without inserting any part of the Process in the Journal Books wherein also I found that Malefactors were ordain'd to be execute very early in the morning for bestiality which was occasioned by the confession of one who asserted that the reason of his committing that crime was a curiosity he contracted at his seeing one execute for it And in such crimes no man needs to be deter'd nor wâ—ll terror restrain him whom nature cannot Since then executions for some crimes incite some to curiosity and vex others with horror and are necessary to none some may be more properly punished privatly then publictly and thus such persons as are popular and are execute only for crimes for which the people have a kindness will be more happily execute privatly then publickly because the persons executed are by publick executions obleidged to die rebelliously and the people are confirmed in their good opinion of them by their courage at death II. Constantine did forbid that any Malefactor should be crucified and this he did because of his respect to the Cross he likewise did forbid to stigmatize the face l. 17. C. de paenis because the face is Gods Image Martyrus was of opinion that banishment was not lawful lest the person so punished should be forced to live amongst Turks and others by whom he might become more flagitious then formerly and I have oft thought it inhumane to send our Malefactors to our neighbours and imprudent because it will occasion the sending of theirs from home whereby we may be likewise troubled with such as they have banished and it is probable that Correction-houses would be both safer and more advantagious for in these they may serve the publick whom they have offended but with us no Judge can confine a man whom he banisheth to any place without his Jurisdiction because he hath no Jurisdiction over other Countreys and so cannot make any Acts nor pronounce any sentences relative to them Torturing punishments at death are also very inexcuseable for they oft-times occasion blasphemies in the dying Malefactor and so damn both soul and body whereas the soul should be allowed to leave quietly this Earth and go in peace to the Region of Peace nor doth these terrifie others from the like offences for these who fear not death will fear nothing III. It was a rule amongst the Civilians that no man could obliedge himself to any thing under a corporal pain quia nemo est dominus suorum membrorum But with us it is most ordinary for a man who is guilty of a crime to obliedge himself never to return to Scotland under the pain of death thus Hamiltoun was hang'd Anno 1649. for returning to Scotland after she haâ— enacted her self never to return under pain of death and her dittay was only founded upon that contravention and certainly contempt being added to the former guilt may make a crime that was not capital become so and this contravention implies in effect paenam effracti carceris which is oft-times capital so that though a person cannot bind himself when he is guilty of no crime to perform any thing under pain of life or limb yet if he be guilty of a crime he may consent and enact himself as said is IV. Whether when Law allows a Judge an arbitrary power in punishing that Judge may inflict death in that case is much contraverted Chassan and Socin think that he cannot and this seems clear 1.4 qui vexant annonam debent puniri extra ordinem non tamen animae amissione Inst. de publ ind And Pappon relates a Decision of the Parliament of Paris finding that it could not 2. This would make Judges very arbitrary and render the Lives and Fortouns of the Leidges very unsecure 3. Seeing Lawyers are of opinion that no mans life can be taken away without an expresse Law it seems very consequential to this that no mans life can be taken away upon so general a Law 4. By the 20. Act Parl. 1. Sess. 1. Ch. 2. death and arbitrary punishment are opposed For these who haveing past sixteen years of age beat or curse parents are ordained to die but if they be within sixteen and past pupilarity they are ordained to be arbitrarly punished Whereas if arbitrary punishment might be extended to death this difference would be ineffectual and the Law thereby evacuat And by the 5. Act 1. Parl. Ia. 6. the punishment of saying and hearing Messe is escheating of their goods and an arbitrary punishment of their persons for the first fault banishment for the second and death for the third so that arbitrary punishments is lookt upon as lesse then death else the first fault should be as seveerly punished as the third against both the principals of reason and the design of the Law-giver 5. Arbitrary punishment is appointed ordinarly for so mean and inconsiderable faults that it were inhumane to think that these could be extended to death Skeen also de verb. sig verb. iter sayes that if the Pannel come in will it is lawful for the Justice to fine him according to his offence but he speakes not there of his power to inflâ—ct death eo casu and yet Skeen ad cap. 6. l. Malcolimbi vers 2. Wherein it is statute that the Marischal and Constable shall punish offenders according to the quality of the offence observes that paena extraordinaria may be sometimes extended to death because of the aggradging circumstances and cites for this l. ult ff de priv delict 16. de paenis but these Laws are ill cited as will appear by reading them When the pain is by Law or custome arbitrary and the defender comes in will he must presently find caution to satisfie the Kings will betwixt and such a day this is the constant custome and was practized the 22. of November 1600. Advocatus contra Patrick Mc. creif and others but where the crime is punishable by an expresse and determinat punishment there though a defender come in will it ought not to be received and thus the Marquise of Argile being pursued before the Parliament for Treason offered to come in will but his submission was not accepted V. It is uncontraverted with us if when any crime is punishable by death the Moveables falls to the King though the Act bear not that the crime shall be punishable by death and confiscation of Moveables and according to the Civil Law proscriptus eratis cujus bona expressim confiscabantur damnatus vero cujus bona tacite publicatio enim bonorum sequebatur tacite paenam capitalem Matheus cap. 2. de Sicartis num 2. And albeit the Judge should omit in his Sentence the punishment due by Law yet ipso jure there is by the damnation jus quaesitum fisco as was found after a large debate in the case of Wauch who being a landed man found guilty of Theft though he was only fined by the Sheriff in a thousand Pounds yet the Donator to the Escheat was found to have
reus est in eadem conditione Sed qui Perduellionis reus est hostili animo adversus rem publicam vel principem animatus So that the infallible mark of Perduellion is hostilis animus a design of raising Arms. And therefore we may conclude that not only Statutory Treasons are extinguished by death but that even simple concealing and not revealing or a malicious design to poyson the King and such other treasons as shew not a desire of rising in Arms are likewise extinguish'd by death And yet the Basil. l. 12. h. t. say that all the heads of treason are extinguisht by death excepto capite proditionis insidiarum contra principem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Albeit the bones of the Defunct Traitor are ordinarily taken up and brought to the Pannel in pursuits of this nature as was done in the forefaultur of the Laird of Restalrig yet this is not necessary but it is necessary in pursuits of this nature that the Defuncts nearest of Kin be called as Defenders for their interest both because their Estates are to be taken from them by their forefaultur and to the end they may defend the Defunct and object both against the relevancy of the Libell and the hability of the Witnesses And therefore the Basilicks add very well that haereditas publicatur nisi crimen ab haeredibus purgetur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It may be doubted whether since the forefaulting after death is founded upon the Civil Law and that the former Act bears expresly that these pursuits may be intended conform to the common Law if these pursuits should not prescrive with us in five years as they do by the common Law and it would appear they should since these pursuits are intented conform to the common Law and quem sequitur commodum eum dâ—bet sequi incommodum The sixth priviledge of Treason is that the Kings Advocat is to be the last Speaker to the Assize in Perduellion though in other cases the Pannel's Advocats are to be last Speakers And the last Speaker has much advantage for he may answer all is alledg'd by the opponent Art 11. Regulations 1670. XXIII The last priviledge of Treason is that albeit of old no persons could be condemned in absence by the Justices yet the Parliament still could have proceeded against Traitors in absence And now by a late Act of Parliament it is found that in the case of Perduellion and of treasonable rising in Arms against the Kings Authority the Justices may proceed to the receiving of probation and pronouncing of sentence even in absence of the Party Which being first propounded as a Querie to the Council they remitted the same to the Session to whom his Majesties Advocat gave in the following Reasons and Queries upon the 15. August 1667. Whether or not a person guilty of high Treason may be pursued before the Justices albeit they be absent and contumacious So that the Justice upon citation and sufficient probation and evidence may pronounce Sentence and Doom of forefaultur if the Ditty be proved The reason of scruple is that Processes of forefaultur are not so frequent and that in other ordinary Crimes the defenders if they do not appear are declared Fugitives and that the following reasons appears to be strong and relevant for the affirmative 1. By the common Law albeit a party absent cannot be condemned for a Crime yet in Treason which is crimen exceptum This is a speciality that absents may be proceeded against and sentenced 2. By the first Act of King Iames the 5th his 6. Parliament it is declared that the King hath good cause and action to pursue all Summonds of Treason committed against his Person and Common-wealth conform to the common Law and good equity and reason notwithstanding there be no special Law Act or provision made thereupon And therefore seing by the common Law persons guilty of Laese Majestie may be proceeded against and sentenc'd though they be absent It appears that there is the same reason why the Justices should proceed against and sentence persons guilty of Treason though absent and that he is sufficiently warranted by the said Act so to do 3. It is inconsistent with Law Equity and Reason that a person guilty of Treason should be in a better case and his Majesty in a worse by the contumacy of a Traitor the same being an addition if any can be added to so high a Crime and that he should have impunity and his Majesty prejudged of the casuality arising to him by his forefaultur 4. The Parliament is in use to proceed and pronounce doom of forefaultur though the party be absent and in so doing they do not proceed in and by a legislative power but as the Supreme Judges and the Parliament being the fountain of Justice what is just before them is just and warrantable before other Judicatories in the like cases 5. By the above-mentioned Act of Parliament it is Statute that Summonds and Process of Treason may be intented and pursued after the death of the Delinquents either his Memory or Estate delating the one and forefaulting the other whereupon sentence may follow to the effect foresaid And therefore seing sentence may follow when the Delinquent cannot be present and is not in beeing it were against all reason that when they are wilfully and contumaciously absent they should not be proceeded against and sentenced if they be guilty And it were unjust that his Majesty should call a Parliament for punishing and forefaulting of persons being absent or that he should wait till they die especially seing in the interim the probation may perish by decease of the Witnesses Follows the Lords of Session their opinion Edinburgh the 26. of February 1667. The Lords of Council and Session having considered the Queries above-written presented to them by the Lord Bellenden his Majesties Thesaurer Depute it was their opinion that upon the Iustices citation and sufficient probation taken before them the Iudge and Assize may proceed and pronounce sentence thereintil and forefaulter against the persons guilty of high Treason though they be absent and contumacious Sic subscribitur Io. Gilmore I. P. D. Upon this the Parliament ratified the Processes led against these persons and by the 11. Act Parl. 2. Ch. 2. Ses. 1. it is Statuted that rising in Arms against the Kings Authority might be pursued before and judged by the Justices But the Parliament retain still a power cumulative with the Justices and when Processes of Treason are intented before them they may proceed as formerly and thought this last Act a great innovation of all our Law Nor is it imaginable but that if it had been safe that that priviledge would had been granted to his Majesty formerly And that it is contrary to the Civil Law is clear per l. 1. l. penult ff de requirendis reis nam annotabantur bona si reus post anum non comparuerit satis dederit de stando non recuperabit
of 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
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
its own nature punishable by death 3. By the 82. act I. 6. P. 11. Stealers of Pleugh Graith or breakers of Miâ—nes are to be punished therefore to the death as Thieves But because our practiques is in this a little arbitrary and uncertain it will be fit to know that Theft in Scotland is either purâ—ued by accusation which is at the instance of a private accuser or by way of inditement which is at the instance of the Procurator-Fiskal If the pursuite be intented by way of Accusation it may be judged by Barrons having power of Pitt and Gallows or as our Charters call foffa furca or by Sheriffs but if it be pursued by way of inditement the Cognition thereof belongs to the Justice Reg. Maj. cap. 1. Num. 7. But this distinction is not well observed for the Sheriffs do proceed to judge Thefts even by Citation though the Thief be not taken with with the Fang which is certainly an error for all processes upon citation against a Thief should belong to the justices VIII In the procedor before these inferiour Courts they do not condemn to death except upon three Thefts or that the person be taken with Fang and he be likewise famosus fur As to the three Thefts I find no expresse Law for it only stat Da. 2. cap. 17. where it is said if a Thief be defamed at three Barrons Courts and wants a Pledge or Cautioner then he may be hanged or if he be defamed and cited in two courts or in one and be of ill fame likewise or as we say there be publick bruits and open fame that he is a Thief then he may be hanged But simple fame is said there not to be sufficient to infer death except that ill fame were found by an Assize upon Oath Yet this is now absolet for fame is in no case sufficient to inferr death As to the three Thefts I find the Civilians relate that the third Theâ—t by the statutory Law of most places is capital and it seems to be grounded upon very good reasons for he who is oft found committing the same crime is presumed by the Law to designe to make it a trade Ang. ad l. 8. devi publica where the committing of Theft twice inferrs this presumption The Law of Holland provides that a Thief shall be hanged for the third Theft except it seem otherwayes just to the Judge because of his age or any other pregnant reason and ordinarily three small Thefts are by Matheus said not to be construed such according to the Law of Holland as deserves death the Civilians do upon supposition that the third Theft is Capital conclude that these three thefts should be distinct even as to to the time and that he is to be punished with death for the third theft though he had been formerly punished for both the other two or though the former two had been remitted to him by the Prince and albeit they use many distinctions for clearing whether a Thief should be hanged for the third theft where the first two were not committed within his Territory or Jurisdiction and so could not be punished by him yet since Capital punishment is not inferred by a statute against the third Theft but that the third Theft is only punishable with death because the committer is presumed to be irreclaimable therefore I think that where ever the Theft was committed yet for the third Theft the thief should be hanged for albeit there be no express statute for that with us yet seing Gomesius Chasaneus and other famous Lawyers attested this to be the general custome of the world I think it should be followed by our Sheriffs and inferiour Judges who being determined by that number have some certain rule whereby they may be both limited and warranded which is much safer then that they should be allowed scop to break out into the extreams of either cruelty or cowardliness The Law of England divides Theft or Larcenry into petty Larcenry when the thing stoln exceeds not twelve pence and its punishment extends not to death and grand Larcenry when it exceeds twelve pence wherein the thief is punishable by death except he be saved by the book and if one steal to the value of six pence at one time and six pence at another time then he is guilty of death but if two steal to the value of eighten pence joyntly each is guilty Common bruit and open fame of being an ordinary thief is likewise a good ground of making theft puishable by death the thief being taken with the fang hi fures famosi sive infamati de pluribus furtis are ordinarily hanged likewise as is clear by Clarus Num. 8. hoc tit Menoch arbitrariis Casu 295. And it is sufficient that witnesses depon of their credulity and that they are informed by others our Law calls such de famiati de latrocinio and if he cannot find caution the old Law appoints that he should be proceeded against as if he were a proven thief for latro defamatus latro probatus are still aequipollent in our Law But I think these Laws too severe and they are not in use IX As to the procedor of the Justices it is because their power is more eminent that they are allowed to be more arbitrary but I think the distinction allowed by Civilians will be very reasonable which is that in furto simplici in simple theft the pain of death should never be imposed but in qualified theft if the quality be such as agredges the crime very much Which aggravations are either taken from the thing it self that is stoln as in our statutes the stealers of Pleugh-graith cutters and destroyers of Pleugh and Pleugh-graith in the time of telling and cutters and destroyers of growing trees or breakers of Milnes or of leading coâ—ns or fewel are to be punished to the death as thieves 82. Act. 11. P. I. 6 and hocheâ—s and killers of Oxen horses and other cattel are punishable by death and confiscation of movables as well committers as recepters Act. 110. p. Ia. 6. and upon this act were hanged for killing Drumlanerk's sheep 20. Feb. 1666. Albeit it would appear that that act is only to be extended to labouring cattel Nota this is a case wherein Theft may be committed without carrying any thing away for the doing of these wrongs without carrying away the thing wronged is constantly declared to be Theft per constitutionem Frederici Secundi de stat § agricultores the stealing Pleugh graith is punished as a particular crime X. Herdships likewise which is the driving away a great many Cattle called by the Civilians crimen abigeatus is likewise by the Law of all Nations and particularly by ours punished with death but though lex prima dig de abigeat say that abigei ad gladium dentur Yet Matheus doth interpret that not to be meant de ultimo supplicio but only de ludo gladiatorio and with this agrees l.
punished with the same pain 3. By constant custome in all Criminal Courts art and part is punished as the principal Crime Notwithstanding of all which I think the foresaid conclusion very rigorous for paena est commensuranda de licto and to punish the more and the less guilty equally seems against nature and justice And by the Laws of all other Nations and the opinion of all Doctors accessions are punishable according to their proportional degrees of guilt and albeit the Act above cited sustains the Libel yet it ordains not the punishment of art and part to be the same with the punishment of the principal offenders but though the Act did bear the same expresly yet by the opinion of the Doctors a Statute bearing that such as are accessory shall be punâ—shed as the principal malefactors is to be restricted ad opem quae dedit causam maleficio non de quolibet modo auxiliandi annot ad Clar. quest 90. num 28. It would therefore seem just that not only the Justices or parties should make application to the Councel and interpose that the punishment should be mitigat according to the degrees of the guilt as the custom now is but that the Justices should have an innate power to propoâ—tion the punishment to the guilt proved for none can understand so well the nature of the guilt as the justices who hear the probation and it is hard that the poor Pannel should lye under so great hazard as to be exposed to a capital sentence whereas it may be the Council will not sit so soon as that he may interpose with them Some Crimes punished amongst the Romans which are not directly in use with us HAving finished in the last Title what belongs to those Crimes which our Law punâ—shes directly I resolved here to touch overly even those crimes which are little considered among us not only that we might thereby know the genius of that wise Nation but that we may consider how far it were fit to renew amongst us these excellent Laws The Romans considering how destructive those were to the Common-wealth who endeavoured by all indirect means to screw themselves into publict employments did therefore make this indirect dealing to be a Crime and called it Ambitus which punished lege julia those who gave money for making themselves Magistrats or that they might attain to honouâ—s It is commonly thought that how soon the power was transferred from the pople to the Senate and from the Senate to the Prince this crime ceased because the Prince having the sole power of bestowing Magistracy and honour is still presumed in Law to bestow them upon those deserve best who Groneveg de leg abrogat ad h. t. but yet I see not why the Prince may not justly cause punish such who have wronged both the publick interest and his favour in prostituting both to so unworthy a sale and since Commissioners for Parliaments and Magistrats of Towns are still elected by pluâ—ality of suffâ—â—ges I see not why such as bribe the electors may not be lyable to the same accusation The punâ—shment of this crime was depoâ—tation which was much like our banishment and in the lesse Towns it was punished by a Fyne of an hundred Crowns and infamy and since it is a kind of bribing I think it should be punished with us as such Residuorum crimen was committed by him who converted the publick money with which he was intrusted to his own private use and was punished by fyning him who was guilty in a third more then he owed This crime is punished by no expresse Law with us but that this is a crime with us appears clearly from its being excepted from the late Act of Indemnity amongst the other Crimes The words whereof are Excepting all privat murders c. and the accompts of all such persons as have intrometted with any of His Majesties Revenues publick impositions Excise Fines Forfâ—itures Sequestrations and all other publick money for which they had not order warrant or assignment for their own privat use or for which they have not duly counted and received discharges thereof from such as pretend to have authority for the time to do the same I doubt not but the Exchequer might be Judges competent to this crime if committed by their own members and the Council if done by any of His Majesties servants since there can be no greater injury done to His Majesties Government then to abstract or invert his money which is the nerves not only of War but of all power Peculatus is a stealing of the publick money as the other was a concealing of it and this was punished in publick Ministers capitally l. un c. h. t. Though other thefts was not capitally punished among the Romans so attrocious a crime did they judge the breach of trust and so easy a thing it is for publick Ministers to steal publick money if they please This crime is certainly punishable with us by death since all theft is so punishable Plagium was the stealing of men and was punishable by death l. 7. ult c. h. t. which agrees with the Law of God Exod. 21.16 Deut. 24.7 and with us Aegyptians and others stealing children have been likewise punished by death and such as force away men to be Souldiers should be liable to the same punishment though the Council uses to punish them only by an arbitrary punishment and such as take away mens childeren upon pretext to marry them before they come to the years wherein they may give a legal consent which is 12. in women and 14. in men ought in my Judgement to be so punished I have treated crimen repetundarum in the Title Brybing crimen annonae in the Title Fore-stallers I shall end this first part relating to crimes with Theophils apologie Subjoyned to his Title of Crimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS PART II. TITLE I. Of Jurisdiction in general 1. Iurisdiction defined and divided in imperium merum mixtum Jurisdictionem simplicem 2. Iurisdiction is either ordinary or delegat 3. It is either cumulative or privative 4. How a Iurisdiction may be prorogat THe Civilians do treat of Jurisdiction very learnedly and profusely but since most of their Dictats are very remot from our practice in Scotland I resolve to clear only such general terms as are borrowed by our Law from that of the Romans I. Jurisdiction may be defined to be a publick power granted to a Magistrat to cognosc upon and determine Causes and to put sentences following thereupon in execution in such way and manner as either his commission Law or practique do allow Jurisdiction was by the Civil Law divided in merum imperium mixtum imperium jurisdictionem simplicem Merum imperium est abere potestatem gladii ad animadvertendum in facinerofos potestatas etiam appellatur Mixtum imperium est potestas qua jure proprio Magistratui competit cui jurisdictio inhaeret inest dicitur
the Law for satisfying either publick or privat revenge 3. Since our Law doth punish Perjury and poinding of Oxen Usury Stellionatus and others according to the Civil Law it seems to be most agreeable to reason that as these crimes are punished according to the Civil Law so they should be extinguished by the Civil Law nam nihil est tam naturale quam unumquodque eo modo dissolvi quo colligatum est quem sequitur incommodum enim sequt debent commoda And the Act 1617. did introduce prescription with us as the Act it self bears because it was allowed by the Civil Law and the Laws of other Nations 4. It were absurd that in the case of Treason which may be inquired into after the defenders death there should be no period of time whereby Families might be secure and that it should be lawful after two or three hundred yeares to vex Families of great Honour and Interest upon pretext of crimes committed by their Predecessoâ—s 5 This prescription is very justly introduced to punish the negligence of such as will not puâ—sue crimes and it is most presumeable that if they pursue after they have delayed for so long a time that any pursuit thereafter intented is rather intented upon some supervenient quarrel and picque then upon the account of the crime 6. The fear of punishment and conscience of the guilt for so long a time is in it self a sufficient punishment And so GOD Almighty himself thought in the case of Cain and therefore to punish after so long a time were to punish twice By our Law recent crimes are more severely punisht then others as murder with red hand and the thief taken with the fang and by how much the crime grows older by so much it should be the less punished 7 The necessity of example which is the reason inductive of punishment fails in old crimes so the punishment should then also be remitted as unnecessary To the contrary arguments it may be answered to the first that our criminal law being much more founded upon the Civil Law then any other part of our Law is as shall be clearly proved there needed no particular statute in this case with us especially seing this prescription of twenty years in crimes has in effect become the Law of Nations and several other Nations who have many Statutes in other cases have yet allowed of this prescription without any particular Statute 2. There seems to be greater reason that an Act should have been necessary for prescription in civiltbus then in crimes because in civil cases the Roman Law was very various and quoad the particular periods of time was altered by all Nations according to the particular state of their affairs but in criminals their prescription was exactly observed by all Nations and was very reasonable and there being expâ—esly jus quaesitum incivilibus to every privat person it was necessary that should have been taken away by an expresse Statute but it is not so in crimes where in effect At first there was no express jus quaesitum either to the King or any privat party but only à â—otestas acquirendi for the jus qu situm is only by the sentence for before sentence the Fisk could not dispon upon and so had no right to the Malefactors goods and this answers likewise the second reason To the second third fourth and fifth it is answered that doubtless the wise Romans and other Nations could not but have these inconveniencies under consideration when they introduced the foresaid prescription in crimes and to the third it is particularly answered that if privat parties will not pursue their revenge they justly lose the capacity by their negligence and His Majesty having so many sworn Officers in every corner of the Land it is not presumeable that any inconvenience will arise through want of information but if there do it is much more reasonable that these negligent Judges should be punished especially seing there are express Laws appointing negligent Officers in such cases to be punished To the fourth it is answered that negative Arguments brought from the not being of a Law or a custome is not concluding for as in many other cases so this might have been argued as strongly as here against His Majesties Advocat when he of old crav'd that the Heirs of Traitoâ—s might be forefaulted for their Predecessors guilt And when he of late crav'd that probation might be led against Traitors in absence in either of which cases there was neither Act nor Practique nor could any thing have been alledged but the Authority of the Civil Law and the consent of other Nations To the fifth the crime being taken away by so long a time it were unjust to take away a mans life upon the former prescriptions and the fear of punishment is a sufficient punishment for all the malice arising from that prescription neither is it presumed but that if a Malefactor continue to be ill he will be pursued within twenty years and if he did for twenty years live so soberly and discreetly as that the Law thought not fit to take notice of his former crime there is little hazard of any future malice And to this opinion I rather encline because Carpzov relates that albeit by the Statutes of Saxonie prescription is only introduced by expresse Statute in moveables and heritage and that there is no express Statute as to prescription in criminals yet these prescribe also in twenty years because that prescription introduced by the Civil Law is not expresly abrogated amongst them nam non praesumendum est totam praescriptionum observationem tantis vigiliis excogitatam Saxoniae legislatorem evertere voluisse ut in simili casu dicit Imperator l. 34. C. de in offic test Petr. Heig part 1. quest 26. num 47. vid Carpzov part 3. quest 141. TITLE XXX Of Punishments de paenis 1. The design of punishment 2. Whether crucifying or banishment be lawful punishments 3. Whether a man can bind himself under the pain of death 4. Whether arbitrary punishment can extend to death 5. The loss of life is still followed by loss of moveables 6. How far can ignorance anger drunkenness or command either excuse from punishments or lessen them 7. How far doth Nobility or great Merit excuse or mitigat punishment 8. How far doth the inconsiderableness of the transgression mitigat or lessen the punishment I. PUnishments are inflicted not only to satisfy either the publick revenge of the Law or the privat revenge of the party but rather to deter others for the future and yet they are rather inflicted upon either of these designs then to punish the offender and make him insensible for what is done can no more be helped Some crimes are so horrid and so unknown to the world that it is not fit the Malefactor should be punisht publickly thus some crimes have been tryed in Scotland at midnight and the Malefactor immediatly drowned in the North-loch