expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
is most reasonâ—ble for this is in effect greater then ordinary Theft because these things have none to guard them And in our Law likewise he who finds a waise Beast which hath strayed from the owner should cause cry it either in the Court of his Over-Lord or in the Church or else he may be pursued for Theft and Theft is likewise punishable albeit the person be not known from whom the thing was stolen Alex. Concilio 23. And yet furtum non fit nisi sit cui fiat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 43. § 5. basil h. t. V. Theft was divided by the Civil Law in manifestum non manifestum Manifest Theft was when the Thief himself was deprehended in the very act or if he was seen with it before he did arive at the place to which he did destinat to carry it Theft not manifest was when either the Thief was not taken or seen with it and this distinction hath in my opinion given occasion to the difference in our Law betwixt in-fang-Thief and out-fang-Thief which concerns only the Jurisdiction where the Thief is punished but not the punishment it self as shall be said hereafter but there are several other vestiges of it in our Law as cap. 21. l. 4. Reg. Maj. It is said that he who is taken with nothing in his hand may purge himself by 27 men and three Thanes and a Burgess being accused of manifest Theft may purge himself by the Oath of twelve the meaning whereof is that he shall give his own Oath he is innocent and shall get so many men to swear that they believe his innocence and this manifest Theft is called Theft with red hand Stat. Orcar by a Metaphor borrowed from Murder But with us Theft may be divided into common Theft which is Theft so properly called or Stouth-rife which is violent Theft and is a complex of Theft and Robbery And receipt of Theft which distinction is hinted at in all our Laws but most specially 50. Act. P. 11. Ia. 6. VI. As to the punishment of Theft it is much contraverted amongst Lawyers if the Law-givers can justly punâ—sh Theft with death and though I will not dispute the power of Princes and States yet I incline to think that for simple Theft a Thief should not dye For fâ—rst we find by the Law of God to which as the Scripture sayes nothing should be added or paired Theft is not punishable by death nor can this Law be called only a judicial Law fitted for the Common-wealth of the Jews for that it is a Moral Law according to its statutory part forbidding Theft appears from its being insert amongst the commands and why it should not be so as to its Sanction and punishment like Murder Incest and these other crimes I cannot see a reason 2. We see that some Thefts are capitally punished as are the stealing things Sacred Iosh. 7. And Theft committed in the night Exod. 22 2. and stealers of men Deut. 21.7 by which it appears that God Almighty intended not that single Theft should be punished by death 3. There is no proportion betwixt the life of a man and any mony for all that a man hath will he give for his life 4. The life of the Malefactor is ordinarily taken where the Crime cannot be repaired as in Murder Incest c. But in Theft it may and the parties wronged would in all probability be far easier secured this way seing many will rather want their goods nor have a mans life taken Many Thieves would restore if they thought restoration might be made with safty of their life and the Law would easilier sustain the pusuers probation if the event were only to reach goods and not life 5. It seems absurd that single Adultery which is the worst of Thefts seeing the Husband thereby is robbed of his Estate quiet good name and Succession should not be punishable by death and yet Theft should be made capital and that Theft and Murder which are not equal crimes should have equal punishments And albeit it be objected that Laban Gen. 24.9 did vow that these who had stollen his goods should be punished by death Yet the reason in that case will appear to be because that the Theft there mentioned was Sacriledge And whereas Davids Oath to Nathan is that he who had stolne his Neighbours Lamb should die is objected It is answered either that was spoken in passion which the Text bears or otherwayes that was suggested by a special providence to David to the end he might be his own accuser Nor do I deny but there was a kind of Communion of goods amongst the Jews more then in other Nations as appears by their Jublee by their not taking Pledges nor anual rent so that there was less reason to make Theft capital amongst them then amongst us and that according as crimes grow more frequent the punishment may be augmented but I deny that they should be soaugmented that suitable proportion should not be keeped And it is known from experience that many men fear hanging lesse then being constantly keeped in Correction-houses or in the places where they may be kept working as they do in Holland for the good of the Common-wealth VII To descend then to our Law the custom is that the justices do sometimes hang even for very small faults as Thomas Neilson for stealing a horse 10 December 1661. Watson hanged for stealing 40. Sheeps though there was no probation against him but his own confession and though he had restored â—he things stoln Sometimes by banishment as Richard Lauder 6. Febr. 1639. and Alexander Cumming and Iohn Tailer 25. Febr. 1639. Sometimes they are Drowned as Grissel Mathow for stealing a Coffer with Writs 23. Iune 1599. Sometimes Scourged as Iames Wilson 7. Feb. 1608. Sometimes they are hanged in Chains if they be notorious Thieves As Patrick Roy Macgrigor May. 1668. c. It is thought that de jure there is no Law in Scotland for Hanging a man for Theft which is a great mistake for Leg. Burgorum cap. 121. It is said if a Thief be taken with bread worth a Farthing and from one Farthing to four he should be Scourged for four Farthings he should be put in the Joggs and Banished from four to eight he should loose an ear and if that same Thief be thereafter taâ—â—â— with eight Pennies he should be hanged but if any Thief should be taken with 32. Pennies and an Farthing he may be hanged 2. By the 7. Act stat Da. 2.13 ch and cap. 13. l. 4. Reg. Maj. one defamed for Theft who cannot find caution should be hanged cap. 16. It is said that no man can be hanged for lesse then two Sheep and by the Law likewayes of Birthinseck a Thief should not dye for as much meat as he can carry upon his back and cap. 18. a Thief being hanged and falling from the Gallows is no more to be punished All which implyes clearly that Theft is of
return 4. How an endeavour to break Prison is punishable 5. How the Master of the Prison is punished if the Prisoner escape PRisons are ordained to keep prisoners till they be tryed and therefore he who breaks them does more then tacitely acknowledge the guilt since it is to be presumed that if he were innocent he would think himself oblidged in honour as well as interest to wait till he were absolved judicially and since Prisons are the greatest securities of the publick peace therefore to break them is a kind of sacriledge And as the Walls of our Cities are sacred because they defend us against our enemies so should Prisons because they defend us against our wicked Countrey-men who are the greatest enemies of the Common-wealth His Majesties Advocat did also in the case of Hiltoun well call breaking of Prison a publick Hame-sucken I. The breakier of Prison whom the Civil Law calls effractor carceris was punished paena capitali l. 1. ff de effractor But by that punishment was meant not death for that were too severe but capitis diminutio est mors civilis and in effect he was arbitrarly punishable except he were a Souldier for Souldiers breaking Prison were punished by death l. 13. ff de re milit because Souldiers having ordinarily more courage require that they should be over-awed by greater punishments And yet I know the learned Matheus thinks that quilibet effractor carceris is punishable by death But I think not his Arguments concluding for though Ulp. l. 1. ff de effract says that suplicium est sumendum yet it follows not that by supplicium is meant death since all the glossators make supplicium a genus and when Lawyers mean death by it they say ultimum simplicium And though Cicero sayes that exilium non est supplicium sed perfugium portus supplicii he speaks there as an Orator and indeed as to these who deserv'd to die banishment is a harbour and happiness Nor does his other Argument brought from the above-written Law concerning Souldiers conclude for Souldiers as I observ'd are more severely punishable then others because of the hazard of the event and strictness of Discipline and because as I observ'd they fearless and so ought to be more threatned then others but what need was there to have made a special Law for Souldiers if all breakers of Prison were punishable by death And it is against the nature of Arbitrary Crimes such as this is confessed to be to be punishable by death and the word capite punire should alwayes be interpret in the meekest sense it can bear Nor see I why the Law would have spoke so generally if it had design'd that severity By our Law breakers of Prison are punish'd by banishment or fyning according to the nature of the offence but there is no express Statute determining the punishment II. He who fled out of Prison when it was broke by another should in the judgement of Iulius Clarus be punished in the same way as if he had been found guilty of the Crime it self because he confesses the Crime and flight is a presum'd acknowledgment Far. quest 21. num 25. but this seems to me too severe for flight is a presumption and it is unjust to condemn upon presumptions and were it not absurd to condemn a man to die for a Crime of which he is found by the tryal of others to be innocent And men may flee out of prison rather because of the inconveniencies of restraint then out from the conscience of guilt vid. Pegner quest 1. crim But if there had been no violence used a person imprisoned for a Criminal Cause may escape lawfully Perez ad tit C. de custod reor because he may redeem lawfully his own blood from hazard If the person incarcerat was incarcerat only for a civil debt he going out of prison was even in that case found punishable only by an arbitrary punishment Iuly 3. 1673. In the case of Francis Irving of Hiltoun who was pursued for breaking the Prison of Aberdene where the Libel was founded upon the common Law and the Laws of Nations and upon our Municipal Law and custome without citing any particular Law And subsuming that he being incarcerat for a civil debt he and others brake the Prison at least escap'd the Prison being broken and therefore concluded an arbitrary punishment and payment of the dammage done to the Tolbuith Against which Libel it was alledg'd 1. That it was not relevant since it condescended upon no Statute nor had we any Statute or Practick making the going out of Prison when it was broke by another punishable and when the imprisonment was only for a civil debt Nor was this a Crime by the Civil Law which punisht only effractores carcerum but not eos qui evaserunt For nigrum nunquam excedere debet rubram that is to say nothing in the Title should exceed the Rubrick and therefore the Inscription or Rubrick being de effractoribus only such were criminal by that Title as were effractores And as Perez observes num 16. Si absit violentia potest reus aufugere à carcere quem apertum vidit And the reason of punishing effractores carcerum does not militat here since there is no prejudice done to the Prison nor violence committed against Authority And it is lawful because natural to every man to recover his natural liberty nor was it ever heard that a man running away from a Messenger was punish'd as effractor carceris and yet that is the same guilt with what is here pursued 2. The Libel concluding art and part of the breaking of Prison because he escap'd out of Prison when broken is most irrelevant since the one may exist without the other for one may escape and not break and therefore the one cannot be necessarily illative of the other 3. The paying dammage cannot be concluded against one who only went out since he who goes only out of Prison occasions no dammage and consequently ought to pay none To which it was replyed that as to the first it hath been the constant opinion of Lawyers that going out of Prison that is broken is a crime since the Prisoner ought to have taken no advantage of another mans crime but ought rather to have hindered the breaking of the Prison and to have cryed and advertised the Keeper whereas here the Prison was broke by a long and daily work and yet no notice was given likeas Skeen in his Annotations upon the 1. Chap. Stat. David 2. observes that qui effracto carcere aufugerit capite punitur which is consonant to 13. ff de re milit l. 36. ff de paen To the 2. it was replyed that the Prison being broke in the night time the pursuer could not distinguish who broke it And if it were necessary to prove breaking it should be impossible to prove the crime and since the Pannel might have stayed and have cleared his own innocence it was just
Causes in the first instance And of old if a person accused for treason did absent himself the Criminal Court not no other Inferiour Court could proceed to take tryal by probation against him and so all they could do was only to denounce him fugitive for his absence upon which denounciation his escheat did only fall but he could not be forefeited and therefore since it was unjust that he should by his own absence procure to himsâ—lf an impunity and exemption from forefeiture the Parliament did by their supream power cite the person guilty to appear before them and did lead probation in absence against him and forefeit him in absence though guilty But it being found inconvenient that Parliaments behooved either to be called or such Delinquents pass unpunished therefore by the 11. Act 2. Parl. Ch. 1. It is Statuted that the Justices may proceed to try Crimes by probation even when the person cited is absent in cases of treasonable rising in Arms and open and manifest rebellion against his Majesty or his Successours and their Authority so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents except only Perduellion oâ— open and manifest treason And albeit it may seem strange that the Justices should have been allowed to lead probation against absents in this which is the greatest of Crimes and not in Crimes of lesser importance yet this proceeded from the just detestation which the Parliament had of this Crime and that the punishment thereof might not be delayed where the delay might prove so dangerous II. If the Parliament forefeit any person after cognition of the Cause their sentence cannot be quarrelled by any Inferiour Judge Act 39. Parl. 11. K. I. 6. And though it be added to that Act that no forefeiture lawâ—ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicatory for these words Lawfully and orderly led seem unnecessary since after cognition of the cause by the Parliament no Inferiour Judicatory can quarrel a Decreet of Parliament even though it be pretended that the said Decreet was not lawful and orderly yet if a person be only denounced Fugitive by the Parliament the Lords of the Session may suspend in that case if the Process was not orderly led but whether they can reduce even in that case est altioris indaginis And some think that though it were very inconvenient that such a â—ecreet should receive present execution where possibly the party was not lawfully cited yet that such respect is to be payed to the Parliament as that the illegality of that procedure before them though not objected before sentence should remain undecided till the next Session of Parliament III. If the Parliament should remit any such Process for Crimes to any of their own number to be decided finally before them it hath been doubted whether their decisions could be reduced by the Session And this Act of Parliament reaches only to decisions in Parliament But yet since Decreets pronounced by Commissioners of Parliament are reputed with us Decreets of Parliament and since Decreets pronounced by Commissioners for valuation of Teinds are not reduceable because these Decreets are repute Decreets of Parliament as being pronounced by such Commissioners of Parliament it seems that Decreets pronounced by such Commissioners in Crimes after probation could not be quarrelled and reduced by the Session or other Inferiour Judicatories TITLE IV. The Jurisdiction of the High-Constable in Crminals 1. The Original of the word Constable and his power 2. The Office of petty Constables 3. The Iurisdiction of those who are Constables of His Majesties Castles I. SOme describe the word Constable from the word Coning which signifies a King and Staple which signifies a Stay or Hold in the Saxon language because Constabularies were only erected in those places where the King keeped House and thus the Constable was judge of old to all crimes committed within twelve Leagues of the Kings House and Habitation l. Malcol c. 6. Though Skeen there observes that the best Manuscripts bear only two Leagues or four Scots Miles Our Craig and other Authors derive the word Constable from the Comes stabuli under the Roman Empire nam Constabularius sayes he nihil aliud est nisi praefectus aequitum since the Reign of King Robert the Bruce this Office of High-constable stands heretably in the noble Family of Errol and their being some debates concerning his Iurisdiction Francis Earle of Errol obtained Commission under the great Seal dated the 23. of Iun 1630. Seal'd penult March 1631. to the Persons therein specified or any nine of them impowering them to search the Acts of Parliament consuetude Monuments and Registers of the Kingdom and all Evidents that the Earl of Errol or the Lord Hay his Son should produce concerning their Honours Hostilogies Priviledges and Immmunities belonging or which had belonged to the Office of Constabulary from the first institution thereof This Commission I have seen with the report thereof dated the 27 of Iuly 1631. bearing the Commissioners to have met with the Earle of Errol and his said Son and to have considered their Instructions Warrands and Customes of other Countreys anent the Constables Priviledge and in the third Article of the report which relates to the Criminal Jurisdiction only here treated of they set down these words The Constable is Supream in all matters of Ryot Disorder Blood and Slaughter committed within four Myles of the Kings Person or of the Parliament or Council representing the Royal Authority in his absence and that alse well within the Court as outwith the same And the tryal and punishment of such crimes and offences is proper and due to the Constable and his Deputs and the Provost and Bailies of that Centre or Burgh and all other Judges within the bounds where the said facts are committed are obliedged to ride concurr fortifie and assist the Constable and his Deputs in taking the saids Malefactors and to make their Tolbooth patent for receiving them therein As was clearly evident by production of Warrands granted by His Majesties Predecessors to that effect and which likewise appeared by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable for the time concerning that purpose the King having seen this report did approve it in a Letter directed to His Secret Council of this Kingdom from the Court at Theobals the 11. of May 1633. Registrat in the Books of Secret Council the 15. day of that Moneth and in the Commission report and Letter foresaid the Constable is designed High-constable and his Office the High-office of Constabulary The Constable is still in use since that time to judge Riots within the bounds foresaids and to interrupt the Town of Edinburgh when he knows of their medling providing the Riots be committed in time of Parliament and I was told that in time of Parliament holden at Edinburgh Anno 1640. and 1641. the Earle of Errol was found
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
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
but though a person be at the horn for a civil cause it appears most unreasonable that because a person is not able to pay a great Sum for which he is denounced that he shall not therefore be admitted do defend his own innocence against a crime laid to his charge It seems likewise reasonable that some distinction should be made betwixt a pursuer and a defender in this case for it seems unreasonable that he who accuses another for a crime should debar him from self-defence though the debarring him from pursuit be not so unfavourable and upon this accompt in a case betwixt Ninian Spence and Hector Bannatine the Justices found that the pursuer in a Criminal pursuite could not by horning debar à defendendo the person whom he himself had called It may be likewise alledged that though the Kings Advocat may debar a Pannel from his defences when he is at the horn that no privat party can seing they are not prejudged by the Rebellion as the Fisk is but this last distinction is rather reasonable then legal and therefore I mention it rather as a good overture then a standing Law VI. Infamous persons cannot accuse according to our Law and what persons are accompted infamous is particularly enumerat in the foresaid 11. cap. Stat. Willielm 1. Infames dicimus omnes illas personas esse qui pro aliqua culpa damnantur notabili 2. Et omnes qui christianae legis normam abiiciunt ecclesiastica statuta contemnunt omnes sures sacrilegio 3. Omnes capitalibus criminibus irretitos Sepulchrorum violatores Apostolorum Successorumque eorum Reliquorum Sanctorum Patrum libenter violantes Statuta 4. Et omnes qui adversus Patres armantur qui in omni mundi parte infamia notantur 5. Similiter incestuosos perjuros homicidas receptatores malefactorum adulteros raptores maleficos de bellis publicis fugientes eâ— qui injusta vel indigna sibi petunt loca teneri aut sacrae ecclesiae auferunt facultates qui accusant non probant et qui contra innocentes principum animos ad iracundiam provocant omnes qui pro suis sceleribus ab ecclesia expelluntur 6. Et omnes quos ecclesiasticae seculares leges infames pronunciant Item servos ante legitimam libertatem abeuntes publice paenitentes bigamos omnes qui non sunt integro corpore qui sanam mentem non habent vel intellectum qui furiosi manifestantur 7. Hi omnes supra dicti nec ad sacros ordines promoveri debent nec ad accusationem vel Testimonium admitâ—i VII A person accused was not oblidged to answer of old but for one crime in one day except there were several pursuers quoniam attachiamenta cap. 65. by which accumulation of crimes was expresly unlawful sed hodie aliter obtinet for now there is nothing more ordinar nor to see five or six crimes in one Summonds or Inditement and to see one accuser pursue several Summonds and yet seing crimes are of so great consequence to the defender and are of so great intricacy it appears most unreasonable that a defender should be burdened with more then one defence at once and it appears that accumulation of crimes is intented either to laese the same of the defender or to distract him from his defence VIII To the end that persons may not be unjustly pursued the Civil Law did appoint two remedies 1. That the pursuer should find Caution to insist 2. That he should be pursued as a calumniator if his pursuit was found to be malicious As to the first the form amongst the Romans was that the accuser was oblidged de ferre nomen rei apud praetorem atque se inscribebat libello judici porrecto vel incodice publico quaerela deposita cui inscriptioni subscribebat ad talionis paenam se obligabat in casum calumniae Inscriptionis formula à pparet l. 3. ff de accus Consulibus illis die illo apud praetorem illum Titius professus est se Meviam legem julia de adult ream deferre quod dicat eam cum seio in civitate illa domo illius mense illo consulibus illis adulterium Commisisse Which inscription was only necessar in attrocious but not in lighter crimes nam illa de plano discutiebantur l. levia ff de accus but in some cases the necessity of inscription was remitted even in attrocious crimes as when a Woman suorum injuriam prosequitur parentes filii necem è contra And generally where the pursuer could not be pursued for calumny he needed not in scribere because inscriptions were onlâ—â—â—â—essar to the end the pursuer might be punished if he were found guilty of Calumny Nor were these inscriptions necessar in reconventions ante categoriis because in these the pursuer intended not to calumniat but only to defend himself by recriminating the pursuit The inscriber was according to the Civil Law oblidged to find Caution se perseveraturum in accusatione usque ad sententiam l. 7. ff de accus the reason whereof is by one of the Greek Scoliasts said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne facile quis ad accusationem per currat Suitable to this our Law has ordained that the pursuer when he raises a criminal Libel shall find Caution to insist in the intended pursuit and this Caution is found either by the Cautioner enacting himself in the Journel Books which Act is to be subscribed by him or else if the Cautioner be absent he sends a Bond bearing a clause of Registration in the Journal Books which is accordingly therein Registrat this Caution was first appointed by the 34. Act Parl. 4. Ia. 5. by which the Justice-clerk is oblidged to take sicker surety that the pursuer shall bring back the criminal Letters indorsed and execute but the Cautioner is not oblidged with us as he is by the Civil Law that the pursuer shall insist and the penalty appointed by that Act is an Earl or Lord two thousand Merks a great Barron one thousand Merks a Fermer five hundred Merks an unlanded Gentle-man two hundred Merks a Yeoman two hundred Merks But of old accusers behoved to find Caution to insist Reg. Maj. cap. 1. l. num 6. and if he cannot find a Cautioner it is said there that his Oath may be taken in all cases of fellony and the reason given is lest too much severity in exacting of Caution deterr the prosecution of a publick crime and it may be doubted if Cautio juratoria cannot properly come in under the notion of sicker security and there can be little hâ—zard to the Common-wealth seing the Law presumes that His Majesties Advocat will be still so just as to pursue the publick revenge where the party is unable Whereas by admitting this cautio juratoria ansa praebetur perjurio and the defender is disappointed of his damnage and interest if the party fail By the 29. cap. Stat. Rob. 3. pursuers before
was lyable ex sindi catu and might be punisht for exceeding his power but the party was free by his Sentence and if the Sheriff had absolved him though injustly he could not have been pursuâ—d again so much more should the Sentence of the Sheriff absolve from a greater punishment then that which the Law appoints nam qui potest majus potest minus IV. Some Lawyers declare all Criminal Sentences pronunced in the night time to be null but others declare that custome hath allowed them and though some allow inferiour Judges to proceed in the night time but not Supream Judges Alber. ad l. non minorem C. de transact And some allow delegat Judges to pronunce their Sentences in the night but not ordinary Judges becausâ— the dyets of an ordinary Judge are fixt by the custome of his Predecessors whereas a delegâ—t Judge is tyed to no time nor place except he be tyed to it by his Commission Castren ad D. l. minorem num 4. Yet I would rather choose to define that albeit regularly a Judge ought to proceed in open day to sentence criminals yet he may pronunce Sentences lawfully in the night time in these cases 1. If the case require hast as in mutinies and conspiracies falls oft out 2. If the crime be so abominable that the Prince or Judge is unwilling that the people should know that there was such a crime committed as was done twice by the Justices in the reign of King Iames the 6. by his own special recommendation and then all the Process Sentences and Executions was at midnight 3. If there be just ground to suspect that force will be used for rescuing the Pannel 4. Some add that if the Judge be so busy that he cannot proceed in the day time he may proceed in the night time but this seems hard vid. Cab. res crimin cas 218. V. Though a formal tryal by a Process and Assize be the regular form of tryals yet in cases of lesser consequences the Justices and other crimâ—nal Judges punish Malefactors in lesser Crimes sine strepitu forma judicii sumarly by ordaining them to be scourged or banisht instances whereof are given in the Titles of Murder and Witchcraft and the Justices allowed this custome in the procedure of the Magistrates of Edinburgh which as it is conform to reason so is warranted per. l. 2. § 51. publico ff de adulter l. 2. C. de abol l. levia ff de accusat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And though Durhie observes that the Lords found that Sheriffs and other inferiour Judges could not fine in Bloodwites for above ten Pounds without an Inquest yet now Sheriffs fine and imprison for all Bloodwites and lesser delicts upon probation led before themselves without an Inquest VI. Within what time a Criminal Sentence should be put to Execution is not generally determined and the learned Matheus has shewed much reading in this point yet I might begg leave to use some liberty being now so near the end of this Treatise to shew what may be added to his learned Observations from which I have hitherto abstained because my designe was rather to inform others then to raise in them any esteem for me By l. 5. C. de custod reor It is ordained that convictos velox paena subducat But l. 20. C. de paenis it is said nollumus statim eos aut subire paenam aut excipere sententiam sed per triginta dies super statu eorum sors fortuna suspensa sit In reconciling which Laws Cujac thinks that generally the punishment should be presently inflicted and that thirty dayes are only to be allowed where the Prince himself has imposed a severe sentence which seems to be allowed by that learned Greek Scoliast Thalalaeus si princeps statucrit paenam in aliquens non statim punitur sed dierum triginta dilatio datur forte enim princeps interim paenam revocabit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And though l. 19. Basil. de custod reor cum fuerit convâ—ctus non statim paenam pendere sed rursus conjici in custodiam iterumque eductum audiri nam haec dilatio iram judicum moderatiorem reddit Yet by the word Convictus there is not meant the last Sentence but the being so convict that he may be put in Irons which was not allowed till the prisoner be thought guilty was by the Judge as Thalalaeus excellently observes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be likewise observed that the former l. 5. doth not ordain that the Sentence shall be presently put to execution but that prisoners shall be presently tryed for the words are de his quos tenet carcer inclusos sancimus ut aut convictos velox paena subducat aut liberandos custodia diuturna non maceret And therefore that Law proceeds to ordain the names of the Delinquents to be given up to the Juâ—ge within thirty dayes And the Basilicks translate this Law thus ne diu is qui comprehensus est mancat in custodia opportet enim eum cito absolvi vel puniri The reason of allowing thir thirty dayes was because Theodosius having executed many Inhabitants of Thessalonica whilst he was in passion and for raising of a slight tumult he was so sensible of this frailty that at St. Ambroses desire he did endeavour to bridle that rage in succeeding Princes which he did then so abominat in himself Euseb. Eccles. hist. lib. 11. cap. 18. And yet I find that this same Law indulging thirty dayes has been much older as appears by Quintilian declamatione de falso caedis damnato the words are mihi videtur ideo constituta esse lex quae damnatum post tricesimum diem puniri voluit quia modo videbat legumlator possi fieri ut deciperetur accusator modo ut calumniaretur And though it may be urged that a present Execution is convenient because that prevents the prisoners escape by tumult or killing himself and that the more speedy the Execution be the Justice is the more remarkable and can be the less interrupted by appeals and intercessions Yet certainly a Christian Magistrat should allow sometime to the Malefactor for setting his Soul and House in order lest he else by his precipitancy destroy the Soul with the Body and punish the innocent Posterity with the guilty Pannel who gets not this time to settle his affairs and it hath been oft found that persons thus too hastily Execute have been thereafter found innocent great examples whereof are set down by Valer. Max. lib. 9. de temeritate And Seneca de jra lib. 1. It is likewise the interest of the Prince that he may have time to interpose and for this cause Tiberius being offended at the Senats too speedy Executing Caius Lutorius ordered that no man should be Execute within ten dayes after the Sentence Dion in Tiber. lib. 57. vid. Sidon Epist. 7. lib. 1. By this delay likewise the persons convict have oft-times been induced to