Law by which non licebat ducere eam in uxorem quam quis polluit adulterio But it must be observed that this only holds where there was an actual Divorce upon the adultery prior to the marriage And therefore a present marriage could not be dissolved by offering to prove that the contracters had committed Adultery during their former marriage This act of Parliament having declared such marriages unlawfull it did very consequentially declare the succession to be begotten by such unlawful conjunctions to be unhabile to succeed as Heirs to these Parents And I have heard it it doubted whether they were capable to receive dispositions from their adulterous parents But I conceive as to this there is no difficulty For though the Law make them uncapable to succeed as Heirs yet it does not make them uncapable to receive a disposition and though it may seem that this be a farther check upon the Adulterers whose children could no way be gratified by those with whom they committed the crime Yet since quilibet est arbiter rei suae it were hard to deprive a man of the use of his property because he has committed Adultery I find that by the Civil Law such Bastards as were born in Adultery or Incest whom in the Civil Law calls nati ex damnato coitu could neither succed to their vitious Parents nor were they capable of any thing by their Parents Testament cum ita facilius paterna libido coercere posses censeatur l. Fin. C. de nat lib. Bald. ad l. 1. C. de jur Aur. Nor could they be adopted by their Parents l. legem C. de na lib. Upon which principle our Parliament has been induced to make the 117. Act. Par. 12. I. 6. but has streatched it a little further then the Civil Law did For by that statute a woman divorced for her Adultery marrying thereafter the person with whom she committed the Adultery for which she was divorced or dwelling and resorting in company with him at Bed and Buird cannot dispone her lands or set tacks thereof in prejudice of the Heirs who would otherwayes have succeded to her From which statute it is observeable that since the woman is only incapacitat to dispone in this case that therefore a man though Divorced for Adultery may lawfully dispone his Land in favours of the Children Procreat in that Adultery this prohibition being restricted to the woman because of the Imbecility of her sex who may be tempted or seduced more easily then men can be and yet since the presumption did only runn against the Adulterous Children procreat in the second marriage whom it was probable the mother would have preferred to the children of the first and slighted husband It seems strange why any deed done by her in prejudice of not only those children but even of any of her Heirs would be null though done in favours of neither the Adulterous Husband nor his Children but even in favours of meer strangers whom the Law needed not have suspected But this was certainly done to prevent the mothers fraudulent convyances who might have transmitted the estate to the adulterous Husband or his posterity or friends under borrowed names the discovering of such contryvance being very difficult and the hazard of not discovering being very great I conceive likewayes for the same reason that the granting of a personal Bond upon which the estate was thereafter comprised from the mother may be quarrelled upon this statute For else the Law might be easily cheated and the statute it self declares all deeds done to the prejudice of the saids Heirs directly or indirectly to be null and yet since the mother remains still fiar notwhithstanding of this prohibition I see not why a Bond and comprysing led thereon for debts truly owing by the Mother could be quarrelled where nothing was fraudulently designed against this act And though this act be only conceived in favours of the Heirs of the prior Marriage or the womans Heirs whatsoever yet I see no reason why this act would not militat in favours of the King to reduce deeds done to his prejudice as ultimus haeres since a last Heire in the construction of Law is a true Heire TITLE XVIII Bigamie 1 What is Bigamie by our Law and how punished 2 Why Bigamie was not punished as Adultery 3 Whether Quakers may be punished for Bigamie 4 VVhether long absence may excuse in this Crime 5 VVhether the marriage sine concubitu infers Bigamie 6 VVhether a woman devorced for Adultery marrying again be guilty of Bigamie THat a man might marry two wives was allowed by many Nations and Tacitus observed that only the Germans amongst all the Nations were content with one but no Nation allowed that a wife should marry two husbands which was done either because men were the only Legislators and so were kind to themselves in allowing themselves that liberty they denyed to poor women or else this was not allowed because a womans marrying two men prejudged the peopling the common-wealth Whereas a mans marrying moe wives was advantagious for it And the Law sayes that more chastity is required in women then in men and men being by nature hotter then they Bigamie is therefore more unnatural in women I. Yet in our Law either a man marrying two wives or a woman marrying two husbands commits Bigamy and this is accounted by the 19. Act 5. Par. Q. Mary a breach of the Oath made at marriage and therefore is punishable as Perjury by confiscation of all their Moveables warding of their persons for year and day and longer during the Queens will and as infamous persons never to bruik Office Honour Dignity or Benefice in time coming II. It may be here doubted why Bigamie was not punisht as Adultery seing it may be notour Adultery and is ordinarly so to which difficulty I think the answers are that it was contraverted amongst Lawyers whether Bigamie was punishable as Adultery or as Stuprum or Fornicatio that it was not Adultery they contended because God allowed Bigamie but he never allowed Adultery 2. Many Nations allowed Bigamie who condemned Adultery and l. 2. C. de incest nupt where it is said that uemini licet duas uxores ducere the punishment of Adultery is not subjoyned but it is only said that praefes provinciae hoc inultum non patietur and it may be added that their marrying shows some more respect to the Law then Adultery obfiguram matrimonii multa non adeo puniuntur 3. When Bigamie was by this Act declared punishable only as Perjuâ—y and not by death even incorrigible and manifest adulteres were only punishable by confiscation of their Moveables is clear as by the subsequent Act and the Act against notour adulterers to be punisht by death was not made till the 9 th Parl. Q. Mary I know that Menoch de arb cas 420. thinks that Bigâ—mie should be punisht as Adultery And I do think that if the marriage be contracted upon design
of these Statutes conversation should be criminal even after prohibition except it be in suspect places 2. The Justices are only declared to be Judges to the notoriety of Adultery and therefore it may be controverted if Lords of Regality be Judges competent to the cognition of it 3. This Act does not exclude capital punishments in other cases of Adultery but only ordains that these three degrees shall be punished by death And since there are other cases more grievous to the party injured and more scandalous to the Common-wealth it may be argued that the punishment of death should likewise be extended to them as for instance to commit frequent Adulteries And it appears it is upon this account that the sentence of death was pronounced against Sir Iohn Stewart for three Adulteries 15. August 1628. As also Isabel Hamiltoun being pursued in Iuly 1647. for Adultery and having enacted her self never to return under the pain of death she having thereafter returned was immediatly without any other Process by an order from the Justices execute in Anno 1649. IV. And albeit there be no express Law for inflicting death in other cases upon ordinary Adulterers yet I see no reason why the Justices may not as well for the good of the Common-wealth inflict death without any express Law here as they do in Theft and other less Crimes And in effect Adultery includes Theft as I said formerly And albeit inclusio unius est exclusio alterius and that it may be argued that by the former Act appointing death in the cases above-cited the punishment of death is thereby excluded in other cases yet to this it may be answered that the foresaid rule is only a Brocard and hath only the strength of a presumption and therefore take only place in favourable cases but should not be extended in prejudice of the Law of God which expresly ordains Adulterers to die And in the foresaid 74. Act 9. Parl. Q. Mary It is declared that this Act shall be but prejudice of all other Acts and Laws already made with all rigour but I can find no other Act made prior to that anent Adultery whereby the punishment is limited and therefore I believe that that Act relates to the punishment related to by the Law of God At the least I think that the Magistrate is left to his own freedome to consider circumstances And whereas it may be alledged that if single Adultery were punishable by death these Acts had been needless To this it may be answered that the design of the former Acts was to necessitat the Magistrate alwayes in the cases exprest in that Act to inflict death and not to impower them only to do so And seing single Adultery is punishable by the Magistrate sometimes by banishment as in the case of an English woman in December 1668. sometimes with scourging as in the case of Ridpath December 1642. And sometime with fining as in the case of that woman who committed Adultery with George Swintoun in Anno 1666. though there be no express Law warranting them to inflict these punishments and whereupon the Pursuer is forced to found his Summonds upon the Law of God and Law of Nature upon which Law they are sustained without citing any Municipal Law as in the case of that English woman I see no reason why they may not by the same Laws inflict likewise the punishment of death Albeit the foresaid punishment of death be appointed in cases of notour Adultery yet the Council does use to mitigate the punishment and so they ordained only Ridpath a Tinker though he was found guilty of double Adultery in keeping another Tinkers Wife two years to be only scourged banished and burnt on the cheek Decemb. 4. 1662. But the reason here was because Tinkers are in effect vile persons who are seldome ever lawfully married And in such I find of old Adultery was not punished by death as l. 29. C. h. t. where Adultery committed with a Taverner is not punished severely quas vitae vilitas dignas legum observatione non credidit erant infra legum curam And some respect was likewise had here to that absurd custome amongst Tinkers of living promiscuously and using one anothers Wives as Concubines The Council sometimes do likewise banish persons for Adultery without suffering them to come before a Justice Court even where notour Adultery might be proved against them as in the case of Ieals Thyre an English man for committing Adultery with Margaret Hamiltoun who at her death confessed that the said Thyre had lyen several years with her and that he had alienat her affection from her Husband which induced her though without his accession to kill her Husband and that she had several Children by him all which in effect were great aggravations of the Crime and he deserved well to have dyed From this it appears that the punishment of ordinary Adultery is arbitrary and useth to be inflicted either by banishment whiping fyning or imprisonment If a person be only banished for Adultery and return again without leave here she may be execute and thus the Justices found by advice of the Council in the case of Grissel Hamiltoun Decemb. 1649. Or if Adultery be complicated with any other Crime the guilt is thereby aggraged and the Crime may be capitally punished Thus Margaret Thomson was execute for committing Adultery with a Minister and for falsifying a Testimonial to the end she might get her Child Baptized May 28. 1646. V. Since Adultery is only committed betwixt married persons it is therefore requisite that the Libel in Adultery bear that such persons were married and one of the ordinary faults committed by the Pursuer in this Crime is they seldome ever lead Witnesses for proving the marriage without which be proved or be notour to the Assize they should not fyle the Pannel though Copulation be proved But though the marriage be not just but only a supposed marriage or matrimonium putativum as Lawyers call it yet the violation even of that marriage will infer Adultery As for instance if a man not knowing the relation should marry within the degrees de fendant though there be in that case no lawful marriage yet if either of these parties who are married should ly with any other they will be guilty of Adultery Cravet Consilio 205. num 36. The reason whereof is because the committer did all that lay in his power to commit Adultery which is the main thing to be looked to in Crimes nam proposita maleficia distinguant And from this I am much inclined to think that conatus or an endeavour to commit Adultery if the Adulterer did all that in him lay to accomplish the said design makes the committer guilty of Adultery if that design was brought the length of being in actu proximo as Lawyers call it though in that case I think the rigour of the ordinary punishment should be somewhat remitted haec attentatio est
that these who Blaspheme in jest are to be less severly punished and that Rusticity mitigats the ordinary punishment in this case but Gothofredus is as to the last of a contrary opinion because Rusticity excuses not from the knowledge of the Law of Nature much less of God but they may be reconciled thus that open gross Blasphemy is equally punishable in both but not consequential and indirect Blasphemy as if a Countrey-man should erre in the Persons of the Trinity which some remot High-landers are so ignorant of as not to know those should rather be pitied then punished except they add obstinacy to Blasphemy vid. Cabal cas 296. IV. The punishment of Blasphemy is Death by the Law Nov. 77. by the Canon Law Publick repentance for the first fault and the standing at the Church Door with an infamous Mitre or Paper Hat for a relapse V. By our Act 21. Sess. 1. Par. 1. C. 2. Blasphemy Railers against God or any of the Persons of the blessed Trinity shall be likewise punishable by death if they obstinatly continue therein From which Act it is observable 1. That this Crime can only be tryed before the Justices and therefore not before the Lord of a Regality though they have equal power as hath been formerly observed 2. Distraction is only excepted here so Ignorance Passion Rusticity or Railery excuses not nam exceptio firmat regulam in non exceptis and yet these may excuse from the ordinar punishment in some circumstances but are never defences against the relevancy 3. It may be doubted why the denying God or any of the Persons of the Holy Trinity is only punishable by death if they continue obstinat therein And yet the railing upon or cursing God or the Trinity is simply punishable without obstinacy and the difference seems to be that cursing or railing against God cannot proceed from Ignorance but argues Malice whereas the denying Gods Attributes or the Trinity may proceed from Ignorance It may be doubted if with us a person who should call himself the Son of God or the Messias could be punished as a blasphemer and it is said that the Parliament of England thought he could not and therefore Iames Nailor was only scourged for this Crime Yet I think he could be reached by our foresaid Act as a person who rail'd upon God and the Trinity For to make our selves equal with them is to rail against and vilifie them VI. Cursing of Parents viz. Father or Mother but no others is punishable by death if they be past sixteen or arbitrarly if they be below sixteen and above punishable vid tit parricid Act 20. Par. 1. Sess. 1. Ch. 2. Justices of Peace are by the 38. Act 1. Par. Ch. 2. to punish such as curse and swear profanely and exact from a Noble man twenty merks a Barron twenty merks a Gentle man Heretor or Burges ten merks a Yeoman fourty shilling a Servant twenty shilling a Minister the fifth part of his Steipend and the Husband must pay his Wifes fine ergo regulariter the Husband is not liable for the Wifes fine if there be no warrant therefore by Statute By the 16. Act 5. Par. Q. M. the swearing abominable Oaths are to be fin'd but that Act is only temporary By the 103. Act Par. 7. I. swearers and blasphemers ar to be punished by the Magistrats and if they fail by the Privie Council Notà by this Act that Women are to be punished in penal Statutes conform to their Blood and their Husbands quality that is to say conform to their Blood if unmaried or to their Husbands quality if maried and therefore may be doubted whether these Women who have precedency according to their Birth though maried as an Earles Daughter when maried to a Gentle man or those who have precedency by a Patent above their Husbands quality should not be punished according to their precedency though maried The Justices did in May 1671. fine a Woman in Dumfreis in 500 merks for drinking the Devils health but did not find it Blasphemy TITLE IV. Haeresy 1 The definition of Heresy 2 Whether Invocation of Spirits be heresy 3 The punishment of Heresy 4 Iesuits and trafficquing Priests how punished 5 The specialities ontroduced in punishing this Crime HEresy is committed when a Christian owns pertinatiously errors condemned by the Church I said when a christian own'd them because Pagans and Mahumetans are not punish'd as Hereticks Simancas de haereti cap. 31. num 3. for these are enemies to our faith in general and erre not in particular points of it I said who err'd pertinatiously because such as erre ignorantly or as having err'd perversly do not pertinatiously adhere to their error are not to be esteem'd haereticks And this repentance is to be receiv'd any time even after sentence to stop the execution Carer fol. 642. except they have relaps'd in their Heresy for their second fall is not to be taken off by repentance but though their repentance secures them against death in the first fall yet the are to be punished by perpetual Imprisonment Igneus in l. ff ad Sillan Cook hoc tit II. Though some make the adoration and invocation of Spirits to be Heresy yet others do more judiciously determine that if these devils be invocked to reveal things to come then that invocation is of the nature of Heresy for that is to attribute omniscience to the Devil which is one of Gods attributes but if the Devil be invocked for a particular end or interest such as that he may learn the invocker how to prevail with a mistriss or how to gain a Princes favour in these cases the invocker is not to be call'd a Heretick Clarus § Haeresis num 25. but neither do's that distinction please me for such as invock the Devil are not properly Hereticks especially if they have renounced their Baptism for there is no reason to call them Hereticks who not only erre in the faith but have renounced the faith intirely and as Pagans are not Hereticks because they worship false Gods so neither should they who worship the Devil and these who have renounced their Baptism for they are in the same condition with these who were never baptized III. The punishment of Heresie in the opinion of the Doctors is to be burnt and confiscation of the Delinquents Moveables Clar. num 13. But by the Law of England Hereticks are only to be burnt if they will not abjure By our Law Heresie was in the first instance try'd by the Church and the Secular power did not meddle to condemn Hereticks till they were first condemned by the Church Ia. 1. Par. 2. Act. 28. In which it is ordain'd that the Bishops shall inquire into Heresie and if they be found that they be punished as the Law of the Holy Kirk requires and if it misters that Secular power be called in support and helping of holy Kirk From which Act it is observable first that the Kirk was Judge to Heresie in
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
concurrers kill any of the Robbers they are declared free upon which it may be doubted if such as kill Robbers without acquainting the Sheriff or Justices of Peace are punishable and it seems they are seing this Act explains the other and modifies somewhat the indefinite power given to private persons who upon pretence of such invasions which might prove very dangerous and therefore the last did wisely require the concourse of the Magistrate and upon this consideration I know that it was consulted that notwithstanding of this such as had not acquainted the Sheriff or Justices could not be exculpat And yet it may be argued that this Act narrates not the other nor bears expresly a rectification of it but without lessening the priviledge therein granted adds a new one and so being introduced in favours of possessors should not be interpret to their disadvantage By the Civil Law licebat nocturnum furum occidere And by the 227. Act 14. Par. Ia. 6. it is declared lawful for the Leidges to conveen and execute Thieves and they are all made Justices for that effect upon which Act a defence was propon'd for the inhabitants of Kintail who took a Robber and execute him by their own authority in a formal Court But by the Civil Law and Doctors it was not lawful furem vel predatorem diurnum occidere except the thing stoln was of great value and could not be otherwayes recovered or that he defended himself and resisted his being apprehended all which defences may be proved by the assertion of the killer Farin 125. part 4. And if any other Probation were requisite the benefit of these Acts were a snare rather then an advantage and necessity legittimats many things which are otherwayes hard XIV By the Civil Law it was lawful for the Father to kill his own Daughter if he found her committing adultery and to kill also her adulterer l. part 1. ff de Adult which was allowed rather in hatred to adultery then because the Law considered it was too hard for a Father to restrain his passion in that case for if it had been allowed to the father only upon this last accompt it had been allowed much more to the Husband to kill his wife if he found her committing adultery for his relation beeing nearer and his honour more concerned then the Fathers his passion behov'd to be also more violent and yet the Law being jealous of the Husbands violence does only allow the Husband to kill the adulterer if he be a mean person but if the adulterer be a person of quality or if the adulterer be found elsewhere then in the Husbands own house it it not lawful to kill them for the injury is hightned by polluting the Husbands own house and becomes a kind of adulterous Hamsuckin And yet if the Husband kill in either of these cases that Law ordained the husband only to be punished by some arbitrary punishment but not by death l. Marito ff de Adulter But this last determination doth not satisfie justice for it seems reasonable that it should be rather lawful to kill a person of quality committing adultery then a mean person both because adultery is more ordinar amongst them as having more ease and being more luxoriously fed and because the husband cannot be so easily presumed to have had former quarrels with a person above his rank and so should be believed to have killed him meerly to satisfie his just revenge As also since they can sooner prevail they ought to be more rigidly punished The Law has deny'd this priviledge to women who may not kill their Daughters or Husbands the reason whereof I conceive to have been that the Law considered that Husbands were more prejudged then the Wives by adultery since thereby not only was their bed defiled but their estate carryed away to another mans children or else it thought women too passionat to be intrusted with such a licence or that it was undecent to allow women the use of Armes And yet I believe their just grief would secure them against the ordinar punishment and though some prerogative be due to the man over his wife but not è contra yet women may complain that men being the only Legislators have taken too great a measure of favour to themselves in this Law I have not observed any decision of this in our Law and since our statutes have secuted murderers in other cases as in self-defence killing of thieves c. And yet have not priviledged this case it may seem that the husband nor rather cannot kill by our Law and the most that they could expect were that after they were found guilty by the Law the Council might either change the doom of death into an arbitrary punishment or might recomend the party to his Majesties clemency for a remission But it were hard to punish with death amongst us what almost all Nations allow as lawful and what may be yet a further check to that growing vice And this seems juster then to allow with the Civil Law that the Husband or Father who are persons interessed should be judges in their own concern and should be judges when they are in passion and because they are in passion Nor can I see why the Law should punish even him who possesses by his own authority what is truly his own and yet should allow here the parties interessed to punish with death by their own authority or that passion which only infers mitigation of the pain elsewhere should here infer absolute impunity for this were to make one irregular Act legittimat another since passion is a transgression against reason as Adultry is against Law But since this indulgence is personal and only granted to the Father and Husband because of their just passion and near relation it is not reasonable that it should be extended to such as kâ—ll by the Fathers or Husbands Command which command none ought to obey being contrair to Law Nor ought this indulgence to extend to the Father or Husband when they kill ex intervallo and not when they find the Committers in the very transgression for the Law allows no passion to continue therefore what ever revenge is allowed to it is only allowed if it be executed immediatly ex in continenti And though in civil cases that is said to be done ex in continenti or immediatly which is done before the doer go about any thing else Yet I conceive that interpretation would be too lax in this case and that the killer could not plead this priviledge except he killed them in the very Act or rising from it Homicidium deliberatum or upon fore-thought Fellony is still punishable by death and confiscation of the movables of the Defunct for His Majesties use Stat. Rob. 3. cap. 43. And albeit Lawyers say that it is still rather presumable to be casual then deliberat and that by our Law and custome designe is still libelled yet because it is impossible to
of Achingters daughter 5. Iuly 1596. yet I find that Iohn Kincaid having come in the Kings will Feb. 1601. for ravishing Isobel Hutchison a widow the King only fined him in 2500 Merks Hary Speed was hang'd 20. Feb. 1639. quia laceravit pudenda pueri which crime Iul. Clar. Gothofred and others affirms to be also capital in their Countries I find one Leivtenent Ker pursued for ravishing and away-taking Robert Cuninghame 6. Feb. 1640. but this is rather a species of Plagium then of Rapt VII Since minors are punishable by death for adultery much more ought they to be punishable by death for a rapt since the injury is there both more attorcious and more unnatural and Carp part 2. Quest. 75. gives us several instances where this Crime was capitally punished in minors where he likewise tells us that to force even a common Whore is capitally punishable though it may seem that they are infralegum observantiam and they ought not to have the protection of the Law who offend against it TITLE XVII Adultery 1. The definition of Adultery and whether the lying with an unmaried woman or with a whore be Adultery 2. The punishment of Adultery by the Law of God and our Law 3. The differences betwixt single and nottour Adultery 4. Whether death can be inflicted for single Adultery in Scotland 5. Whether the Mariage ought to be proved 6. Who can be punished as accessories in Adultery 7. What probation is requisite in Adultery 8. Whether a Dicreet of Devorce before the Commissaries is sufficient to prove Adultery in a criminal case 9. Whether he who hearing his wife was dead maried another be punishable as an Adulterer 10. Whether a pursuite being intended for nottour Adultery and single Adultery only proved if the single Adultery can be punished in that case 11. How adulterous children succeed ADultery is a Sin whereby men not only violat the second Table in wronging their neighbour by stealing from him his quiet his good name the affection and person of his wife endeavouring also ofttimes to steal his estate for the adulterous children But is likewise a breach of the first in breaking of that vow which was made to God in marriage and contemning that holy and mighty Majesty who was then called upon as Judge and witnesse I. Adulterium est vitiatio alterius thori the violation of anothers bed and is committed by a married persons lying with an unmarried or an unmarried person lying with one who is married For albeit by the Civil Law when a man who was married did lye with a woman who was free that was judged to be no adultery And albeit the lying with a Whore by the Civil Law was judged no Adultery l. 22. Cod. hoc tit Si ea quae stupro tibi cognita est passim venalem formam exhibuit ac prostitutam meritricio more vulgo se praebuit adulterii crimen in ea cessat Upon which Law the Doctors conclude that though he who first debaushed a woman with adultery be punishable as an adulterer yet these who did thereafter debaush her cannot Farr Quest. 141. num 85. Yet this is against both the Law of God and our Law for the Lying with another mans wife is still Adultery but so it is that though she be a whore yet she is another mans Wife Nor is the marriage disolved by the Adultery And yet I think that if the woman with whom the adultery is committed was at the time when the same was committed living as a common whore and the committer was a single man who knew not of her being married his punishment should be somewhat moderat upon that accompt But if the committer was married the crime is the same whether the woman was a Whore or not since it is still a violation upon the mans part To lye likewise with a mans bethrothed or promised Spouse or as we say his affidat Spouse is Adultery nam nec violare licet matrimonium nec spem matrimonii l. 13. § diu 6. ff h. t. which agrees as I conceive with Deu. 22.23 Where he who lies with a betrothed Virgin should be stoned as an adulterer because sayes verse 24. he lies with his neighbors wife And he who lies with a betrothed Virgin who is to be shortly married renders the succession as doubtful as he who lyes with a married wife The punishment of Adultery by the Civil Law was death as some think by the Julian Law relegatio or banishment as others think but certainly the pain of death was the punishment to be inflicted by that excellent constitution leg quamvis Cod. hoc tit Albeit thereafter Iustinian did by the 134. N. cap. 11. remit to the woman the pains of death and ordain her only to be imprisoned in a Monastry By the Law likewise of most Nations adultery is only punishable by pecuniary mulcts Albeit by the Law of God it was punishable by stoning both man and woman to death 20. Deut. 22. Which punishment some think likewise to have been abrogated by our Saviour because when the woman accused for adultery was brought before him he did dismisse her without any punishment but this is very groundless for our Saviour came not to be a Judge in such causes as himself declares and though he had been a Judge yet she wanted an Accuser III. Our Law divides Adultery in that which is notour Adultery and single Adultery Notour Adultery is by the 74. Act Parl. 9 Q. Mary declared to be punishable by death after premonition is made to abstain from the said manifest and notour Crime which premonition had its origin from Auth. si quis C. ad l. 1. de adult by which it was lawful for the Husband to kill him who was thrice premonish'd not to converse with his Wife And in effect the design of that Act was only to punish a horrid abuse which was then ordinar viz. the taking away other mens wives and keeping them openly as their own to the great contempt of Law Yet by the explication of this Act which is given by the 105. Act 7. Parl. I. 6. That is only declared to be notour Adultery where 1. There are Bairns one or moe procreated betwixt the Adulterers 2. When they keep company or bed together notoriously known 3. When they are suspected of Adultery and thereby gives slander to the Kirk whereupon being admonished to satisfie the Kirk they contemptuously refuse and for their refusal they are excommunicat If either of which three degrees be proved before the Justices the committers are punishable by death From which Act it is to be observed 1. That though by the first Act premonition to abstain was still to be made in all cases yet in neither of the two first cases here related it is declared necessary But since it was not lawful to kill him who was premonished and thereafter conversed except they conversed in suspect places Gribald de homicid num 11. It seems that in neither
to palliate the Adultery it should be punisht more severely then Adultery and though the offender cannot be punisht with death as a bigamist yet he may be punisht with death as a notour adulterer The same may be likewise said if the persons marry against express Prohibition of the Church or it may be of friends for thereby they are put in pessima fide and want the advantages arising figura matrimonii and this Statute punisheth only simple Bigamie which was possibly contracted when the wife belived the husband to be dead or è contra or when there was some other pretext for it but excludes not a further punishment due from other circumstances or complext Crimes And it were absurd to think that incestuous persons being forbidden to marry because of their contingency in blood or affinity should not be punishable for Incest III. It may be doubted if Quakers can be punisht as perjurers seing they give no Oath at marriage and certainly they should seing marriage implyes a Vow though no implicit Oath be given IV. The husbands long absence may be a cause why the punishment may be mitigated but takes not away the Crime seing death and not time dissolves marriage And I remember of a Minister who was deposed for marrying a mans wife after he was sixteen years absent and albeit the first husband came home yet the second husband still retained the wife which certainly was Adultery in him after that knowledge that she was another mans wife seing he wanted that pretext for which Bigamie is not punishable as Adultery From which likewise that general conclusion may be drawn that when the Bigamist knows that the other person is married if he continues he commits Adultery and if he know that it is incestuous he commits Incest V. It may be doubted also if two persons marrying be guilty of Adultery eo ipso that they marry though because of any interveening accident as death they bed not and seing by the second marriage they give contrary Oaths certainly they are guilty of Perjury for Perjury being the medium peccati in this crime and not copulatio or coitus as in Adultery reatus contrahitur per contraria vota and he who lyes with another mans wife immediatly after they come from Church though before she hath bedded with her husband does in our Law commit adultery which shews that mariage is contracted with us per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or benedictionem ecclesiae ante coitum And if after coming from Church the persons are married certainly they are by that also guilty of Bigamie and from this principle also it may be inferred that though the first marriage was null per frigiditatem or maleficiationem yet the other person who might have declared that marriage to have been null marying another before the first marriage was declared to have been null though it was null ab initio will be guilty of Bigamie because there are contraria vota in that case and Because he was not lawfully Divorced for as a person who might have got a first marriage declared null ex capite adulterii marrying again would be punishable so it should be here And if it be urged that marriages are declared in frigidis maleficiatis to have been null ab initio and therefore there having been no marriage at first the second was no Bigamie and the first Oath not binding ab initio for it was given upon the supposition that the other person was habilis to contract a marriage that vow was null and therefore there were no contrairy vowes in this case It may be answered that the Law considers that first marriage as a sufficient marriage till it was declared null and the other person who might have got the marriage declared null would have been punished as an Adulterer if she had lyen with another ergo she may be likewise punished as a Bigamist VI. The Act adds except the person were lawfully divorced From which two questions may arise 1. Seing the party guilty cannot mary v. g. If a woman be divorced for Adultery she cannot marry Quaeritur then if she marrying again may be pursued as guilty of Bigamie and it may be alledged that it is not Bigamie seing the act sayes that if persons not lawfully Divorced marry they commit Bigamie ergo à contraria where the persons are lawfully Divorced they commit not Bigamie nor doth the Law speak any thing of the difference betwixt the nocent and innocent parties 2. If a person be divorced and thereafter he marry albeit thereafter that Decreet of Divorce be reduced certainly the other party who married the person divorced are not punishable except the Decreet were reduced upon his fault but the first Decreet of Divorce being reduced upon his fault who obtained it as if he had bribed the Witnesses or Judges c. eo casu it may be alledged that he knew that the first marriage was not lawfully disolved and so the second marriage was Bigamie quo ad him albeit upon the other hand it may be debated that the first marriage being disolved authore praetore it was no marriage at the time the second marriage was contracted and so not Bigamie albeit the briber or forger may be punished for the crimes so committed TITLE XIX Theft 1. The definition of Theft 2. In what things can Theft be committed and whether it can be committed in commodato societate 3. The Law of Burdein-sack or Theft committed for necessity 4. Whether the taking things belonging to no man be punishable as Theft 5. The division of Theft in furtum manifestum non manifestum 6. Whether Theft ought to be punished by death 7. The punishment of it by our Law 8. How three Consecutive Thefts ought to be punished and how inferiour Iudges proceed in judging Theft 9. How the Iustices proceed in judging this Crime 10. How hareships or abigeatus is punished 11. How Sacriledge is punished 12. Theft in landed men is Treason 13. How Theft is aggravated from frequency time place and other circumstances 14. Several extenuations of Theft 15. Statutory Thefts such as breakers of Yards stealing Fishes out of Ponds Bees c. 16. Art and Part of Theft how punished ALbeit at first every thing was made common so that then there could be no Theft yet since by the common consent of all Nations property is introduced Theft was forbidden as an enemy to this property and as destructive to that order and method whereby God resolved to govern the World and therefore the Basilicks observe that this Crime is against the Law of Nature 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Theft is defin'd by Lawyers to be fraudulosa contractatio lucri faciendi gratia vel ipsius rei vel etiam usus ejus possessionis ve quod lege naturali prohibitumest § 1. Inst de obl ex del By the word Contrectatio they understand not only the away taking of a thing for Theft is committed by concealing what
is most reasonâ—ble for this is in effect greater then ordinary Theft because these things have none to guard them And in our Law likewise he who finds a waise Beast which hath strayed from the owner should cause cry it either in the Court of his Over-Lord or in the Church or else he may be pursued for Theft and Theft is likewise punishable albeit the person be not known from whom the thing was stolen Alex. Concilio 23. And yet furtum non fit nisi sit cui fiat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 43. § 5. basil h. t. V. Theft was divided by the Civil Law in manifestum non manifestum Manifest Theft was when the Thief himself was deprehended in the very act or if he was seen with it before he did arive at the place to which he did destinat to carry it Theft not manifest was when either the Thief was not taken or seen with it and this distinction hath in my opinion given occasion to the difference in our Law betwixt in-fang-Thief and out-fang-Thief which concerns only the Jurisdiction where the Thief is punished but not the punishment it self as shall be said hereafter but there are several other vestiges of it in our Law as cap. 21. l. 4. Reg. Maj. It is said that he who is taken with nothing in his hand may purge himself by 27 men and three Thanes and a Burgess being accused of manifest Theft may purge himself by the Oath of twelve the meaning whereof is that he shall give his own Oath he is innocent and shall get so many men to swear that they believe his innocence and this manifest Theft is called Theft with red hand Stat. Orcar by a Metaphor borrowed from Murder But with us Theft may be divided into common Theft which is Theft so properly called or Stouth-rife which is violent Theft and is a complex of Theft and Robbery And receipt of Theft which distinction is hinted at in all our Laws but most specially 50. Act. P. 11. Ia. 6. VI. As to the punishment of Theft it is much contraverted amongst Lawyers if the Law-givers can justly punâ—sh Theft with death and though I will not dispute the power of Princes and States yet I incline to think that for simple Theft a Thief should not dye For fâ—rst we find by the Law of God to which as the Scripture sayes nothing should be added or paired Theft is not punishable by death nor can this Law be called only a judicial Law fitted for the Common-wealth of the Jews for that it is a Moral Law according to its statutory part forbidding Theft appears from its being insert amongst the commands and why it should not be so as to its Sanction and punishment like Murder Incest and these other crimes I cannot see a reason 2. We see that some Thefts are capitally punished as are the stealing things Sacred Iosh. 7. And Theft committed in the night Exod. 22 2. and stealers of men Deut. 21.7 by which it appears that God Almighty intended not that single Theft should be punished by death 3. There is no proportion betwixt the life of a man and any mony for all that a man hath will he give for his life 4. The life of the Malefactor is ordinarily taken where the Crime cannot be repaired as in Murder Incest c. But in Theft it may and the parties wronged would in all probability be far easier secured this way seing many will rather want their goods nor have a mans life taken Many Thieves would restore if they thought restoration might be made with safty of their life and the Law would easilier sustain the pusuers probation if the event were only to reach goods and not life 5. It seems absurd that single Adultery which is the worst of Thefts seeing the Husband thereby is robbed of his Estate quiet good name and Succession should not be punishable by death and yet Theft should be made capital and that Theft and Murder which are not equal crimes should have equal punishments And albeit it be objected that Laban Gen. 24.9 did vow that these who had stollen his goods should be punished by death Yet the reason in that case will appear to be because that the Theft there mentioned was Sacriledge And whereas Davids Oath to Nathan is that he who had stolne his Neighbours Lamb should die is objected It is answered either that was spoken in passion which the Text bears or otherwayes that was suggested by a special providence to David to the end he might be his own accuser Nor do I deny but there was a kind of Communion of goods amongst the Jews more then in other Nations as appears by their Jublee by their not taking Pledges nor anual rent so that there was less reason to make Theft capital amongst them then amongst us and that according as crimes grow more frequent the punishment may be augmented but I deny that they should be soaugmented that suitable proportion should not be keeped And it is known from experience that many men fear hanging lesse then being constantly keeped in Correction-houses or in the places where they may be kept working as they do in Holland for the good of the Common-wealth VII To descend then to our Law the custom is that the justices do sometimes hang even for very small faults as Thomas Neilson for stealing a horse 10 December 1661. Watson hanged for stealing 40. Sheeps though there was no probation against him but his own confession and though he had restored â—he things stoln Sometimes by banishment as Richard Lauder 6. Febr. 1639. and Alexander Cumming and Iohn Tailer 25. Febr. 1639. Sometimes they are Drowned as Grissel Mathow for stealing a Coffer with Writs 23. Iune 1599. Sometimes Scourged as Iames Wilson 7. Feb. 1608. Sometimes they are hanged in Chains if they be notorious Thieves As Patrick Roy Macgrigor May. 1668. c. It is thought that de jure there is no Law in Scotland for Hanging a man for Theft which is a great mistake for Leg. Burgorum cap. 121. It is said if a Thief be taken with bread worth a Farthing and from one Farthing to four he should be Scourged for four Farthings he should be put in the Joggs and Banished from four to eight he should loose an ear and if that same Thief be thereafter taâ—â—â— with eight Pennies he should be hanged but if any Thief should be taken with 32. Pennies and an Farthing he may be hanged 2. By the 7. Act stat Da. 2.13 ch and cap. 13. l. 4. Reg. Maj. one defamed for Theft who cannot find caution should be hanged cap. 16. It is said that no man can be hanged for lesse then two Sheep and by the Law likewayes of Birthinseck a Thief should not dye for as much meat as he can carry upon his back and cap. 18. a Thief being hanged and falling from the Gallows is no more to be punished All which implyes clearly that Theft is of
the offer having before their examination come to light IX The third kind of falshood is committed by falsifying money falsum nummartum which is accounted so great a Crime that it is commonly excepted out of Remissions as may be seen in Crightouns Remission March 15. 1661. This Crime is committed 1. By forging true money without Authority 2. By Coyning false money and impressing Copper Lead or any base Mettal with the stamp of the Prince or of other currant money 2. By mixing and allying worset with nobler mettals in currant Coyns 4. By venting and passing or out-putting as our Law terms it the adulterat money coyned by others or intertaining the Forgers or being art and part redde or of the Council with the Coyners By the Civil Law qui probos nummos cudunt sed non in officina publica tenentur lege Cornelia nummaria l. 12. C. de falsa monet qui adulterinos cudunt qui veros adulterant radunt fingunt l. qui cunque l. seque ff hoc tit qui nammos probos lavant constant aut vultu principum signatos reprobant l. 1. C. de vet numis pot By our Law every Burgh should have a clipping-house which was a house for trying money for the tryal was by clipping and sworn men who should clip evil money who are to have a penny for ilk pound that is clipped and the haver was to tyne the false-money I. 6. p. 1. c. 19. and the clipped money if it be evil stuff or false coyn should be returned to the owners I. 4. P. 4. Act 4. They who falsifies money or counterfeits the Kings Irons are to be justified id est punished according to the old Law Act 124. P. 7. I. 5. By which Act though it be added according to the old Law yet we have no Law de falso nummario prior to this except Act 40. P. 5. I. 3. which punisheth only the home-bringers of black money with death By the Act 70. P. 9. Q. M. the home-bringers of false coyns or lay-money should be dilated and the dilater is to have the half of all his goods moveable and immoveable for his revealing And it seems by that Act that it is made treason for confiscation of Lands or moveable Goods is only in the case of treason and I find no other Act that can be the foundation of Drummonds conviction as a traitor Et de practica this Crime hath been diversly punish'd Reid was hang'd for forging false money with the Kings Irons Iuly 13. 1602. Drummond burnt for forging false money Novemb. 27. 1601. And his Brother Patrick Drummond buâ—nt also for art and part red counsel and concealing the treasonable forging coyning and out-putting for venting is still a Crime and is designed out-putting in our stiles of false money Meinzies also was hang'd for art and part as said is Iune 30. 1603. Thomson was hang'd and forefault for bringing home and out-putting false money Ianuary 19. 1603. X. The fourth species of Falshood is false weights and measures adulterinae staterae which are punish'd per l. Corneliam l. annonam ff de extraord crim falsae measurae which are punish'd per relegationem ibid. With us the using false measures or weights of old was punish'd by a Fine leg Burg. cap. 52. And the Bailies of the Burghs were declared Judges competent thereto for the first three faults but the fouâ—th was declared to be only punishable by the Justices because the committers life was to be in the Kings will cap. 74. ibid. But now such as use false measures or weights deceiving the people are to be indicted as falsars Act 47. P. 4. I. 4. By which Act havers cannot be punish'd except they use since the Act ordains users to be punish'd and mentions only such as deceive the people which is not done without using And by the 2. Act Parl. 19. Ia. 6. the users of false weights and measures are to tyne their hail goods and geir which punishments derogats not from the former Act inflicting the punishment of falsit as hath been debated more fully in the Title of Deforcement De practica I find that Brown was fyn'd for false measures by the Councils warrand in 100. merks pen. Iuly 1629. And that Porteus was found guilty though using was not proved since having of false weights in the Shop presumes using except this presumption be taken off as by alledging that the weâ—ghts were presently bought or borrowed or laid aside as light May 1671. By the foresaid last Act the Sheriffs Lords of Regalities and Stewarts are declared Judges competent to this Crime but their Commission there is only tempory for a year and therefore it may be concluded that these are not otherwayes Judges competent to this Crime else this Commission had been unnecessary The using also a longer Ell or Yard is also punishable though it would appear that here the Merchant himself is only prejudged for he may receive as well as give out by it nor doth the Law presume that a man would keep any measure to his own disadvantage I find also that there was a Merchant in Elgin puâ—sued before the Justices Iuly ult 1672. for false weights in swaâ— far as he going to a Mercat dragg'd his Tobacco after the Boat in the salt water which made it weigh more then otherwise it would have done and so the people were cheated But the dyet was deserted and though the defender alledg'd that this was done for keeping the Tobacco from drying too much and mouldering into pieces yet the Magistrats of Elgin had fyned him formerly for the same fault in 20. pound Scots even for the ill example paena falsi arbitraria tenetur qui in sua mercatura addit inutile ut pulverem arenam c. aut species aridas detinet in loco humido Carp pag. 375. XI Falshood is also committed by assuming a false name vid. Stellionatum and by presenting one person for another at the subscribing of Papers suppositio salsae personae which is punished tanquam partum sui positum by the Civil Law I find one David Donaldson hang'd for this imposture having made use of a false person who design'd himself to be the person who should by the agreement have subscribed the Assignation Decemb. 12. 1611. The svpposing a false birth that is to say the laying in one child for another is punishable as a false deed with the punishment of falshood since thereby men are cheated out of their Estates l. ad Corn. de fals the words whereof being periculum capitis subeat is found to extend to death Boer decis 82. And the Mid-wife who brought in such a false Child is punâ—shed by death Pegner decis 80. But I find that Farin relates that periculum capitis was in this case extended no further then scourging But yet since this was a great cheat and doth steal away an Estate from the righteous Heir and adulterats the off-spring it ought to be panish'd as severely
allowable if the Tennent after compt oblidge himself to remove and declare that it shall be lawful to his Master to enter brevi manu if he pay not what is declared to be due for there the preceeding compt is equivalant to a declarator and the party ejected is not prejudg'd otherwise then by his own not payment And therefore the Lords the 19. of December 1661. found not the Countesse of Murray lyable to aspoilzie for ejecting Dewer her Tennent because Dewer had by a compt declared that he was debitor in such a sum and by a bond oblidged himself to remove betwixt and a particular day and if he fail'd declared it should be lawful for the Countess to enter brevi manu to the possession By the Civil Law he who violently intromitted even with what was his own lost thereby his property in it The next defence is that the pursuer had immediatly before possest himself violently and it was lawful for the defender to recover his possession ex incontinenti nam vim vi licet repellere and the Law sustains this defence l. 3. â— 9. l. 17. ff eod and explains that to be ex incontinenti factum quod factum est priusquam ad aliud negotium fuerit recessum what time should be allowed for repelling violence is arbitrary to the Judge for violence committed by a great man requires more time for reparations to redress it then when it is committed by a privat person for friends must be convocat and arms prepared as Bart. and the Glos. instances upon the former Law But in personal injuries id tantum diciturex incontinenti fieri quod fit in ipso flagranti crimine IV. The violent ejection of His Majesties Liedges out of their possession is pursued either by an action meerly civil which in moveables is called spoilzie in Lands ejection which the Civil Law terms still dejectio non ejectio or criminally as a Riot which is a mixt action partly civil partly criminal When spoilzies or ejections are civilly pursued the conclusion is violent profits which is the double Rent of the Lands and restitution of the thing craved But when this is pursued as a Riot the punishment is arbitrary as is also the criminal punishment The civil action prescribes in three Years K. Ia. 6. Parl. 6. cap. 8. But the action of ryot or Criminal Action prescribes not and yet it may be doubted if these Actions prescribe not quo ad the conclusion of restitution seing that is a civil conclusion and it may be debated that the maxim spoliatus ante omnia est restituendus loses its vigor after that time so that one pursued for a ryotous ejection or spoilzie may alledge that no ryot can be concluded seing the thing or land controverted was his own We shall speak of the Criminal pursuite in its own place Whether the one of these actions doth exclude the pursuer from all other reparations so that he who pursues the action of spoilzie or ejection cannot thereafter pursue a ryot or a criminal pursuit may be controverted and the Civil Law decides it thus that quando una altera tendunt ad vindictam tunc una agitur ad vindictam altera vero ad prosecutionem rei familiaris and thus the having obtained a Decreet of ejection impeds not the pursuer to intent an action or Criminal pursuit but after a Decreet obtained for the ryot a criminal pursuit cannot be intented for these respiciunt vindictam V. The Council cognoses likewise upon Crimes by way of precognition which they do in two cases 1. Where considerable persons are interested in the crimes committed as Noble men or Clanns where there is a hazard of alimenting the feuds by remitting the criminals to the ordinary course of Justice Wherefore to prevent future resentments and cement old differences the Council in quorum tutela est pax publica cognosce upon the crime and remit much of the ordinary rigor The 2. case is when the crime is so ciâ—cumstantiat that it requires 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and lessening of the ordinary punishment The formes in precognitions are that either the friends of the parties give in a Bill to the Council which cannot be granted but in praesentia deducing the case and representing what danger is like to ensue quo casu Letters are direct ordaining the other party to be cited and both â—arties to cite such witnesses and probation as they will use or else if no application be made the Council ordains Letters to be direct citing both parties His Majesty having with consent of Parliament appointed that the Justice-court should be served by many of the Lords of Session did because of their number and ability discharge all precognition in their Commission and yet because these precognitions were not discharged in the Commission granted to the Council the Council did sustain themselves Judges competent to precognitions their Commission bearing to be as full and to give them as much power as any former Council had But really it were happy for this Nation that we wanted all precognitions since thereby the Delinquent has power to choose such dyets as he pleases and so may pursue his precognition when he knows the witnesses who could prove his guilt are absent or may prevail with them to absent themselves for some time and this is ordinarily practized Nor have I ever seen any who pursued a precognition brought to condigne punishment and whereas it is pretended that there are some cases wherein the severity of Law ought to be remitted upon the considerations of lessening circumstances wherein equity may be allowed to blunt the edge of Justice It is answered that this may be done by the Justices either upon a special commission for trying the merits of the Pannels pretences or alter that the Justices have heard all that will be legally urged by either party in a full tryal they may delay the execution and make report to his Majesty of the just state of the case The Council likewise sometimes inflict punishments without recognition by way of citation as in the case of Giles Thyre English-man who being incarcerat as accessory to the death of Mr. Bedford in Lieth and as guilty of Adultery with Mistris Hamiltoun wife to the said Bedford Thyre did upon a petition to the Council wherein he confest the Adultery but denyed the murther which Mistris Hamiltoun had likewise at her death acquit him of obtain himself banished without being put to the knowledge of an Inquest by whom he had certainly dyed as guilty of notour Adultery 1665. VI. The Council name likewise Assessors to the Justices before the tryal these the Grecian Lawyers call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And sometimes they discharge or continued yets After sentences also the Council upon application made to them do either mitigat the punishment not only where it is arbitrary but even where it is statutory as in the case of Brown whom they ordained only to pay 100.