Causes in the first instance And of old if a person accused for treason did absent himself the Criminal Court not no other Inferiour Court could proceed to take tryal by probation against him and so all they could do was only to denounce him fugitive for his absence upon which denounciation his escheat did only fall but he could not be forefeited and therefore since it was unjust that he should by his own absence procure to himsâ—lf an impunity and exemption from forefeiture the Parliament did by their supream power cite the person guilty to appear before them and did lead probation in absence against him and forefeit him in absence though guilty But it being found inconvenient that Parliaments behooved either to be called or such Delinquents pass unpunished therefore by the 11. Act 2. Parl. Ch. 1. It is Statuted that the Justices may proceed to try Crimes by probation even when the person cited is absent in cases of treasonable rising in Arms and open and manifest rebellion against his Majesty or his Successours and their Authority so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents except only Perduellion oâ— open and manifest treason And albeit it may seem strange that the Justices should have been allowed to lead probation against absents in this which is the greatest of Crimes and not in Crimes of lesser importance yet this proceeded from the just detestation which the Parliament had of this Crime and that the punishment thereof might not be delayed where the delay might prove so dangerous II. If the Parliament forefeit any person after cognition of the Cause their sentence cannot be quarrelled by any Inferiour Judge Act 39. Parl. 11. K. I. 6. And though it be added to that Act that no forefeiture lawâ—ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicatory for these words Lawfully and orderly led seem unnecessary since after cognition of the cause by the Parliament no Inferiour Judicatory can quarrel a Decreet of Parliament even though it be pretended that the said Decreet was not lawful and orderly yet if a person be only denounced Fugitive by the Parliament the Lords of the Session may suspend in that case if the Process was not orderly led but whether they can reduce even in that case est altioris indaginis And some think that though it were very inconvenient that such a â—ecreet should receive present execution where possibly the party was not lawfully cited yet that such respect is to be payed to the Parliament as that the illegality of that procedure before them though not objected before sentence should remain undecided till the next Session of Parliament III. If the Parliament should remit any such Process for Crimes to any of their own number to be decided finally before them it hath been doubted whether their decisions could be reduced by the Session And this Act of Parliament reaches only to decisions in Parliament But yet since Decreets pronounced by Commissioners of Parliament are reputed with us Decreets of Parliament and since Decreets pronounced by Commissioners for valuation of Teinds are not reduceable because these Decreets are repute Decreets of Parliament as being pronounced by such Commissioners of Parliament it seems that Decreets pronounced by such Commissioners in Crimes after probation could not be quarrelled and reduced by the Session or other Inferiour Judicatories TITLE IV. The Jurisdiction of the High-Constable in Crminals 1. The Original of the word Constable and his power 2. The Office of petty Constables 3. The Iurisdiction of those who are Constables of His Majesties Castles I. SOme describe the word Constable from the word Coning which signifies a King and Staple which signifies a Stay or Hold in the Saxon language because Constabularies were only erected in those places where the King keeped House and thus the Constable was judge of old to all crimes committed within twelve Leagues of the Kings House and Habitation l. Malcol c. 6. Though Skeen there observes that the best Manuscripts bear only two Leagues or four Scots Miles Our Craig and other Authors derive the word Constable from the Comes stabuli under the Roman Empire nam Constabularius sayes he nihil aliud est nisi praefectus aequitum since the Reign of King Robert the Bruce this Office of High-constable stands heretably in the noble Family of Errol and their being some debates concerning his Iurisdiction Francis Earle of Errol obtained Commission under the great Seal dated the 23. of Iun 1630. Seal'd penult March 1631. to the Persons therein specified or any nine of them impowering them to search the Acts of Parliament consuetude Monuments and Registers of the Kingdom and all Evidents that the Earl of Errol or the Lord Hay his Son should produce concerning their Honours Hostilogies Priviledges and Immmunities belonging or which had belonged to the Office of Constabulary from the first institution thereof This Commission I have seen with the report thereof dated the 27 of Iuly 1631. bearing the Commissioners to have met with the Earle of Errol and his said Son and to have considered their Instructions Warrands and Customes of other Countreys anent the Constables Priviledge and in the third Article of the report which relates to the Criminal Jurisdiction only here treated of they set down these words The Constable is Supream in all matters of Ryot Disorder Blood and Slaughter committed within four Myles of the Kings Person or of the Parliament or Council representing the Royal Authority in his absence and that alse well within the Court as outwith the same And the tryal and punishment of such crimes and offences is proper and due to the Constable and his Deputs and the Provost and Bailies of that Centre or Burgh and all other Judges within the bounds where the said facts are committed are obliedged to ride concurr fortifie and assist the Constable and his Deputs in taking the saids Malefactors and to make their Tolbooth patent for receiving them therein As was clearly evident by production of Warrands granted by His Majesties Predecessors to that effect and which likewise appeared by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable for the time concerning that purpose the King having seen this report did approve it in a Letter directed to His Secret Council of this Kingdom from the Court at Theobals the 11. of May 1633. Registrat in the Books of Secret Council the 15. day of that Moneth and in the Commission report and Letter foresaid the Constable is designed High-constable and his Office the High-office of Constabulary The Constable is still in use since that time to judge Riots within the bounds foresaids and to interrupt the Town of Edinburgh when he knows of their medling providing the Riots be committed in time of Parliament and I was told that in time of Parliament holden at Edinburgh Anno 1640. and 1641. the Earle of Errol was found
knowledge yet the truth of that principle may be doubted upon these reasons 1. Because by the foresaid Act of Parliament par 11. K. Ia. 6. All Probation should be led in presence of an Assise and Pannel but so it is that the privat knowledge of Assisers cannot be laid to be led before them 2. If Probation were led publictly defenders might propon interrogators whereby the matter of Fact might be more fully cleared and even the Witnesses own mistakes might be removed of all which just advantages he is precludit by that principle 3. The great reason why by the act Probation should be led in presence of the Pannel is because in Law it s presum'd a Witness will stand more in aw to depon falsly in presence of the Pannel then otherwise for which cause confronting of Parties and Witnesses amongst themselves when they are contrary is much used and treated of by the Doctors 4. If assisers may give their verdict upon privat knowledge then they could never be pursued for error because if privat knowledge be the rule I can hardly understand how men can be convict as having transgressed against that rule seing albeit it be easier to judge what a man should know yet it is impossible to judge what a man doth know 5. By the Civil Law and the opinion of almost all Divines and Nations judices debent judicare secundum allegata probata IX From the foresaid Act Parl. 11. ordaining all Probation to be received and used in the presence of the Assisers and Pannel it may be deduced by a necessary consequence that no Witness should be examined in criminals ad futuram rei memoriam and that no witnesses should be examined by Commission and albeit it may be objected that in crimine falsi the Probation led before the Lords is not repeated before the Justice and Assisers before whom nothing is used to instruct the falshood but the Decreet of improbation pronounced by the Lords for in that case the Lords being by Act of Parliament declared Judges competent to the cognition of Falshood their sentence habetur pro veritate and is probatio probata so thaâ— the producing of it is the leading of Probation before the Assise This priviledge that no Probation should be led but in presence of the Pannel and Assise may be past from by the Pannel seing it is introduced in his favours and therefore it was found the 9. of March 1671. that the diet could not be continued against Charles Robertson because of the absence of the Witnesses seing he was content to stand to the Depositions formerly taken but they caused him subscribe his consent After the Probation is closed the Pannels Advocats makes a speech to the Assise wherein the termes they use to them is good men of inquest and after they have ended His Majesties Advocat speaks but there are no Duplys or Triplys used and it was the priviledge of His Majesties Advocat to be the last speaker which priviledge was assumed likewise by all other Advocats for the pursuer but by the tenth article of the Regulations 1670. the defenders Advocat is now the last speaker except in the case of Treason and Rebellion so that this priviledge holds only in Perduellion but not in ordinary Treason X. When both these discourses are ended then the Assize are inclosed but before they be inclosed they should endeavour to be satisfied of any doubt for if after inclosing any person speak to them or if any of them come out of the place where they are inclosed until the verdict be pronounced the Pannel is eo ipso clean and innocent Act 91. Parl 11. Ia. 6. the reason inductive of which act seems to be fear of impressing or suborning the Assize and therefore the practice allows Assizers sometimes to send out some of their number to the Justices to receive informations in matters of fact and finds that in so doing they transgress not this act as in Kennedies case August 1662. And after a full debate upon the 24. of December 1672. It was found that any of the Assizers disclosing and coming out of the house after they had past a vott though the verdict was not subscribed be the Chancellour was not sufficient to annul the verdict albeit it was here alledged that there might be great debate upon the wording of the verdict and so the Assize should not have disclosed until the verdict was subscribed By this act likewise the Assizers and not the Justices are Judges competent to this exception against the verdict as was found in the foresaid decision 1672. wherein the Justices found that themselves were Judges competent to the relevancy of any such alledgeance but that it belonged to the Assize to judge the Probation of that exception though it was alledged that the Assizers could not at all be Judges thereto seing they were the delinquents in that case and if most part of the Assize had disclosed it were absurd that they should be Judges to their own Delinquency At that time the Lords did likewise declare that if any Assizer should disclose before the vots were compleat so that the vrdict might be thereupon anulled they were punishable by the Justices and should be obliged to repair the loss which either the King or Party incurred So that Assizers are allowed to speak to Judges or Advocats but are not allowed to make any address to them after inclosure as said is It is likewise observable from this act that albeit the Clerk be discharged to enter in where the Assize sits after they have chosen their Chancellour yet defacto the Clerk sits still with them and it was thought fit he should do so because they being oft ignorant and unaquanted with the forms and procedure of that Court they should have some person to regulat them and none so fit to do it as the Clerk yet by the late Regulation 1670. it is appointed that the Clerk shall not be present and sure the Clerk was worth ten and did influence too much XI After the Assize are inclosed they choose a President who is called Chancellour of the Assize and proceed to read and thereafter to reason upon what is debate and their determination is called the verdict of the Assize which is subscribed by the Chancellour it is called verdict quasi vere dictum and sometimes it is called warda curiae quon Attach cap. ubi aliqua thereafter the Assizers enter again into the Court and there the verdict is read and the Chancellour stands up and owns the same after the verdict is read it should and is by the 9. Act of Regulations 1670. closed and sealed with the Seals of the Court of the Chancellour of the Assize and of so many of their number as the Chancelour shall think fit never to be opened but by orders from the Judge of which verdict the Clerk is to have the keeping and if he open the same he is to be deposed and further punished as the
dangerous to challenge a Remission and I am informed that one of the learnedest Lawyers of his time was sent to the Castle for quarrelling the Kings power in granting a remission for fire-raising yet I find a Remission produced by Iohn Bell quarelled as null because 1. It was given for murdering Cristopher Irving and so is null by the foresaid Act. 2. The remission should contain the greatest crime and Slaughter is not so great a crime as murder Nor was the quality of fore-thought-fellony exprest 3. It was not subscribed by the Thesaurer The Justices delayed to give answer but I find not the person was punished 1643. As also Mackie being convict for falsit and having enacted himself never to return under pain of death thereafter he returned and being pursued for his life alledged upon a Remission To which it was answered that the remission was null because he returned before it was obtained and past the Seals nor was it yet past Upon which the dyet was continued the 23. of Febr. 1622. But it is observeable that the pursuit was here at the Advocats instance only who could not quarrel his Majesties remission upon no account IV. If the party doth willingly grant a discharge of all grudge or revenge in the crime of murder this discharge is called a letter of Slants and is called by the Doctors litera pacis and thus Plot. consil 78. sayes that gratiafacta parti nocenti à principe non valet nisi fiat reparatio damnorum interesse vel nisi pax sit prius habita ab haeredibus offensi This rule hath some exceptions both by the Common Law and by ours for by ours exception is made of remissions granted for pacifying the Highlands and Borders which are valid though the party laesed be not satisfied Act 174. P. 13. I. 6. Which is introduced in favours of the publick quiet and is founded upon the same reason from which acts of indemnity are granted without gratifying or repairing these who were ruined by the persons indemnified And for that reason also rex potest gratiari nocentem sine pace privati interesse habenti quando damnandus laborasset pro bono reipublicae fecisset illud per quod multorum salus causata esset l. non omnes § fin ff de re militari By thir Remissions the party is not restored to his good fame l. 3. C. de gen abolit indulgentia patres conscripti quos liberat notat nec infamiam criminis tollit sed paenae gratiam facit And though I think this should hold in such as are remitted after they are condemned because they are known to have diffamed themselves by contracting that Criminal guilt yet it should not hold in such as secure only their own innocence by a remission and redeem themselves rather from hazards then from guilt V. The Kings Majesty sometimes restores the person condemned by way of Justice per modum justitiae which he doth by rescinding the sentence that stands against him as injust and this is done either in Parliament if the person was condemned by them or by a review in the Justice Court if he was condemned there and in this case the party is restored not only to his Fame but likewise to all his Estate even though it was bestowed upon a third party as was afte much debate found by the Parliament 1661. in the case betwixt the Marquiss of Montrose and the Marquiss of Argile TITLE XXIX Of Prescription in Crimes 1. How crimes did prescrive by the Civil Law 2. Whether do crimes prescrive by our Law I. ACcording to the Civil Law crimes did prescrive in twenty years L. querela C. defals And Clarius doth assert that generally all the Doctors are of opinion that all criminal pursuits prescribe in that time but this prescription did not run in some atrocious crimes such as Sodomy Paricide Apostacy c. Wherein they erre for where the Law sayes that either semper paricidii accusatio permittitur as l. ult ff de leg Pompei ad paricid or that nullus temporibus arcetur apostotarum accusatio that must be interpret de prescriptione vigniti annorum which is in Law called longissum tempus but the crimes of Adultery and peculatus prescribe in five years II. It may be doubted with us if prescription has place at all and that it has not may be urged from these grounds 1. That prescription has no place with us except where it is warranted by a particular Statute and there is no Statute warranting prescription in criminals And if prescriptions founded upon the Civil Law had been sufficient in Scotland there needed not any particular Acts to have been made in civil cases but since our Law thought necessary to make Laws as to prescâ—iptionâ— in civil causes they had much more determined this poâ—nt by Law in criminal cases if they had thought it fit to extinguish crimes by prescription but on the contrair our Act of prescription in heritage 1617. hath excepted the crime of Falshood from prescription 2. There being jus quaesitum to the King by the committing of the crime both quoad vindictam et bonafisco applicanda that Right cannot be taken away from him but by a publick Law or His own privat Remission 3. It seems unreasonable that because a privat party will not inform being either affraid or negligent that the publick should therefore suffer 4. There is no instance in all our Practiques where prescription hath been sustained but one the contrair crimes of an old date even after fourty years have been punished 5. â—emel malus semper praesumitur esse malus in eodem genere malitiae and therefore it is unjust to suffer a person to live in the Common-wealth who will be both doing wrong himself and inciting others to do so by his example Yet for the other part it may be urg'd 1. That the only end of punishment is that the crime committed may be punished to preveen the errour of others but so it is that after a long time both the publick is presumed to have forgot that any such crime was committed and the parties injured or presumed to have forgot and remitted their privat revenge for satisfying whereof punishments are inflicted 2. After so long a time any probation that could be led against the Malefactor either fails or the witnesses after so long a time may have forgot the exact circumstances and it were very hard upon testimonies that have so unclear a causa scientiae as these witnesses can give to take away a mans life Likeas the witnesses and other probation will probably perish whereby the defender might have exculpat himself and mantained his innocenc so that the Fisk or any privat party may by their negligence or upon design prejudge the Pannel of his defences against the common rules of the Law whereby mens negligence can only wrong themselves and they have only themselves to blame that did not make use sooner of the remedy appointed by
expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
of the beast represented or by inclosing them in a body of air shap'd like that which he would have them represent and the ordinary relation of the witnesses being wounded when the Beast was wounded in which they were changed may be likewise true either by their being really wounded within the body of air in which they were inclosed or by the Devils inflicting that wound really himself which is Delrio's opinion But it would seem hard to condemn any person upon the confession of what seems almost impossible in it self And I cannot allow instances in the Journal Books where poor creatures have been burnt upon such confessions without other strong adminicles XVIII The Devil may make Bruits to speak or at least speak out of them Quest. 18. He can also raise storms in the Air and calm these that are raised Quest. 11. And yet it being libel'd against Ianet Cock that she said to these who were carrying a Witch to be execute were it not a good sport if the Devil should take her from you likeas a great storm did overtake them when they were carrying her to the place it having been a great calm both before and after yet this Article was not sustained relevant since it might have proceeded from folly or jest or vanâ— jactantia XIX The Devil may inflict diseases which is an effect he may occasion applicando act va passivis and by the same means he may likewise cure A clear instance whereof appears in the Marriage-knot And not only may he cure diseases laid on by himself as Wierus observes but even natural diseases since he knows the natural causes and the origin of even these natural diseases better then Physicians can who are not present when diseases are contracted and who being younger then he must hâ—ve less experience And it is as untrue that Divus Thomas observes who asserts that cures performed by the Devil cannot continue since his Cures are not natural And since he both may make sick and may make whole it follows that he may transferr a disease from one person to another And I find that it being libell'd against Margaret Hutchison that she took a disease off a Woman to put it on a Cat It was alledged that this Article was not relevant because 1. Una saga non potest esse ligans solvens in eodem morbo 2. That in such transactions as these the Devil never used to interpose his skill except where he was a gainer and therefore though he would transfer a disease from a bruit beast to a rational creature yet he would never transfer a disease from a rational câ—eature to a bruit beast both these defences were repelled Many Witches likewise confess that they cannot cure diseases because they are laid on by Witches of a superior order who depend upon Spirits of a higher degree Some think that they may innocently imploy a Witch to take off the disease imposed by another and lay it upon the Witch who imposed it even as men may innocently borrow money from an Usurer to be imployed for pious uses or may cause an Infidel swear by his false Gods for eliciting truth and that in this manner Devils are rather punish'd then serv'd But since all commerce with Devils is unlawful this practice is justly reprobated by D Autun p. 2. discourse 48. But yet it is thought lawful to all who are bewitched to desire the bewitchers to take off the disease if it can be removed without a new application to the Devil but only by taking away the old charm or it is lawful to any to remove the charm or sign of it if it be in their power D Autun pag. 825. XX. Witches may kill by their looks which looks being full of venomous spirits may infect the person upon whom they look and this is called fascinatio physica sed fascinatio vulgaris quae dicitur fieri per oculos tenerorum puerorum vel parvorum porcorum vana est ridicula Del. lib. 3. Q. 4. Sect. 1. I know there are who think all kinds of fascination by the eyes either an effect of fancy in the person affected or else think it a meer illusion of the Devil who perswades Witches that he can bestow upon them the power of killing by looks or else the Devil really kills and ascribes it falsly to their looks whereas others contend that by the received opinion of all Historians men have been found to be injured by the looks of Witches and why may not Witches poyson this way as well as the Basilisk doth Or why may not the spirits in the eye affect as well as the breath Or why may not looks kill as well as raise passions in the person lookt upon Nor can it be denyed but that blear'dness is begot by blear'dness and that menstruous women will spoyl a Mirrour by looking upon it Likeas there seems even some ground for it in Scripture for Deut. 28.54 it is said that a mans eyes shall be evil towards his brother And some likewise endeavour by consequence from Matth. 20.15 Is thine eye evil the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying in Scripture both to bewitch and to envy Some likewise think that St. Paul Gal. 3.1 alludes to this received opinion but conjecture doth so much over-rule all this affair that it were hard to fix crimes upon so slender grounds And therefore though where Witches confess that they did kill by their looks their confession and belief may if they be otherwise of a sound judgement make a very considerable part of a crime where it is joyned with other probabilities yet per se it is hardly relevant XXI It may be also doubted whether Witches can by amorous potions inchant men or women to love and though it may seem that these being acts of the soul cannot be raised by any corporeal means yet l. 4. c. de Malef. Mathemat makes this possible and punishable eorum scientia punienda severissimis merito legibus vindicanda qui magicis accincti artibus pudicos ad libidinem de fixisse animos deteguntur But this Law speaks only of lust and not of love as I conceive Nor can it be denyed but that not only Witches but even Naturalists may give Potions that may incline men or women to lust And therefore the question still remains whether Witches may incline men or women by Potions to a fancy and kindness for any particular person and though Potions may incline men to madness yet it doth not follow that therefore they may incline them to love And though D Autun doth bring many Arguments from History and pretends that the Devil may raise and excite the old species of love which ly hidden in the body and may thereby form a passion yet these are too conjectural grounds to be the foundation of a criminal sentence The Basilicks make the punishment of this to be deportation and so supplies the former Law XXII Witches do likewise torment mankind by making
killer should not be capitally punisht albeit he was in no hazard of his life I likewise think that the fear of imprisonment by the defender may excuse from capital punishment seing Liberty is as dear as Life and no man can be secure of his Life if he be unjustly imprisoned sibi imputet aggressor qui occasionem praebuit It is likewise lawful to kill such as would murder our Friend or fellow-traveller which is accounted lawful though not self-defence which is extended also to the defence of all others because we should love our Neighbour as our selves And it is lawful to kill a Thief who in the night offers to break our Houses or steal our Goods even though he defend not himself because we know not but he designs against our Life and Murder may be easily committed upon us in the night but it is not lawful to kill a Thief who steals in the day time except he resist us when we offer to take him and present him to Justice IV. This exception of self-defence must be propon'd against the revelancy and must be condescended upon thus the Pannal no ways acknowledging the killing yet if he killed it was done in his own defence in swa far as the Defunct drew a Sword and thrust or offer'd a Pistol c. And the Justices will not allow that it should be propon'd to the Assize as I have oft heard this press'd but very unreasonably for this concerns the relevancy to which the Justices and not the Assizers are only Judges competent And it were very dangerous to refer to ignorant Assizers Matters of such importance and which are oft so intricat in Iure And whereas it may be urg'd that Art and Part is referred to the Assize and is not condescended upon and made relevant It is answered that the accuser cannot know the accession of the Pannel till the Witnesses first condescend upon it but the Pannel cannot but know all the circumstances of his own self-defence and is not to learn that from others But yet though the proponer of a defence do's in civilibus acknowledge eo ipso the Lybel yet in criminalibus though the defender or Pannel prove not his exception of self-defence he will not be condemned except the pursuer prove the Lybel V. The way of proving this self-defence was by raising a precept of exculpation but is now only by a summonds which expresses not so particularly the defence in all its circumstances but that it may be hereafter help'd which it seems is unjust for the Pannel should know what himself did nor should a Judge grant a precept for exculpation till he see that there be some ground for craving it This exception of self-defence is so favourable that it may be prov'd by presumtions by Witnesses otherways declinable as Cousens Servants and Witnesses who depone only upon credulity and the Defence it self being once prov'd it is presumed that it was done necessarily and lawfully potius ad defensionem quam ad vindictam Far. quest 115. part 7. § 1. And yet our Law allows no Witnesses to be receiv'd in defence but such as it allows pursuits and witnesses led in defence are more to be suspected for men are naturally enclined to go all lengths in bringing off the Pannel and for this cause it is that we have Assizes of Error against such as absolve a Pannel but none against those who condemn him Before this Act of Parliament self-defence was still sustain'd by the Justices to elide the Lybel of Murder but it was oft ineffectual seing there were no precepts of Exculpation then us'd and consequently except either the Pannel could have prov'd the inculpata tutela by the accusers own witnesses who were led to prove the Murder which was not secure seing these who saw the beginning of the scuffle and first aggression might have been absent when the aggressor was killed or that the witnesses would have voluntarly appeared which was a probable reason to set them they being eo casu testes ultronii the defence could not have been proved Whether self-defence will defend or is lawful in Paricid See more of this Title Exculpation VI Homicidium casuale is when a man is kill'd casually without either the fault or design of the killer as if an Axe head should fall off and kill a by stander or a Rider should kill with his Horses feet In which case our Law appoints that if the prejudice be done by the Horses formest feet then the Ryder shall be forc'd to satisfy for the prejudice done and these satisfactions are called Croo or Galnes but where it is there said that he shall give Croo or Galnes as if he had killed him himself it is to be interpret not as if the Rider should be punishable in that case as if he had killed him with his own hand but that the Assythment shall be the same But the Rider is not lyable at all for what prejudice is done by the Horses hinder feet lib. 4. Reg. Maj. C. 24. Casual Slaughter or homicide then is that which is occasioned by mistake and just ignorance for if it proceed from affected ignorance as for instance if a man will not know what he may know his ignorance in that case will not make the Murder following upon it to be constructed casual homicide but if it proceed from gross and supina ignorantia it may be punishable by an extraordinary or arbitrary punishment but not by death And since such ignorance is a fault the Murder occasioned by it becomes culposum or faulty homicide as seems to me clear by C. continebatur c. lator de homicid It is then necessary that the committer us'd all exact diligence to evite the Crime else he is not in the case of casual homicide Further instances whereof are if a Mason before he throw down Stones advertise all below though in throwing he kill he is to be cleared as innocent Or if a Hunter shoot at a Beast but a man come in the way and be killed and yet if either the Mason cry not or if the Hunter did shoot in a place where people use to be he is guilty of faulty Murder in these cases which shews clearly the difference betwixt these two kinds of Murder VII If the killer be imployed about a thing unlawful either in it self or unlawful to the actor the murder ensuing is thought still casual Murder since Murder was not design'd if the committer did exact dilligence to shun all Murder as for instance to cary Guns is unlawful with us and to hunt is unlawful to Priests by the Canon Law If then a man having a Gun illegally should lay it up securely or a Church-man should kill a man whilst he did shoot at a Beast in a remote place these Acts would not infer Murder because there was no Act done there with relation to Murder Covar ad clement si furiosus and yet the committer versatur in actu illicito But
sum and so was no more debitor and could expect no advantage and so the fear of perjury ceased And as to the foresaid seventh Act It was answered that it was only made not to exclude the debitor absolutely but to correct the 257. Act 15. P. K. I. 6. whereby the Oath of Party was declared to be receivable as decisive of the cause As to other witnesses our ordinary distinction is that pactions in Usury are either extrinsick to the Bond or writ as are the taking Bud or Bribe for continuing a Sum and these may be proved by any witnesses albeit by the foresaid 7. Act. It is said that Usury shall be proved by the Oath of the Party and witnesses insert But pactions which concern the writ it self as that whereby more is promised then is contained in the bond these cannnot be proven but by the Witnesses insert for else writ might be taken away by Witnesses As to oath of Party it is ordained to be taken by the former acts against the common rules of Law by which nemo tenetur jurare in suam turpitudinem And the Justices accordingly do force the Pannels to swear as in the case of Wilson above cited But it may be doubted if this act should not extend only to Civil and not Criminal cases For that act sayes that litis-contestation being made it shall be lawful to receive But so it is that there is no litis-contestation in Criminals go This Act cannot be extended to these cases VII Usury was allowed by the Civil Law as the proper product or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecuniae but by the Canon Law it was punished and most Lawyers think it may be punished criminally Decius Consil. 130. And it is called crimen utriusque fori because it is punishable Civilly and Ecclesiastically The pain of Usury with us is That the debitor shall be free from his obligation or have back his pledge or if the debitor conceal then the revealer shall have right to the sums Act 222. K. I. 6. Par. 14. And by the 248 Act P. 15. K. I. 6. It is appointed that the Usurary Bond or Contract shall be reduced and being reduced the sums shall belong to His Majesty or his Donator and the Party to have repetition of the unlawful Annualrent payed by him in case only he concur with the Donator in the reduction TITLE XXV The Dribing Partiality and Negligence of Judges 1. What is bribing by the Civil Law 2. What by our Law and how our Law punisheth it 3. Crimen repecundarum Barratriae 4. Whether Arbiters Deligats or Assessors be punishable for taking Bribes 5. How negligent Iudges are punishable IT is to no purpose to make good Laws if the execution of them be not committed to just and diligent persons as it is to no purpose to have an exact ballance if that ballance be not put in a good hand and therefore as the Law hath been very liberal of its priviledges to just Judges and severe in punishing such as offended them so it hath punish'd with the same rigour such Judges as transgress either by bribing negligence or partiality which are three distinct species forbidden by the common Law and ours I. Bribing is the taking of money or other good deed either for doing of justice or committing of unjustice There are indeed some Lawyers who think that a Judge taking money in a Civil Cause to do justice doth not thereby commit a Crime but is only lyable to restitution Menoch 2. Arb. 342. n. 6. but this is expresly contrary to sound reason since if taking upon any terms be allowed the Law may be eluded and Judges will be thereby tempted not only to take bribes but to take pains to justifie what they have done but yet I think that this opinion is neither proved per l. 4. ff de l. jul repetund For there it is not only said non excipiet quo magis aut minus quid ex officio suo fecerit which prohibits only an excess in justice and not the doing justice for money nor perl 3. c. eod since that Law doth only in the general forbid the taking of money but this is expresly forbidden l. 2. § 2 ff de condict obturp caus where it is declared a Crime but the punishment there seems only to be litem suam facere and Skeen ad Stat. 25. Wil. says that non licet judici vendere judicium justum II. By our Law the Kings Judges were to those an Assize upon what they had done as Judges and if they were convict they were to be punished by the King and his Council according to the measure of their fault Cap. 13. Stat. Rob. 2. and the Judges of inferior Courts such as Regalities were to those an Assize before the Justices and if they were found either culpable or remiss they were to escheat their moveables and their life to be in the Kings will or in the will of the Lords of the Regality cap. 14. ibid. And by the 26. Act Ia. 3. Parl. 5. a Sheriff or any other Officer of Fee that is to say any Heritable Officer is to be put from his Office for three years if he be found partial and an ordinary Judge if he be found partial loseth his Office forever And though his person 's being punished at the King's will and the paying of the expence of the party injured be only added to the punâ—shment expressed against a Judge who is not Heritable yet I conceive that being added in the last place it is applicable both to the Heritable Judges and others Likeas it is observable that though by all these Acts the King and His Council are only exprest to be the Judges competent yet de practica the Justices are Judges competent if partiality be committed in any criminal cause as for instance if a Sheriff should execute any Pannel upon a Crime proved only against him by the pursuers brothers or other inhabile witnesses or upon a Libel which were palpably irrelevant in these and in such other criminal cases the Justices and not the Council would be only Judges competent nor is partiality in civil cases a Crime by our Law though it be punishable by this Act paena arbitraria and by resounding of the dammage sustained by the pursuer The foresaid Laws strike only against partiality in general but bribing is expresly discharged by the 25. Chap. Stat. K. William but there is no punishment there exprest and therefore Skeen adds in his observations the punishment of l. 1. cum aut hent c. de paen judic And thereafter by the 22. Chap. 1. Stat. Rob. 1. all Judges are forbidden to take Land or any thing else to Champart either for giving deferring or prolonging of justice and the offenders are to be in the Kings will and to lose their office for all their life Champart is a French word signifying part du champs a part of any Land so that by a Metaphor the taking any part of the
advantage arising by any plea is forbidden by this Statute which the Civilians call pactum de quota litis by the 104. Act 7. Parl. I. 5. consulting or giving partial judgement is declared bribing in a Judge and such as diffame them as bribers are punisht legetalionis But because these Acts were not clear against bribing therefore by the 93. Act. 6. Parl. I. 6. the taking of bribes is discharged to the Lords of Session their Wives and Servants under the pain of infamy deprivation and confiscation of all their Moveables to all which an arbitrary punishment is adjected It is very observable that by this Act not only the taking of bribes is discharged but even the taking any goods or gear during the depending of a Plea or from such as shall have causes depending for the future and though it seem'd very reasonable that men should not be discharged of the effects of their friends liberality and should not be by being elected Lords of Session put in a worse condition then the other subjects yet so jealous is the Law of bribing that it is afraid that if Judges be allowed to take at any rate or upon pretext of their friends liberality they might abuse this pretext to meer bribing l. ult c. h. t. l. 4. ff eod And yet the Glosse ad l. 1. ff h. t. allows a Judge to take from his relations within the sixth degree nor is it lawful to take any thing even by way of remuneration though remuneration be rather a paying then a gilting Matheus P. 619. But I conceive that this must be understood of a remuneration made for services done during a Plea or upon the accompt of a Plea or upon any publict accompt But it seems against reason to think that if a brother or brother in Law should entertain his brothers family whilst he is a Judge that he may not receive a remuneration for that or the like kindnesse The second observation from this Act is that it is not lawful for their wives or servants to take bribes or good deeds which is consonant to l. 1. C. h. t. by which the Judge is lyable to pay the quadruple of what his servants take but it would appear that none is lyable by this Statute for what his servants take except he know that his servants take by command or ratihabition for this Statute discharges Judges to take by themselves or their wives or their servants which implyes some Act of the masters for qui facit per alium facit per se but he who is absolutely ignorant of what his servants doth cannot be punished for anothers fault against the common rules of Law else the master should be made a slave to his servants who might at his pleasure force him to what he decided or else by taking bribes might ruine both his masters estate and reputation Since this Statute discharges only the Lords of Session it may be doubted if it should extend to bribes taken by other Judges For Laws in criminal cases use not to be extended and since the Lords of Session may by bribing do moâ—e unjustice and prejudge the Leidges more then others it may be alledged that other Judges ought not to be so severely punished as they and yet since the Crime of bribing is punished by the Civil Law and Law of Nations in all Judges it seems just to extend this Act to all Judges and the other because though lex julia was made contra principales magistratus yet it was by the Roman customes extended ad magistratus urbanos Math. P. 617. III. The taking of bribes or good deeds was punished by the Civil Law Per. l. jul Repetundarum By which tenebatur qui in magistratu potestate curatione legatione vel quo alio officio munere ministeriove publico quid acciperit quo magis aut quo minus officium faceret l. 1 3 4 6. ff de l. jul Repet The punishment of crimen repetundarum was death if Money was taken to pronounce a capital sentence unjustly l. 7. or banishment and confiscation of goods in case no such criminal effect followed ff 38. de paenis and though some Doctors teach that albeit it be capital to condemn an innocent man yet to absolve a guilty man who deserved death is only punishable by banishment But if the Judge received Money or committed gross iniquity that should be punishable by death also for l. 7. h. t. doth not distinguish these two cases This Crime is by the Doctors called banatria nam baratriam committit qui propter pecuniam justitiam baractat Farin Q. 3. art 10. And they conclude that by the present customes of Nations it is only punished arbitrarily not exceeding banishment Boss. de offic corrupt num 6. He also who corrupts the Judges is punishable with the punishment of falshood gloss ad l. qui explicandi C. de accus which holds though the Judge accept not the bribe he is punishable if the endeavour pervenit ad actum proximum Menoch de arb cas 343. He also who corrupts the Judge or Clerk loses the cause Far. num 126. But I differ from him in that he thinks that a Pannel who corrupts the Judge in a criminal cause ought not there after to be allowed a liberty of proponing a defence for an innocent man may by fear be driven to offer to redeem his own life to which inclination the Law indulges very much The Judge who judges unskilfully per imperitiam is punishable by a fine beside that he payes the expences of the plea l. fin de var. extr crim But Bossius and others are of opinion that he is never to be corporally punished and by the 17. Act 6. P. Ia. 2. only such Judges are to be punished as trespasse wilfully in their office Arbiters bribing are punished as other Judges but some Doctoâ—s do justly conclude that arbiters are not liable for their unskilfulnesse since they were choosed by the parties who should blame their own election Delegat Judges such as these to whom the Lords recommend perambulating of Marches are punishable for bribing but for the same reason they are not punishable for their unskilfulnesse Assessors taking bribes are also punishable but some think them not punâ—shable for unskilfulnesse since the Judge is not obliedged to follow their opinion and though some think that an Assessor gettâ—ng a sallary is liable even for his unskilfulnesse Curt. Iun. ad l. 2. ff quod quisque juris and he should have known that he was named Assessor to supplie the unskilfulnesse of the Judge Yet I differ for he gives only his advice and so is liable only as an Advocat is V. Judges negligent in putting Laws to execution are punishable for their remissnesse and negligence c. 14. R. 2. by the escheating of their moveables and their life is to be in the Kings will which seems too severe a punishment for meer negligence but by the 26. Act 5. Par. Ia. 3. a Iudge found culpable which
Oppression to exact more fraught from Passengers or greater prices for Weavers and handy-work then what is allowed and usual Acts 21 and 23. Parl. 5. Q. M. It is oppression to stop or make impediment of common high ways to or from Burghs Act 54. Parl. 6. Q M. It is oppression for Officers to extort the Leidges Act 33. P. 5. I. 3. Act 83. Parl. 11. I. 6. or to put out or put in the Roll of Assizours given to him by the pursuer Act 88. Parl. 11. I. 6. In which last Act common oppressors are punishable by death Oppression is also punishable by death Act. 42. Parl. 4. Ia. 4. Act 88. Parl. 11. Ia. 6. VII Because oftimes in thir cases the Pannel pretends that what he did take by force was his own or that he had a right thereto therefore except the violence be very great the Justices use to ordain the matter of right to be first discussed before the Civil Judge as was found in Novemb. 1675 in the case of Inglis of East-sheilds and in many other cases and by the 33. Act. 4. Parl. I. 5. It is declared that as for depredation masterful reiffs and spoilzies particular dyets shall be set therefore at the discretion of the Lords the matter being first Civilly discussed before them Upon which Act it is oftimes alledged before the Justices that the cause must be civilly discussed before the Session in all masterful reiffs before they can proceed to cognosc thereupon but notwithstanding of this the Justices do constantly sustain Criminal processes for Reiffs and Robberies without any previous civil precognition and they find this Act to be now in desuetude as in the case of Monimusk 27. of November 1611. And I think that by Lords in that act are not meaned the Lords of Sâ—ssion for that Act is two Years prior to the institution of the Session but that by Lords there are meant the Justices themselves for there being no Session at that time the Justices were Judges competent to many Civil cases originally such as perambulations c. and to all Civil cases if they had a necessary connexion with or dependance upon criminal cases And therefore where the person who was alledged to have committed masterful reiffs or spuilzies could pretend that what he did was in prosecution of his own right The Justices had a latitude to try the matter of right first Civilly but this was never necessary for it is by the Act left to the discretion of the Judge It remains then to be considered how far the taking away by violence what is really a mans own can infer a guilt against him Which difficulty may be cleared in these few conclusions 1. That the thing violently possessed though by a common spuilzie and much more by a masterful reiff ought to be restored nam spoliatus est ante omnia restituendus and that though he who took away what was his own could instantly prove his right and since this holds where the violence was only committed by a simple Ryot it should by a stronger consequence hold where the thing was taken away by such violent means as amounted to a crime and so this should be no good defence either against a Criminal or Civil pursuit 2. Not only ought the thing to be restored but even the true Proprietar who intrometted with his own by open force violence is punishable for the Law will not allow that any man should be Judge to himself but much lesse that he should use violence force upon any accompt and this were to invade or assume Jurisdictions which is in it self a crime The third conclusion is that if any man do by force or violence extort from another a writ or obligation which he could have obliedged him in Law to grant that force is not only punishable Criminally but the deed so extorted is reducable by a Civil pursuit as was found in Ianuary 1675. Though it was alledged there that such force might be Criminally punished yet the deed so granted could not be reduced since such deeds were only reduceable where something might be restored but here nothing was to be restored since the deposition alledged to be extorted by force depended upon a former minut by vertue whereof the granter could have been compelled to have granted the same and this was the same case as if a Creditor should compel his Debitor by force to pay him what was his own in which though the force be punishable yet the Debitor could not repeat what he had justly payed as is clear not only by common sense and reason but l. 12. ff quod met caus Iulianus ait eum qui vim adhibuit ut debitori suo ut ei solverit hoc edicto non teneri propter naturam actionis metus causa quae damnum exegit quamvis negari non possit in Iuliam eum de vi incidisse jus crediti amisse To which it was answered that there could be nothing more disadvantagious to the interest of the Common-wealth nor a greater usurpation against authority then that every man should be his own Judge and force the Executioner and the Law justly presumed that he had no legal right who would not pursue iâ— in a legal way and if this were allowed every man would discusse his own Suspension himself by forcing his Debitor to pass from it and would force the Heir of his Debitor to give him Bond or his Debitor himself to fulfil all minuts without any regal pursuits every Master would thus thrust out his Tennents and every Creditor force his Debitor to pay by carrying him away Prisoner and when he were that length he would alledge that nihil illi deest and as to the former Law it was answered that the Civil Law in detestation of force and violence did allow three several remedies to the person violented viz. Edictum praetor is quod metus causa c. Lex julia which punisheth the force as a Crime decretum divi Marci all which three are expresly mentioned in that Title and though by the old edict and the Lex julia he who forced his debitor to pay what was justly due could not be by these remedies restored quia nihil decrat vim passo as the Law formerly cited does prove yet ex decreto divi Marci which was posterior to these remedies as Marcus Antoninus was long posterior to Iulius Caesar even he who took payment of his own could not defend himself by alledging upon his right which excellent Law is set down l. 13. ff quod motus causa Quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo judice tempore possidere vel accipisse isque sibi jus in eam rem dixisse jus crediti non habebit And Faber upon that Law doth excellently conclude that this was a just supplement of the former Law and Cujacius allows this remedy not only to
punished with the same pain 3. By constant custome in all Criminal Courts art and part is punished as the principal Crime Notwithstanding of all which I think the foresaid conclusion very rigorous for paena est commensuranda de licto and to punish the more and the less guilty equally seems against nature and justice And by the Laws of all other Nations and the opinion of all Doctors accessions are punishable according to their proportional degrees of guilt and albeit the Act above cited sustains the Libel yet it ordains not the punishment of art and part to be the same with the punishment of the principal offenders but though the Act did bear the same expresly yet by the opinion of the Doctors a Statute bearing that such as are accessory shall be punâ—shed as the principal malefactors is to be restricted ad opem quae dedit causam maleficio non de quolibet modo auxiliandi annot ad Clar. quest 90. num 28. It would therefore seem just that not only the Justices or parties should make application to the Councel and interpose that the punishment should be mitigat according to the degrees of the guilt as the custom now is but that the Justices should have an innate power to propoâ—tion the punishment to the guilt proved for none can understand so well the nature of the guilt as the justices who hear the probation and it is hard that the poor Pannel should lye under so great hazard as to be exposed to a capital sentence whereas it may be the Council will not sit so soon as that he may interpose with them Some Crimes punished amongst the Romans which are not directly in use with us HAving finished in the last Title what belongs to those Crimes which our Law punâ—shes directly I resolved here to touch overly even those crimes which are little considered among us not only that we might thereby know the genius of that wise Nation but that we may consider how far it were fit to renew amongst us these excellent Laws The Romans considering how destructive those were to the Common-wealth who endeavoured by all indirect means to screw themselves into publict employments did therefore make this indirect dealing to be a Crime and called it Ambitus which punished lege julia those who gave money for making themselves Magistrats or that they might attain to honouâ—s It is commonly thought that how soon the power was transferred from the pople to the Senate and from the Senate to the Prince this crime ceased because the Prince having the sole power of bestowing Magistracy and honour is still presumed in Law to bestow them upon those deserve best who Groneveg de leg abrogat ad h. t. but yet I see not why the Prince may not justly cause punish such who have wronged both the publick interest and his favour in prostituting both to so unworthy a sale and since Commissioners for Parliaments and Magistrats of Towns are still elected by pluâ—ality of suffâ—â—ges I see not why such as bribe the electors may not be lyable to the same accusation The punâ—shment of this crime was depoâ—tation which was much like our banishment and in the lesse Towns it was punished by a Fyne of an hundred Crowns and infamy and since it is a kind of bribing I think it should be punished with us as such Residuorum crimen was committed by him who converted the publick money with which he was intrusted to his own private use and was punished by fyning him who was guilty in a third more then he owed This crime is punished by no expresse Law with us but that this is a crime with us appears clearly from its being excepted from the late Act of Indemnity amongst the other Crimes The words whereof are Excepting all privat murders c. and the accompts of all such persons as have intrometted with any of His Majesties Revenues publick impositions Excise Fines Forfâ—itures Sequestrations and all other publick money for which they had not order warrant or assignment for their own privat use or for which they have not duly counted and received discharges thereof from such as pretend to have authority for the time to do the same I doubt not but the Exchequer might be Judges competent to this crime if committed by their own members and the Council if done by any of His Majesties servants since there can be no greater injury done to His Majesties Government then to abstract or invert his money which is the nerves not only of War but of all power Peculatus is a stealing of the publick money as the other was a concealing of it and this was punished in publick Ministers capitally l. un c. h. t. Though other thefts was not capitally punished among the Romans so attrocious a crime did they judge the breach of trust and so easy a thing it is for publick Ministers to steal publick money if they please This crime is certainly punishable with us by death since all theft is so punishable Plagium was the stealing of men and was punishable by death l. 7. ult c. h. t. which agrees with the Law of God Exod. 21.16 Deut. 24.7 and with us Aegyptians and others stealing children have been likewise punished by death and such as force away men to be Souldiers should be liable to the same punishment though the Council uses to punish them only by an arbitrary punishment and such as take away mens childeren upon pretext to marry them before they come to the years wherein they may give a legal consent which is 12. in women and 14. in men ought in my Judgement to be so punished I have treated crimen repetundarum in the Title Brybing crimen annonae in the Title Fore-stallers I shall end this first part relating to crimes with Theophils apologie Subjoyned to his Title of Crimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS PART II. TITLE I. Of Jurisdiction in general 1. Iurisdiction defined and divided in imperium merum mixtum Jurisdictionem simplicem 2. Iurisdiction is either ordinary or delegat 3. It is either cumulative or privative 4. How a Iurisdiction may be prorogat THe Civilians do treat of Jurisdiction very learnedly and profusely but since most of their Dictats are very remot from our practice in Scotland I resolve to clear only such general terms as are borrowed by our Law from that of the Romans I. Jurisdiction may be defined to be a publick power granted to a Magistrat to cognosc upon and determine Causes and to put sentences following thereupon in execution in such way and manner as either his commission Law or practique do allow Jurisdiction was by the Civil Law divided in merum imperium mixtum imperium jurisdictionem simplicem Merum imperium est abere potestatem gladii ad animadvertendum in facinerofos potestatas etiam appellatur Mixtum imperium est potestas qua jure proprio Magistratui competit cui jurisdictio inhaeret inest dicitur
blame who did not either preveen or repledge Bailies of Regalities may likewise repledge from the Kings Lievtenent as was found the 19. of August 1596. And as is clear by the foresaid Act of Annexation and likewise from any Commissioners appointed by the Council as was found in May 1568. And from the Justices of Peace in Riots and Bloods as was found by the Lords of Session Iuly 1617. though these causes being of small moment and requiring summar and unexpensive cognitions seem to require easier and less solemn tryals in the procedor then repledgiations will allow And yet by c. 11. de appell I find that licebat in remimina appellare nor can the parties injured complain since they might have made their application to the Lord of Regality Nor should their errour prejudge his jurisdiction VII The manner of repledgiation from any Court is that either the party himself who hath the power of repledging or some other having a Procurator from him compears and produces his Charter of Erection from the production of the Seasing is not sufficient seing that is but assertio Notarii yet sometimes without production of the Charter repledgiation will be sustain'd because it is notour that the repledger hath a Regality as in the Duke of Lennox case 1637. As also repledgiation will be sustain'd upon production of the criminal Register bearing that it was formerly sustain'd to the same persons May 1668. Arducaple against the Commissioners of the High-lands Yet it may be doubted whether the production of a Lord of Regalities retour will be sufficient to instruct that he hath a Regality and it appears it should since a retour is a sentence and so is a sufficient instruction till it be reduced He who offers to repledge must find Caution of Culrach to do justice within year and day upon the person whom he repledges and if the Judge to whom he is repledged doth not justice within year and day he tines his Court as we call it for year and day and the Culrach for so the Cautioner is called who hath upon his becoming Cautioner borrowed the Defender is in an unlaw and the Judge from whom he was borrowed or repledged may proceed to do justice as formerly Skeen de verb. sig The Pannel likewise who is repledged must find Caution for his own appearance before the Lord of Regality to underly the Law for the crimes laid to his charge the 16. of May 1599. Patrick M ckalla against the Regality of Lennox No person can be repledged except he be present at the Court from which he is desired to be repledged for a party who is absent cannot find Caution to sist himself before the Court to which he is repledged as was found in the case of Armstrong who being pursued for murdering some Customers was desired to be repledged by the Earl of Annandale Anno 1666. Nor can a person be repledged after defences are proponed for him for this being recusatio judicis it must be ante omnia propon'd dum res est integra VIII When Regalities are erected there is a Burgh of Regality expressed therein and though that Burgh may choose Bailies yet the Bailie of Regality hath still a cumulative jurisdiction with those Bailies of the Burgh of Regality in that same way that other Superiours retain still a cumulative jurisdiction with their Regality as was found the 24. of Ianuary 1668. betwixt the Bailie of Killimure and the Burgh thereof This Burgh is oblig'd to maintain a sufficient Prison not only for Criminals but for Debitors by the 273. Act 15. Parl. Ia. 6. And all Captions bear the Letters to be direct to Bailies of Regalities c. And yet by that Act these Burghs seem only to be oblig'd to intertain Prisoners where there are Provost Bailies and Common-good Nota that these words of that Act by the Sheriff to Stewarts and Bailies of Regalities are ill printed for the word to should be or The Lords likewise decided thus against the Bailies of Regalities the 7. of Iuly 1668. Hamiltoun contra Callender In this Burgh all Courts must be holden Yet defenders are oblidg'd to compear at any other place within the Regality to which they were expresly cited As Had observes in a case the 16. of March 1622. Or if the Lord of Regality was in use to hold his Court else where for a considerable time without interruption the Vassals or any other Defender is oblidg'd to appear thereat though it be not the place design'd in the Charter of Erection as Had. observes December 1624. And if the party who is desired to be Repledged dwelt within the Regality the time of the committing of the Crime the Repledgiation will be sustain'd though at the time of his being accused he be removed without the Regality as was found the 21. of November 1632. in the case of one Weems who was desired to be Repledged to the Regality of Methwen Lords of Regality are oblidged to hold Justice-Courts twice a Year 3. Parl. K. Ia. 2. Act. 5. and if they be negligent in causing rest and stolen Goods be restored the Sheriff may fulfil their place Act 11. Parl. 15. Ia. 2. And when Erections fall into the Kings hand the Inhabitants thereof may be justified id est judged by the Justices Act 26. Par. 6. K. I. 6 but this Act can only take place till a Stewart or Bailie be appointed For Regulariter the Kings own Stewarts of Regalities may repledge from the Justices A Lord of Regality cannot fit himself in his own Court but must administer by a Bailie who is sometimes admitted by a simple Commission during his life or otherwise he is admitted to be Heritable Bailie which Right passes by Infestment but this Bailie is in Lands belonging to the King and is properly call'd the Stewart of the Regality though sometimes the Kings Deputs in Regalities are likewise call'd Bailies as in the 5. Act. 3. Parl. K I. 2. IX Lords of Regality cannot cite Witnesses without their own jurisdiction but they must have Letters of Supplement for that Office though generally they may proceed in the same way that the Justice-General doth but they may exact Caution to enter as Law-will from the defenders after sentence is given as was found the 7. of October 1668. betwixt Mr. Iohn Prestoun and Mr. Iohn Pape which seems to be a greater priviledge then the Justices have who cannot presently exact Caution of any person for paying an unlaw but can only raise Letters of Horning upon the Act of Adjournal The Lords of Regalities have right to the single Escheat of rebels living within their jurisdiction as also to the Escheats of all persons condemned for crimes committed by the Inhabitants within their jurisdiction albeit condemned by the Justices from which general rule Hope in his lesser Practiques excepts only the case of Treason but it may be doubted whether exception may not be likewise made of all other Pleys of the Crown seeing the Lord
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