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
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
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
such as of its own nature may be good or evil accordingly as it is circumstantiat as in poyson the giving whereof may be occasioned by ignorance mistake or malice 3. Some acts are so irregular of their own nature that the Law requires only that the act be proved without proving the dole or wicked designe as in Sodomy Adultery c. 4. Some acts though they be not wicked of their own nature yet because the design cannot still be proved therefore the contraveening the Law is equivalent to design dolus presumitur contra versantem in illicito as the conversing with a woman after the Church hath forbid the same and therefore the Doctors divide dolum in verum presumtivum 5. Where the Law hath expresly required dole and defigne there it must be expresly libelled and proved as in the Act 37. Par. 2. K. Ia. 2. where it is statuted that if any man wilfully recept rebels he shall be forefaulted but albeit lata culpa be equivalent to dolus in lesser Crymes yet the Doctors conclude that where the cryme may infer death or mutilation losse of life or limb as we speak there the grossest negligence or lata culpa is not equivalent to dolus Clar. Quest. 84 Num. 7. It is likewise much debated whether an endeavour to commit a crime be a crime albeit the efffect follow not And albeit it be a rule in the Civil Law that in maleficiis voluntas Spectatur non exitus l. 1. § divus ff ad leg Corn. de sicar yet is generally concluded by the practicians of all Nations that simplex conatus or endeavor is not now punishable by death Clar. Quest. 91. Gothofr § Conatus But for clearing this accorcording to the principles of reason I shall form these conclusions first That all indeavour is an offence against the Common-wealth though nothing follow thereupon albeit sometimes the punishment be conniv'd at or mitigated according to the several degrees of malice but that it is in it self criminal appears from this that simple designe is punishable in treason and some other atrocious crimes because in these especially in treason it would be too late to provide a remedy when the Cryme is committed 2. In lesse atrocious crymes the designe is punisht if the comitter proceeded to act that which approached nearly to the cryme it self Si diventum sit ad actum maleficio proximum But this is not simplex conatus but in effect is a lesser degree of the crime to which it approaches as if a thief have put ladders to the house which he resolves to rob or if he mix poyson but the potion be spilt upon the ground by an accident And albet it be commonly received that even in these cases affectus non est puniendus sine effectu by the same punishment with the cryme designed yet I would distinguish in this betwixt an effect disappointed by an interveening accident and that which is stopt by the repentance of the committer for where the designe was only disappointed I think the ordinar punishment should not be remitted in cases ubi deventum est ad actum proximum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Basil de extraord crim l. 1. And therefore the court of Savoy did very justly condemn a thief to be hanged who had entered the house of one Girard to steal and murder but was deprehended before the theft was committed Goth. § Conatus num 16. For since the punishment is only remitted in conatu or indeavor because of the favourable circumstance that nothing followed thereupon So I think this may be counter-ballanced by the depravity of the designe in many cases As if one should design to kill a whole family or burn a whole town and seing men are punisht not meerly for what is done because that cannot be helped as lawyers affirm but because the committer of a cryme may commit the like Therefore I conclude that he who designed to commit a crime should be punished as if he had committed it if he was only letted by accident because the Common-wealth cannot be otherwise secure And therefore it was admired why in Iuly 1670. M r. Stanfields servant was not punisht with death for indeavouring to burn her Masters house albeit she was apprehended before any prejudice was done But I would here add as a caution that great praemeditation should be proved before Conatus be punished capitally for that showes the confirmed malice of the designer and is aequivalent as to him to successe 3. In mean crymes where the effect followed not upon the designe but was hindred by repentance I think little or no punishment should follow for nihil tam naturale quam unum quodque eodem modo dissolvi quo colligatum est The like should also hold where the design was taken up in passion or without premeditation because there the committer is not for the future so much to be fear'd but this subject will be more fully cleared in the particular subsequent titles for in some crimes Conatus or indeavour is more punishable then in others Whether what tends to a crime though it be not arrived at the full guilt requisite to make it fall expresly under the statute or Law by which that crime is punished to which it approaches has been oftentimes doubted As for instance to misconstruct His Majesties Government and proceedings or to deprave His Laws is expresly declared punishable by death by the 10. Act. 10. P. I. 6. Whether then may not papers as tending to misconstruct His Majesties proceedings and Government or bearing insinuations which may raise in the people jealousie against the Government be punisht by that Law And that such insinuations and tendencies are not punishable criminally may be argued thus 1. It is the interest of mankind to know expresly what they are to obey especially where such great certifications are annext as in Crymes 2. The Law having taken under its consideration this guilt has punisht the actual misconstructing or depraving but has not declared such insinuations or tendencies punishable in statutis casus omissus habetur pro omisso 1. This would infallibly tend to render all Judges arbitrary for tendencies and insinuations are in effect the product of conjectur and papers may seem innocent or criminal according to the zeal or humour as well as malice of the judger Men being naturally prone to differ in such consequential inferences and too apt to make constructions in such according to the favour or malice they bear to the person or cause Are not some men apt to construct that to tend to their dishonour which was design'd for their honour and to think every thing an innovation of Law or priviledge which checks their inclination and design Whereas some Judges are so violent in their loyalty as to imagine the meanest mistakes do tend to an opposition against Authority And thus zeal jealousie malice or interest would become Judges if tendencies and insinuations were allowed to be Crimes 4. Men
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
punishable by death Cap. 8. Parl. 3. I. 5. II. But since design and dolus are acts of the mind therefore they are inferr'd from presumptions and what presumptions are necessary in this case are very well related by Far. quest 110. cap. 2. And Iohn Meldrum was execute upon presumptions 2 Aug. 1633. where he being pursued for burning the House of Frendrick The only presumptions adduced against him were great threatnings capital enmity his contradicting himself in his own Examinations common brute and open fame that he was the burner But I think that case very hard and not to be drawn in consequence for though the dolus and design may be proved by presumptions because that is an act of the mind yet the burning it self being an external act should only be proved by Witnesses and confession 2. Seing probatio praesumptiva is but fiâ—titiâ— it were hard to allow both thâ— burning it self and quo animo the Fire was raised to be proved by presumptions against that common rule in Law that duae fictiones non cadunt in candem rem 3. Lawyers are positive that dolus debet possit probari manifeste Bertez consil 322. III. It is doubted among the Doctors whether he that burns his own House may be punished as Incendiarius since quilibet est rei sua arbiter and dominion is defined to be the using of any thing as we think fit But since Fire-raising is oft-times punished not only for the prejudice it hath done sed quia flamma potuit longius è vagari therefore Fire-raising should be punished in this case And as it is not presumable that any man will burn his own without design so if this were not punished men might upon the pretext of burning their own waste and destroy their own and ruine their neighbouss And he might very well be presumed to have had a design against his Neighbours but though the immediat dominion belong to private persons yet the King has also an interest dominium directum And as no man can kill himself lawfully so neither can he burn his own House except he can instruct that he did the same upon a just and reasonable cause IV. The punishment of Fire-raising by the Civil Law was various and suitable to the several degrees of the Crime for raisers of Fire within a Town were burnt alive Those who burnt Corns beside Houses were bound and beat and then burnt but not burnt quick as we speak lex 28. parag Incendiarii ff de poenis but the burning of a House or Village was not so highly punish'd And Clarus Quest. 68. thinks that the Statutory pain of Fire-raising if it be capital should not take place in small Fire-raising But since a small spark may kindle a great fire this conclusion seems very unwarrantable if the Fire was designedly rais'd V. According to our Law the burning of folks in their Houses and Corns and wilful Fire-raising is Treason And Laese Majestie Ia. 5. p. 3. cap. 8. From which Act it is to be observed 1. That the Particle and is not here copulative but a disjunctive for either of these cases viz. the burning of Corns is per se Treason 2. It is observable that all Fire-raâ—sing is not Treason though the Rubrick of the Act bear that all Fire-raising is Treason which may be concluded by these reasons 1. That all punishments should be commensurat to the Delicts and Crimes which are punished and therefore since Fire-raisings are very various it were unjust that they should be all equally punished especially the punishment here being Treason which were too severe for burning Peets in a Moss or a little Cottage standing in a Moor where the guilt is so small that the offenders in these cases should be capitally punished And in a case pursued against Mackenzie of Suddie upon the 29. Iuly 1693. for burning some fewel standing upon a Moor the Justices would not sustain this as Treason 2. If all Fire-raising were by this Act Treason there needed not a posterior Act have been made cap. 146. p. 12. Ia. 6. declaring that wilful Fire-raising in Coal-heughs upon malice and despite is punishable as Treason 3. By the foresaid Act of K. Ia. 5. it needed not to have been said that the burning of Folks in their Houses and the burning of Houses and Corns should be Treason if generally all Fire-raising were Treason For the better understanding then of that Act we must consider that there are three several species of Fire-raising declared to be Treason by that Act The first is the burning Folks in their Houses which must be interpret likewise to be the burning of Dwelling Houses though the People were not accidentally there or were possibly there and escaped Which species of Fire-raising is most severely punished both because Fire-raising was of all others the most horrid domus sua est unicuique tutissimum refugium and because ordinarily the burning of all the persons dwelling in the House is thereby designed as well as the burning the House it self The second species is the burning Houses and Corns which is suitable to the foresaid 28. Law ff de poenis where it is said that qui acervum frumenti juxta aedes positum combusserit vinctus verberatusque igne necatur The third species is willful Fire-raising which differs in this from Burning that Burning is of a particular place with design to destroy no more But Fire-raising is the burning a particular place with design to burn more as to kindle a little Corn upon design to burn the whole Field VI. The other Act making the burning of Coal-heughs to be Treason was practised upon Iohn Henry 14. Iune 1615. who was hang'd thereupon And the reason of this Law was founded upon the favourableness of that Manufactory which some do ruine by putting fire in them which is so easie that nothing could defend against it but the severity of such a Law as this and upon the greatness of the hazard which did arise by such Fires as this which could never be quenched when once kindled VII I was once consulted whether the drowning of Coal-heughs was Treason by this Act since erat eadem ratio utrobique but I thought not because penal Laws especially in which the punishment is so severe as Treason should not be extended as is elsewhere largely debated And the hazard of drowning a Coal-heugh is not equal to the burning of it for drowning can be easier removed and cannot spread so far VIII So odious is this Crime that it is expresly provided it shall be one of the four points of the Crown and so can only be cognosced by the Justices and all remissions granted for Fire-raising are declared null But this last is not in viridi observantia And Fire-raising being included in the Earl of Caithness remission it was sustained though thir Acts were objected IX If dole and design canot be proved in the Fire-raising so that it were accidental sed si culpa incendio
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
Who are repute accessory in this Crime and how punished I. PAricide is a Crime which is committed by killing our Parents against which Solon refused to make any Law lest he should by forbidding it teach the people it was possible By the Civil Law Paricide was committed by killing Ascendents or Descendents in any degree or collaterals to the fourth degree The killing likewise of Wife Husband or Patron was Paricide by that Law l. 1. ff h. t. II. With us Paricide is by the Statute 220. Ia. 6 Par. 14. punished only in him who kills his Father Mother Good-sir or Good-dame and these are by that Act ordained to be disherished and their posterity in linea recta are incapable of succeeding to the person killed but the succession is devolved upon the next Collateral or nearest of Blood the person guilty being convict by an Assize From which Act it is observable that the Statute is not exclusive of other punishments but supposes that Paricide is capitally punishable according to the Common Law for it were absurd to think the punishment here related should be the only punishment by which Paricide could be reached And Women for murdering their Children are frequently either hanged or headed as other Murderers 2. This Act reaches only such as are convict by an Assize and therefore Ianuary 1664. it was found that Sir Iames Oliphant being declared Fugitive for killing his Mother but not convict by an Assize his Estate could not be gifted by the King and in effect though he had been found guilty by an Assize he could not have been forefaulted for the nearest Collateral would seclude the Fisk. It was likewise found in that case that the Son could not be forefaulted as having murdered his Mother under Trust for they found that not to be the Murder which is declared Treason by the 11. Par. cap. 51. Ia. 6. For the trust there mentioned is when such as came under the trust of others were persons who would not have come within their reach without special assurance of indemnity and protection and it is related as a received tradition amongst us that this Act were first made upon Mack-donald his killing the Laird of Mack-clane who came to lodge with him upon such assurance notwithstanding of the feids which were amongst them It were likewise improper to say that the Mother was under the power and assurance of the Son and if the power and assurance betwixt Parents and Children could fall under that Act Par. 11. Ia. 6. this Act had been unnecessar and there could have been no place for the pain therein contained for the Estate of the Traitor belongs to the Fisk and not to the nearest Collateral III. It may be doubted if this Act should be extended to Parents killing their Children and albeit the Statute does not in terminis expresse Descendants yet it is probable they may fall under its Sanction Even as the foresaid Text in the Civil Law is extended to equal degrees with these exprest ob paritatem rationis And by that Law the killing of Ascendents or Descendents is Paricide 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the Rubrick of this Act runns generally against Paricide nor can it be denyed but Paricide is committed by Mothers against their Children and Women dayly are convict thereof Whether the foresaid Statute against Paricide can be extended to degrees of Affinity as well as degrees of Consanguinity so that to kill a father-in-law may be punished as Paricide as well as the killing a father may be doubted but I conceive it extends not to degrees of Affinity because 1. Laws against Crimes should not be extended 2. The statute discharging Fathers Brothers or Sons to judge in the causes of these relations is not extended to brothers-in-brothers-in-law c. though that extension would be more favourable 3. Some of these relations in this statute cannot in propriety of speech be extended to degrees of Affinity for we say not good-sir or good-dame in Law and albeit § 6. just de publ judic uses the word adfinitatis in this crime yet Theoph. in his Greek instit eod § expresses the same by the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies affectionis non adfiniâ—atis and with Theophil agrees 36. eclog. tit 40 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and this shews advantages by the Greek Lawyers IV. Whether it doth extend to Bastards may be doubted for though it be certain that since they know their Mother it may be therefore extended against them if they kill her or she them Yet since their Father is uncertain nam sunt vulgo quaesiti patrem demonstrare nequeunt and since they have no advantage by their Father in law it were hard the Law should punish them as Paricides But yet Lawyers conclude they may be punisht for paricid Allex. ad lib. 2. de injur voc and since this is a Crime against the Law of Nature it may be punisht in Bastards who are natural Children V. This Crime extends not to Moveables by the Act but by our Law wherever the Law punishes by death it implyes confiscation for Moveables followeth still the person And by the Law of France from which we have borrowed this and many other things qui confisque le corps confisque les biens It is probable that upon this Act even absents may be convict of this Crime as the Lords then thought if the certification of the Letters had born the Penalty here exprest For albeit probation cannot be led in absence of the Party to fix a Crime upon him yet this seems to be a civil effect which strikes not against the person of the committer By the Civil Law also all Murderers were debarred from succeeding to such whom they murdered l. cum ratio § sin ff de bonis damnat which is yet observed in France but though with us there be no contrary decision yet with us they are not debarred and seeing this pain is only statuted in the case of Paricide we may by a natural consequence conclude that it should not be extended to ordinary Murders VI. By the Act 20. Parliament 1. Ses. 1. Ch. 2. Beating or Cursing of Parents is declared to have been punishable by the Law of God with death And therefore ordains that whatsoever Son or Daughter above the age of Sixteen and not distracted shall beat or curse his Father or Mother he shall die without mercy but if they be within the age of Sixteen and past pupilarity they are to be punisht arbitrarily From which it is to be observed 1. That this Crime is meerly statutory and therefore should not extend beyond the degrees of the act to grand-fathers or grand-children albeit appellatione filii nepos comprehenditur in favorabilibus 2. That arbitrary punishment is opposed to death and so never can be extended in other acts to death 3. That those who are not above the age of Pupilarity are not capable to commit crimes nor should be punished for they are here
of Achingters daughter 5. Iuly 1596. yet I find that Iohn Kincaid having come in the Kings will Feb. 1601. for ravishing Isobel Hutchison a widow the King only fined him in 2500 Merks Hary Speed was hang'd 20. Feb. 1639. quia laceravit pudenda pueri which crime Iul. Clar. Gothofred and others affirms to be also capital in their Countries I find one Leivtenent Ker pursued for ravishing and away-taking Robert Cuninghame 6. Feb. 1640. but this is rather a species of Plagium then of Rapt VII Since minors are punishable by death for adultery much more ought they to be punishable by death for a rapt since the injury is there both more attorcious and more unnatural and Carp part 2. Quest. 75. gives us several instances where this Crime was capitally punished in minors where he likewise tells us that to force even a common Whore is capitally punishable though it may seem that they are infralegum observantiam and they ought not to have the protection of the Law who offend against it TITLE XVII Adultery 1. The definition of Adultery and whether the lying with an unmaried woman or with a whore be Adultery 2. The punishment of Adultery by the Law of God and our Law 3. The differences betwixt single and nottour Adultery 4. Whether death can be inflicted for single Adultery in Scotland 5. Whether the Mariage ought to be proved 6. Who can be punished as accessories in Adultery 7. What probation is requisite in Adultery 8. Whether a Dicreet of Devorce before the Commissaries is sufficient to prove Adultery in a criminal case 9. Whether he who hearing his wife was dead maried another be punishable as an Adulterer 10. Whether a pursuite being intended for nottour Adultery and single Adultery only proved if the single Adultery can be punished in that case 11. How adulterous children succeed ADultery is a Sin whereby men not only violat the second Table in wronging their neighbour by stealing from him his quiet his good name the affection and person of his wife endeavouring also ofttimes to steal his estate for the adulterous children But is likewise a breach of the first in breaking of that vow which was made to God in marriage and contemning that holy and mighty Majesty who was then called upon as Judge and witnesse I. Adulterium est vitiatio alterius thori the violation of anothers bed and is committed by a married persons lying with an unmarried or an unmarried person lying with one who is married For albeit by the Civil Law when a man who was married did lye with a woman who was free that was judged to be no adultery And albeit the lying with a Whore by the Civil Law was judged no Adultery l. 22. Cod. hoc tit Si ea quae stupro tibi cognita est passim venalem formam exhibuit ac prostitutam meritricio more vulgo se praebuit adulterii crimen in ea cessat Upon which Law the Doctors conclude that though he who first debaushed a woman with adultery be punishable as an adulterer yet these who did thereafter debaush her cannot Farr Quest. 141. num 85. Yet this is against both the Law of God and our Law for the Lying with another mans wife is still Adultery but so it is that though she be a whore yet she is another mans Wife Nor is the marriage disolved by the Adultery And yet I think that if the woman with whom the adultery is committed was at the time when the same was committed living as a common whore and the committer was a single man who knew not of her being married his punishment should be somewhat moderat upon that accompt But if the committer was married the crime is the same whether the woman was a Whore or not since it is still a violation upon the mans part To lye likewise with a mans bethrothed or promised Spouse or as we say his affidat Spouse is Adultery nam nec violare licet matrimonium nec spem matrimonii l. 13. § diu 6. ff h. t. which agrees as I conceive with Deu. 22.23 Where he who lies with a betrothed Virgin should be stoned as an adulterer because sayes verse 24. he lies with his neighbors wife And he who lies with a betrothed Virgin who is to be shortly married renders the succession as doubtful as he who lyes with a married wife The punishment of Adultery by the Civil Law was death as some think by the Julian Law relegatio or banishment as others think but certainly the pain of death was the punishment to be inflicted by that excellent constitution leg quamvis Cod. hoc tit Albeit thereafter Iustinian did by the 134. N. cap. 11. remit to the woman the pains of death and ordain her only to be imprisoned in a Monastry By the Law likewise of most Nations adultery is only punishable by pecuniary mulcts Albeit by the Law of God it was punishable by stoning both man and woman to death 20. Deut. 22. Which punishment some think likewise to have been abrogated by our Saviour because when the woman accused for adultery was brought before him he did dismisse her without any punishment but this is very groundless for our Saviour came not to be a Judge in such causes as himself declares and though he had been a Judge yet she wanted an Accuser III. Our Law divides Adultery in that which is notour Adultery and single Adultery Notour Adultery is by the 74. Act Parl. 9 Q. Mary declared to be punishable by death after premonition is made to abstain from the said manifest and notour Crime which premonition had its origin from Auth. si quis C. ad l. 1. de adult by which it was lawful for the Husband to kill him who was thrice premonish'd not to converse with his Wife And in effect the design of that Act was only to punish a horrid abuse which was then ordinar viz. the taking away other mens wives and keeping them openly as their own to the great contempt of Law Yet by the explication of this Act which is given by the 105. Act 7. Parl. I. 6. That is only declared to be notour Adultery where 1. There are Bairns one or moe procreated betwixt the Adulterers 2. When they keep company or bed together notoriously known 3. When they are suspected of Adultery and thereby gives slander to the Kirk whereupon being admonished to satisfie the Kirk they contemptuously refuse and for their refusal they are excommunicat If either of which three degrees be proved before the Justices the committers are punishable by death From which Act it is to be observed 1. That though by the first Act premonition to abstain was still to be made in all cases yet in neither of the two first cases here related it is declared necessary But since it was not lawful to kill him who was premonished and thereafter conversed except they conversed in suspect places Gribald de homicid num 11. It seems that in neither
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
him money or upon every slight occasion which were most inconvenient 2. The Laws do not punish extrajudicial oaths given in depositions of Witnesses sic testes deponens in judicio contrarium ejus quid dixit extrajudicium non punitur de falso Alexander lib. 1. Consil. 74. Covar in repit cap. quantis de puit vid. Monoch de arbitrar Cas. 312. Much lesse should it such extrajudicial promises Yet some think even such contravertions as these should ob despectum numen be punished arbitrary but if this promise be given judicially as in cautione juratoria in removings whereby the party obliedges himself to remove and pay the violent profits or whereby he binds himself to report the Criminal Letters to the Justice-Clerk in these such other cases I think the not implement of the promise unless a reasonable cause can be assigned should infer Perjury both because this is a judicial oath and because in contemplation thereof the Law remits the necessity of finding another Cautioner and the Party concerned has no other security nor what is founded upon this juratory caution IV. 6. It is doubted among the Doctors whether these can be accompted perjured qui non impleverunt vota parentum juramento confirmata who perform and fulfil not their Parents oaths In which cases Grotius distinguishes betwixt those oaths whereby the Father bound himself only to God and in these the Son for not implement is not guilty of Perjury because in effect illud non est onus haereditatis but is personal and so the Son represents not the Father in it but if the vow were made to a particular person then that vow being in unus haereditatis the not implement of the Fathers vow will infer Perjury for quo ad the estate haeres defunctus sunt una cadem persona Matheus distinguishes in this case si juramentum parentis sit in rem conceptum eo casu tenetur sed si non fit in rem conceptum sed in persona tenetur arg l. 7.8 part ff de part It may be likewise doubted upon the same ground whether the oath of any people in publick affairs relating to the State doth tye their children the example of Saul's being punished for not observing the oath whereby the people of Israel were tyed to the 2 Sam. 21. Seems to evince that the contravention of these national oaths given by Parents is punishable upon children in foro divino but whether the Civil punishment can be inflicted for contravention of National Oaths such as the Covenant and Declaration either in the case where the Oath is given either by the predecessor or the giver himself is not decided And I should incline to think that the contravention of these National Oaths cannot infer the Civil punishment of perjury both because the design of perjury is only to punish such as do prejudge the privat interest of these concerning whom they swear and such a contravention cannot be properly called mendacium the Swearer having designed at that time to fulfil what he Swore though he thereafter alter his judgement Nor can dolus be alledged in this case nor that the interest of a third party is thereby prejudged all which are requisite for inferring Perjury V. 7. When witnesses depon with us in any privat case it was of old doubted whether the depositions might be reprobated and themselves punished for Perjury by the depositions of other witnesses and of late these conclusions seem to be regularly allowed 1. That a witness deponing verba initialia falsly such as of what age he is whether he be married or where he dwels eo casu he may be punished for perjury if if he depon falsly for these questions are proponed not only to the end it may be known what age the witnesses are of but likewise to the end it may be known whether the Deponer be a person of such veracity as may be trusted and that by these his veracity may be traced and examined 2. That a witness may be convinced of Perjury by writ But 3. whether a witness may be convinced of Falshood and Perjury by the deposition of other witnesses was contraverted in the case of Balcanquel against Rig a Minister and that he could not it was urged because if this were allowed daretur progressus in infinitum for else if two witnesses deponing that such a thing were done might be convinced of Perjury by other two or moe witnesses these witnesses might again be convict by others and those by other in infinitum for the other part it was alledged that 1. There being nothing to overaw witnesses in Scotland but the fear and hazard of Perjury to free witnesses from this tryal was in effect to render them Libertines and to incourage them to depon falsly 2. It was absurd to think that if two witnesses should depon that which were notourly false as that such a man was killed who thereafter was seen by a whole Judicatory and all the members of Session and Parliament to have been alive that eo casu witnesses should not be found guilty of Perjury 3. Assizers who are in effect Witnesses as well as Judges and may proceed to a Sentence upon their own privat knowledge may be tryed by an Assize of error consisting of twice as many Whereas if the depositions of witnesses could not be reprobated by other witnesses no Assize could be convict by an assize of errour as temere jurantes super assiza To the foresaid argument it is answered that 1. The same did only evince the probation should be more exact in that then in other cases but did not at all conclude that such witnesses could no wise be convinced of Perjury and the ordinary rule given by Lawyers is that twice as many are requisite to reprobat as to prove Which conclusion could not take place if the reprobation of witnesses by witnesses were not sustained 2. This argument would evince if it had any weight that even circa initialia witnesses perjuring themselves could not be pursued for perjury because these might be convinced by other witnesses and these by others sic daretur progressus in infinitum so that either witnesses cannot be convict of Perjury in no case or else they may be in every case where they swear falsly Notwithstanding all which the Justices by Interloquutor found that witnesses could not be pursued for Perjury upon the deposition of other witnesses upon the day of 1677. but yet it remains doubtful whether one witness may not be pursued for Perjury upon the deposition of others though two cannot because the joynt depositions only make a full probation 8. Clarus num 12. § perjurium is of opinion that when any thing is referred to Oath judicially that eo casu the party who swears can never be challenged for Perjury sed Iohan deum habet ultorem which Boerius doth also assert to be the common opinion decis 305. And the reason which moves them
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
full Copy must be given because all dyets here are peremptor and not with continuation of dayes the reason whereof is ut reus veniat instructus ad defendendum whereas before the Session a short Copy is sufficient because the Summonds is given out to see and a time allowed to answer The dyets are here so peremptory that if the defender be cited to a day whereupon the Council sits not if he appear at the day to which he is cited and take Instruments at the Council Chamber he will not be thereafter oblieged to attend nor can he be denounced Fugitive for being absent for seeing it is peremptory against him it is reasonable that it should be peremptory for him Where many parties are cited as defenders upon a Bill to the Council any one or two will be allowed to answer for the rest they finding caution and enacting themselves to be lyable for whatever shall be discerned against those for whom they undertake which priviledge is granted if no personal punishment be concluded against the defenders but if either the complaint conclude or that the crime will in Law infer a corporal punishment then the offering to find caution to answer will not be allowed nam noxa caput sequi debet and no man can bind his body for another nam nemo est dominus suorum membrorum the pursuer may appear by his Procurator but the defender must either be present or send a testificat of his sicknesse upon Soul and Conscience And yet it is the priviledge of any Councellour that he may undertake to answer for any defender that is cited quo casu the defender will not be unlawed or denounced fugitive upon his absence but his defences will be received as if he were present nor can any Bill for receiving a complaint passe against a Councellor but in presentia The Council by the first constitution were only to take cognizance of what concerned the publict Peace and were neither Judges in civil cases nor crimes but in so far as these impinged upon or were violations thereof but now that Judicator doth under the notion of Riots and breaches of the publict Peace hear to many causes Civil and Criminal But seeing the design of this Treatise aimes only to illustrat our criminal Law I shall only-consider the procedor of the Council in so far as they can cognosce upon crimes II. The most ordinar crimes which are punished by the Council are these which we call Riots in our Law A Riot is a breach of the Peace committed by oppression or wronging His Majesties Lieges by force and violence instances whereof are the dispossessing any of His Majesties Subjects by a convocation of the Liedges or otherwise the affronting of Magistrates by raising tumults against them c. For the better understanding of which crime it will be fit to consider that jura maxime oderunt violentias rapinas pluribus modis succurrant vim passis spoliatis for here the publick is wounded in breaking its Peace and privat persons are wronged by the prejudice done Upon which account the Law hath furnisht more remedies against this then any other crime for either it may be pursued civilly per interdictum unde vi so call'd from the first words of the Edict which runs thus unde vi tu illum dejecisti terestituere cogam which interdict restor'd only the possession of immoveables wheras moveables being spoilzied were craved back actione vibonorum Iustinian also introduced that he who rest and violently took what was his own should lose it l. 7. C. unde vi for in this the resumer usurps the power of the Magistrat whose ministry is requisit in inverting the present possession The Canon Law likewise hath introduced beneficium cap. redintae grandae 4. cap. 3. quest 1. and Menoch relates 17. remedies and Philip. Franc. 24. for recovery of possession and seeing the thing possest is still presumed to belong to the possessor and that hardly the right of moveables can be otherwise proved then by possession the Law did most reasonably both for securing Property and punishing Violence establish that great rule that Spoliatus est ante omnia restituendus and conform thereto the Council who are never Judges to Property but only to Possession so that in effect all their sentences are interdicts do still restore the possession to the person ejected and likewise punish arbitrarly the violence committed for we have no expresse Statute taxing the punishment By the Law of England it is accounted no Riot or routs except three at least were present and that something was done ad terrorem populi for breaking of the Peace Bolton cap. 31. III. The two ordinar defences which are propon'd against riotous ejections are that by a Writ it was lawful and agreed upon betwixt parties that the defender might have ejected the pursuer if he removed not at the day appointed which will defend against a Riot and yet Craig relates a case P. 198. where one who had granted a Tack only for a Year having ejected the Tacks-man after expiring of that Year was pursued actione unde vio in an action of ejection and was forced to transact albeit he contended that the word only was exclusive of any future possession but where by expresse paction it is declared lawful for him who enters to enter brevi manu without processe or hazard of ejection it would appear that this paction is unlawful seeing no man can warrand violence and this seems as unlawful as if one should oblidge himself never to pursue for any injury to be done him which paction the Law declares expresly unlawful nemo potest renunciare juri publico and this were to allow privat persons the power of Jurisdiction Nor can it be thought but this paction was extorted and albeit the party injured were excluded by this paction yet His Majesties Advocat may certainly pursue vindictam publicam if opposition was made and violence used Notwithstanding of which I remember that the Earl of Argile having obtained a Decreet of removing against George Campbel and it being suspended till the next Term The Lords ordained it to be insert in the Bill that the Earl might eject him brevi manu the next day after the Term by his own authority but the Earl was Sheriff here himself and so his Jurisdiction was only prorogat and the Law is expresse that privatus potest ex consensu prorogare jurisdictionem ejus qui aliqualem habet sed non potest privatus consensus tribuere jurisdictionem ei qui nullam habet vid. Hanc quaestionem apud Bart. ad l. creditores C. de pign hipoth But here also the Lords warrand to eject was a delegating of their own Jurisdiction I conceive also that where there is no violence nor opposition made the voluntar consent may allow the ejection especially in a Master towards his own Tennent who hath a natural Jurisdiction in that case and that his ejection is also
for above an hundreth Pounds shall be sustain'd except it be otherwise warranted then by the consent of the Clerk Albeit by the 75. Act Parl. 6. K. Ia. 5. the Barrons Precepts for Summonds in that Court is so called should be execute as Summonds before the Lords and Coppies should be left and they indorsed upon yet the 11. of Iuly 1634. Hay against Airth it was found that executions by a Barrons Officer are valid though not given in Writ and that the same are probable by Witnesses III. A Barron having power may judge of Theft if the Thief be taken in the fang quon attach cap. 100. where it is Statuted that baro qui libertatem habet de sock sack toll theam possunt judicare furem sasitum de aliquo furto manifesto sicut haud haebband back beirand de praxi Barrons do not punish Slaughter yet it may be urg'd that they have power to do so because 1. The power of Pit and Gallows would import the power of judging life and death 2. By the 77. cap. quon attach omnes Barrones qui habent furcam Fossam de latrocinio de hominis occissione habeant furcam id est curiam as the marginal note bears and by the 13. cap. Leg. Mal. 2. It is Statute that Malefactors who hold of Barrons may be condemned after the same manner that other Malefactors are except in the four Pleys of the Crown in which Barrons have no power from which it may be very clearly inferred that quo ad other crimes they have nam exceptio firmat regulam in non exceptis 3. By the 91. Act Parl. 1. I. 2. It is Statute if a man be slain in the Barrony if the Barron be Infest with such freedom he may proceed as the Sheriff doth And albeit Hope in his larger Practiques observes that these words of the Act if he be Infest with such freedom may receive various interpretations yet I see no interpretation they can properly receive except this that these words are meant if he have the Jurisdiction proper and competent to a Barron which is Pit and Gallows nam verba generabia interpretanda sunt secundum subjectam materiam Albeit wilful Fire-raising be one of the Pleys of the Crown yet a Barron may cognosce upon and punish the raisers of Fire rashly within Husband Towns in the Barrony I. 1. Parl. 4. cap. 75. The words of which Statutes are if Fire happen within Husband Towns of Barronies we leave them to be punished by their Lords in like manner as Bailiffs in Towns do within Burgh in which Act by the word Lords are meant Barrons for they are in several Acts of Parliament called Lords of their own Land or Barrony A Barron may unlaw for absence for ten Pounds but not above and for blood he may unlaw for fifty Pounds but not above VITLE XIV Of Justices of Peace OUr Justices of peace were called Irenarchae which signifies in the Greek the keeper of the peace irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam dicebantur etiam latrunculatores sen latronum expulsores Their Office was to apprehend Rebels and Thieves whom they could only examine and send to the President of the Province but could not judge them themselves their office is more fully described lib. 10. C. tit 75. but to speak properly latrunculatores were our Constables called by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justices of peace and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desuetude it was revived by 38. Act 1. Parl. 1. Sess. K. Ch. the 2. By this Act they are allowed to meet four times in the year and to adjudge of Servants fees and of mending the high wayes they have power to punish the cutters and destroyers of planting green wood slayers of red and black Fishes makers of moor-burn keepers of Crooves wilful Beggars Egyptians and their receptors Drunkards prophaners of the Sabbath as to all which His Majesty promises to give them ample commissions and to the end their power may not prejudge any other Court formerly erected it is appointed by that Act that fifteen dayes shall expire after the committing of the fact for which the committer is to be conveened Which interval is given to the Judge competent to do diligence and if he omit the same during that time then the Justices may judge the same and one Justice has power to bind the party complained upon to the peace under such pecunial Sums as he shall think fit and that either at the instance of a complainer who shall give his oath that he dreads harm or the Justice himself may exact the sum though none complain And if any person being charged to make his appearance before the Justice of peace shall refuse it he be a landed man whose rent exceeds a thousand Merks or ten Chalders of Victual then he shall inform any of his Majesties Privy Council or if he be a meaner person he may cause bring him by force before himself If the Sheriff or Bailiff condemn any person in blood-weit or any other pain but not proportionally to the offence then the Justices shall inform the Privy Council that they may take order therewith but if there be no satisfaction made by the Sheriff or Bailiff to the party the Justices may modify a reasonable satisfaction If the Sheriff or Bailiff do by collusion clear the Delinquent of an Assize the party once cleared is not to be further questioned but the Judges are to be punished by the Privy Council The Justices of peace are declared Judges competent to all Ryots and breaking of peace if the committeeâ—s be under the degree of Noblemen Prelats Councellours and Senators of the Colledge of Justice who may refer the Summonds to the parties oath if he be personally Summoned and thereupon hold him as confest but if the Summonds be not personally execute then the defender is to be summoned of new at his dwelling house and these two citations at his dwelling house shall be equivalent to one that is personal if the committers be above the foresaid quality then the Justices though they cannot judge them may for preventing of Ryots command them to find caution for keeping of the peace and to compear before the Privy Council and though they compear not yet whatever breach they commit in the interim shall be repute as great a contravention as if they had found caution At the end of every quarter Session the Justices of peace are to send to the Clerk of the Council a Catalogue of all such persons as they either have committed or have under surety with a short abreviat of the cause thereof which is that which the Civil Law in the former Title cals transmittere cum elogio to the end that the Council may determin betwixt and the quarter Session what shall be done with them
albeit those courses and Repledgiations be equivalent to Advocations III. Advocations may be rais'd from inferiour criminal Judges by the Lords of Session as in the case of Theft-boot before the Sheriff of Inverness and Advocat by the Lords because of the intricacy of the case albeit it was alledged there that the Lords were not Judges competent in such Advocations because they could not be Judges to the crimes pursued To which it was answered that though they could not be judges themselves yet they might remit the pursuit to these who were competent even as Brieves raised for serving a person Air may be Advocat to the Lords who may remit the case to another Inquest But Durhie observes the 9. of Ianuary 1629. that Kincaid of Waristoun craving that the Process against him for slaughter might be Advocat by the Lords to the Justices because of the ignorance of the Barron Bailie or else that they would grant Assessors the Lords continued the Diet till application should be made to the Council but if the Council would not interpose then they should do justice therein by remitting the same to the Justices or otherwise But Advocations in criminal cases are ordinarly raised by the Privy Council who have the most natural power in such cases Advocations are raised upon Bills and the Letters pass the Signet of the Session if the Bills be past by the Lords of Session or of the Council if the Bill be past by the Lords of Council This Advocation must be execute by a Messenger and a full Copy must be given of the Letters as in other Summonds for in effect an Advocation is a Summonds and the Diets in Advocations are peremptor as in all other criminal pursuits Neither is the Advocation given up to see as in other criminal pursuits at the day of compearance and therefore a full Coppy should be given to the end the defender may be ready to answer The pursuer of the Action must be cited and the Judge from whom the Action is to be Advocat must be also cited to the effect he may defend his own jurisdiction and if both these be not cited the Advocation will not be sustain'd When the day of compearance comes if the Advocation be raised before the Session it is called before the Session and if the reasons of Advocation be found relevant the cause is remitted to the Justices but if that Advocation be raised before the Council it is called before the Justices and they are Judges to the relevancy of the reasons and both pursuer and defender must prove all that they alledge instantly The Advocation of a criminal pursuit doth contain the reasons upon which it is founded as in civil Advocations but though in civilibus the raiser of the Advocation will be allowed to add a reason though it be not libelled which is called an eiked reason yet that is not allowed in criminalibus because all must be proved instanter and the defender is not able to prove his answer instantly if he know not what is the reason which he must answer whereas in civilibus he will get a term to prove his answer to the eiked reason IV. The ordinary reasons of Advocation are 1. Consanguinity or Affinâ—ty within degrees defendant viz. cousins german or nearer for whatever is a sufficient reason to cast a Witnesse should in my opinion much more be sufficient to decline a Judge since there may be penury of Witnesses so that the Witness challenged may be necessary whereas if a Judge be suspect he may be supplied by another Deput or a superiour Judge and a Judge may by himself ruine a Cause which one Witnesse cannot do and though we have no expâ—esse Law for this yet the Lords encline ordinarly to sustain this and particularly in the Moneth of Decem. 1676. Ross contra Collodine where a Decreet was turned in a Libel because pronounced by a Nephew albeit it was there alledged that by the 212. Act 14. Parl. I. 6. a Brother Father and Son were only to be declined as Juâ—ges for that Statute relates only to the Lords of Session who because of their great Eminency and Trust are not to be as easily suspected as inferiour Judges It may be doubted whether the Justices or any of them may be declined as within degrees defendant for though they must now be Senators of the Colledge of justice yet they sit not there as such nor are the Justice-general or Justice-clerk alwayes of that number but yet I think that since the Justice Court is a supream Judicatory in its own kind and that this respect that is put upon them is because of their Eminency and presum'd integrity that therefore they being the same persons ought to have the same priviledges and the Justice-general and Justice-clerks being superior in order to the Lords of Session who are Justiciars ought at least to have as great trust but though the Admiral be a supream Judge also yet it may be doubted if this Statute should be extended to him because men of meaner parts may officiat there It may be also doubted whether this declinator against fathers brothers and sons should extend to the degrees of affinity as well as those of consanguinity so that a father or brother in Law may be declined and though the Lords lately would not decline one of their number though brother in Law to the pursuer yet it may be argued that albeit Acts of Parliament must be strictly interpreted yet where there is a parity of reason and the words may in propriety admit of the extension there the extention is to be allowed but so it is that here a brother in Law is to be suspected and a brother in Law is in propriety of speech a brother Likeas since witnesses may be cast upon the suspition of affinity why may not Judges especially seing in the Statute 1621. against dispositions made by Bankrupts and in the opinion of Lawyers degrees of affinity and consanguinity are still equiparat and so wise are we in this point that a pursuite at the instance of a Procurator-fiskal was Advocat upon this Statute because the Procurator-fiskal was brother to the Judge though he was only pursuing ratione officii and had no interest himself and expresly renounced all interest in the pursuite 28. Ianuary 1629. Whether this statute is to be extended to unlawful relations so that a Bastards brother c. may be declined vide my observations upon the Statute 1621. Another reason of Advocation like to this is that one of the members of the Court is pursuer as for instance the pursuite is at the instance of one of two Sheriff deputs before his own colleague habet quippe Societas jus quoddam fraternitatis in se l. verum ff praesocio vid. c. insinuante de offic deleg cap. Postr de appel and that none should judge where the colleagues pursue but that the pursuit should be carryed away to another Judicature is appointed by a
Statute in France anno 1560. but we have no such Statute and one colleague with us may be witnesse for another and why not then Judge A third reason of Advocation is that the Judge is suspect as if he had given partial counsel or if he has repelled a just defence or as being severe above what the Law allows 4. That he is incompetent the case pursued being only proper to be tryed by the Justices as being one of the four Pleys of the Crown viz. Treason Murder Fire-raising and Ravishing of Women but sometimes though the first Libel have inferred Treason as in the case of Peddies Ianuary 1667. yet if the pursuer will restrict his action to damnage and interest but will desert the dyet as to the criminal pursuit it may be sustain'd 5. That the case is very intricat as in a pursuit of Theft-boot which was Advocat from the Sheriff-deput of Invernesse eo ex capite Members of the Colledge of Justice also pretend that they cannot be pursued before any other Court because this would draw them from attending the Session but the Act 39. Pa. 6. Q. M. whereon this is founded seems only to hold in Removings so that no Action concerning Removings should be Advocat but in these cases viz. deadly fead where the Judge ordinary is party or the defender a member of the Session and yet de praxi that part of the Statute is extended to all Advocations But they cannot Advocat from the Justice Court If the cause be Advocated the pursuer of the first Libel which is Advocated must find caution de novo to insist in the pursuit else the Justices will desert the dyet which caution is necessary because the Judicature before which the caution was found is altered and neither the pursuer nor his cautioner are bound to insist before any other court The defender likewise of the first cause and who raised the Advocation is obliedged to renew his caution that he will underly the Law else the Justices will imprison him The taiser of the Advocation must intimat to the pursuer of the principal cause that he has raised an Advocation to the end that the said pursuer may be ready to insist at the day to which the advocation is raised and when the Procurator-fiskal is the pursuer before the Court from which the cause is Advocated the raiser of the Advocation should intimat to His Majesties Advocat to the end he may be ready to insist for His Majesties Advocat is in the Justice-Court what the Procurator fiskal is in inferiour Courts The office of both being to pursue vindictam publicam V. The old custome was as some alledge that the Lords of Session judged all the Advocations which were raised in Criminal causes from inferiour Judges even to the Justice Court and very judicious Lawyers do yet hold that the Justices cannot judge whether they be competent Judges in causes Advocated from inferiour Criminal Courts but that the Lords of Session should cognosce whether the cause should be Advocat and if they sustain the reason of Advocation that they should remit the cause to be tryed by the Justices or remit the tryal to the Court from which it was Advocated if the reason of Advocation be not relevant for they think it unreasonable that the Justices should be Judges of their own competency but since the Justices are supream and soverain Judges as well as the Lords of Session and since the Justices are now many and are Lords of the Session also it seems reasonable that they should be Judges to their own competency especially since these reasons of Advocation do very frequently did upon Subtilties of the Criminal Law and cannot be well judged but by such as understand that Law exactly as for instance I have seen an Advocation raised of a Libel in the case of Treason from before a Lord of Regalities Court upon this reason viz. that the ground of the accusation was for drowning a Coal-heugh which was Treason in our Law to the which crime of Treason none but the Justices were Judges competent In which Advocation these points were necessarily debated 1. Whether Lords of Regality were Judges to Treason 2. Whether though they were Judges competent to Treason founded upon the common Law yet if they were Judges to Statutory Treason 3. Whether though burning a Coal-heugh was Treason by Statute yet if drowning of it fell under that Statute all which poâ—nts were indagationis criminalis and these who could judge such points might judge any criminal case Likeas both by the old and new stile of Advocations raised either by the Council or Criminal Court the Letters bear that the reasons are to be seen and considered by the Justices and immediatly upon the Advocation caution is found in the books of adjournal and to answer before the Justices and the Justices have been in constant possession of judging such reasons And whereas it may be alledged that though the Lords of Session are not Judges to crimes yet the case of competency in the matter of Jurisdiction is meerly Civil and so it would seem proper to be judged by the Lords especially since it is nor just that the Justices should be Judges in their own cause To which it may be answered that though this case be civil yet it has so necessary a contingency with what is criminal as I have observed that they ought not to be divided since the Lords of Session are judges competent to Advocations wherein their own â—urisdiction is controverted why should this be denyed to the Justices who are a part of themselves and such supream Judges are above suspition especially since they can gain nothing by their Jurisdiction TITLE XVIII Of Inquisition 1. The nature of Inquisition and when it is competent 2. The King and Party may pursue separatly 3. Citations super inquirendis when competent I. WHen a crime is committed the Council or the Justices did of old take a previous Inquisition of it by examining Witnesses and taking such other information as they thought fit And these depositions and exâ—minations are called informationes by the Doctors but though they may examine Witnesses before the intenting of a criminal pursuit yet after it is once intented the Justices found the 8. of Ianuary 1672. that they could not examine Witnesses for the Inquisition ends by the intenting of the pursuit ubi incipit accusatio desinit inquisitio The Doctors are very profuse on this subject but I shall only excerpt from them what is most suitable to our forms and practice they define Inquisition to be an information of the crime taken by the Judges own authority ex officio and they divide it in a general Inquisition which is taken of the crime in general without taking notice of any particular informer or defender And a special Inquisition which is taken against a particular person of whose guilt they are informed By the Civil Law no Judge could proceed against any privat
thus forasmeikle as by such particular Acts of Parliament c. Murder c. is prohibit and the pain declared to c. yet you A. B. did upon the 27. day at least moneth c. And it is writ only by the Justice Clerk without a bill and passes not the Signet nor needs it be executed with the solemnities requisite in Libelled Summonds by Messengers in ordinary crimes and Heraulds in Treason but may be given by the Clerks servant as was found in a pursuit of Treason pursued by way of indictment against Mackulloch Gordoun and others 5. Decemb. 1666. it needs not likewise these inducias deliberatorias allowed to such as are at liberty and are pursued by a Libelled Summonds but a day or two is sufficient and sometimes they may be pursued without any time to be allowed for this procedure is in effect the same with that inquisition specially treated of by the Civilians There is likewise this difference betwixt an inditement and an accusation that an inditement properly is a Libel raised at the Kings instance and not at the instance of any privat person for in accusations or Libels raised at the instance of privat persons as pursuers there must be a formal libelled Summonds under the Signet so cap. 1. R. M. lib. 1. num 7. 8. it is said that Theft and Murder by inditement belongs to the justice because there the King or his Advocat pursues but where a certain accuser appears a pursuite upon these Crimes may be intented before the Sheriff and Skeen upon that Chapter and likewise upon the 2. cap. num 2. David Stat. 2. does observe that all Criminal accusations are either by an inditement or by a certain accuser and from this difference ariseth that other difference that crimen per indictamentum is only pursuable before the Justices which is clear both by the forecited places and the whole tract of the books of R. M. But this last difference is now absolet for of late before the Sheriff or at inferiour Courts malefactors may be pursued either by a libelled Summonds at the instance of any particular accuser or at the instance of the Procurator fiskal by way of indictment which practique is most reasonable for it were against the interest of the Common-wealth that Sheriffs and inferiour Judges whose great duty and chief imployment it is to advert to crimes should not have liberty to pursue without the concurse of an accuser It is indeed the interest of the Common-wealth ne crimina maneant impunita And therefore in Crimes which immediatly concern the welfare of the State such as Treason Sedition c. every man may be an accuser but it is likewise the advantage of every privat person that it shall not be lawful to every malicious enemy upon the pretence of a publick good to trouble and vex such against whom they carry malice upon a pretence of a criminal pursuit and therefore according to the the common Law in privatis delictis non admittebatur ad accusâ—ndum nisi qui suam aut suorum injuriam insequebatur and Farinac states suorum injuriam to extend ad quartum gradum and it seems to be extended with us within degrees defendant and that every person may not in our Law pursue any privat crime appears from the former Chapter III. A minor may not by the Civil Law accuse without the consent of his Tutors and Curators And where it is said l. 4. R. M. c. 2. that a Major being of lawful age he may accuse it insinuats that Minors regularly cannot accuse And suitable to this the Justices refused to grant processe at the instance of William Umphray against Iohn Meldrum because the said William was Minor and had no legal concurse 29. of Iuly 1597. which is founded upon most convincing reason for Minors may by ill governed youth and imprudence either pursuing injustly such as are most innocent or else by managing unwisely the Criminal pursuite if it were competent to them they might prejudge both themselves and the Common-wealth in suffering the defender to be cleansed by a verdict After which Absolvitour the defender could not be again brought to a tryal nor would the Minor be restored against the sentence and yet a Minor may crave at the Barr that the Justices would allow him Curatoâ—s ad lites which desire the Justices will grant 24. Iuly 1600. Spence contrae Bannatine IV. A woman according to the Civil Law could not accuse in no case except where she was revenging the injury done to her self husband or relations and in the former Chapter it is said that a woman can accuse none of fellony except in some particular cases which appears to be by the 5. chap. num 8. the Murder of her own husband quia una caro fuerunt vir uxir and N. 9. it is generally ordained that a woman may be allowed to pursue any injury done to her own body From which we may generally conclude that she may pursue suam sed non suorum injuriam wrongs done to her self but not wrongs done to her relations V. Whether a person at the horn or excommunicat may pursue appears to be debateable for the one opinion it may be alledged that it is for the advantage of the Common-wealth that crimes remain not unpunished 2. Civil Rebellion or excommunication non tollunt jura naturae amongst the chief whereof Lawyers esteem the liberty of pursuing the wrongs done to relations and much more the wrongs done to ones self in his person or good name 3. Such as are Rebels for Civil pursuites non possunt impunae offendi and therefore it appears most reasonable that they should not be debarred from pursuing wrongs done them for if a person at the Horn could not pursue the wrongs done him then any person might injure him at pleasure seing the fear of pursuit and the punishment depending thereupon is that which ordinarly overaws the pursuer but on the other hand it may be alledged that 1. By the 11. cap. Stat. Will. These who contemn the Statutes of the Church shall not be admitted to accuse 2. It is a Rule in Law that frustra legem implorat qui coptra legem peccat 3. A person at the horn is by the English Law alwayes and oftentimes in our Law said to be outlawed and to be outlawed imports the losing all the priviledges of Law and in our Law they are said non habere personam standi in judicio Nor puts our Law any distinction betwixt Civil and Criminal causes for reconciling which difficulty it may be alledged that there is a distinction betwixt the being outlawed for a Criminal or Civil cause and that these who are denounced Fugitives upon any Criminal accompt cannot be pursued till they be relaxt which is incontravertedly true in our Law seing if a person be denounced for not finding caution for his appearance to underly the Law he will not be admitted to propon any defence till he be relaxt
lesse should he for the same reason be allowed to examine the witnesses since that is not allowed to the Advocats for the defenders Advocats with us in Criminals are called Proloquutors 3. No person should â—lead or consult in reduction of forefaulter without leave granted by the King Act 135. Ia. 6. Parl. 8. But in other pursuits of Treason no Advocat is obliedged to crave a license and even the foresaid act is abrogated Act 38. Parl. 11. Ia. 6. Which grants only liberty to plead in all Treasons pursued before the Parliament but by the 90. Act. Parl. 11. Ia. 6. Advocats are allowed before all Courts to plead without license and power is granted to Judges to compel them to plead in such cases and the former restriction has been founded upon C. falicis de paenit in 6. where to plead for Traitors is discharged nisi concedatur licentia When Advocats-assist Pannels especially in Treason they use to protest that no escape of theirs in pleading may be misconstructed since what they say is rather ratione officii then ex proprio motu as we see in Balmerinochs case and it were hard to be severe in such cases to Advocats since they are accustomed to much freedom and are oftentimes transported by the heat of opposition and zeal to there Client nor would men have any to engage in their defence against such pursuits if this liberty were not allowed and it is against reason not to allow it where they are forced to plead as they ordinarily are in cases of Treason and yet if any Advocat will defend his own escapes against authority he may be punished by deprivation but his punishment extends no further even where he speaks Treason as was found in the Senat of Savoy Cod. fabr tit de paenis defin 19. By the Civil Law Procurators were admitted for the defender where the pain to be inflicted was not corporal for the reason why personal presence was requisite viz. that the defender might undergo what was inflicted did here cease and yet with us the defender must still be present even where the pain to be inflicted is pecuniary such as in cutting of green wood stealing of Bees c. because the certification of the Letters with us is still to compear to underly the Law under the pain of Rebellion and hath not those words adjoyned or to show a reasonable cause which being added in Summonds for Civil causes is a sufficient warrand for the constituting a Procurator Noblemen likewise might by the Civil Law and the opinion of the Doctors compear by their Procurators but this is not allowed with us Procurators might likewise by that Law be admitted to propon the incompetency of the Judge even in the case where there is a Statute appointing the defender to compear personally which should much more be allowed with us where there is no such Statute but where this necessity is imposed by the will of the letters Boss. tit an incrimin num 13.14 Faâ—in de var. quest 99. num 168. and yet I have seen those who killed Armstrong the customer outlawed Iuly 1668. Albeit it was alledged they dwelt within the regality of Annandale and so they should be repledged which was repelled because they were not present yet the reason might be because the Justices were Judges competent eo casu and the replegiation was a priviledge with which the Lord of Regality might have dispensed and so was competent only to him and to the defender who should have compeared in omnem eventum Procurators are also allowed to propone excuses for absents c. sine mandato si excusationes illa sunt facti necessariae as is sickness imprisonment c. Sed ad allegandum causas probabiles necessarias absentiae such as the want of a safe conduct requiritur mandatum quia absens iis renunciare potest non constat de ipsius voluntate nisi per mandatum which distinction I think unnecessar because it is alwayes presumed that the defender would willingly have himself defended and with us a Mandat is not necessar if an Advocat be imployed for his Gown is his warrand and where an Advocat is imployed I think the Cautioner may be admitted albeit he have no warrand quia qui satisdat dicitur habere mandatum de jure farin ibid. part 2. num 283. and the Cautioner defends himself eo casu seeing if the reason of absence or Essoinzie as we call it be found relevant he will not be unlawed and where a Mandat is necessar with us which is where an Advocat is not imployed it may be doubted if the Mandat be sufficient if subscribed only by one Nottar where the party cannot write which though it be ordinarly sustain'd yet it would appear that eo casu it should be subscribed by two for the Act of Parliament requires two Nottars and four Witnesses in all cases of great importance yet seing quaelibet levis probatio absentiae sufficit it would appear that quodlibet mandatum hic sufficiat IV. Albeit where the pursuer is a privat person he is oblidged to swear the Libel yet where the Kings Advocat pursues he is not oblidged to swear the verity of the Dittay because he pursues only ratione officii but I find in the same Decisions that the Advocat is not oblidged to depone whether the party hath given partial counsel the 10. of August 1598. Advocatus contra the Laird of Dalgety nor yet to declare who is his informer the 20. of April 1599. Advocatus contra Iohn Connel and others but this seems unreasonable seing the defender should not be prejudged by the intenting of a pursuit at the Advocats instance and jure naturali the pursuer or informer which is all one should not be a Witnesse nor can it be known who is pursuer without the Advocat declare it is also a great encouragement to unjust pursuits that any person may inform at random without being known and the informer is liable in damnage and interest if he inform without any ground even though the pursuit be only raised in the name of His Majesties Advocat Act 78. Parl. 6. Ia. 6. but if the Advocat may conceal lawfully the informers name then the defender is precluded from all these just advantages This priviledge of the Advocats not swearing the Libel seems to be founded upon the opinion of the Doctors who contend that Procurator ex officio non tenetur prestare juramentum calumniae Gail obs lib. 1. obser 88. TITLE XXI Of Libels and the forms of Proces thereto relating 1. A Libel is a Sylogism 2. It ought to condescend upon time and place 3. Whether the qualities Libelled may be passed from 4. The stile of a criminal Summonds and Inditement 5. How a criminal Summonds ought to be execute 6. Whether a person who is banished may safely appear before the day in the citation 7. How criminal Actions are to be called and the forms thereto relating I. A Libel
this cause it is that even our Law appoints all the dispute upon the relevancy to be in presence of the Assize 2. The Assize is oft stumbled at what is referred to them and do very often mistake what is found relevant and what not 3. Assizers with us are oftentimes ignorant persons at least seldom or never are they so judicious as to understand such intricat matters as Advocats represent to them especially in Circuite Courts where few have seen Assizes before and they are oftentims but mean persons or persons who have interest 4. By our Law the Libel is relevant if Art and Part be Libelled without condescending that they are Art and Part in swae far as c. and the Assizers are only Judges to what is Art and Part so that in effect they are Judges to the relevancy of almost all cases and are put to decide what has troubled the ablest Doctors and Authors and so often times they return unformal verdicts 5. Assizers are troubled in their commerce and abstracted from their affaires unnecessarily being obliedged frequently upon continuation of dyets to wait whole years and are oftimes absent whereby dyets are deserted and they oftimes syned 6. By this means Assizes of Error would be supprest with which Assizers are still threatned by the pursuer before they be inclosed and it seems Barbarous that persons who absolve should be punished whereas there is no punishment for concondemning which inconveniency would also be taken off by this overture 7. Assizers may in our Law judge according to their privat knowledge without Lawful probation which seems dangerous in Criminal cases 8. Though of old when Judges and Assizers were equally ignorant Assizers were appointed yet now when Law is formed to a Science and that judges are presumed to be learned and Assizers not it seems reasonable they should be supprest as well in Criminal cases as they are already in Civil and since we have receeded from the present custom of England and our own old customs by not allowing Assizes in Civil cases why not rather in Criminal cases these being both of more intricacy and weight especially seing in England the probation is before neighbours in the Countrey who know best the matter of fact but with us Assizers are seldom or never choosed from the place where the crime was committed but are Burgesses of Edimburgh who are as great strangers to what past as the Judges themselves and if Assizers were to be brought from the Countrey it would be very expensive 9 The most learned and polisht Kingdoms and Common wealths who have formed their Laws in calm and learned ages make there Judges discusse both relevancy and probation and it is thought that either assisers have been introduced by us when we and England were both barbarous or else the Justices have invented this Act at first to relieve themselves of a burden V. The Assize is either an ordinary or great Assize the great Assize is that whereby an ordinar is tryed if they do wrong and I find some foundations for thir terms par la custum d. langumois Act 4. de la Rochal art 1. la grand assise est du seneshal la petit du juge prevostal An ordinary Assize uses to consist of fifteen persons but they may consist of more or fewer if the number be unequal and thus the penult of Iune 1614. Ronald was tried and convict for dismembering Donaldson by an Assize of thirteen persons The reason why the Assize must be unequal in number is least by equality of Vots affairs be not terminat and brought to a speedy issue for which cause likewise lib. 2. Reg. Maj. cap. 5. and by the 87. Act 6. Parl. K. Ia. 1. it is appointed that arbiters should be appointed in an unequal number and yet I find that in the civil brief of right an Assise should consist of twelve sworn men Albeit according to the Law of England the Assizers must all agree in one voice yet with us the major part may condemn or absolve but if six of fifteen be only positive and eight non liquets it may be doubted if this verdict should condemn for else if one did condemn and fourteen were not clear that one would condemn which were most absurd and in Iuly 1675. a verdict in a Perambulation betwixt Walstoun and Sr. Iohn Cheesly being quarrelled in an Advocation as unjust because the greater number were non liquets the Lords did Advocat the cause to themselves which implyed that they did not sustain the verdict as valid VI. The Assizers are ordinarly called by sives and the Oath administrat to them is That you shall all the truth tell and nae truth conceal in so far as you are to passe upon this present Assise swa help you God Which I find likewise to have been the form of old Reg. Maj. lib. 1. vers 12. And albeit by the 138. Act 13. Parl. Ia. 1. it is ordained that all Judges shall cause Assisers swear when they take their Oath that they have not taken any Buds from the Party yet they do never tender to them this Oath except either the Judge or Party be jealous of the Assisers Assisers are party Judges partly Witnesses as has been said before they are Judges in so far as they consider the Probation led by others and judge whether proved or not proved They are Witnesses in so far as they may condemn upon proper knowledge without any other Probation And therefore whatever exceptions may be propon'd either against Judge or Witnesse are admitted against Assisers and thus an Assiser was set for that is the term of declining used in this case because he was not twenty five Years of age which is the age required in a Judge Act 132. Parl. 12. Ia. 6. vid. 7. Iune 1616. But because the exceptions against Assisers are ordinarly coincident with these that are against Witnesses therefore we shall remit them to the Title of Witnesses Only it is fit to take notice that the Cherurgians of Edinburgh are exeemed by Q. Mary from being cited upon Assises because of the peremptoriness of the employment which was sustained by the Justices Iuly 1671. both as to Assises within the Town and without the Town though our learned Craig being a Justice-Deput had formerly sustained it as to Assises without the Town only VII It was a principle in the feudal Law that all men should be judged per pares curiae the meaning whereof was that a Vassal should be judged per convassallo because it was presumed that these understood best the person to be tryed and the knowledge of the Pannels former life and conversation is a great help towards a sound judgement of the case and from this feudal custom rises our maxime that every man should be judged by his Peers quon attach cap. 67. The words are It is Statute that no man shall be judged by a lower person then his Peer an Erle by an Erle a Barron by a Barron
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