dead and dye of the falling Sicknesse 17. May 1615. but in this the words were maliciously spoken for the speaker utterred them because he had lost a Plea But sometimes the speaker is only Scourged and Banished as Tweedy was 13. March 1612. for abusing Constables and bidding the King the Council and them kiss his arse and swearing he cared not a fart for them which words appeared both by the speaker and the contexture of the words to have rather flowed from folly then design And Spotswood in his History relats that the School-master of Edinburgh was hanged for dispersing Libels against the Regent wherein he charged him with being guilty of capital Crimes Leasing makers VI. Like to this Crime if not the same with it is Leasing making whereby hatred and discord may be raised betwixt the King and his people which was punished with tinsel of life and goods by the 43. Act Parliament 2. King Iames the 1. Likeas any misrepresentation or evil information as our Law calls it of the King to his people is punishable in the same way by the 83. Act Parliament 6. King Iames the 5. And though the slandering of His Majesty might have been punished by the reason of the first Act yet we see that our Predecessors did not think paritas rationis sufficient in punishing Crimes Upon which Acts a great person was found guilty of death for writing a Letter wherein the Parliament was slandered Anno 1662. But this was thereafter rescinded by his Majesty Likeas by the 20. A. of the 14. P. KI 6. the hearing and not revealing and not apprehending of such Leasing makers if it be in the hearers power is equally punished with the Leasing making but because these Acts could not reach to slanderers of His Majesty to His people in England or misrepresenting them to the King or abusing any Privy Counseller of that Kingdom therefore the misrepresenting them is declared punishable at His Majesties pleasure by the 9. Act 20. Par. K. Ia. 6. By the same last Act dispersing or making Cockalands or other infamous Libels against Counsellours of England is punished as Leasing making TITLE XXXI Poinding of Oxen in time of labouring 1. How this Crime is punished by our Law 2. How by the Civil Law 3. The explication of our Act of Parliament in this case 4. How the Civil Law and ours differs in this point BY the 98. Act 6. Parl. Ia. 4. it is Statute that no Sheriff or Officer shall poind or distreinzie the Oxen Horse or other goods pertaining to the Plough and that labours the ground the time of the labouring of the same where any other Goods or Lands are to be Apprized or Poinded according to the Common Law II. The Common Law to which this relates is l. 8. C. quae res pig oblig possunt pignorum gratia aliquid quod ad culturam agri pertinet auferri non convenit and by the subsequent authent ibid. agricultores terrarum securi sunt ita ut nullus inveniatur tam audax ut personas boves agrorum instrumenta aut si quid aliud quod ad agrorum rusticorum operam pertineat invadere aut capere praesumat siquis hoc statutum violare praesumpserit in quadruplum ablata restituat infamiae notam ipso jure jucurrat imperiali animadversione nihilominus puniendus and Maranta de ordine jud part 6. Act 3. num 31. relates that this Law is confirmed in Sicilie by an expresse Statute and all these Laws seem to be founded on Deut. 24. vers 6. No man shall take the upper nor nether milstone to pledge for he taketh a mans life to pledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Grotius observes out of Philo. which are called mola catillus l. cum de lanionis § idem consultus ff de instructo vel instrumento legato III. By the foresaid Act of Parliament the Poinding of such Goods is forbid in the time of labouring but it is not declared to be a Crime and the Lord Renton haveing in Ianuary 1666. pursued the Officer of the Court of Coldinghame for poinding one of his Plough Oxen when they were labouring before the Criminal Court is was alledged that no criminal pursuit could be founded upon this Act seing nothing could be criminally pursued but that which was made a Crime by a special Statute and to which a special sanction was annex'd Likeas by the constant custome many actions of Spoilzie were founded upon this Act but no criminal pursuit was ever thereupon intented To which it was replyed that the contempt of a Law was in it self a Crime seing disobedience to Authority was in effect the basis of all Crimes 2. Illegal intrometring with another mans Goods was a Crime especially ubi lex non solum non assistebat sed restistebat for theft is nothing else but an unwarrantable intromission and as the taking of His Majestie 's free Liedges is a Crime where the same is not warranted by Law so the poinding of these Goods should infer a Crime that being another species of unlawful execution 3. This Act discharges such executions conform to the Common Law And by the Common or Civil Law this is a Crime as is clear by the Law above cited and whereas it was alledged that no sanction was annex'd It was replyed that where the Law annexes no sanction the punishment is there arbitrary and there are many Crimes both in the Civil Law and outs to which no sanction is annext The Justices sustain'd the Libel and ordained the Pannel to go to the knowledge of an Inquest The expresse words of the Interloquutor were that the poinding an Oxe in the time of labouring is an injury and wrong punishable by the Law paena aplicanda filco And thereafter the three Pannels were found guilty though it was not expresly proved that the Oxe was labouring actually the time of the poinding but only that he used to labour and was in the Plough the week before and the Countrey was then labouring all which are necessary qualifications of this Crime and so are necessary interrogators after pronouncing of which doom the Justices fined each of the three Pannels in fourty Pound Scots And yet in Iune 1674. a reply against lawfully poinded being proponed in a pursuit for theft the case was by the Justices referred to be first civily pursued It was here also alledged that by the 34. Act. 4. Parl. I. 5. where Crimes may be criminally and civily pursued the civil pursuit ought first to be discus'd which was repelled because though a civil pursuit of spoilzie were intented there could no defence such as lawfully poinded authore praetore c. which are usual in other cases be proponed here seing though the executions were formal and the Decreet whereupon they proceeded irreduceable yet to poind a labouring Oxe in labouring time is in all cases unlawful itacessat hoc casu ratio legis 2. The defender could not plead the benefite of this
decisions then Philosophers to continue in the errors of their Youth But yet when the arguments pro and contra weigh equally and reason seems puzled where to encline the authority even of our former decisions should cast the ballance especially where the same reason then urg'd was there pressed and in the interpretation of Laws of which decisions are the best interpreters if a whole tract of decisions can be produced it would infallibly bind wherein Craig diag de jure quo utimur agrees with Callistrotus l. 38. de leg in ambiguitatibus quae ex legibus profisciscuntur consuetudinem aut rerum perpetuo judicatarum auctoritatem vim legis obtinere Where these decisions have proceeded upon a debate by which the reason of Judges is much ripened and the future inconveniences fully considered for as Pomponius well observes l. 2. § his legibus ff de origine juris his legibus latis caepit ut naturaliter evenire solet ut interpretatio desideraret prudentium authoritate necessariam esse disputationem fori And Durie in the case of Hoom of Cowdoun-knowes shewes us how the L. of Session thought it not derogatory from their honour to retreat a sentence after debate which they had pronounced when no Advocats were compearing We follow the Civil Law in judging Crimes as is clear by several Acts of Parliament wherein the Civil Law is called the common Law And Robert Leslies Heirs are by the 69. Act. Par. 6. Ia. 5. ordained to be forefaulted for the Crime of Treason committed by the father according to the Civil Law And forefaultor in absence was allowed by the Lords of Session in Anno 1669. because that was conform to the Civil Law and falshood is ordain'd to be punisht according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. And by Craig l. 1. diog 2. As also from our own Historians Lesly l. 1. cap. leg Scotor Boet. l. 5. hist Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as Forcat lib. 1. hist. Angl. Petr. diamitis Geograph Europ tit D. Escosse and Duck de auth jur civ lib. 2. cap. 10. and though the Romans had some customs or forms peculiar to the genious of their own Nation Yet their Laws in Criminal cases are of universal use for Crymes are the same almost every where as Boet. well observes leges Romanas à Iustiniano collectas tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhorrens quae eas non fuerit admirata And K. Ia. 5. was so fond of the Civil Law as Boet. observes lib. 17. that he made an Act ordaining that no man should succeed to a great Estate in Scotland who did not understand the Civil Law and erected two professions of it one at Saint Andrews and another at Aberdeen And when Iames the 2. did by the 48 act of his 3. Parliament ordain that his Subjects should be governed by no forraign Lawes he designed not to debar the respect due to the Roman Lawes but to obviat the vain pretences of the Pope whose canons and concessions were obtâ—uded upon the people as Laws by the Church men of these times The 4th branch of our Criminal Law are the Books of Reg. Maj which are in criminalibus lookt upon as authentick Thus the Thief must be punisht before the recepter and assysers must be pares curiae c. For which and many other maximes there is no warrand besides what is contained in these Books of Reg Majest But why should this be doubted seing they are cited as such Act 47. Parl. 6. Ia. 3. where it is said that wilful and ignorant Assysers shall be punisht after the form of the Kings Law in the first Book of the Majesty and by the 98. act 14. p. l. 3. transgressions of that act are to be punisht conform to the Kings Laws and of Regiam Majestatem likeas by the 54. P. 3. I. 1. a Comittee of Parliament is ordained to meet and examine the Book of the Law that is to say Regiam Majestatem and Quoniam atta chiamenta which is repeated 115. Act. 14. P. I. 3. And albeit they contain many things which are not in use with us yet they have been in use and this objection would conclude the Acts of Parliament not to be our Law It is then my opinion that K. Ia. the 1. hath brought down some of these collections from England with him Nor find I these books cited before this time It is doubted whether the Secret Council can by any Act or Proclamation either introduce a cryme which can infer tinsel of life or escheat for the Parliament can only dispose upon our lives and fortunes And it being the representative of the Nation every man is in Law said to have consented to what the Parliament doth I find Craig to have been of opinion that no Act of Secret Council can infer a Crime pag. 38. Nor can the Council by their Acts warrand any to do what would be otherwise a Crime for ejus est nolle cujus est velle And none can take away a cryme but such as can introduce a cryme and therefore M r. Archb Beath being pursued for killing some men he alledged that these men were bringing Meal from Ireland And that by Act of Council it was lawful to sink or kill such as contraveened the Act. To which his Majesties Advocat did reply that the Acts of Secret Council could not warrand the killing of a free Leidge and the committing of murder which reply was found relevant But since the Council are to secure the peace and that many accidents may emerge wherein the publick peace cannot be preserved without this power it were hard to limit them too much IV. Whether dolus or a wicked designe be requisite in all crymes is largely treated of by the Doctors and is most fully debated in the process of Ochiltrie Balmerino and the Marquiss of Argyle And by the texts § placuit just de furt l. 3. ff De injur l. pen. ff ad Leg. jul de Adult It seems that the wickedness of the designe makes only an action criminal but in my judgement this inquiry may be resolved in these conclusions 1. That seeing man can only offend in what is voluntar to him it must follow that the will is the only fountain of wickedness And consequently it was at first the designe of Law-givers only to punish such Acts as were designedly malicious 2. Because design is a private and conceal'd act of the mind which escapes the severest probation Therefore in some cases this dolus is allowed by Law to be inferred from conjectures and presumptions where the act is
by imprisonment during life forfeiting of goods and of the profit of Lands during life For this Crime the Earl of Morton was execute by King Iames 6. for having conceal'd the design'd death of King Henry his Father And it may be doubted whether concealing be Treason where the King is not in a condition to repress or punish the Treason that is intended for there the end of revealing seems to cease which is information in order to resistance It hath been likewise doubted whether the not revealing Treason was punishable where the Treason was design'd by the Prince or Queen But since they are likewise Subjects and may commit Treason therefore there can be no doubt but it is Treason in any others to conceal their treasonable designes XIV The eleventh point of Treason is to flee from his Majesty or his Lievtenant which is not extended only to such as are sworn to Collours but even to such as are warned to and do attend the King's Host vid. tit the jurisdiction over Souldiers XV. The twelfth point of Treason is to deny his Majesties having the only power of calling and dissolving of Parliaments Act 3.1 Parl. Ch. 2. XVI By the common Law it is Treason to kill any of the Princes Counsellors because they are a part of the Princes own body l. quisquis C. h. t. But with us the pursuing or invading any of the Session Secret Council or any of his Majesties Officers for doing his Majesties service is only punishable by death but not as Treason Act 4. Parl. 16. Ia. 6. By Officers here are meant only Officers of State else it might be extended to Messengers And I heard it resolved that this Act extended not to such as invaded the Lyon And these words Any of the Session are not extended to Advocats Clerks Macers or any else besides the Lords as is clear by the narrative of the Act. But I think the quality adjected that they were invaded for doing his Majesties service may be proved by circumstances and presumptions as if a pursuer who had lost a Cause should invade the next day a Lord who had voted against him And the words This being verified and tryed import so much But the Stat. Edward 3. is much more clear making it Treason to kill the Officers therein mentioned only viz. Chancellor Thesaurer chief Justice of either Bench or any Judge of either Bench sitting in Judgement only and from this Statute of our Neighbouring Nation we may argue that the killing none below a Lord of Session should infer the punishment of this Act. The killing a Member of Parliament is not in England Treason though the Parliament be a higher Judicatory then any exprest in the Act. And Cook tells us that they allow not argumentum à fortiori to infer Crimes And with us the killing a Member of Parliament would not infer death by this Act since they fall under no qualification therein specified In England killing Officers falls only under the Statute but with us invading or pursuing them is death though it take no effect Quaritur If to invade them when they are out of the Kingdom would fall under the Statute since they are not under that character elsewhere Or if he who invaded them during their being suspended would fall under this Act since during that time they retained the character and the exercise is only suspended And it is resolved by the Doctors that a Statute punishing such as invade Magistrats is only to be extended to such Magistrats as are once admitted but not to such as are only named or elected for such Statutes are extended in gratiosis yet they are restricted in such odious points as thir Cabal cas 148. Treasonable words vid. t. Injuries and Libells XVII The third branch of the division is Statutory Treason which comprehends under it several other points of Treason which because they relate to other Crimes therefore I shall also refer the Reader to these Titles wherein these Crimes are principally treated of But it will appear by these Acts that these Crimes are not declared to be Treason but only to be punishable as Treason and therefore these Statutory Treasons have not at all the other priviledges competent to Treason as that they may be proved by Women alios testes inhabiles or that he who accuses in these will commit Treason if he prove not his accusation Thus wilful Fire raising is Treason Ia. 5. Parl. 3. cap. ultimo Theft in Landed-men is Treason Ia. 6. Parl. 11. cap. 50. vid. tit Theft Murder under trust is treason Ia. 6. Parl. 11. cap. 51. vid. tit Murder sayers of Mass Jesuits trafficking Papists and their resetters commit Treason Ia. 6. Parl. 12. cap. 120. vid. tit Heresie To buy or bring home poyson is treason Ia. 2. Parl. 7. c. 31. vid. Poyson Thieves who take leill men upon Bond to re-enter them commit treason Ia. 6. Parl. 1. cap. 21. But though this Act speaks generally of the taking of any Scottish-man yet it may clearly appear by the narrative and the whole strain of the Act that the same strikes only against such Thieves as kept correspondence with the English and took Scottish-men prisoners into England But custom hath interpret this otherwise for Duncan Macgrigor was 15. Iuly 1643. convict and hang'd as a traitor for arte and part of taking Iames Anderson and Iohn Mackie and the taking of Captain Cairns found relevant as an Article of Treason against Assint To usurp any Prelats place after his decease is likewise treason Ia. 5. Parl. 7. cap. 125. XVIII This Crime hath in it many specialities wherein it differs from other Crimes As first He who accuses any man for treason doth incur the pain of treason if the defenders be acquit which is occasioned as the Act bears because of the odiousness of treason But since the the Act sayes expresly that this shall take place where the party calumniat is called accused and quit of the Crime of Treason therefore it may be inferred that though the pursuer raise Summonds of treason and should pass from the same before the Pannel go to the knowledge of an Inquest that eo casu though the pursuer might be punished poena extraordinaria yet he could not be punished as a traitor It may be likewise doubted if this holds in Statutory Tâ—eason as Theft in Landed men c. And since the reason inductive of that Act is the odiousness of treason it would appear that this rigid Law should not take place in these points of treason which are not so odious of their own nature Another speciality in treason is that it can only be tryed by the Justices Reg. Maj. lib. 1. e. 1. v. 1. and that because of the Kings immediat interest since it is not presumable that the Fiscal in Inferiour Courts would be as careful as his Majesties Advocat who cannot appear there and because of the intricacies and great consequence of that Crime but it may be
power of every malicious rascal to wrong the most innocent for either he behov'd to suffer himself to be killed or to be punished by defending his own life And by the said act it is only declard leisum to punish but not necessary And yet by the Law of England Murderers se defendendo for fault their movables and both in that and in murder upon misadventure for so they call casual homicide the murtherer must have a pardon Statute 6. E. 1. cap. 9. So great a regard sayes Bolton the Law hath to the life of a man cap. 15. num 16. And by the Law of Savoy he who kills though in self-defence needs a pardon but the Prince in that case cannot refuse to grant a pardon And therefore their Lawyers call that pardon gratia justitiae Cod. fabr lib. 9. tit 10. but with us no pardon is requisite albeit it is most ordinar to take remissions in such cases bearing self-defence in their narrative III. This moderation is said to be exceeded in these three viz. in Armes 2. In time 3. In the measure of following striking c. This moderation is exceeded in Armes as if the aggressor have only a staff and the defender wound him with a sword or pistol the defender is in that case punishable for there weâ—e no reason in that case the defender should have had any feâ—r of his life nec erat in dubio vitae constitutus And yet this conclusion is not infallible for if the defender was much weaker then the aggressor he might be excused to use such unequal Weapons The defender is said to exceed in time if he strike the aggressor ante quam sit in actu proximo occidendi for else it should be lawful to every man upon the first apprehension of fear to kill the aggressor which were very dangerous and here it may be doubted if when any aggressor threatens to kill if the defender who knows not when the threat may be put in execution may immediatly kill There are probable reasons to be urged for either opinion And albeit the punishment should in this case depend upon the arbitrement of the Judge yet if the aggressor be known to have any designe to Murder or be a person who uses to execute what he threatens and if he have a Sword though not drawn or a Pistol though not cockt For if he have either of these there is no doubt but he may be lawfully killed because he is in actu proximo offendendi and no man should wait till he be killed I think that though the aggressor be killed yet the defender hath the benefit of self-defence and albeit he may be arbitrarily punisht yet he cannot be punisht with death and many Lawyers are of opinion that he who threatens to kill may be killed which opinion they found upon these reasons 1. Because the Law looks upon that which is unlawful as done if it was intended to be done and that in odium of him who designes what is unlawful â— There is greater fear from some threats then from wounds and therefore seeing it is lawful to kill these who assault us with wounding why not and him who threatens 3 d. per. l. 1. C. quando licet cuique c. Mortem inquit imperator quam minabatur accipiet id quod intendebat incurrat nor can the friends of the threatner complain seing the aggressor was in effect author of his own death And it is clear that the defender had no design to kill Yet the Justices would not sustain minae per se to be a sufficient qualification of self-defence but sustain'd it joyntly with the aggressors fyring a Pistol though it mis-gave and though the defender might have fled Ianuary 1668. Sinclar contra Barclay And albeit by the Canon Law insultatus debet fugere And that by the Law of England he who is invaded is oblieged to flee as far as he can as to a Wall or Ditch Bolt cap. 15. num 17. Yet by the opinion of the Civilians a person invaded is not oblieged to flee far Farin quest 125. P. 2. It may be probable that if the defender was alone in a House or place with the aggressor and could expect no help that upon threatning or other probable designes laid against his life he may kill the aggressor and from which may be deduced that the actus proximus which Lawyers speak of must not be interpret only the having a Sword drawn for if a stronger man have a weaker in a lockt house and threaten he may kill him though asleep if he cannot otherwayes escape The defender is said to exceed in the measure also if he killed him for wounding whom he might have shun'd or if he followed the aggressor which though it be not fully lawful yet fugientem persequens dumodo in ipso actu non punitur paena ordinaria licet occiderit Boer decis 168. Novemb 7. And albeit much be left to the arbitration of the Judge as to all the three arma tempus modus yet the general rule is that if the defender exceed only in either of the three as v. g. in the armes or time the excess is said to be culpa levissima and no way punishable if in two of these as in time and arms then it is accounted culpa levis and is somewhat â—â—nishable but if the defender exceed in all the three as in time arms way of prosecution then it is culpa lata but yet he is not punishable as if he had dolose Murdered for though it be a rule in civilibus that culpa lata equiparatur dolo Yet it is a rule in criminalibus that culpa lata numquam equiparatur dolo ubi agitur de paena corporis afflictiva Far. quest 125. part 6. It iâ— also controverted amongst Lawyers if seing honour is as dear as life it be lawful to kill him who asperses our honour as it is lawful to kill him who assaults our life And albeit Farinacius be of the judgement that he who is thus provockt being a person of far more eminent condition then the injurer killing him is not to be punisht as a Murderer sed pena extraordinaria licet injuria sit verbalis yet in my judgement he errs in that position for in effect that is not self-defence because the verbal injury cannot be retreated nor retain'd but it is revenge yet dolor justus aliquando operatur ut paena ordinaria temperetur Boer decis 237 but yet that is not allow'd in killing and such other injuries quae non possunt revocari Gothofr prax crim § homicida N. 25. and albeit this hold in verbal injuries offer'd to our Honomr ubi nescit vox missa reverti yet if the injury offer'd to our Honour be real and such as may be stopt as by commanding an eminent person to loose down his Breeches to be whipt or do any most ignominously servile Act to the aggressor in that caise I should think that the
Sodomy in which endeavour is punishable by the opinion of the Doctors though by the Law of England Sodomy requires habuisse rem veneream puerum carnaliter cognovisse Cook p. 59. albeit the manner of death is not exprest in this act yet practick hath determined the same to be hanging as in the case of Barnoch who was hanged for committing Incest with his own Sister Decemb. 8. 1641. And of Ioan Knox who was hanged for committing Incest with her husbands brother May 1646. Sometimes it is likewise punished with heading as in the case of Iames Strang who was beheaded for committing Incest with his brothers daughter the 4. of April 1649. III. Sodomy is when a man lyes with a man for which both are punishable by death l. cum vir nubit C. de adult they are burnt in France and Savoy as Gothofred observes By the 25. act Henry the 8. Sodomy is declared Fellony and the punishment of Fellony by the Law of England is in all cases to be hanged by the neck till death Though Carpzovius and the other Doctors are of opinion that confession alone is not a sufficient probation in this Crime except other presumptions concur for clearing that the Crime was truly committed yet with us the confession it self without any other adminicles is sufficient to inferr the punishment of death except the confessor be known or at least suspected to be distempered Mastrupatio est ubi quis propriis manibus aliove instrumento se polluit punitur ut sodomia Carp Part. 2. Quest 76. haec paena non est in usu apud nos IV. Bestiality is when a man lyes with a beast which the Romans also punished with death and in which some Lawyers affirm the endeavour is as highly punishable as the crime it self effectus sine affectu Papon lib. 22. tit 7. art 1. Damhaud cap. 96. n. 16. Which opinion they found upon the attrocity of the Crime and it seems that he deserves not to live who could harbour such horrid thoughts but especially if he did all that was in his power to put his design in practice and was only letted by some interveening accident 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But yet other Lawyers conclude that even in this crime the endeavour is punishable by a less severe punishment then death which seems clear by l. 1. § fin ff de extraord crim qui puero struprum abducto ab eo vel corrupto comite persuaserit aut mulierem puellamve interpellaverit quidve impudicitiae gratia fecerit perfecto flagitio punitur capite imperfecto in insulam deportatur And though in hotter Countreys where Custome and Climat lessens this Crime the Crime is by their Lawyers thought punishable less severely yet with us death ought to punish it if the delinquent was only letted by others And in both thir crimes of Sodomy and Bestiality witnesses who are lyable to exceptions will be received because of the attrocity of the crime Bos. de judiciis We have no particular statute for punishing either Sodomy or Bestiality for they are crimes extraordinar and rarely committed in this Kingdom but our Libels bear That albeit by the Law of the Omnipotent God as it is declared in the 20. c. of Leviticus As well the man who lieth with mankind as the man who lieth with a beast be punishable by death Yet c. the ordinar punishment in both these is burning and the beast is also burnt with which the Bestiality is committed as in the case of Iames Fiddes who being convict of Bestiality was ordained to be burnt in the last of May 1650. And Major Weir April 1670. Yet sometimes it is only punished by hanging and thus Iohn Logie was only hanged in Iuly 1642. and Iames Wilson was only hanged for the same crime 15. Feb. 1649. which last Sentence bore that the execution should be very early in the morning and ordained the Mare with which the Buggery was committed to be drowned in any Mosse or Loach TITLE XVI Raptus Ravishing 1. The nature of a Rapt described and its punishment 2. Whether the violent lying with a woman without the carrying her away be a Rapt 3. If the carrying a woman away upon any other accompt then lust be a Rapt 4. If the carying her away without lying with her be a Rapt 5. If a womans carying away a man be a Rapt 6. Whether a subsequent consent purges this Crime 7. Some instances of the punishment of this Crime 8. Whether the parents consent not being obtained makes a Rapt 9. Whether minors and such as force common whores be punishable for a Rapt RApt or Ravishing is that crime which is committed in the violent carrying away a woman from one place to another for satisfying the Ravishers lust And is in the Civil Law punishable by death l. un C. de Rapt virgin c. In our Law it is one of the four points of the Crown that is to say the cognition of it belongs only to his Majesties Justices and not to any other judge R. Maj. l. 1. c. 1. N. 6. and is punishable by death and confiscation of the Committers movables For albeit I remember not that the punishment of death be expresly appointed for it Yet in the 8 cap. l. 4. R. M. It is said expresly that it shall be punished as the other Crimes above related and these are Murder Treason and fire-raising which are all capitally punished And by the Act. 4. P. 21. I. 6. it is declared that albeit the consent and declaration of the woman ravished declaring that she went away of her own free will may free the committer from capital punishment Yet shall it not free him from such arbitrary punishment as His Majesty shall inflict by Warding confiscation of their goods or imposing upon them pecunial mulcts Which act insinuats that the Crime is otherwayes Capital else that act had been unnecessar II. The definition given of a Rapt l. 4. c. 8. R.M. is that it is the unjust oppressing of a woman by a man against the Kings peace in which it differs from the Civil Law at least from some Doctors who alledge that lying with a woman or abusing her body violently is not a Rapt except she be carryed from one place to another Albeit they do confesse that this violence is punishable by deportation or banishment and is as some affirm non Raptus sed Stuprum l. 3. C. de ad leg Iu l. de vi But yet other Lawyers and chiefly Mathaeus doe conclude that albeit the away taking and the forcing or violent abusing a womans body be differently punished yet they are degrees of the same crime and both are Rapts But according to our Law both are Rapts and both punishable by death Neither does our Law make any distinction inter Raptores deforciatores mulierum betwixt Ravishers and Deforcers of women and it were most unreasonable that he who defloures a woman violently should not be as severely punished
be allowed by the justices who must find all libels relevant which bear consulting with Witches and that Ditty being proved they must condemn the Pannel to die albeit I think the Councel may alter the punishment if it be clear that the user of these acts had no wicked designe nor intercourse with the Divel therein XXVI By the Law of England Witch-craft was of old punished sometimes by Death and sometimes by exile But 1. Iac. this following Statute was made which I here set down because it is very special If any person or persons shall use practise or exercise invocation or conjuration of any evil and wicked spirit or shall consult covenant with entertain employ feed or reward any evil or wicked spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the skin bone or any part of a dead person to be imployed or used in any manner of witch-craft sorcery charme or inchantment Or shall use practise or exercise any witch-craft inchantment charm or sorcery whereby any person shall be killed destroyed wasted consumed pined or lamed in his or her body or any part thereof that then every such offender or offenders their aiders abbetters and counsellors being of any the said offence duely and lawfully convicted and attainted shall suffer pains of death as a fellon or fellons and shall lose the priviledge and benefit of Clergie and Sanâ—tuary If any person or persons take upon him or them by witchcraft inchantment charm or sorcery to tell or declare in what place any treasure of Gold or Silver should or might be found or had in the earth or other secret places Or where goods or other things lost or stoln are become Or whereby any cattell or goods of any person shall be destroyed or to hurt or destroy any person in his or her body albeit the same be not effected or done being therefore lawfully convicted shall for the said offence suffer Imprisonment by the space of a whole year without baile or mainprise Once every quarter of the year these Mountebanks are to mount the pillory and to stand thereupon in some Mercat Toun six hours and there to confesse his or her errour and offence TITLE XI Murder 1. The Etymologie of Murder 2. Self defence defined and whether it be punishable 3. How moderation in self defence is said to be exceeded 4. How self defence must be proponed 5. How it ought to be proved 6. What is casual homicide 7. Whether he who was doing what was unlawful may defend himself as only guilty of casual homicide 8. Whether he who is only guilty of casual homicide may be fined 9. What is homicidium culposum or faulty homicide 10. What wound is to be judged mortal 11. How the designe of Murdering or forethought fellony is to be cleard 12. Homicidium in rixa when many are conjunct actors how punishable 13. The killing of thieves or such as resist authority how punishable 14. Whether it be lawful for a father to kill his own daughter if he find her comitting adultery 15. Assasination how punished 16. Murder under trust how punished 17. What is art and part of Murder 18. How such as kill in the execution of law are punishable 19. Whether it be lawfull to kill a Rebel 20. The life-rent escheat of murderers falls in some cases 21. Murder is one of the pleys of the Crown 22. How Sheriffs and other Iudges ought to prosecute murderers 23. Whether remissions can be granted in case of murder GOD Almighty did to the honour of impressing man with his own image add as a second obligation a natural horror in every man to be in any accession to the defaceing it so that he has consulted his own glory and our security joyntly in these severe laws which he has made against Murder And his divine finger is not seen so apparently in any discovery as in that of Murder and it is very remarkable that these Barbarians who saw the viper fasten upon Pauls hand did instantly conclude him guilty of Murder because he was to their apprehension so miraculously punished I. Murder comes from the Dutch word Moorde which signifies caedem ex jusidiis vel proditorie factam Math. h. t. And Murder is properly different from Slaughter the one being committed per seloniam the other per infortunium Leg. Malc c. 2. And therefore when our Law forbids killing under trust Ia. 6. Pa. 11. ch 81. It calls it murder under trust But when it speaks of killing by accident or in self-defence it calls it Slaughter or Homicide c. 22. Par. 1. K. Ch. 2. Ses. 2. And by this it seems that this crime is better writ murder then murther though murther be the ordinar way of writing it especially in our old Law The Civilians define Murder to be the killing man by man unlawfully And they divide it into that which is committed casually in defence culpable or wilfully II. Necessarium Homicidium or homicid committed in self-defence is when a man being pursued or reduced to inevitable necessity has no way left him to evit his own death but by killing the Aggressor This is in law called inculpata tutela or moderamen in culpatae tutelae within which moderation if the defender contain himself he is no way punishable but if he exceed the same yet so favourable is self-defence that the exceeder is not lyable to the ordinar punishment but is ordinarly punishable according to the excess at the discretion of the Judge With us likewise self-defence is only punishable at the arbitrement or discretion of the Judge by the 22. act Sess. 1. Pa. 2. K. Ch. 2. But seeing that act ordains it to be punisht at his discretion it may be doubted if in all cases self-defence be not some way punishable And I remember that Captain Barclay being assoylzied in Decemb. 1668. Because the Assyse found that the killing Sinclar was in his own defence the pursuers were to petition the Council which is the ordinar way of taxing arbitrary punishment in this case that he might be fined And very learned Lawyers were of opinion that self-defence was in all cases punishable though attended with the most favourable circumstances of innocency from whom I differed upon these reasons 1. By the Civil Law and the opinion of the Doctors if the defender contain himself exactly within that moderation he is no way punishable as is clear by Farin part 74. quest 25. part 6.2 Self-defence is a duty and so not punishable for it were against reason that the Law should punish what it doth comcommand 3. The Law sayes that omni culpa caret qui se desendit and in our Law it is called murthrum justum leg Malcol c. 11. and so to punish him who necessarily defends himself were to inflict a punishment where the Law acknowledged there were no guilt 4. It should be in the
person extant who abides simply at the writ as true as Kennedy did in this case for else the user though a singular successor must abide at the writ as a true writ simply without which any false writ might be vented securely The counterfeiter of the King's Letters for which Binnie was hanged The opener and unsealer of privat letters from which Bart. likewise concludes that Advocats Writers and others who reveal their Clients Papers to their Adversaries and the sealing other mens Letters with the Sealers own Seal and revealing the secrets of a Town commit likwise◠Falshood 5. A Nottar who draws any unlawful writ verb. gra An usurary Contract commits Falshood but not in Scotland 6. A Nottar who expresseth any thing that is false in an Instrument commits Falshood as if he say the Money was numbred where it was not or if he marked persons to be present who were not but with us a Nottar commits not Falshood though he say in the writ which he draws that the Money was payed whereas it was not I find that Iacob de sancto Georgio ad l. de quibus ff de Legib. observes that consuctudo loci excusat notarium à paena falsi eo casu III. Falshood in writs is committed by omission in not setting down what the Nottar was desired to set down in his Instrument or omitting to express the day and place when the omitting thereof might have been disadvantagious In our Law he of old who falsifyed the King or his Superiors Charter committed Treason but he who falsified only the Charter of a private man was only to be punished by loss or mutilation of a member Reg. Maj. l. 4. Cap. 13. num 4. 5. or should be in the Kings will lib. 30. cap. 8. But therefore it is determined Stat. Alexander 19. that the forger of a Charter is to lose the right hand and Clarus tells us that in the Dutchie of Millan and several other places a false Nottar is only punished for the first Crime by losse of his hand but all this is innovat with us by the 6. Parl. 80. Act Ia. 5. whereby it is appointed that those who make false Instruments or causes them be made or uses the same wittingly shall be punished for the same in their person and goods with all rigour according to the disposition of the Civil and Common Law but because that Act punished only false Notars and exprest only false Instruments therefore by the 22. Act 5. Parl. Q. M. It is extended to all evidents but it would appear that it is not extended to all persons but only to Nottars both by the rubrick and body of the Act from which it may be inferred that in criminalibus non est argumentandum à pari ultra casum à lege definilum And that criminal Laws are to be most strictly interpret for else the former Law against Instruments might well enough have been extended against other false writs which are oftimes of greater consequence then Instruments are 2. The reason why Nottars are more severely punished then others was because they were more trusted then others for of old they were Church-men and hence springs that custom that they yet design themselves Ego A. B. Notarius pub Dioceseos Andreopolitanae Rossensis c. And any Paper subscribed by them was sufficient though not subscribed by the Party 3. The punishment is declared to be prescription which is an error of the Printer put for prescription banishment and dismembering of Hand or Tongue but because it is received amongst the Doctors that a Statute punishing Falshood in a Nottar cannot be extended to any other person who is a forger fulgos consil 123. therefore by the Act 22. Parl. 23. Ia. 6. It is statuted that whosoever maketh or useth a false writ or is accessory to the making thereof shall be punished as a committer of Falshood And that these and all forgers of writs may be punisht albeit they declare in Judgement that they passe from or will not use the writ quarrelled From which it may be inferred that seing the forger is only not allowed by this Act to passe from the writ after it is used and produced in Judgement that before it be used in Judgement it may be past from and as the using in Judgement is a further prejudice and degree of impudence then a simple forgery which may be repented of So in all tryals of Falshood and particularly in Barclay's case the Lords took great pains to enquire if the writs quarrelled were produced in Judgement or made use of before any Court which had been unnecessar if simple forging had been sufficient to infer Falshood but although this may be alledged for mitigating the punishment yet Dempster was condemned for counterfeiting a subscription in a reversion though he never used the same to the hurt of any person whatsoever nor would abide thereby and a sentence was founded upon this Act 20. April 1620. These who give a false Testimonial to any man whereby it may be used as another mans Testimonial or forges one to himself is punishable by death Act 10. Parl. 20. Ia. 6. But this Act seems only to relate to the Borders and such fugitives as run in from Scotland to England Though England and some other Nations punish Theft with death and Falshood only by the pillary and confiscation of moveables Yet our own Law seems much more reasonable which punisheth Falshood with death Since Falshood is a theft and a degree of that crime which deserves a much severer punishment then ordinary Theft because I can secure my goods against a Thief but no man can against a Forger And a thief can but at most steal our Moveables whereas a forger can by a false writ take away the property of our Lands and things of the greatest consequence By the Civil Law l. 1. ff de l. Cornel. de falsis § ult paena falsi vel quasi falsi deportatio est omnium honorum publicatio siservus corum quid admisserit ultimo supplicio affici jubetur which is in terminis renewed in the Basilicks only in place of publicatio omnium honorum the Basilicks have plenae publicatio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But Theophil ommits absolutely publicatio honorum and makes it to be simply 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or capital the reason whereof seems to be because capital punishment included necessarly publication or escheat of goods l. 1. 2. ff de Bon. Dam. and albeit the former punishment exprest l. 1. holds generally in Falshood yet there are some kinds of Falshood otherwise punished because in effect they fall in to be branches of other Crimes Thus the assuming of false Arms aut qui militiam confinxit concutiendi causa is capital in Matheus judgment per l. 27. h. t. because it is a kind of Laese-majestie But I find by the Law it self that the pain of death is not exprest in that case sed pro admissi
this cause it is that even our Law appoints all the dispute upon the relevancy to be in presence of the Assize 2. The Assize is oft stumbled at what is referred to them and do very often mistake what is found relevant and what not 3. Assizers with us are oftentimes ignorant persons at least seldom or never are they so judicious as to understand such intricat matters as Advocats represent to them especially in Circuite Courts where few have seen Assizes before and they are oftentims but mean persons or persons who have interest 4. By our Law the Libel is relevant if Art and Part be Libelled without condescending that they are Art and Part in swae far as c. and the Assizers are only Judges to what is Art and Part so that in effect they are Judges to the relevancy of almost all cases and are put to decide what has troubled the ablest Doctors and Authors and so often times they return unformal verdicts 5. Assizers are troubled in their commerce and abstracted from their affaires unnecessarily being obliedged frequently upon continuation of dyets to wait whole years and are oftimes absent whereby dyets are deserted and they oftimes syned 6. By this means Assizes of Error would be supprest with which Assizers are still threatned by the pursuer before they be inclosed and it seems Barbarous that persons who absolve should be punished whereas there is no punishment for concondemning which inconveniency would also be taken off by this overture 7. Assizers may in our Law judge according to their privat knowledge without Lawful probation which seems dangerous in Criminal cases 8. Though of old when Judges and Assizers were equally ignorant Assizers were appointed yet now when Law is formed to a Science and that judges are presumed to be learned and Assizers not it seems reasonable they should be supprest as well in Criminal cases as they are already in Civil and since we have receeded from the present custom of England and our own old customs by not allowing Assizes in Civil cases why not rather in Criminal cases these being both of more intricacy and weight especially seing in England the probation is before neighbours in the Countrey who know best the matter of fact but with us Assizers are seldom or never choosed from the place where the crime was committed but are Burgesses of Edimburgh who are as great strangers to what past as the Judges themselves and if Assizers were to be brought from the Countrey it would be very expensive 9 The most learned and polisht Kingdoms and Common wealths who have formed their Laws in calm and learned ages make there Judges discusse both relevancy and probation and it is thought that either assisers have been introduced by us when we and England were both barbarous or else the Justices have invented this Act at first to relieve themselves of a burden V. The Assize is either an ordinary or great Assize the great Assize is that whereby an ordinar is tryed if they do wrong and I find some foundations for thir terms par la custum d. langumois Act 4. de la Rochal art 1. la grand assise est du seneshal la petit du juge prevostal An ordinary Assize uses to consist of fifteen persons but they may consist of more or fewer if the number be unequal and thus the penult of Iune 1614. Ronald was tried and convict for dismembering Donaldson by an Assize of thirteen persons The reason why the Assize must be unequal in number is least by equality of Vots affairs be not terminat and brought to a speedy issue for which cause likewise lib. 2. Reg. Maj. cap. 5. and by the 87. Act 6. Parl. K. Ia. 1. it is appointed that arbiters should be appointed in an unequal number and yet I find that in the civil brief of right an Assise should consist of twelve sworn men Albeit according to the Law of England the Assizers must all agree in one voice yet with us the major part may condemn or absolve but if six of fifteen be only positive and eight non liquets it may be doubted if this verdict should condemn for else if one did condemn and fourteen were not clear that one would condemn which were most absurd and in Iuly 1675. a verdict in a Perambulation betwixt Walstoun and Sr. Iohn Cheesly being quarrelled in an Advocation as unjust because the greater number were non liquets the Lords did Advocat the cause to themselves which implyed that they did not sustain the verdict as valid VI. The Assizers are ordinarly called by sives and the Oath administrat to them is That you shall all the truth tell and nae truth conceal in so far as you are to passe upon this present Assise swa help you God Which I find likewise to have been the form of old Reg. Maj. lib. 1. vers 12. And albeit by the 138. Act 13. Parl. Ia. 1. it is ordained that all Judges shall cause Assisers swear when they take their Oath that they have not taken any Buds from the Party yet they do never tender to them this Oath except either the Judge or Party be jealous of the Assisers Assisers are party Judges partly Witnesses as has been said before they are Judges in so far as they consider the Probation led by others and judge whether proved or not proved They are Witnesses in so far as they may condemn upon proper knowledge without any other Probation And therefore whatever exceptions may be propon'd either against Judge or Witnesse are admitted against Assisers and thus an Assiser was set for that is the term of declining used in this case because he was not twenty five Years of age which is the age required in a Judge Act 132. Parl. 12. Ia. 6. vid. 7. Iune 1616. But because the exceptions against Assisers are ordinarly coincident with these that are against Witnesses therefore we shall remit them to the Title of Witnesses Only it is fit to take notice that the Cherurgians of Edinburgh are exeemed by Q. Mary from being cited upon Assises because of the peremptoriness of the employment which was sustained by the Justices Iuly 1671. both as to Assises within the Town and without the Town though our learned Craig being a Justice-Deput had formerly sustained it as to Assises without the Town only VII It was a principle in the feudal Law that all men should be judged per pares curiae the meaning whereof was that a Vassal should be judged per convassallo because it was presumed that these understood best the person to be tryed and the knowledge of the Pannels former life and conversation is a great help towards a sound judgement of the case and from this feudal custom rises our maxime that every man should be judged by his Peers quon attach cap. 67. The words are It is Statute that no man shall be judged by a lower person then his Peer an Erle by an Erle a Barron by a Barron
accompted as distracted persons and if they were punishable for any Crimes it behoved to be for such as are against the Law of God VII It is very easy and too ordinary for women who bear Bastards to murder them And therefore to obviat this the Law presumes so far a woman who has born a bastard and has conceal'd her being with child to be guilty of Paricide if the child be found dead that it punishes her by some extraordinary punishment but not by death except she can prove that the child was born dead Thus it was decided in Savoy 1595 vid. Cod. fab de his qui parent occid Def. 11. And with us Lawson and Ramsey were both Scourged annis 1661. and 1662. even though they were assoylzied from the Murder But I think that this were severe if the woman openly acknowledged that she was with child though none was present when she brought it forth And in all such cases women are admitted to be witnesses The taking potions also to make one part with child abortum procurans should be a species of Paricide in my opinion since she thus endeavours to kill her own child and by the Civil Law it was punisht with death L. Cicero ff de paenis And though the Doctors distinguish here betwixt the using such means after the child is quick or before it making it capitall in the one case but not in the other yet they presume that the child was quick quod fetus erat animatus and that in odium delinquentis and burden the delinquent to prove the contrair Gomes de delict cap. 3. num 32. asserts that this is presumed not to inferr death but Ecclesiastick punishment and since to prove the contrair seems to me impossible I encline to Gomesius his opinion but yet the using such means even before the birth be quick is arbitrarily punishable as is even the using means to hâ—nder conception Marsil ad l. si mulierem ff de sicar And in these cases both the Physicians who administrats the cure and the woman who takes are equally punishable Marsil ibid. VIII So horrid is paricide that what would be but a degree of guilt in other crimes makes a compleat crime here and thus a childs endeavouring to poyson his father 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. Basil. h. t. and to kill parents by giving them wounds was punisht by death in Savoy C. fab h. t. though the wounded parent interceeded to the contrair And the Son who bought poyson to poyson his father though he was not able to give it Carer § homicidium num 128. for which crime suffered with the Son the Phisician who furnished the drugs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. Basil h. t. and the person who lent the son the mony to buy them but regularly these strangers are not capitally punishable for such an accession except the crime take effect and this is the present custom of nations though by the Roman Law and the Basilicks they who were conscious or lent the money or were surety for money to be so bestowed were guilty 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And yet he who commands a son to kill his father is not guilty of Paricide Caepol Consil. 36. which may seem strange since to give poyson to kill a father seems equal guilt to giving a Son command to kill his father As these circumstances highten Paricide so there are some which restrict the punishment as if the father should find that his son had lyen with his own mother-in-law and had killed him upon that accompt though not in the very act 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lawyers think that he should be only punisht by banishment but not by death and that generally for whatever crime or fault a father may exheredat a son that the same fault will excuse the father from death if he kill his son l. divus ff de paricid Cabal cas 15. Some also think that a woman killing her husband who is banished and upon whose head a Fyne is put is not punishable by death because her husband is nullus injure and Laws allow all to kill such a person without any distinction betwixt wives or others yet other Lawyers have concluded that she should be punished by death since such sentences loose not the wife 's natural obligations but he is still her husband and the Law owns so far the relations as not to punish her for omitting to kill him or for cohabiting with him Cub consil 278. A father killing his son by accident ought not to dye and therefore much lesse he who kills him in defence of his own life for self-defence is a duty This crime is so odious that is praescribes not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE XIV Incest Sodomy Bestiality 1. What Incest is and the several kinds thereof 2. The punishment of Incest by our Law 3. Sodomy how punished 4. Bestiality how punished INcest is defined by the Civilians to be faeda nefaria maris fâ—minae commixtio contra reverentiam sanguini debitam Incest is divided into two branches viz. that which is committed against the Law of Nature and into that which is committed against the Municipal Law of the Countrey All copulation betwixt ascendants and descendants such as Grandfatheâ— Father Mother Son Daughter c. is by all acknowledged to be Incest against the Law of Nature But it is controverted whether the Brothers lying with the sister be incest against the Law of Nature And the Roman Catholicks alledge it is not Because it was allowed at the beginning and therefore they conclude that the Pope may dispense therewith And this is the first difference betwixt that Incest which is committed against the Law of Nature and that which is committed against the Municipal Law The second difference betwixt them is that the pain of incest when it is committed against the Law of Nature is death but when against the Municipal Law it is only deportation l. 5. ff de quest The third difference is that Incest committed only against the Municipal Law is excused in a woman in figura matrimonii but ignorance of the Law of Nature is not But the man is inexcusable in either Matheus hoc tit Num. 5. The fourth difference is that if a Marriage contracted be rescinded as incestuous all the committers goods are confiscat if the Incest be committed against the Law of Nature but the Tocher and Joynter are only confiscat if the Incest be only committed against the Municipal Law Matheus II. Our Law does not observe the above-written distinction but it is universally Statut. act 14. p. 1. I. 6. That whosoever pollutes his body with such persons in degree as Gods word doeth contain in the 18. of Leviticus shall be punished with death Albeit by these words of the act whosoever abuses his body it would seem that such as actually copulat are only punishable by this act Yet I think nudus conatus or endeavour is punishable by death as it is in