the time of their verdict whereas any Probation may be adduced in fortification of the verdict quarrelled tantus est favor innocentiae the punishment of such as are found guilty by an Asssize of errour is the escheating of the Moveables and a Years imprisonment cap. 14. l. 1. Reg. Maj. which is ratified by the 47. Act 6. Parl. Ia. 3. where it is Statuted that wilful or ignorant Assizers shall be