blame who did not either preveen or repledge Bailies of Regalities may likewise repledge from the Kings Lievtenent as was found the 19. of August 1596. And as is clear by the foresaid Act of Annexation and likewise from any Commissioners appointed by the Council as was found in May 1568. And from the Justices of Peace in Riots and Bloods as was found by the Lords of Session Iuly 1617. though these causes being of small moment and requiring summar and unexpensive cognitions seem to require easier and less solemn tryals in the procedor then repledgiations will allow And yet by c. 11. de appell I find that licebat in remimina appellare nor can the parties injured complain since they might have made their application to the Lord of Regality Nor should their errour prejudge his jurisdiction VII The manner of repledgiation from any Court is that either the party himself who hath the power of repledging or some other having a Procurator from him compears and produces his Charter of Erection from the production of the Seasing is not sufficient seing that is but assertio Notarii yet sometimes without production of the Charter repledgiation will be sustain'd because it is notour that the repledger hath a Regality as in the Duke of Lennox case 1637. As also repledgiation will be sustain'd upon production of the criminal Register bearing that it was formerly sustain'd to the same persons May 1668. Arducaple against the Commissioners of the High-lands Yet it may be doubted whether the production of a Lord of Regalities retour will be sufficient to instruct that he hath a Regality and it appears it should since a retour is a sentence and so is a sufficient instruction till it be reduced He who offers to repledge must find Caution of Culrach to do justice within year and day upon the person whom he repledges and if the Judge to whom he is repledged doth not justice within year and day he tines his Court as we call it for year and day and the Culrach for so the Cautioner is called who hath upon his becoming Cautioner borrowed the Defender is in an unlaw and the Judge from whom he was borrowed or repledged may proceed to do justice as formerly Skeen de verb. sig The Pannel likewise who is repledged must find Caution for his own appearance before the Lord of Regality to underly the Law for the crimes laid to his charge the 16. of May 1599. Patrick M ckalla against the Regality of Lennox No person can be repledged except he be present at the Court from which he is desired to be repledged for a party who is absent cannot find Caution to sist himself before the Court to which he is repledged as was found in the case of Armstrong who being pursued for murdering some Customers was desired to be repledged by the Earl of Annandale Anno 1666. Nor can a person be repledged after defences are proponed for him for this being recusatio judicis it must be ante omnia propon'd dum res est integra VIII When Regalities are erected there is a Burgh of Regality expressed therein and though that Burgh may choose Bailies yet the Bailie of Regality hath still a cumulative jurisdiction with those Bailies of the Burgh of Regality in that same way that other Superiours retain still a cumulative jurisdiction with their Regality as was found the 24. of Ianuary 1668. betwixt the Bailie of Killimure and the Burgh thereof This Burgh is oblig'd to maintain a sufficient Prison not only for Criminals but for Debitors by the 273. Act 15. Parl. Ia. 6. And all Captions bear the Letters to be direct to Bailies of Regalities c. And yet by that Act these Burghs seem only to be oblig'd to intertain Prisoners where there are Provost Bailies and Common-good Nota that these words of that Act by the Sheriff to Stewarts and Bailies of Regalities are ill printed for the word to should be or The Lords likewise decided thus against the Bailies of Regalities the 7. of Iuly 1668. Hamiltoun contra Callender In this Burgh all Courts must be holden Yet defenders are oblidg'd to compear at any other place within the Regality to which they were expresly cited As Had observes in a case the 16. of March 1622. Or if the Lord of Regality was in use to hold his Court else where for a considerable time without interruption the Vassals or any other Defender is oblidg'd to appear thereat though it be not the place design'd in the Charter of Erection as Had. observes December 1624. And if the party who is desired to be Repledged dwelt within the Regality the time of the committing of the Crime the Repledgiation will be sustain'd though at the time of his being accused he be removed without the Regality as was found the 21. of November 1632. in the case of one Weems who was desired to be Repledged to the Regality of Methwen Lords of Regality are oblidged to hold Justice-Courts twice a Year 3. Parl. K. Ia. 2. Act. 5. and if they be negligent in causing rest and stolen Goods be restored the Sheriff may fulfil their place Act 11. Parl. 15. Ia. 2. And when Erections fall into the Kings hand the Inhabitants thereof may be justified id est judged by the Justices Act 26. Par. 6. K. I. 6 but this Act can only take place till a Stewart or Bailie be appointed For Regulariter the Kings own Stewarts of Regalities may repledge from the Justices A Lord of Regality cannot fit himself in his own Court but must administer by a Bailie who is sometimes admitted by a simple Commission during his life or otherwise he is admitted to be Heritable Bailie which Right passes by Infestment but this Bailie is in Lands belonging to the King and is properly call'd the Stewart of the Regality though sometimes the Kings Deputs in Regalities are likewise call'd Bailies as in the 5. Act. 3. Parl. K I. 2. IX Lords of Regality cannot cite Witnesses without their own jurisdiction but they must have Letters of Supplement for that Office though generally they may proceed in the same way that the Justice-General doth but they may exact Caution to enter as Law-will from the defenders after sentence is given as was found the 7. of October 1668. betwixt Mr. Iohn Prestoun and Mr. Iohn Pape which seems to be a greater priviledge then the Justices have who cannot presently exact Caution of any person for paying an unlaw but can only raise Letters of Horning upon the Act of Adjournal The Lords of Regalities have right to the single Escheat of rebels living within their jurisdiction as also to the Escheats of all persons condemned for crimes committed by the Inhabitants within their jurisdiction albeit condemned by the Justices from which general rule Hope in his lesser Practiques excepts only the case of Treason but it may be doubted whether exception may not be likewise made of all other Pleys of the Crown seeing the Lord
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
hate such as design to inform them as if he were more my friend who would set my Family by the ears than he who instructed my Children and Servants in necessary duties There are but too many who endeavour now to make all whom they hate pass for such as love Arbitrary Government but as in many passages of my former life I have preferred my Countreys interest to my own so in this Book I endeavour to oppose Arbitrariness where it is most dreadful and that is in matters Criminal in which Life and Fortune are equally expos'd for he who disinterestedly declares his own opinion before private cases occurr wherein interest or inclination may byass him doth in so much praeclude himself and others too as far as his authority can reach from the power of being Arbitrary and let others say what they please I will stand more in awe of my conscience then of my enemies and govern my self more by my own reason then by the giddie multitude I hope I need not be jealous that our publict differences will make any unkind to this Book which is published for their service and which is now more accurate than when it at first pleased them in Sheets I did Print it not only to correct the many false Copies which were abroad but to divert me from refining too much upon our publict debates and I wish the reading it may have the same effect upon others And that all of us would turn things to their true light and consider without passion how happy we are who live under a Prince of our own Religion and Blood whose clemency is as extraordinary as his restitution who governs us by our own Laws and countrey men and distribute all his own revenue amongst us That we enjoy by his prudence a profound Peace whilst others bleed or starve in lasting Wars That all the Commerce of Europe is gathered in amongst us that we are free from those sucking Taxes under which they groan and are but lately rescued from a Rebellion in which after we had emptied our Veins and Purses for Religion and Liberty we became Atheists and Slaves THE INDEX PART I. 1. OF Crimes in general and by what Law they are judged in Scotland 21. The division of Crimes 25. Blasphemy 29. Heresie 34. Simony Baratry 37. Treason Laesae Majestas 64. Sedition 67. Poyson 72. De Incendiariis or Fire-raisers 80. Witch-craft 109. Murder 139. Of Duels 148. Self-murder 152. Paricide 159. Incest Sodomy Bestiality 163. Rapes or Ravishing 169. Adultery 185. Bigamie 190. Theft 211. Theft-boot and Receipt 218. Hame-sucken 223. Breaking of Prison 230. De Dardanatiis or Fore-stallers 236. Usury 248. The Bribing Partiality and Negligence of Iudges 255. Deforcement 268. Falshood 286. Stellionatus 290. Perjury 303. Of injuries personal and real and of infamous Libels 309. Poynding of Oxen in time of Labouring 314. Bearing of unlawful Weapons 317. Beggars and Vagabonds 319. Robbery Oppression vis publica privata 331. Art and Part Ope Consilio 347. Some Crimes punished amongst the Romans which are not directly in use with us PART II. 351. OF Iurisdiction in general 355. Of the Iudge competent de foro competenti 364. Iurisdiction of the Parliament in Crimes 367. Iurisdiction of the High Constable in Criminals 372. The Iurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. 374. The Iurisdiction of His Majesties Privy Council in Criminals 385. Of the Exchequers Iurisdiction in Criminals 386. The Iurisdiction of the Lords of Session in Criminals 393. The Admirals Iurisdiction in Criminals 397. The Iurisdiction of the Commissars in Criminals 401. The Iurisdiction of Regalitis in Criminals 411. The Iurisdiction of Sheriffs in Criminals 417. The Criminal Iurisdiction of Barrons 420. Of Iustices of Peace 423. The Iurisdiction of the Iustices and of the several Imployments and Officers of that Court. 429. The Iurisdiction of the Iustices over Souldiers and of Military Crimes 434. Advocations of Criminal Causes 442. Of Inquisition 446. Of Accusations and Accusers 456. Of Advocats and Procurators 462. Of Libells and the forms of Process thereto relating 476. Of Exculpation and the other priviledges competent to the Defender 488. Of Assizes 511. Of Probation by Confession 522. Probation by Oath by Writ and by Presumptions 527. Probation by Witnesses 543. Of Torture 546. Of Remissions 551. Of Prescription in Crimes 556. Of Punishments de poenis 567. Of Criminal Sentences and their Executions PART I. TITLE I. Of Crymes in general And by what Law they are judged in Scotland 1 How Crymes differ from Delicts and Malefices 2 In what consists the nature and essence of a Cryme 3 By what Lawes Crimes are punish'd in Scotland 4 How far dole or design is necessar to the committing Crimes and how tendencies and insinuations are punisht 5 Whether Minors can commit Crymes 6 Whether such as sleep can commit Crymes 7 Whether such as are drunk are punishable for Crymes 8 Whether furious persons are punishable 9 Whether an university or collective body be punishable GOD Almighty having created this Lower World to be equally an instance of his power and of his goodness did furnish it with great variety of excellent and wonderful productions but lest these should be defac'd at pleasure by man who having ruin'd himself doth little value and is much inclined to ruine every thing besides therefore God did not only imprint upon his soul some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 common principles whereby he is led to love order but did likewise fence the aeconomy and government he had placed in the world with rewards and punishments And it was just that as these who did vertuously were to be rewarded so these who were vitious should be punisht which punishments are the subject-matter of the Criminal Law and of this Treatise I. Transgression or peccatum is by Modestinus l. obligamur ff de obl Act. made the root of all enormities and is divided delicta into quasi delicta crimina Quasi delicta are such faults and transgressions as are not so hainous that they deserve to be punisht criminally such as small ryots delicta are such as deserve a more severe punishment but yet because they tend not to wrong the Common-wealth and publict security immediately therefore do not deserve to be punisht by any express Law as Crymes Crymes are these injuries done to the Common-wealth which are so immediat and heinous as that they are punished by express Law This distinction is used by Matheus but Farinacius makes delictam the genus and divides it in crimen maleficium with us this subtilty is not observed for the word Crime comprehends both Crymes and Delicts The Summonds raised for accusing in both are called Criminal Letters and the Court in which both are judged the Criminal Court Neither use we the word malefice in any Cryme but in witch-craft in which it signifies that prejudice and damnage which arises from the unlawful means used by Sorcerers II. In
Oppression to exact more fraught from Passengers or greater prices for Weavers and handy-work then what is allowed and usual Acts 21 and 23. Parl. 5. Q. M. It is oppression to stop or make impediment of common high ways to or from Burghs Act 54. Parl. 6. Q M. It is oppression for Officers to extort the Leidges Act 33. P. 5. I. 3. Act 83. Parl. 11. I. 6. or to put out or put in the Roll of Assizours given to him by the pursuer Act 88. Parl. 11. I. 6. In which last Act common oppressors are punishable by death Oppression is also punishable by death Act. 42. Parl. 4. Ia. 4. Act 88. Parl. 11. Ia. 6. VII Because oftimes in thir cases the Pannel pretends that what he did take by force was his own or that he had a right thereto therefore except the violence be very great the Justices use to ordain the matter of right to be first discussed before the Civil Judge as was found in Novemb. 1675 in the case of Inglis of East-sheilds and in many other cases and by the 33. Act. 4. Parl. I. 5. It is declared that as for depredation masterful reiffs and spoilzies particular dyets shall be set therefore at the discretion of the Lords the matter being first Civilly discussed before them Upon which Act it is oftimes alledged before the Justices that the cause must be civilly discussed before the Session in all masterful reiffs before they can proceed to cognosc thereupon but notwithstanding of this the Justices do constantly sustain Criminal processes for Reiffs and Robberies without any previous civil precognition and they find this Act to be now in desuetude as in the case of Monimusk 27. of November 1611. And I think that by Lords in that act are not meaned the Lords of Sâ—ssion for that Act is two Years prior to the institution of the Session but that by Lords there are meant the Justices themselves for there being no Session at that time the Justices were Judges competent to many Civil cases originally such as perambulations c. and to all Civil cases if they had a necessary connexion with or dependance upon criminal cases And therefore where the person who was alledged to have committed masterful reiffs or spuilzies could pretend that what he did was in prosecution of his own right The Justices had a latitude to try the matter of right first Civilly but this was never necessary for it is by the Act left to the discretion of the Judge It remains then to be considered how far the taking away by violence what is really a mans own can infer a guilt against him Which difficulty may be cleared in these few conclusions 1. That the thing violently possessed though by a common spuilzie and much more by a masterful reiff ought to be restored nam spoliatus est ante omnia restituendus and that though he who took away what was his own could instantly prove his right and since this holds where the violence was only committed by a simple Ryot it should by a stronger consequence hold where the thing was taken away by such violent means as amounted to a crime and so this should be no good defence either against a Criminal or Civil pursuit 2. Not only ought the thing to be restored but even the true Proprietar who intrometted with his own by open force violence is punishable for the Law will not allow that any man should be Judge to himself but much lesse that he should use violence force upon any accompt and this were to invade or assume Jurisdictions which is in it self a crime The third conclusion is that if any man do by force or violence extort from another a writ or obligation which he could have obliedged him in Law to grant that force is not only punishable Criminally but the deed so extorted is reducable by a Civil pursuit as was found in Ianuary 1675. Though it was alledged there that such force might be Criminally punished yet the deed so granted could not be reduced since such deeds were only reduceable where something might be restored but here nothing was to be restored since the deposition alledged to be extorted by force depended upon a former minut by vertue whereof the granter could have been compelled to have granted the same and this was the same case as if a Creditor should compel his Debitor by force to pay him what was his own in which though the force be punishable yet the Debitor could not repeat what he had justly payed as is clear not only by common sense and reason but l. 12. ff quod met caus Iulianus ait eum qui vim adhibuit ut debitori suo ut ei solverit hoc edicto non teneri propter naturam actionis metus causa quae damnum exegit quamvis negari non possit in Iuliam eum de vi incidisse jus crediti amisse To which it was answered that there could be nothing more disadvantagious to the interest of the Common-wealth nor a greater usurpation against authority then that every man should be his own Judge and force the Executioner and the Law justly presumed that he had no legal right who would not pursue iâ— in a legal way and if this were allowed every man would discusse his own Suspension himself by forcing his Debitor to pass from it and would force the Heir of his Debitor to give him Bond or his Debitor himself to fulfil all minuts without any regal pursuits every Master would thus thrust out his Tennents and every Creditor force his Debitor to pay by carrying him away Prisoner and when he were that length he would alledge that nihil illi deest and as to the former Law it was answered that the Civil Law in detestation of force and violence did allow three several remedies to the person violented viz. Edictum praetor is quod metus causa c. Lex julia which punisheth the force as a Crime decretum divi Marci all which three are expresly mentioned in that Title and though by the old edict and the Lex julia he who forced his debitor to pay what was justly due could not be by these remedies restored quia nihil decrat vim passo as the Law formerly cited does prove yet ex decreto divi Marci which was posterior to these remedies as Marcus Antoninus was long posterior to Iulius Caesar even he who took payment of his own could not defend himself by alledging upon his right which excellent Law is set down l. 13. ff quod motus causa Quisquis igitur probatus mihi fuerit rem ullam debitoris vel pecuniam debitam non ab ipso sibi sponte datam sine ullo judice tempore possidere vel accipisse isque sibi jus in eam rem dixisse jus crediti non habebit And Faber upon that Law doth excellently conclude that this was a just supplement of the former Law and Cujacius allows this remedy not only to
Commissioners of the Thesaury did in Iune 1669. ordain two Skippers in Bruntistand to be scourged at that Mercat Cross because when a Customer came to enter a Boat wherein unfree Goods were were alledged to be they did put off the Boat from the Rock where it lay whereby the Customer fell into the Sea and had almost drowned TITLE VIII Of the Jurisdiction of the Lords of Session in Crimnials 1. The Lords of Session use to pass Bills for Criminal Letters 2. They Advocat Causes belonging to the Iustice Court 3. They are Iudges in crimine falsi 4. They have made Statutes for regulating the Iustice Court 5. Whether they can review the Sentences of the Iustice Court 6. They suspend the Sentences of the Iustice Court 7. They are Iudges to such as kill or wound one another during the dependence of a Processe before the Session 8. They grant Warrand to Advocats to compear for such as are pursued for Treason I. THE Lords of Session have regularly no jurisdiction in criminals and yet they pass the Bills whereupon all criminal Summonds are rais'd For all Summonds in criminals must have a Bill which must pass under the Hand of His Majesties Advocat and for which he gets ten Merks and his servant one therafter it is carried to the ordinar upon the Bills and is subscribed by him as a common Bill The reason why thir Bills are past by the Lords seems to be because the Justice-deputs were not ordinar residenters in Town their sallaries not being sufficient for defraying that charge or else because the Clerk of the Bâ—lls is a Member and Servant of the Colledge of Justice yet this was one of the grievances given in by the Justices to the Parliament Anno 1662. And it is very unreasonable that those whose imployment it is to understand criminal cases should not have the passing of these Bills and many of the Lords refuse to pass these Bills whereby the Liedges are prejuâ—ged And it is most unreasonable that the Justices should not know what they are to judge especially this warrand being a part of the Process and so falls naturally under the cognition of these who are Judges to it And it is probable that if any of the Justices would pass their own Bill it would sustain But now the Justices use ordinarly to pass their own Bills because the Justices are now of the Session but still other Lords who are not Justices may pass such Bills But albeit these Lores cannot judge crimes yet they may and do punish injuries committed against any of their own Members by fining or confining II. They likewise Advocat Cause from the inferiour Courts to the Justices thus in Anno 1664. Mackintosh being pursued before the Sheriff of Inverness for theft-boot they Advocated the cause to the Justices albeit it was alledged that they could not be Judges to the Cognition To which it was answered that the consequence was ill inferted for the Council did Advocat and could not cognosce and the Lords of Session did Advocat Breivs for serving Airs and yet they were not Judges themselves for both in this and that case an Inquest was necessar III. They are likewise Judges in crimine falsi and their sentence is a sufficient warrand to the Assize to condemn without repeating the probation and when the Inquest refuses to condemn upon that warrand they are of new inclosed as was done in Binnies case and will be liable to an Assize of error if they assioilzie and their Decreet bears the Lords remit him to the Justices to be punished tanquam falsarius and to underly the Law criminally and ordain'd that ordinance to be insert in their Books of Sederunt And that order is in the Justice Court call'd an Act of Sederunt the 2. of Iuly 1662. Albeit the Act of Parliament Ia. 6. Parl. 11. requires that all probation in criminals should be led in presence of the Assize yet the answer is that the Lords Decreet is only probation here and that is read in face of the Assize The Lords likewise determine the punishment in falshood and remit in their Decreet the party to the Justice to be only banisht or scourged or have his Tongue boar'd according to the quality of the guilt And I have seen a Gentle-man whom I will not name in Anno 1664. only imprisoned by the Lords for forging of a false Bond of suspension because he was ingenuous and in necessity And albeit this may seem irregular yet seing the Lords are only privy to the Depositions it is necessar they should have this allowance I find it one of the rules set down by the Doctors that ubi cunque iudex principaliter cognoscendo reperit incidenter crimen esse comissum potest de crimine illo cognoscere C. si adversus liber l. pen. And the example of this rule is instanced in Charta falsa l. pen. C. de probat And upon improving an Instrument or Writ they have ordained omnes testes instrumentarios falsi fabricatores to be fal sariâ—s and remitted them to the Justices the 16. of February 1660. Fern Innes and Tarbat hang'd But I remember not that they have in any other case cognosced upon crimes incidenter albeit the foresaid rule would give them an incident Jurisdiction in all cases IV. I find that the Lords have made Statutes to regulat the Justices Courts for upon the 1. of Iune 1593. they declared that all landed men should be esteemed pares curiae and might sit upon Noble-mens Assizes being pursued tanquaritemerè jurantes sup assisa and the Council uses to consult them in intricat cases which are referred to them by the Justices And thus in Anno 1667. they were consulted whether the West Countrey Rebels might be forefaulted in their absence V. But whether they be Judges competent to reduce or review what is done by the Justices or in the Justice Court in any case is not yet decided but I have seen a reduction of a Verdict of an Inquest pronounced against Mr. William Somervel whereby he was found guilty of Usury The reason of reduction was that the Inquest had erred in calculo and it was contended that the Lords were competent Judges to review errors in calculo for that was in effect but a civil Medium and where no criminal conclusion was craved nor could follow they were Judges as in the case of Reductions of Retours where the verdict may be reduce as past upon ignorance It was also urged that seeing the Lords made Statutes to regulate the Justice Courts and past their Bills they might cognosce upon palpable errors committed ignorantly by Assizes and it were hard that the Liedges should not be repon'd against Errours of such ignorant persons as Assizers ordinarly were VI. The Lords of Session do suspend the execution likewise of all sentences in the Justice Courts but these Suspentions when once raised are discust before the Justices They likewise sometimes discuss these Suspentions before the Session
potest Amirans marinas intelligo quae negotiationis causa ineuntur sive extra mare sive in mari celebrantur delicta tamen ex necessitate intra mar is fluxum perpetrari debent In Scotland the Deans of Gild were as Walwood observes tit 23. ordinary Judges of old betwixt Mariner and Merchand Likeas the Water-Bailiff betwixt Mariner and Mariner and the Justice-general was Judge in Criminals but now no judge may meddle says he with the Admiral causes but only by way of assistance and that by Commission in difficult causes as was found in that action Antoni de latour against Christian Marteis 6. of November 1642. II. In October 1635. Bernard Gilermo and some Spanish Dutch and French Pirats being apprehended Mr. Iames Robertson then Admiral-deput craved that the Council would name Assessors to him in the tryal of these forreigners and they being named a Court of Justiciary of the Admirality for the Registers of the Admirality give it that Title was kept at Irwine and these Pirats indicted and hanged for Piracies committed by them upon French Spanish and Dutch Merchands the parties injured are received witnesses else these crims at Sea could not be proved this tryal was by an Assize as before the Justice III. By the Martim Law of England it is lawful for any man who takes a Pirat in the Ocean to hang him at the Main-yard because as it seems to me the Ocean is within no mans Jurisdiction so every man is left to his own natural liberty but this may prove very dangerous for thus men may execute their revenge in place of Justice and may make innocent men Pirats for their private advantage and Judicaturs are established to prevent such injuries and upon that pretext men may as well adjudge Prizes taken upon the Ocean but yet if a Ship be on her voyage to remot places as the Indies so that the takers cannot keep the Pirats till they come to a Harbour they may in that case execute them at Sea for that is a kind of self-defence and necessity makes Law But I think this necessity must be proved vid. Grot. de jur belli lib. 2. c. 20 § 14. And for this same reason I differ from that Author who asserts num 12. that if the taker bring a Pirat to a Port and the Judge refuses or delayes Justice so that the taker must lose then the taker may execute Justice himself for this were to make every man Judge not only of the Pirat but of the Judge to whom application was made and a Privat person might as well pretend that if a Judge delayed or denied Justice against such as we pretend did either rob or affront us we might do Justice upon them our selves contrary to many Laws and particularly to l. nullus C. de judaeis The same learned Author Iuris Maritimi doth tell us cap. 4. num 14. that if a Spaniard rob a Frenchman on the high Sea both their Princes being in amity amongst themselves and with England and that the Ship is brought into the Ports of Enland the French-man may proceed against the Spaniard to punâ—sh him but if the Ship be brought intra prasidia of that Prince by whose subject the same was taken it may be doubted if he can proceed Criminally but the taker must resort to the Pirats own Countrey or where he carryed the Ship But in my opinion a Pirat may be Judged by the Judge of any Nation for he is an enemy to all Nations and though he be not deprehended committing a crime in the Sea of that Prince or State within which he is deprehended and so seems not lyable to their Jurisdiction nec ratione loci delicti nec originis nec domicilii yet he who is of no Nation is of all nations as Vagabonds are and he who is an equal enemy to all Nations commits a crime against every Nation IV. Though the Admirals Criminal Jurisdiction extends no further then crimes committed at Sea or within Flood-mark yet he is some times Judge ratione contingentiae ob continentiam causae as if a man rescue a Pirat out of Prison though this Crime be committed without Flood-mark yet the Admiral is Judge because it hath dependance upon and arises from the principal Crime to which he is Judge and if the Admiral begin to present Pirats or Malefactors at Sea he may continue his pursuit and apprehend them at Land and without his own jurisdiction but he must in that case seek concurrence from the Magistrat of the place Locen cap. 3. num 2. V. Though the Admiral has a Criminal Jurisdiction yet some alledge that he has not this properly as Admiral but by vertue of a Commission of Justiciary contained in his Gift and therefore when the Admiral proceeds to thy Crimes the Court is not called the Court of Admirality simply as in other cases but the Court of Justiciary of the Admirality It is likewise doubted whether the Admiral hath the sole power of judging Crimes committed at Sea or if the justices have a cumulative jurisdiction with them and may preveen and that the Justices have a cumulative jurisdiction is clear for I find that in Anno 1613. the Justices did hang one Iohn Davidson and Iohn Lowes English Pirats and in Anno 1610. they hanged Peter Love Iohn Cock and others Likewise English Pirats which last were hanged upon their own confessions emitted before the Privy Council and all of them were hanged within Flood-mark I have likewise seen the Justices Advocat Causes from the Admiral Court but whether the Admirals sentence in Criminals can be reduced by the Criminal Court as their sentences in Civils can be reduced before the Session I will not determine TITLE X. The Jurisdiction of the Commissars in Criminals 1. The Iurisdiction of Church-men 2. Our Commissars are Iudges competent to verbal injuries 3. How far they are Iudges competent to improbations I. CHurch-men are discharged to sit Judges in Crimes and the Canons of the Greek Church give them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A bloodless Iurisdiction upon which account the Law gives them audientiam sed non jurisdictionem tit C. de Episcop audient With us these Bishops abstain from votting in criminal Processes brought in to the Parliament though there they sit as Heritors rather then as meer Church-men and so might pretend to a voice upon that account II. The Commissars are the Bishops Officials and so have least criminal Jurisdiction of all other Courts but yet they are Judges competent to verbal injuries which are by the Law accounted crimes and the reason why they are the only Judges competent to this crime is because that Court as being an Ecclesiastick Court curia christianitatis considers these verbal Injuries as Scandals and so they are allowed not only to punish the same with Pecuniary Mulcts but with Church Censures such as to make the offender stand at the Church Doors to expiat a Slander though it was alledged that the
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
sum and so was no more debitor and could expect no advantage and so the fear of perjury ceased And as to the foresaid seventh Act It was answered that it was only made not to exclude the debitor absolutely but to correct the 257. Act 15. P. K. I. 6. whereby the Oath of Party was declared to be receivable as decisive of the cause As to other witnesses our ordinary distinction is that pactions in Usury are either extrinsick to the Bond or writ as are the taking Bud or Bribe for continuing a Sum and these may be proved by any witnesses albeit by the foresaid 7. Act. It is said that Usury shall be proved by the Oath of the Party and witnesses insert But pactions which concern the writ it self as that whereby more is promised then is contained in the bond these cannnot be proven but by the Witnesses insert for else writ might be taken away by Witnesses As to oath of Party it is ordained to be taken by the former acts against the common rules of Law by which nemo tenetur jurare in suam turpitudinem And the Justices accordingly do force the Pannels to swear as in the case of Wilson above cited But it may be doubted if this act should not extend only to Civil and not Criminal cases For that act sayes that litis-contestation being made it shall be lawful to receive But so it is that there is no litis-contestation in Criminals go This Act cannot be extended to these cases VII Usury was allowed by the Civil Law as the proper product or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecuniae but by the Canon Law it was punished and most Lawyers think it may be punished criminally Decius Consil. 130. And it is called crimen utriusque fori because it is punishable Civilly and Ecclesiastically The pain of Usury with us is That the debitor shall be free from his obligation or have back his pledge or if the debitor conceal then the revealer shall have right to the sums Act 222. K. I. 6. Par. 14. And by the 248 Act P. 15. K. I. 6. It is appointed that the Usurary Bond or Contract shall be reduced and being reduced the sums shall belong to His Majesty or his Donator and the Party to have repetition of the unlawful Annualrent payed by him in case only he concur with the Donator in the reduction TITLE XXV The Dribing Partiality and Negligence of Judges 1. What is bribing by the Civil Law 2. What by our Law and how our Law punisheth it 3. Crimen repecundarum Barratriae 4. Whether Arbiters Deligats or Assessors be punishable for taking Bribes 5. How negligent Iudges are punishable IT is to no purpose to make good Laws if the execution of them be not committed to just and diligent persons as it is to no purpose to have an exact ballance if that ballance be not put in a good hand and therefore as the Law hath been very liberal of its priviledges to just Judges and severe in punishing such as offended them so it hath punish'd with the same rigour such Judges as transgress either by bribing negligence or partiality which are three distinct species forbidden by the common Law and ours I. Bribing is the taking of money or other good deed either for doing of justice or committing of unjustice There are indeed some Lawyers who think that a Judge taking money in a Civil Cause to do justice doth not thereby commit a Crime but is only lyable to restitution Menoch 2. Arb. 342. n. 6. but this is expresly contrary to sound reason since if taking upon any terms be allowed the Law may be eluded and Judges will be thereby tempted not only to take bribes but to take pains to justifie what they have done but yet I think that this opinion is neither proved per l. 4. ff de l. jul repetund For there it is not only said non excipiet quo magis aut minus quid ex officio suo fecerit which prohibits only an excess in justice and not the doing justice for money nor perl 3. c. eod since that Law doth only in the general forbid the taking of money but this is expresly forbidden l. 2. § 2 ff de condict obturp caus where it is declared a Crime but the punishment there seems only to be litem suam facere and Skeen ad Stat. 25. Wil. says that non licet judici vendere judicium justum II. By our Law the Kings Judges were to those an Assize upon what they had done as Judges and if they were convict they were to be punished by the King and his Council according to the measure of their fault Cap. 13. Stat. Rob. 2. and the Judges of inferior Courts such as Regalities were to those an Assize before the Justices and if they were found either culpable or remiss they were to escheat their moveables and their life to be in the Kings will or in the will of the Lords of the Regality cap. 14. ibid. And by the 26. Act Ia. 3. Parl. 5. a Sheriff or any other Officer of Fee that is to say any Heritable Officer is to be put from his Office for three years if he be found partial and an ordinary Judge if he be found partial loseth his Office forever And though his person 's being punished at the King's will and the paying of the expence of the party injured be only added to the punâ—shment expressed against a Judge who is not Heritable yet I conceive that being added in the last place it is applicable both to the Heritable Judges and others Likeas it is observable that though by all these Acts the King and His Council are only exprest to be the Judges competent yet de practica the Justices are Judges competent if partiality be committed in any criminal cause as for instance if a Sheriff should execute any Pannel upon a Crime proved only against him by the pursuers brothers or other inhabile witnesses or upon a Libel which were palpably irrelevant in these and in such other criminal cases the Justices and not the Council would be only Judges competent nor is partiality in civil cases a Crime by our Law though it be punishable by this Act paena arbitraria and by resounding of the dammage sustained by the pursuer The foresaid Laws strike only against partiality in general but bribing is expresly discharged by the 25. Chap. Stat. K. William but there is no punishment there exprest and therefore Skeen adds in his observations the punishment of l. 1. cum aut hent c. de paen judic And thereafter by the 22. Chap. 1. Stat. Rob. 1. all Judges are forbidden to take Land or any thing else to Champart either for giving deferring or prolonging of justice and the offenders are to be in the Kings will and to lose their office for all their life Champart is a French word signifying part du champs a part of any Land so that by a Metaphor the taking any part of the
advantage arising by any plea is forbidden by this Statute which the Civilians call pactum de quota litis by the 104. Act 7. Parl. I. 5. consulting or giving partial judgement is declared bribing in a Judge and such as diffame them as bribers are punisht legetalionis But because these Acts were not clear against bribing therefore by the 93. Act. 6. Parl. I. 6. the taking of bribes is discharged to the Lords of Session their Wives and Servants under the pain of infamy deprivation and confiscation of all their Moveables to all which an arbitrary punishment is adjected It is very observable that by this Act not only the taking of bribes is discharged but even the taking any goods or gear during the depending of a Plea or from such as shall have causes depending for the future and though it seem'd very reasonable that men should not be discharged of the effects of their friends liberality and should not be by being elected Lords of Session put in a worse condition then the other subjects yet so jealous is the Law of bribing that it is afraid that if Judges be allowed to take at any rate or upon pretext of their friends liberality they might abuse this pretext to meer bribing l. ult c. h. t. l. 4. ff eod And yet the Glosse ad l. 1. ff h. t. allows a Judge to take from his relations within the sixth degree nor is it lawful to take any thing even by way of remuneration though remuneration be rather a paying then a gilting Matheus P. 619. But I conceive that this must be understood of a remuneration made for services done during a Plea or upon the accompt of a Plea or upon any publict accompt But it seems against reason to think that if a brother or brother in Law should entertain his brothers family whilst he is a Judge that he may not receive a remuneration for that or the like kindnesse The second observation from this Act is that it is not lawful for their wives or servants to take bribes or good deeds which is consonant to l. 1. C. h. t. by which the Judge is lyable to pay the quadruple of what his servants take but it would appear that none is lyable by this Statute for what his servants take except he know that his servants take by command or ratihabition for this Statute discharges Judges to take by themselves or their wives or their servants which implyes some Act of the masters for qui facit per alium facit per se but he who is absolutely ignorant of what his servants doth cannot be punished for anothers fault against the common rules of Law else the master should be made a slave to his servants who might at his pleasure force him to what he decided or else by taking bribes might ruine both his masters estate and reputation Since this Statute discharges only the Lords of Session it may be doubted if it should extend to bribes taken by other Judges For Laws in criminal cases use not to be extended and since the Lords of Session may by bribing do moâ—e unjustice and prejudge the Leidges more then others it may be alledged that other Judges ought not to be so severely punished as they and yet since the Crime of bribing is punished by the Civil Law and Law of Nations in all Judges it seems just to extend this Act to all Judges and the other because though lex julia was made contra principales magistratus yet it was by the Roman customes extended ad magistratus urbanos Math. P. 617. III. The taking of bribes or good deeds was punished by the Civil Law Per. l. jul Repetundarum By which tenebatur qui in magistratu potestate curatione legatione vel quo alio officio munere ministeriove publico quid acciperit quo magis aut quo minus officium faceret l. 1 3 4 6. ff de l. jul Repet The punishment of crimen repetundarum was death if Money was taken to pronounce a capital sentence unjustly l. 7. or banishment and confiscation of goods in case no such criminal effect followed ff 38. de paenis and though some Doctors teach that albeit it be capital to condemn an innocent man yet to absolve a guilty man who deserved death is only punishable by banishment But if the Judge received Money or committed gross iniquity that should be punishable by death also for l. 7. h. t. doth not distinguish these two cases This Crime is by the Doctors called banatria nam baratriam committit qui propter pecuniam justitiam baractat Farin Q. 3. art 10. And they conclude that by the present customes of Nations it is only punished arbitrarily not exceeding banishment Boss. de offic corrupt num 6. He also who corrupts the Judges is punishable with the punishment of falshood gloss ad l. qui explicandi C. de accus which holds though the Judge accept not the bribe he is punishable if the endeavour pervenit ad actum proximum Menoch de arb cas 343. He also who corrupts the Judge or Clerk loses the cause Far. num 126. But I differ from him in that he thinks that a Pannel who corrupts the Judge in a criminal cause ought not there after to be allowed a liberty of proponing a defence for an innocent man may by fear be driven to offer to redeem his own life to which inclination the Law indulges very much The Judge who judges unskilfully per imperitiam is punishable by a fine beside that he payes the expences of the plea l. fin de var. extr crim But Bossius and others are of opinion that he is never to be corporally punished and by the 17. Act 6. P. Ia. 2. only such Judges are to be punished as trespasse wilfully in their office Arbiters bribing are punished as other Judges but some Doctoâ—s do justly conclude that arbiters are not liable for their unskilfulnesse since they were choosed by the parties who should blame their own election Delegat Judges such as these to whom the Lords recommend perambulating of Marches are punishable for bribing but for the same reason they are not punishable for their unskilfulnesse Assessors taking bribes are also punishable but some think them not punâ—shable for unskilfulnesse since the Judge is not obliedged to follow their opinion and though some think that an Assessor gettâ—ng a sallary is liable even for his unskilfulnesse Curt. Iun. ad l. 2. ff quod quisque juris and he should have known that he was named Assessor to supplie the unskilfulnesse of the Judge Yet I differ for he gives only his advice and so is liable only as an Advocat is V. Judges negligent in putting Laws to execution are punishable for their remissnesse and negligence c. 14. R. 2. by the escheating of their moveables and their life is to be in the Kings will which seems too severe a punishment for meer negligence but by the 26. Act 5. Par. Ia. 3. a Iudge found culpable which
except the words infer so clearly an Injury that there is no necessity to Libel the design 3. That the pursuer who was injured did presently resent the injury and took what was spoke for an Injury which the Lawyers call revocatio injuriae ad animum And it is sufficient that this dissatisfaction be signified either openly and expresly or by some other Acts which testified discontent ex incontinenti quis injuriam debet ad animum revocare alias ex intervallo nihil facit sed injuria remissa censetur § ult just de injur And the reason of this seems to be because the essence of a verbal injury consists in dissatisfying the person to whom the words were spoken and words are only Injuries if they be so taken and therefore if they were taken at first to be no injury they were then no injury And if they were not then an injury they could not afterwards become such Since then Injuries are estimat according to the design of the offender it follows naturally that men who are Fools Idiots very young or very drunk are not punishable for verbal Injuries except the offender did become drunk upon design to offend si non ex proposito sed ex impetu deliquit And great passions which break off all designing justa non affectata ira excuses also in this case As also for the same reason the objecting true Crimes are no injury if the objecter designed principally not to offend the person guilty but to inform the Common-wealth or to defend the speakers own honour And upon the first accompt it was found that the detecting what the Common-wealth was not much concerned in was an injury Cravet consil 145. And upon the last accompt it is thought that to give a man the lye is an injury but that it is no injury to say you speak not truth for in the one we defend our own honour but in the other we offend the honour of the speaker and custom has made the expression passe for an expression to be used when we design to offend The relating likewise what we heard from good Authors who designed no prejudice is sufficient also to defend against the punishment due to Injurers as was found in the Court of Savoy Cod. fab de injur def 5. Yet sometimes injuries are inferred not only from expresse words but even from the presumptive meaning of the speakers as to look in a mans face and to say I am not a lyar as others are Afflict § injuria tit de parjur firm or to say flauntingly you are a fine Church-man Iacob de bello visu lib. 1. cap. 3. num 31. III. Real Injuries are committed by hindring a man to use what is his own by removing his Seat out of its place in the Church by giving a man medicaments which may affront him by Arresting his stoods unjustly by wearing in contempt what belongs to another man as a mark of honour by Razing shamfully a mans hair or beard by offering to strike him in publick or by striking him or riving or abusing his cloaths or his house and many other wayes related by Berlich conclus 69. VI. According to our Law verbal injuries are punished only by the Commissars who are judices christianitatis Scandal being a Church censure And the Commissars do inflict pecuniary mulcts and make the offender do pennance at Church doors or otherwayes nor do ordinarily the Lords of Session either Advocat such Actions or modify their penalties The Council do use to remit to the Commissars such pursuits and refuse to try verbal injuries done to privat persons as in the case of Strauchan and Straiton but if the verbal injury was done to a Magistrat as if any man should call him a knave or a fool then the Council use to fyne and to punish even verbal injuries as in the case of George Campbel and the Bailiffs of Inverary 1666. Or to a Privy Counsellour as in the case of Mr. Alexander Spotswood and the Justice Clerk And though verbal injuries are extinguished by the Civil Law if they be not pursued within a Year or by posterior friendship for the Law is most desirous to pass by such imaginary Crimes yet in George Campbels case a subsequent reconciliation was not sustained as a relevant exception because it was not very expresse they punish also scandalum magnatum The Criminal Courts likewise punishes verbal injuries if against Magistrats but will not sustain a pursuite against privat persons for though II. of November 1672. Aikman against Carnagy nor would they sustain a Criminal pursuit for calling a Minister perjured vid Stock decis 108. where he tells us that it is the present custom of Brabant not to sustain Criminal Actions for words except they be spoken against Magâ—strats in the exercise of their imployment vid. l. ult ff de priv delict Real Injuries may be pursued before the Council or Justice Court and the punishment is arbitrary V. Infamous Libels libelli famosi are the most permanent of all Injuries and therefore are most severely punished and in it the offender shews more design and therefore is more guilty He who writes dictats or affixes infamous Libels or causes writ dictat or affix them is punishable He who finds an infamous Libel and shews it though to one only is punishable if malice or design can be proved else not for there is nothing more ordinary nor more innocently done for the most part then to shew such Libels whether dolus malus animus iniuriandi a design to offend be presumed in this delict or must be proved is much contraverted Bertaz consil 237. affirms that it is presumed Farin quest 295. affirms it is not presumed but must be proved And I incline to this last opinion seing infamous Libels are not now so much resented as formerly custom having much allayed the picque which used to ensue thereupon and that custom defends from all guilt in this case is most learnedly maintained by Coler decis 154. where it was found that Stationers were absolved though they sold infamous Libels because all Stationers use to sell such Many things do likewise in this case lessen the punishment as that the Pannel is a minor was provoked did tear it before it was fully written or after it was affixt or confest his fault and said he did it only out of passion or curiosity or if what was said was true Berlich conclus 67. The punishment of this delict was of old arbitrary Paul lib. 5. sent tit 14. but was made capital by the edict valentiniani valentis l. unic C. de famos libel but Clar. makes it arbitrary by the present custom of Europ And so it is with us at present in Scotland except where the Prince is abused or where a capital Crime is alledged against any man for eo casu infamous Libels are justly punishable by death And thus Fleeming was hanged for saying that he wisht that the King would shoot to
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
inflicting of such punishments was only proper to Kirk Sessions the 15. of February 1669. But though they be the only Judges competent to verbal Injuries where they are Scandals yet in verbal Injuries done to persons of quality which are called in Law scandala magnatum the Council sustains it self Judge competent the King being as the Author so the Protector of all the priviledges of the Peerage and in verbal Injuries likewise done to Magistrats the Council are also Judges Magistrats representing the King and being his Instruments in the Government When verbal Injuries are done by Members of a Court to one another that Court is likewise Judge competent all Courts how inferiour soever having an innat Power to chastise its own Members and to preserve the esteem due to it self and therefore if any stranger who has a Process depending before any other Court as the Session Sheriff c. do abuse contumeliously any third Party though no Member yet these respective Courts may punish the same if the injury be done in face of Judgement and if it be done to any Inferiour Judge extrajudicially that Judge if he be in the actual exercise of his Office he may likewise punish the same except the offender be a Member of the Colledge of Justice for in that case the Judge extrajudicially injured must complain to the Lords but cannot imprison them summarly because if this were allowed these Members might be abstracted from serving the Liedges as an Advocat when he is to plead a Cause or a Clerk when he is to give out a Decreet and this last has been frequently so decided Though verbal Injuries amounting to Scandals are only to be punished by the Commissars yet where they have nothing in them of Scandal but are rather reflections upon the Honour of the party injured as to call a Gentle-man a Puppy or an Ass it may be the Privy Council and not the Commissars are Judges competent The Commissars are also Judges competent to Adultery in so far as concerns Divorce vid. tit adulterii III. How far the Commissars and Inferiour Judges are Judges competent to the improving of Writs and declaring them false has been variously decided but they may be reduced to these conclusions 1. No Inferiour Judge is competent to try the falshood of Writs by the indirect manner of improbation that is to say by presumptions for that way of tryal being in effect nobilis officii is only competent to the Lords of the Session 2. Commissars and other Inferiour Judges are only competent to improbations even where the direct manner is extant if improbation be propon'd by way of exception or reply for then the tryal of Falshood falls in necessarily as a part of the Process and without this were allowed to these Inferiour Judges they could proceed in no case for if a pursuit were intented before them upon a Bond they behoved to sist if the Bond were alledged to be false or to stop if the defender should offer to improve the execution of the Summonds but yet they are not competent by way of Action even where the direct manner is extant as was decided the last of November 1630. Williamson contra Cushney 3. If the Commissar or other Inferiour Judge pronounce once a Decreet he cannot thereafter reduce his own Decreet as having proceeded upon false executions though the executions were given by his own Officer since they are only Judges competent to such forgeries incidenter but after sentence they are functi as was found the 29. of Ianuary 1677. Cowan contra the Commissar of Glasgows Phiscal and according to these conclusions the late instructions given to the Commissars are to be interpreted TITLE XI The Jurisdiction of Regalities in Criminals 1. The Origine of Regalities 2. They are accounted Inferiour Iudicaturs 3. Why the Heritor of a Regality is called a Lord of Regality 4. Whether His Majesty may erect Regalities within the bounds of Heritable Iurisdictions 5. They cannot repledge in case of Treason nor from Iustice Airs 6. The difference betwixt Ecclesiastick and Laick Regalities and from whom they may repledge 7. The form of a Repledgiation 8. Regalities must have a Burgh of Regality and to what that Burgh is tyed 9. The effects of a Lord of Regalities power I. BY the Feudal Law to which Regalities owe their origine alia erant regalia alia erant feuda regalem dignitatem habentia which is the same difference in our Law betwixt Regalia and Regalities Regalia are such priviledges as immediatly belong to the Crown and do not originally belong to nor can be communicat by any else such as to Coin Money to open Mines of Silver Gold c. But Regalities are Fews which are granted by the King to a Subject they have as large a Jurisdiction as the Sheriffs have in Civils or the Justices in criminals the habilis modus of granting which Rights is by Signator wherupon a Charter follows which passes the great Seal II. Regalities are accounted inferiour Judicaturs cap 76. quon attach by which it is Statute that no inferiour Judge shall judge the Pleys of the Crown and Regalities are expresly numbered amongst inferiour Courts Act 173. Parl. 13. K. Ia. 6. By which it is likewise Statute that he who strikes any person in presence of the Justices shall incurr the pain of death but he who strikes any before the Sheriffs Lords of Regality or other inferiour Judge shall only pay a hundred Pounds but though they be accounted inferiour Judges when compared with the Justices or Commissioners of Justiciary yet they have greater power in the way of their procedor and in the proportioning of their fines then Sheriffs or other inferiour Judges have for they may fine in a hundreth Pounds though Sheriffs and others cannot as was found the 30 of Ianuary 1663. Stewart against Bogle And generally they have the same power and the same allowance with the Justices except when an express Law makes a difference betwixt them The 43. Act 11. Parl. K. Ia. 2. appoints that no Regalities should be granted without deliverance of Parliament which nullity of old could not have been received opt exceptionis if it was clad with possession Hadd 1610. and they were still subject to Revocation by the King if they were otherwise granted as may be seen by the Revocation 1633. and all preceeding III. He in whose favours the Regality is granted is still called the Lord of Regality though he be otherwise but a Barron the reason of which I take to be because by the Feudal Law tria erant tantum feuda regalem dignitatem habentia quibus inerat jurisdictio regalis viz Ducatus Marchionatus Comitatus and by the same reason it is that no Lands can be comprehended under this jurisdiction by our Law but such as belong to him in whose favours that jurisdiction was granted either in Property or Superiority and therefore it was found that His Majesties Palaces though situated in Burghs of
therefore Act 89. Par. 6. Ia. 1. Ratified Act 28.3 Par. K. Ia. 4. with this addition that if any heretable Sheriff omit his duty in prosecuting of this crime after this manner he shall lose his heretable office for three years but if he have only that office for the time he shall lose it during all that time From which Acts it may be concluded that the Sheriffs is not only Judge competent to Slaughter but to murder and both to the one and to the other at any time if he has either apprehended the person or has ex in continenti done diligence for apprehending him but the Sheriff is not Judge competent to murder though committed within his jurisdiction except in either of these cases IV. The way of procedure before the Sheriff is by an Assize and the Procurator-Fiskal is pursuer in place of His Majesties Advocat Yet sometimes the Sheriff or Barron may condemn upon the Pannels confession without an Assize as Dur. observes penult Ianuary 1622. but if the party be present the Sheriff cannot condemn him as holden pro confesso though he refuse to depon but co casu he must put him to the knowledge of an Assize as was found 24. Iuly 1633. Dickson contra Halyday And albeit a blood proven by confession may be punished by an unlaw of fifty pounds yet when blood is punished upon contumacious refusal to swear the unlaw cannot exceed ten pounds 17. February 1624. V. The Sheriff may pursue when any person compears and insists with him in the pursuite but if the crime be pursued by way of inditement without the concurrence of any party the Justice general is only Judge competent thereto Skeen verbo Sheriff but that rule is too general and may admit of this distinction viz. that either the Thief is taken with fang and then the Sheriff may proceed to judge him though no privat pursuer insist against him Nor needs there three fangs for justifying that pursuit Albeit Sheriffs now never proceed but where three fangs are proved Or else no fang is found eo casu the Sheriff cannot judge the thief except there be a pursuite intended at the instance of a privat party VI. The Sheriff should assist in all Justice Aires holden by the Justice General or the Chamberlain and should produce the verifications of all the Summonds which is made to the Justice Air and should make provâ—sions at the Justice Air and his Clerks which should be allowed in the first end of his accompts to the Exchequer and he should arrest such persons as the Crowner cannot arrest and should those an Assize upon the last day of the Justice Air anent the execution of his office Ia. 3. Parl. 14. cap. 102. and if he be found culpable the Justice General may remove him from his office till the next Parliament and put another in his place to officiat in the interim St. Rob. Bruce ex lib. Sconen related by Skeen ibid. but much of this is antiquated by custome for the Thesaurer sends along with the Justice Air a person specially commissionated by them who defrayes the charges of the Justices and Justice Clerk VII If the Sheriff fail in his duty he was punished of old by the losse of his office during his life and imprisonment during His Majesties pleasure St. David Cap. 13. 69. but now for negligence in his office he tines the same for year and day and is punishable in his person and goods at his Majesties pleasure Ia. 2. Par. 14. cap. 37. And yet the Lord Yester having suffered two Thieves negligently to escape and his heretable office of Sheriffship being upon that accompt taken from him by King Iames the fifth that Decreet was reduced for it was found too small to infer the loss of an heretable office Stat. Sessionis pag. 34. which is observed by Hop likewise in his larger Practiques If the Sheriff absolutly refuse to do Justice he loses likewise his office and is punishable at his Majesties pleasure but if he do injustice he loses his office if it be heretable for three years but if it be not heretable he loses it during the time he was to enjoy it formerly and in both cases he is punishable arbitrary in his person and is obliedged to refound the damnage and interest sustained by the parties laes'd K. I. 3. P. 5. cap. 26. but if he bribe or give partial counsel he forefaults his fame honour and dignity and is likewise punishable in his person and goods K. I. 5. Par. 7. cap. 104. If the case be difficult the Lords of Session will sometâ—mes Advocat the cause from the Sheriff to the Justices as in the case of Theft-boot pursued by Connadge the Sheriff deput of Invernesse against Makintosh And sometimes the Council will discharge the Sheriff to proceed without Advocating the Cause if they find either the case to be difficult or the Sheriff and his Deputs to be suspected TITLE XIII The Criminal Jurisdiction of Barrons 1. In what cases Barrons may judge 2. The Clerk of that Court needs not be a Nottar 3. Whether he may punish Theft or Fire-raising I. A Barron in our Law is generally understood to be one who is Infest in any Lands though not erected in a Barrony in which sense he has no Jurisdiction but only that he can unlaw his own Tennent for Blood committed upon his own ground as was found the penult of Ianuary 1622. Iohnstoun against the Laird of West-nisbit but a Barron properly is he who is Infest with power of Pit and Gallows fossa furca A Barron Judges crimes in the same manner as they are judged by the Sheriff and may like him proceed in time of vacance to judge these crimes to which he is otherwise competent But it has been controverted whether Barrons have been Judges competent to Processes for penal Statutes since the penalty there was to be applyed to the Kings Fisk and so should be judged in his own Court but the Lords found the 3. of February 1674. that they were Judges competent to penal Statutes by the constant custome of this Nation Albeit in civil cases Barrons may appoint Bailies yet Balfour cap. 63. observes that in criminalibus no person below the degree of a Barron may sit upon Blood nam potestas gladii est meri imperii quae nullo modo delegari potest except there be an express power given by the Soveraign for that effect as in the case of Justices and Sheriffs who have power to Deput and that power of Deputation were unnecessar if it were otherwise competent II. The Clerks of all other Courts must be Notars but the Clerk of a Barron Court needs not be a Nottar and yet the Decreet of a Barron for an unlaw will be sustain'd founded upon a confession though the confession be not subscribed as is observed by Durie the penult of Ianuary 1622. But by an Act of Sederunt it is ordain'd that no sentence of any Inferiour Court
and the power of giving of quarter is naturally inherent in all Souldiers as such and as the Council without expresse remission from the King upon submission might have secured their lives so might Souldiers by quarter for they have as much power in the field as the others at the Council Table 2. Lawyers are very clear that quarter should be kept though given to subjects who are Rebels Grotius lib. 3. Cap. 19. where after he hath fully treated that question de fide servanda concludes that sides data etiam persidis rebellibus subditis est servanda And this hath been observed in the civil Wars in Holland and France and by his Majesty and his Father at home during the late troubles 3. Quarâ—er is advantagious to the King and so should be kept for these who were taken might have killed his Majesties General or Officers and by giving quarter to his enemies he redeemed his Servants and if the only effect of quarter were to be reserved to a publick tryal none would accept quarter Notwithstanding of which reply the defence was repelled and the Pannels condemned and thereafter execute The second question was that which was debated in Haddo's case 16. March 1642. At which time that Loyal Gentleman Haddo being pursued for killing Mr. Iames Stalker Servitor to the Lord Frazer he alledged that the said Mr. Iames was killed in the open field in a conflict betwixt the Convenanters and Ante-Covenanters All which Acts of ostility were remitted by the pacification To which 〈◊〉 was replyed that the Pacification did only secure against acts of hostility which were done in furore belli but this was a privat murder for the said Mr. Iames having been taken a Prisoner Haddo did come up to him and asked whose servant he was and hearing that he was servant to the Lord Frazer he said your masters man is the person that I am seeking and thereupon ordered to kill him which was accordingly done by which it clearly appears that this was a privat murder done in cold blood and upon premeditat malice and Mr. Iames Stalker being a Prisoner any who killed him was liable for his murder ex jure militari and the pacification could no more defend the committer then if he had gone into a prison and killed a prisoner or if he had committed a Rapt upon a woman likeas Murderers are expresly excepted from the pacification 2. Haddo was no general person and so could not give order for his execution and so the killing of the defunct was not warrantable by the Law of Armes To which it was duplyed that the pacification did secure against all deeds whatsoever done upon the field by persons engaged in either party without debating whether the deed was lawfully or unlawfully done and the occasion and not the manner of killing is to be considered And as to the manner it is answered that Mr. Iames had never got any quarter and so was not a Prisoner in War and therefore might have been killed by any engaged in the quarrel whether general person or other But the truth is the said Haddo did command that party which was equivalent to his being a general person and albeit the pacification did expresly except murders yet that behoved only to be interpret of such murders as had no contingency with the troubles nor were occasioned by them this debate was not decided but was remitted to the Parliament and that worthy Gentle-man executed for rising in arms against the Estates of Parliament III. I find that there was a Commission granted by the Parliament in Anno 1644. to two Bailies of Edinburgh to sit and hold justice Courts upon such Souldiers as were runaways and that upon this Commission Iames French was condemned by them for running away from his Collours contrary to the Act of Parliament 1644. and was hanged accordingly From which these observations may be made 1. That the Justices are not Judges competent to crimes that are meerly Military 2. That we have no standing Law for executing runaways beside the Martial Law nor was there any Law founded upon this inditement except the Act of Parliament 1644. which is now abrogat 3. It is observeable that one Mr. Alexander Henderson as Procurator Fiscal and not His Majesties Advocat was here pursuer From all which it seems somewhat strange that this Process should have been insert in the Adjournal Books IV. But albeit deserters were here punisht with death yet regulariter milites gregarij or listed Souldiers are only punishable in time of Peace with degredation and in time of War with death because the hazard is then greater l. 5. § 1. ff de remilit and by that Law they may be killed by any man lib. 2. Cod. quando liciat unic c. But this arbitrary killing is not now in use as Voet de jur militat very well observes if superiour Officers leave their charges they commit Treason l. 2. ff ad leg jul majest vid. tit Treason V. Constantine having extinguisht the Office of praefectus Praetorio who was the Supream Judge in all Military cases The Magistri militum succeeded and were sole Judges of all crimes committed by Souldiers both in Civil and in Military cases and if Souldiers had offended the Civil Magistrat might have secured but he was obledged to remit them cum elogio to their own Officers l. 9. ff de custod reor vid. tit C. de remilit TITLE XVII Advocations of Criminal Causes 1. Advocations defined 2. No Advocation from the Iustices 3. How Advocations are raised from inferiour Courts and the forms thereto relating 4. The ordinary Reasons of Advocations examined 5. Whether the Iustices are proper Iudges to their own competency I. ADvocation is the away calling of an intended cause or pursuit from an inferiour incompetent judicatory to a higher and more competent and is the same thing with us that recusatio judicis was with the Romans and is by the Doctors call'd advocatio or evocatio which is by them defined to be litis pendentis coram inferiore ad superiorem absque provocatione facta translatio Gail lib. 1. obs 41 num 7. and is founded upon cap. ut nostrum de appell l. jud solvitur ff de jud II. Their is no Advocation raised of pursuits intented before the Justices but if ther be any design of stopping a pursuit depending before them there useth to be a Petition given in to the Lords of Secret Council who if they find the desire of the Petition just will ordain the Justices to stop all further procedor or will remit the inquiry to any other Court as they did in a pursuit intented at the instance of the Earl of Caithness against some Vassals of the Earl of Sutherland which they stopt as to the Earl himself and ordained his Vassals to be pursued before his own Regality Court sometimes also they ordain Assessors to be Justices so that there is never a cause formally Advocat from before the Justices
or otherwise the pain is Arbitrary and there the pursuer cannot by his petition determine the same but must leave it to the Judge l. 1. § quorum ff ad S. C. turpil l. ff de privat delicti l. ordine ff ad unicipalem and in the form set down l. 3. ff de accusatio by Paulus there is no conclusion exprest but yet with us there is alwayes a conclusion in every Libel though it be general and I perceive that most of the practitioners are of opinion that at least a general conclusion should be added III. Whether a Libel being libelled qualificate the pursuer may passe from the quality has been thus determined by Lawyers that if the quality amount to another different crime it cannot be past from but if the quality amount only to an aggraging circumstance it may be past from As for instance if the pursuer Libel upon the Act of Parliament whereby murder under trust is Treason and subsume that the Pannel is guilty of murder under trust in so far as the person murdered was father to the murderer if when the case is to be tryed the pursuer should declare that he insists against him as a Murderer simply because he is not sure to prove that the person killed was father I think eo casu the pursuer could not so reform or declare his Libel for that makes the crimes to differ the one being Murder the other Treason and the defender was only obliedged to prepare him to defend against Treason and finding that he was secure as to the crime libelled he needed not prepare other defences or raise exculpations for that effect but these qualities which amount only to aggravations may be past from as was decided 11. November 1672. For Aikma◠having pursued Carnegy of Newgate for oppression conform to the 25. Act 4. Parl. K. I 5. because he had beat him who was a Magistrat in the exercise of his Office the Justices having found that the pursuer could not in the construction of Law be repute a Magistrat because he had not taken the Declaration it was thereafter alledged that the Libel being only founded upon the foresaid Statute conceived in favours of Magistrats and the conclusion being against oppression and not against beating the pursuer could no more insist upon that Libel which was repelled for the Justices found that the beating any man was a crime and the pursuer might insist against the defender for beating him since his being a Magistrat was only an aggraging circumstance Yet this seems a hard decision since the proposition of the Libel did not bear that beating was punishable nor did the conclusion bear that at least the Panel was punishable for beating a free Liedge if this were universaly allowed alternative Libels were unnecessary and this would occasion much looseness in Criminal Libels whereas Lawyers treating of Criminal Libels have laid it down as a principle that in criminalibus non licet vagare and the crimes of oppression and beating are different Nor can it be denyed but that a privat person differs from a Magistrat so that this quality made the persons the crimes and the medium concludendi to differ IV. For the better clearing of our custom in these cases I have set down the form both of the Criminal Letters and Criminal Indictment now in use with us A Criminal Summonds CHARLES c. humbly mean'd and complain'd to Us by Our Lovits A. the relict B. sister daughter and nearest kins-woman C. as Mr. with the remanent kin of Umquhile Main Servant to the said C. and Our right trusty and well beloved Councellor our Advocat for our interest in the matter underwritten upon Listoun without any just cause offence or injury done to him by the said umquhile Man having conceived a deadly hatred and evil will against him with an settled purpose and resolution to bereave him of his life one way or another lately upon the last day of 〈…〉 where the said Main was in quiet and sober manner for the time expecting no harme injury nor pursuite of any person but to have lived under Gods peace and ours And the said Listoun being bodden with a great Batton or rung in his hand and with knives and other invasive weapons first upbraided the said Main with words alledging that he was a common Thief and had stollen c. And thereafter because the said Main had purged himself of that calumny and said he was as honest a man as himself he thereupon ran and rushed the said Main being an aged man of 74. years of age to the ground under his feet struck him in the head craig shoulders and side with the said Batton lap upon his breast and belly with his feet and knees beat him upon the heart and thereby broke and bruised his whole intrals and noble parts thereafter heased and drew him by the heels off the saids lands by the space of a quarter of a mile to a low Vault in c. and imprisoned him therein tanquam in privato carcere he being in the dead thraw Likeas within three hours after his imprisoning in the said Vault the poor aged man dyed of the saids stroaks and hurts likeas to suppresse the Murder the said Listoun with his complices buried him in an obscure place in the night time and swa the said Main was shamefully and cruelly murdered and slain and secretly buried by the said Listoun and his complices and he is Art and Part thereof committed upon set purpose and provision and forethought Fellony in high and manifest contempt of our Authority and Laws in evil example of others to commit the like if swa be OUR WILL IS herefore c. and in Our name and authority command and charge the said Listoun committer of the said Barbarous murder in manner foresaid to come and find sufficient Caution surety to Our Iustice Clerk and his deputs acted in our books of Adjournal that he shall compear before the Iustice or his deputs to underlye the Law for the samen in our Tolbuith in Edinburgh on the Day 〈…〉 of 〈…〉 in the hour of Cause under the pain contained in Our Acts of Parliament and that ye charge him personally if that he can be apprehended and failzing thereof at his dwelling house and by open proclamation at the Mercat Crosse of the head Burgh of the Shyre Stewatry or Regality where he dwels to come and find the said soverty acted in manner foresaid with in six dayes next after he bees charged be you thereto under the pain of Rebellion and putting of him to the Horn the whilk six dayes being by past and the surety not being found that ye immediatly thereafter denounce him Rebel and put him to our Horn and escheat and in bring all his moveable goods to our use for his contemption and cause Registrat thir our Letters with the executions thereof in the books of Adjournal within fifteen dayes thereafter conform to our Act of Parliament
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