for above an hundreth Pounds shall be sustain'd except it be otherwise warranted then by the consent of the Clerk Albeit by the 75. Act Parl. 6. K. Ia. 5. the Barrons Precepts for Summonds in that Court is so called should be execute as Summonds before the Lords and Coppies should be left and they indorsed upon yet the 11. of Iuly 1634. Hay against Airth it was found that executions by a Barrons Officer are valid though not given in Writ and that the same are probable by Witnesses III. A Barron having power may judge of Theft if the Thief be taken in the fang quon attach cap. 100. where it is Statuted that baro qui libertatem habet de sock sack toll theam possunt judicare furem sasitum de aliquo furto manifesto sicut haud haebband back beirand de praxi Barrons do not punish Slaughter yet it may be urg'd that they have power to do so because 1. The power of Pit and Gallows would import the power of judging life and death 2. By the 77. cap. quon attach omnes Barrones qui habent furcam Fossam de latrocinio de hominis occissione habeant furcam id est curiam as the marginal note bears and by the 13. cap. Leg. Mal. 2. It is Statute that Malefactors who hold of Barrons may be condemned after the same manner that other Malefactors are except in the four Pleys of the Crown in which Barrons have no power from which it may be very clearly inferred that quo ad other crimes they have nam exceptio firmat regulam in non exceptis 3. By the 91. Act Parl. 1. I. 2. It is Statute if a man be slain in the Barrony if the Barron be Infest with such freedom he may proceed as the Sheriff doth And albeit Hope in his larger Practiques observes that these words of the Act if he be Infest with such freedom may receive various interpretations yet I see no interpretation they can properly receive except this that these words are meant if he have the Jurisdiction proper and competent to a Barron which is Pit and Gallows nam verba generabia interpretanda sunt secundum subjectam materiam Albeit wilful Fire-raising be one of the Pleys of the Crown yet a Barron may cognosce upon and punish the raisers of Fire rashly within Husband Towns in the Barrony I. 1. Parl. 4. cap. 75. The words of which Statutes are if Fire happen within Husband Towns of Barronies we leave them to be punished by their Lords in like manner as Bailiffs in Towns do within Burgh in which Act by the word Lords are meant Barrons for they are in several Acts of Parliament called Lords of their own Land or Barrony A Barron may unlaw for absence for ten Pounds but not above and for blood he may unlaw for fifty Pounds but not above VITLE XIV Of Justices of Peace OUr Justices of peace were called Irenarchae which signifies in the Greek the keeper of the peace irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam dicebantur etiam latrunculatores sen latronum expulsores Their Office was to apprehend Rebels and Thieves whom they could only examine and send to the President of the Province but could not judge them themselves their office is more fully described lib. 10. C. tit 75. but to speak properly latrunculatores were our Constables called by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justices of peace and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desuetude it was revived by 38. Act 1. Parl. 1. Sess. K. Ch. the 2. By this Act they are allowed to meet four times in the year and to adjudge of Servants fees and of mending the high wayes they have power to punish the cutters and destroyers of planting green wood slayers of red and black Fishes makers of moor-burn keepers of Crooves wilful Beggars Egyptians and their receptors Drunkards prophaners of the Sabbath as to all which His Majesty promises to give them ample commissions and to the end their power may not prejudge any other Court formerly erected it is appointed by that Act that fifteen dayes shall expire after the committing of the fact for which the committer is to be conveened Which interval is given to the Judge competent to do diligence and if he omit the same during that time then the Justices may judge the same and one Justice has power to bind the party complained upon to the peace under such pecunial Sums as he shall think fit and that either at the instance of a complainer who shall give his oath that he dreads harm or the Justice himself may exact the sum though none complain And if any person being charged to make his appearance before the Justice of peace shall refuse it he be a landed man whose rent exceeds a thousand Merks or ten Chalders of Victual then he shall inform any of his Majesties Privy Council or if he be a meaner person he may cause bring him by force before himself If the Sheriff or Bailiff condemn any person in blood-weit or any other pain but not proportionally to the offence then the Justices shall inform the Privy Council that they may take order therewith but if there be no satisfaction made by the Sheriff or Bailiff to the party the Justices may modify a reasonable satisfaction If the Sheriff or Bailiff do by collusion clear the Delinquent of an Assize the party once cleared is not to be further questioned but the Judges are to be punished by the Privy Council The Justices of peace are declared Judges competent to all Ryots and breaking of peace if the committeeâ—s be under the degree of Noblemen Prelats Councellours and Senators of the Colledge of Justice who may refer the Summonds to the parties oath if he be personally Summoned and thereupon hold him as confest but if the Summonds be not personally execute then the defender is to be summoned of new at his dwelling house and these two citations at his dwelling house shall be equivalent to one that is personal if the committers be above the foresaid quality then the Justices though they cannot judge them may for preventing of Ryots command them to find caution for keeping of the peace and to compear before the Privy Council and though they compear not yet whatever breach they commit in the interim shall be repute as great a contravention as if they had found caution At the end of every quarter Session the Justices of peace are to send to the Clerk of the Council a Catalogue of all such persons as they either have committed or have under surety with a short abreviat of the cause thereof which is that which the Civil Law in the former Title cals transmittere cum elogio to the end that the Council may determin betwixt and the quarter Session what shall be done with them
Regality were in Law no part of the Regality but off the Royalty and that such as lived in these Palaces could not be cited at the Head Burgh of the Regality but at the Head Burgh of the Shire the 11. of Ianuary 1662. L. Carnegie against the Lord Cranburn IV. Whether His Majesty may erect Regalities within the bounds of Heritable Sheriff-ships is controverted with us and if he may certainly he may thereby evacuat the Office of Sheriff-ships though bought with real Money which is hard And yet the Exchequer past a Signator of Drumlanrigs albeit Niddisdale within the bounds of which Sheriff-ship it is erected be an Heritable Sheriff-ship and the like decision is related by Hop M. h. t. and the reason seems to be that His Majesty by granting an Heritable Sheriff-ship alters not its nature and the nature of a Sheriff-ship is that His Majesty is not thereby divested of Jurisdiction and the Sheriff appointed being but His Majesties Deput his Creation cannot hinder His Majesty to erect a new Jurisdiction within its bounds as he may erect a Burgh-royal therein or a Justiciary c. When Lands are dispon'd in Conjunctsee the Heritor retains still the Office of Regality Hop hoc tit V. Albeit it be regularly true that Lords of Regality have the same jurisdiction with His Majesties Justices yet this rule suffers two exceptions 1. In the case of Treason to which the justices are only judges competent and that not only where the Treason libelled amounts to the crime of Perduellion but even in Statutory Treasons such as firing of Coal-heughs theft in landed men c. And some Lawyers are likewise of opinion that these crimes which are declared to be the four Points of the Crown viz. Robbery Murder Fire-raising and Ravishing of Women should not be liable to their jurisdiction which opinion is founded upon the 2. cap. leg Malcolm 2. By which it is Statute that all Robbers Forces of Women Murderers of Men and Burners of Houses shall answer before the Kings Justiciar and are therefore called Pleys of the Crown And by the 14. cap. Stat. Alex. 2. it is ordained that in all the Courts of Bishops Abbots and the Lords whatsomever these four Pleys shall be reserved from their Court to the Kings own Court because they belong to the Crown which is confirmed by the 76. cap. quon Attach Likeas Skeen de verb. signif Upon the Word Placitum is clear that these four Pleys of the Crown belong only to the Crowns jurisdiction or Justice-general in the same manner with Treason he there likewise observes that they are called placita from the French Word placitare which signifies Litigare as Mollineus observes Sup. cur Parl. parti Primo cap. Sexto And yet de facto Lords of Regality do ordinarly judge upon these crimes without any Commission And I find that the 22. of Iuly Brown is assoilzied from a pursuit of Fire-raising because he had been formerly pursued before the Marquess of Hamiltoun and assoilzied Actions of Deforcement also in my opinion being intented before the Iustices cannot be repledged for the Kings Messenger being then Deforced it is not fit that His Majesty should be oblieged to seek justice from inferiour Judges where His Officers of State cannot attend to pursue and cap. 27. l. 4. Reg. Maj. it is said that ad solam curiam Regis pertinet placitum de namo vetito and this the Justices sustain'd the 23. of November 1675. in the case of William Crighton though the debate was not allow'd to be booked The 2. exception is that no Bailie of Regality can repledge from Justice Airs Act 29. Parl. 11. Ia. 6. which was likewise Statute formerly by the 26. Act Ia. 2. Parl. 6. But in this case the Bailie of Regality may sit with the Justice-general yet seing the forsaid Act of the 11. Parl. King Ia. 6 allowes only no Repledgiation to be from Justice Airs holden by the Justice-general it may be doubted if when Justices Airs are holden by the Justice Deputs or others by vertue of particular Commissions there may not be Repledgiation allowed in that case but I think there cannot seing the Act of Parl. Ia. 2. is general and Skeen remarks this as a priviledge of the Justice Air qua talis VI. Regalities are divided with us in Ecclesiastick and Laick Ecclesiastick Regalities were such as were erected in favours of Bishops Abbots c. And there are but very few Abbacies in Scotland which were not erected in Regalities and when these were annexed to the Crown by the foresaid 29. Act Parl. 11. K. Ia. 6. It is declared that the Bailie or Stewart of the Regality shall have the same power he had before to Repledge from the Sheriff or Justice-general in case he have prevented the Justice-general by apprehending or citing the Person before he be apprehended or cited by the Justice but if the Justice have prevented as said is then the Bailie or Stewart of the Regality shall not have power to Repledge but he may sit with the Justice-general if he pleases so that in effect by this act there is difference betwixt Ecclesiastick and Laick Regalities that in Laick Regalities there is a Right of Repledging still as said is wheras Ecclesiastick Regalities have not this priviledge except they preveen the Justices but otherwise the Bailie of Regality may only sit with them Which difference seems to â—e acknowledged in the debate at His Majesties Advocats instance against several Fore-stallers upon the 26. of Iune 1596. And thus Mr. Iohn Prestoun then Depute to the Regality of Musselburgh was not allowed to Repledge but to sit with the Justices in the tryal of some Witches upon the 29. of Iuly 1661. The reason of this difference was that the Regalities having been only granted in favours of the Religious Houses which were supprest The Regalities became extinguisht with them and His Majesty having ex gratia only renewed their Offices to the Lords of Erection he thought that they were abundantly gratified by this new concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Liedges in not troubling them with two Courts Nor were the Lords of Regality much prejudged for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices And therefore the Lords found that the Lord of Regality had right to the Escheats of such as were condemned by the Justices or Justices of Peace the 22. of Iuly 1664. Elizabeth Sutherland contra Conradge so that this holds not only where the Justices sit with the Lord of Regality but likewise where the Justices condemn without the others concourse and yet it may be urged that since the Lord of Regality serves not in that case he ought not to get these Casualities which are the reward due to these who do justice and the Lord of Regality has himself only to
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
proportionable to the violence offered by the Aggressor and so exceeded not moderamen inculpatae tutelae for the said Pannel struck not him with any mortal Weapon but only gave him a thrust with his hand which was necessary to throw the Defunct off him Upon which debate the Justices sustain'd the Libel only to infer paenam extraordinariam and remitted also the Pannels defences of casual Homicide self-defence and that the Wound was not mortal to the knowledge of the Inquest XI It is here controverted whether he who intended to kill one by a mistake killed not him but another be punishable as a Murderer seing as to the person killed the Murderer had no design yet I think he should die seing the design of killing a man and not any one particular man is Murder and the killer intended to deface God Almighties Image and to take from the King a Subject And I find that this is determined to be Murder by Bolton cap. 11. num 24. by whom likewise it is given as a rule nihil interest utrum quis occidat an acausam mortis prabeat And thus a Son for having caryed his Father being sick in a frosty night from one Town to another was executed as a Murderer because the Father died And a Harlot having exposed her Child in an Orchard where a Kite killed it was execute as a Murderer also ibi volunt as reputatur pro facto And if this were not Murder this Crime might be Palliated under other shapes This Defence viz. that the killer had no design to Murder is a Negative and so can only be proved by presumptions as if there was no deadly fead formerly amongst the Parties 2. If the Parties were Kins-men or intimats 3. If the killer struck with a Staff having a Sword or Pistol or having these struck only with the hilts of his Sword or with the head of his Pistol and generally it is rather presumed to be homicidium culposom then dolosum premeditatum nam nunquam praesumitur dolus By our Law Slaughter and Murder did of old differ as homicidium simplex premeditatum in the Civil Law and Murder only committed as we call it upon fore-thought fellony was only properly called Murder and punished as such K. Ia. Par. 3. cap. 1. where it is Statute that Murder is to be capitally punished but Chaudmella or Slaughter committed upon suddenly shall only be punishable according to the old Laws vid. Acts 95.96 Par. 6. Ia. 1. 22. Par. 4 I. 5 35. Par. 5. Ia. 3. Act 31. Par. 6. Q M. The old Laws to which these Acts relate are Statute William c. 5. Stat. Allexander c. 6. Stat. Rob. 2. c. 9. in which it is declared that Muâ—derers who are guilty of fore-thought fellony shall not have the priviledge and advantage of refuge in the Girthâ— but that such as are guilty of Chaudmella or casual Slaughter shall be sheltered in the Girth Yet I find that none of these are in any other old Statute to determine punishment of casual Slaughter but that it was not punishable as Murder is clear by the opposition and in all our Laws betwixt single Slaughter and fore-thought-fellony all casual Slaughter was of old comprehended under the word Chaudmella which is a French word Chaud signifying Hot and Mesler signifying to mix But in effect this Melletum answers properly to rixa homicidium in rixa commissum which is but one species homicidii non dolosi XII By the late 22. Act Parl. 1. Ch. 2. Sess. 1. It is Statute that casual Homicide Homicide committed in self-defence and Homicide committed upon Thieves shall not be punished by death And seing this Act mentions not Homicide committed in rixa or homicidum culposum and seing homicidium culposum differs from casual Homicide it may be doubted if under the one the other may be comprehended and it may be urged that casual Homicide is in this Act a general term comprehending all Homicide which is not committed by fore-thought fellony because what is not designed is casual and what is not fore-thought is casual and the Doctors do use the Word Casual oftentimes in this general sense as is clear by Gothofred prax crim hoc tit And by the rubrick of this Act which bears an Act concerning the several degres of casual Homicide It appears that the word Casual is taken there in a Lax Signification albeit I confess that the inscription is most improper seing Homicide in self-defence and Homicide committed upon Robbers are not Species of casual Homicide but whether Homicide in rixa be comprehended under that Act was contraverted in William Dowglas case and by that Decision it is clear that in in our Law though Murder was not at first designed yet if it was designed the time the stroak was given the killer is guilty of Murder that premeditation is requisit to make Murder Capital being only such as antecedit actum licet non congressum The Civilians in the case of Homicidium per plures commissum state three questions The first is where the Murder was committed upon fore-thought fellony and then indefinitly all the assisters are punishable by death The second is when it is not certain but it is only suspected and presumeable that it was deliberatly committed and then all may be tortured but if they deny the design they are all only punishable by an arbitrary punishment because of the uncertainty The third is when the Murder was certainly committed in rixa or tuilzie and then either the author of the Pley is certainly known and he is punishable by death in the rigour of the Law Albeit many Lawyers are positive that no Countrey uses this rigour I remember that in William Dowglas's case this was urged for there several Gentle-men having made a quarrel which was only proved by one witness they went to the Fields of Lieth and Hoom of Eccles was killed but it was not proved who was the killer and the quarrel was only proved by one witness who likewise proved that Spot had the quarrel with Eccles and that William Dowglas had none and yet the Assise found William guilty and he thereupon died because present XIII Homicide likewise committed upon Thieves and Robbers breaking houses in the night or committed in time of masterful depradations are free from punishment by the foresaid Act 22. And albeit it be declared lawful to the Justices to fine such as are assoilzied from Murder upon the defences of casual Homicid and Homicide in defence yet such as kill Robbers or night Thieves are free from all arbitrary punishment By this Act likewise it is lawful to kill such as assist or defend the depredators or oppose their pursuit by force and by the 6. Act of the second Session of that Parliament it is Statuted that the Parties whose goods are robbed shall acquaint the Sheriff or Justices of Peace of the Paroch who shall require all Parties to concurr and if any of the
prove design which is a secret act of the mind All killing is alwayes punishable by death except some of the qualities of chance self-defence c. be alledged upon by the Pannel It may be here asked if by our Law he who strikes with his fist or a batton which are of themselves no mortal weapons be punishable by death though the party struct there by him dye And it would seem hard that he should seing no designe to kill can be here presumed maleficia voluntas affectus distinguunt and by the 5. cap. Wil. Reg. num 4. It is said that si quis interficiat cum pugno dabit regi 25. vaccas satisfaciet parentelae defuncti secundum assisam regni by which it would appear that striking with the fist is not capital albeit death follow Murder premeditated may be divided into that species which is simply such Assasination Murder under trust and self Murder XVI Murder under trust is with us when a party who put himself under the assurance and trust of another is murdered by him and this is by a special statute punisht as treason Act. 51. P. 11. Ia. 6. The words are where the party slain is under the traist credit assurance and power of the slayer the party being tryed and found guilty thereof by an assize it shall be Treason and the person found culpable shall forefault Life Lands and Goods what this credit and assurance is hath oft been questioned and it is reported that the origin of this was to punish the Murder of a Gentleman who invited his neighbour to a feast and killed him and all his relations in his own house so that invitation is one branch of this trust 2. Assurance signifies that when two persons were at fead and the one hath found borrows to one another Act 97. Ia. 1. p. 6.3 Where persons at varience are under capitulation 4 This Act has been stretcht to the conjugal trust betwixt man and wife anno 1627. Andrew Row And yet in the Process intented against Swintoun for killing his wife anno 1666. It being objected that this act extended not to such trusts as this the pusurer restricted his Libel to Murder And the Lords of Session Anno. 1665. found that a sons killing his own mother was not a murder under trust punishable by this act and yet it would appear that both killing of wives and Children falls under that branch of the act where the party is under the power of the slayer This species of Murder was by the Civilians called proditio which is designed to be homicidium sub praetextu amicitiae v. g. dum sederem tecum in mensa vel amicitiam fingerem which is punishable by a more severe death then ordinar Murders And in Spain the betrayer or proditor for even in propriety of speech Murder under trust is treachery or Treason trahitur ad caudam equi postea furca suspenditur Gomez By that act likewise tryal should be taken by an assize And therefore the Lords found that though Mr. Iames Oliphant had been guilty of killing his Mother and that it had been Treason yet his forefaulter could not fall to the King upon a simple Denunciation for not appearing to underly the Law because a tryal is requisite in this case And by the 137. act 13 Par. Ia. 6. The killing any person in the Parliament-House during the sitting thereof or the inner Tolbuith id est the inner house of the Session during the sitting thereof or the Council-house whilst the Lords sit or kill any in the Kings Chamber Cabinet or Chamber of peace or in the kings presence any where infers the pain of Treason XVII What is interpret to be art and part of Murder can hardly be defined for it does depend upon the assize A designe to Murder though no Murder follow affectus sine effectu punitur capitaliter l. 1. is qui cum telo C. ad Corn. de Sicar yet by the custome of nations the punishment now reaches not life Clar. hoc tit num 74. and I find that Mathew Stewart being pursued for contriving the death of Thomas Kennedie came in the Kings will and was only banisht Mart 1597. As also I find that though Lawson was cleansed of the murder of her own child yet she being referred to the Justices because of the violent presumptions adduced against her and that she her self had confest she bore a dead child the Justices therefore did ordain her to be whipt and banisht 20 August 1662. and Margaret Ramsay having confest that she bore a dead child and was advised to cast it into the north-Loch which she did not though without her knowledge it was done by others the Justices though she was assoylzied by the inquest ordained her to be scourged and banisht 1661. XVIII Though such as kill in prosecution of Law are not punishable as Murderers yet if they exceed they are punishable not only quo ad excessum arbitrarily but even paena ordinaria as Murderers An instance whereof was decided the 14. of Iune 1672. in the person of Mr. Archibald Beath who being Pannelled for killing Allan Gairdiner alledged that the Council had by their Act and Proclamation ordained all Meal brought from Ireland to be seiz'd upon and the boats wherein it was brought to be sunk in prosecution whereof Gardiners Meal being Seiz'd he broke the Seizure and being followed in a Boate by the said Mr. Archibald and others he was commanded to stay his Boat but was so fare from obeying though commanded in His Majestie 's name that he had run almost down the Pannels little Boat who was thereupon forced to shoot at them and though this Act ex post facto degenerat into an act of killing yet no killing was at first intended and the rise of all such Actions is to be first considered To which it was replyed that this act was to be understood civiliter and did only impower the Leidges to Seize but not to kill and all mandats are to be so interpreted as not to be extended ad ea quae mandans in specie non mandasset or quae solitus est mandare si aliquando mandat non mandat nisi certa forma servata but it cannot be subsumed that the Council would have allowed the importer of such victual to be killed nor do they use to intrust the execution of such Laws to Ministers and if they had designed that the execution of this prohibition should reach death they would have expresly allow'd the Seizers to kill as they use to do in such cases To which it was duply'd that though the Minister was not obliedged to concurr because of his function yet concurring as a Subject he is not punishable therefore capitally and if a Minister should concur when the hue and cry were raised after a night Thief or if a Minister did assist such as pursued Rebels and should kill in the pursuite it were absurd to conclude that he should be punisht
By the 219. Act Par. 14. Ia. 6. If either the pursuer or defender in civil pursuits kill one another during the dependence eo casu the killer being put to the Horn either for not compearance at the Dyet or for not finding Caution he loses his Life-rent Escheat immediatly upon the Denounciation XXI Murder is one of the four Plea's of the Crown Malcol 2. c. 11. and therefore the cognition thereof belongs to the Justices and Commissions cannot be granted for tryal thereof Act 74. Ia. 6. Par. 11. albeit it be now most ordinar to grant such Commissions and yet this Act being alleadged against one of those Commissioners before the Council they did recall the same but if the Murderer be taken red hand he may be judged by a Barron having power of Pit and Gallows by a Sheriff or any other Judge ordinar betwixt which there is likewise this difference that Murder is Bailable Ia. 3. Par. 6. c. 42. But Slaughter taken red hand is not Bailable but the committer thereof should be judged within that Sun Ia. 1. Par. 6. c. 89.95 And if the Barron or Sheriff proceed not within that time the Cognition belongs only to the Justices for they are Judges to Murder upon citation XXII By several old Acts I find that the Sheriff when a Murder is committed may raise the Kings Horn id est the hue and cry hoesium as the Latine translation calls it upon the Murder and follow him out of his Sheriffdom and send Letters to the next and he to a third and so till he be taken and that when he is taken Justice should be done upon him within fourty dayes and that he should be sent from Sheriff to Sheriff to the place where the Crime was committed which is now absolet for if he be not taken red hand the Sheriff cannot proceed against him albeit it would appear that he may if he be taken within fourty dayes Ia. 1. Par. 6. c. 89. which I find no where abrogated nor any thing to the contrair except only Hops assertion in his lesser Practiques and that may be interpret also of Cognitions after the fourty dayes are expired By the 50. Act of the 6. Par. Ia. 1. It is Statuted that Sheriffs in the former case may proclaim the Murderer fugitive and forbid all the Lieges to receipt him under the pain of losing Life and Goods but this power is also absolet And the receipting Murderers seems not any accession except other presumptions be adduced as if the Murder was committed upon the receipters account in which case receipting may be arbitrarlily punisht but of this I find no formal Decision only the Registers mention that Thomas Brice being accused for receipting his own Son who had Murdered Fairhop it was alledged that the receipting his own Son could be no Crime nam proximitas sanguinis tollit praesumptionem criminis hoc casu Clar. quest 110. num 54. l. 2. ff de recept And receipt could only be interpret to be a Crime In our Law after the committers are Denounced and Letters of intercommuning obtained against them which Defence was thought so relevant that the Justices demur'd upon it but this received no Decision XXIII When a man is killed by fore-thought fellony the King can by our Law grant no Remission for the Murder Ia. 4. Par. 6. cap. 63. and Ia. 6. cap. 13. cap. 169. But yet Remissions are daily granted for such Murderers and are admitted in the Justice Court notwithstanding of this objection as in the Earl of Caithnes case in anno 1668. And it is alledged that these Acts are by the Stile but temporary Acts. But all such Remissions are null except the offender offer to Assith the Party which Assithment is modified by the Council and the Party cannot propon upon his Remission till he find present Caution to satisfie what shall be modified within fourty dayes or else he must during these fourty dayes go to Prison and if payment be not made within fourty dayes his Remission is null Ia. 2. Par. 14. cap. 75. Assassinii crimen or to kill a man by Assassination is to Murder a man for Money and this Species was introduced first by the Canon Law cap. 1. de homicid cap. 6. and had its name from the Assassini who were a Tribe of the Phoenicians and who fain'd themselves to be Christians being truly Mahumetans that they might kill Christians and therefore and because the foresaid Canon speaks only of Christians it is still concluded that only such as kill Christians are to be repute Assassinats and the killer of a Jew was found no Assassinate Cavall h. t. num 475. And yet Matheus thinks that all killing for Money is Assassination for this Crime being founded upon Nature to kill a Jew is as far against Nature as to kill a Christian And it is a greater scandal upon our Religion to kill a Jew because it reproaches us amongst Infidels The Specialities introduced in this Crime are that the endeavour to kill for Money is a Crime though death follow not and that Assassination may be proved by presumptions and that they cannot enjoy the benefite of a Sanctuary or Girth Cabal num 501.515.526 And though the foresaid Canon run only against such as undertake to kill for Money yet the Conducers or such as intreat them to kill are also Assassinats Gomez 3. resol 3. num 10. Math. pag. 521. But these are not in observance with us except as to the Priviledge of a Sanctuary from which all such as committed Murder under Trust or per insidias which that Act calls Assassinium only are expresly excluded Act 35. part 5. I. 3. TITLE XII Of Duels 1. The several kinds of Duels allowed of old by other Nations 2. What Duels were allowed of old in Scotland 3. How the giving and receiving challenges is punishable though no Combat follow 4. The way of Libelling used in this case 5. Whether Duels for reparation of honour be lawful where no other reparation can be had 6. What must be proved in this Crime 7. Whether he be not punishable who kills in a rancounter only or he who tells the provooker that he is going to such a place 8. The punishment of Duels and who are accompted art and part DUels are but illustrious and honourable Murders And therefore I have subjoyned this Title to the Title of Homicide This is that imperious Crime which triumphs over both publick revenge and privat vertue and tramples proudly upon both the Law of the Nation and the life of our enemy Courage thinks Law here to be but pedantrie and honour perswades men that obedience here is cowardliness I. We find no such Crime as this among the Romans because that wise Nation employed their lives against their enemies and not against their fellow-Citizens And the true tryal of courage among them was fighting against the enemies of Rome Duels are either Judicial or Extrajudicial Judicial Duels were these which were allowed by
punishment of the Crimes for which they were accused and such as killed themselves taedio vitae vel doloris impatientia for the first they punisht as Murder but the last they favoured with a lesser punishment Nay and in the Primitâ—ve Church many for making themselves away to evite thereby Idolatry or Pollutionâ— have been accounted as Martyres thus the Wife and Children of Adauctus having killed themselves when they were to be defloured it was doubted if they ought not to have been numbered amongst the Martyres 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cedren pag. 220. and the like story is reported by Euseb. lib. 8. cap. 17. of a Noble Lady who was brought to Maxentius But our Law is jealous that such pretexts might be brought to colour all base designs and allowing none to be their own Judges has made no such distinction as was found in the case of Thomas Dobbie cited by Craig diages de regal and to allow this were to feed despair and to make patience and long-suffering to be no vertues II. Yet furiosity and madness ought to defend against all Punishment in this case since a furious Person has no will in the construction of Law and the will is that which makes the Crime nor should they be more punished then Infants are to whom the Law compares them Fury also defends against Treason Blasphemy and Heresie which are more atrocious Crimes then Self-murder facti infelicitas furiosum defendere dicitur l. infans ad l. Corn. de sic and therefore I cannot well understand wherefore in Dobbies case as Craig relates it the Lords repelled the Defence of Furiosity and found that even furious Persons ought to lose their Moveables if they killed themselves but I think the fury there has not been strongly qualified and that it has been but a Species of Melancholy for the reason given for that Decision is because the Lords thought no man would kill himself if he were not distracted and so it distraction could defend such as killed themselves against confiscation of their Moveables it would defend all who kill'd themselves and so the Law should have no effect but this must be interpreted of some degrees of madness for sure no man kills himself except he who is somewhat mad Nor does Hypocondrick fits or the first degrees of madness defend against this Confiscation but a total aberration from reason cannot but defend which is also clear from the Law of England Bolton Cap. 11. lib. 1. and the difference betwixt these two must be inferred from the various circumstances which attends such diseases and from the declarations of Physicians who waited upon them Whether one who is mad but has lucid intervals is presumed to have killed himself in his madness or lucid intervals is not so clear and depends much upon Circumstances but since none use to kill themselves except under some distemper so therefore it is more humane to refer this killing to have been in the hours of madness except it can be proved that the killer used even in his lucid intervals to wish he were dead or to commend Self-Murder vid. Cabal cas 289. III. An endeavour to kill ones self is punishable as Self-Murder if the killer did all that in him was to effectuat it as if he hang'd himself but was immediatly cut down And by the Law of England if a man wound himself mortally though he live year and day thereafter his Goods falls to the King Bolton lib. 1. cap. 10. IV. Self-Murder may be committed by omission as well as commission thus if a man would starve himself to death he might be punisht by confiscation of his Moveables but the design must be clearly proved since as many innocent people might be alledged to have killed themselves whilst they have fasted either through pain or necessity V. When a man kills himself his Majesty gifts his Escheat and the Donator pursues a general Declarator thereupon wherein he calls the nearest of kin and he must prove there that the Person whose Escheat he has got killed himself which must be proved by clear and convincing evidences such as the depositions of Witnesses or a Paper under the Defuncts hand wherein he declares the reasons of his discontent and why he killed himself which is very ordinary in these cases wherein they design thereby to justifie to the world this horrid Act But I think presumptions are not sufficient here since this is a Crime except they be very strong and violent but if they be such it appears they are sufficient to infer Confiscation for though presumptions be not sufficient to prove a Crime to infer Capital punishment yet they are oftimes sustained to infer Confiscation of Moveables or other civil effects And if presumptions were not sufficient in this case Self-Murder could never be proved for the committers choose retired places and quiet times for executing their wicked designe and who could say but that if a man were known to have exprest much dispair and thereupon to have entered into a Room and were found with the Door closed and hanging in his own Garter but that these presumptions would infer Confiscation of his Moveables By our practice thir Declarators have been sustained before the Lords upon probation of the Self-Murder led before themselves without any previous tryal before the Justices and some think such a previous tryal not necessar for all tryals before them are by Assizers and dead men cannot be tryed by an Assize but it might be alledged upon the other hand that such a previous tryal before the Justices is more suitable to the analogy of all other Crimes which are all tryed before the Justices and though it may be alledged that the Lords jurisdiction is here founded ratione incidentiae and that many Crimes are tryed before them as falling incidently in other civil cases yet even in falshood though the Lords of Session are Judges competent to the deed it self Yet no mans Escheat falls upon their Decreet though he be found a falsary by them till he be also tryed by the Justices and the Escheat falls as an effect of their sentence only Nor has this exception been yet repelled as to Self-Murder so that res est ad huc integrae especially if the persons whose Escheat is craved to be declared be yet alive so that he may be tryed before an Assize for having endeavoured to kill himself for some endeavours to kill ones self are punishable by death though prevented as has been said formerly And in that case I conceive that a previous tryal before the Justices is necessar TITLE XIV Paricide 1 To what degree reaches Paricide by the Civil Law 2 To what degrees by our Law 3 Whether does the Act 220. Ja. 6. Par. 14. extend to descendents 4 Whether does that Statute extend to Bastards 5 The punishment of Paricide by that Statute 6 The 20. Act Par. 1. Ch. 2. concerning beating of Parents explained 7 How the murdering of Children is punished 8
2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But if they went with arms they were punished with death as the Scolia of the Basilicks observe It may be usefully observed that those who drive away Herdships cum gladio with arms are punished by death because they are rather Robbers then Thieves 2. These who drive away great Cattle are more to be punished then these who drive away the lesser l. 1. ff de abige 3. These are to be most severely punished who live in a countrey where that crime is most frequent and therefore our Highlanders are most severely punished 4. These that drive away cattle from the fields are more to be punished then these who drive out of the houses because Cattle in the fields have no guard but the Law XI The stealing likewise of a thing consecrated to God aggrages so the Theft as to make it punishable by death and this was called Sacriledge by the Civil and Cannon Laws and was distinguished into several degrees as 1. If a thing Sacred was stoln out of a sacred place 2. If a thing sacred was stoln out of any place 3. If a thing not Sacred was stoln out of a Sacred place But thir two last are not properly Sacriledge With us there are no formal Consecrations used of Churches Vestments Cupps c. and so we have no such formal crime as Sacriledge nor have we any act against it Yet I think to steal any thing destinat to Gods service and even to steal any thing out of a Church deserves to be punished with death And this Theft is aggraged with us not only from the nature of the thing stoln but more from the place and thus also Murder or mutilation committed within the Church or Church-yaird is more severely punished then other Murders and with us these who steal out of Churches are still hanged or who steal what is dedicated to or serves the Church as Basons c. XII The next aggravation of Theft is from the person who commits it and thus Theft when committed by landed men is punished with us as Treason Act. 50. p. 11. I. 6. the words are that if it shall happen any landed man to be lawfully and orderly convict of common Theft recept of theft or Stouthreif he shall incur the crime and the pain of Treason The reason inductive of this act was because it was easier for landed men to commit theft then for any others and so it should be more severely punished and these also wanted all pretext of necessity or rusticity and must be presumed to be extreamly mean and malicious persons whom the Common-wealth might well want and whom they should not suffer but it may be here doubted who are these who are by this act to be accompted landed men And it would appear 1. That only such as have themselves or their Predecessors been Infest are only such for nulla sasina nulla terra and so a disposition or charter or a resignation in favorem makes not a thief to fall under the compasse of this Act. Yet some think an Heir served and retoured doth fall within this signification though he be not Infest because his lying out is his own fault and so should not defend him 2. I think that a person who was once a Barron if he be thereafter denuded falls not under it for albeit semel baro is semper baro in our Law Yet that maxime holds only presumptive and if it be proved that he was actually denuded that will liberat him from vitious intromission much more a crime that deserves forfaulter and statutory crimes are not to be extended By ordinary theft in this act is meant theft without any aggravation of violence herships c. by stouthreif is meant violent and masterful theft And as this kind of theft hath the disadvantage of being treason so it is just that it should participat of all the advantages which are allowed to those who are pursued as traitors quem sequuntur incommoda eum debent sequi commoda and therefore no inferiour Judge is Judge competent to a process founded upon this species of theft as was found in Iuly 1668. where a process intented against a landed man before the Sheriff of Wigtown was Advocat to the Justices upon this reason albeit it was alledged that this act being conceived in odium and for repressing of theft it was unreasonable that it should not be quarrellable before every Judge for thereby many would be deterred from pursuits against landed men And albeit the punishment was in this theft greater then in others yet the relevancy and probation was no more intricat here then in other cases 2. It was alledged that the pursuer restricted his Libel to ordinary theft which the Justices found he could not do because the relevance and probation would be eadem utrobique and albeit the pairty would restrict as said is yet the Kings Advocat might at any time thereafter found a Process of forefaulter and needed no more probation as in the case of Iohn Wauch though the Sheriff of Selkirk had only fyned the thief yet the Lords sustained a declarator of escheat upon that same verdict whereby the thief was found by them guilty of theft for the Lords thought that privat parties could by no declaration nor deed of theirs prejudge His Majestie 's interest so that from this ground it may be debared that when a landed man is pursued for theft the pursuer cannot restrict his pursuite to a pursuite of common theft As also that the pursuer failzieing to prove in this case commits Treason because he who pursues any man for treason if he be found calumnious commits treason It may be doubted also if the Council can mitigat the punishment here seing they cannot remit Treason Yet in thir Statutory Treasons the Council ordinarily mitigats or converts the punishment Nor see I any reason why it may not be alledged that theft in landed men is not made treason by this Act but is only declared punishable as treason and Theft that is not to be judged as treason though it should be punished as such for these two are differrent XIII This crime of Theft becomes sometimes atrocious and so should be punishable by death because of the irreclaimablenesse of the offender and triple theft is capital in inferiour Courts though the things stoln be very inconsiderable because this shews a habit or double these if the thing stoln be of great moment And by the first Statute Da 2. § 4. A thief banished being taken again in these Territories from which he was banished may be proceeded against with all severity and the breaking of pink Dove coats c. is punishable by death at the third rime Act. 84. I. 6. P. 6. The way likewise whereby the Theft is committed makes it oft deserve to be capital as the stealing by false keys or breaking houses and inchantments and if it be committed masterfully as we use to speak which is called
should not seing death is so exorbitant a punishment 4. It is observable that the Sheriff-depute or other Deputs may sit in cases belonging to the Sheriff himself and that the Declinatur which is sufficient against the one excludes not the other To take Doves also which belongs to their Dove-coats or to kill them is repute theft l. Pomponius § Pomponius ff fam erisc and by the Doctors Chass fol. 1484. for seing these creatures are ordinarly tame now and that by the custome especially of the low Countries there are few or no wild Doves it follows that it should be unlawful to kill or shoot them as it is to shoot or hunt other wild beasts The stealing likewise of Bees which are kept in hives was accompted theft l. Pomponius § Pomponius ff fam erisc and by the Law of Germanie Berlich conclus 50. For which though an arbitrary punishment should be regularly inflicted yet if the Bees stoln be of great value or if the committer has been frequently deprehended in the like guilt then the Doctors are of opinion that even stealing of Bees may be punished by death Iac. de Bellovis pract crim Cap. 20. num 32. but I think our Law juster which considers more the habit of the offender then the greatnesse of the offence Stealers likewise of Pyks out of stanks was forbidden but not punished by the Civil Law but by the custom of all Nations it is now punished arbitrarly according to the differing circumstances Berlich conclus 51. XVI Art and part depends in this as in other crimes upon circumstances but the ordinary rules prescribed by Farinaicius quest 168. are 1. That he who gives counsel or perswades to steal â—â—â—unishable as the Thief 2. He who assists especiall◠〈◊〉 partake of the Theft is guilty though he be not actually present 3. He who recepts the thing stoln by the Civil Law conatus or a designe and essay to steal if no theft was committed was not punishable as Theft l. vulgaris ff de furt where it is said that he who entred another mans Closet upon designe to steal if he touched nothing is only punishable actione injuriarum si sine vi vel de visi vi intravit And with us I think that essaying to steal should not be punished with death seing the essayer might have repented and seing furtum est contrectatio rei alienae so before he touch any thing I think he cannot be called nor conscionably punished as a Thief He who shews the way to a Thief is not a Thief 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But with us this might be esteemed art and part by that Law likewise if one broke the gate upon revenge and another entered and stole the breaker of the gate would not be lyable for Theft 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 53. Basil. h. t. and yet I think that he who brake the gate would be lyable for the price of the things so stoln because he occasioned by unlawfull means the things to be stoln Law has determined generally that ut furtum nemo facit sine dolo malo ita nec opem consilium fert sine dolo malo is consilium dat qui furtum persuadet is opem fert qui ministerium furto praebet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I conceive that there is in Law and reason a great difference to be put betwixt these crimes which are only committed against our fortunes and in cases which may be repaired wherein actual loss should be more considered then attempts and these which are irrepairable when committed and are attrocious and concern the safety of our persons wherein attempts should be highly punished If he whose goods are stoln does require the master of the Thief or him in whose obeisance he is or with whom he is found to deliver him up to him thaâ—â—â—â—tice may be done upon him the master or sustainer of the Thief should either deliver him up or present him to justice else he is guilty of the crime and art and part thereof I. 5. p. 2. Act. 2. And albeit the word obeisance here used would seem to include vassals yet it should not extend to these seing it is restricted by the act to masters and sustainers and by sustainers are meant such as entertain the Thief at bed and board TITLE XX. Theft-boot and Recept 1. What is Theft-boot and by whom committed 2. What is recept of Theft 3. How recept of Theft is punished 4. The principal Thief ought to be discust before the Receptor 5. How the husband is to be punished for what is found with the wife è contra 6. How Servants are punishable for the Masters theft 7. How buyers of stoln goods are lyable THeft-boot is committed by securing a Thief against the punishment due by Law and properly it is when Sheriffs and other Judges who sell a Thief or fyne with him in Theftdome committed or to be committed P. 13. I. 6. Act 137. and the Lord of regality committing this crime losses his Regalities and Barronies id est his Offices and Jurisdictions as Lord of Regality and as Barron and the Justices and the Sheriffs loss life and goods Theft-boot is also committed by any other person who takes a ransome from a Thief when he finds him with the fang 3. When a party who was leas'd transacts with the Thief and passing from the pursuite which is punishable because the publick being by the crime wronged as well as he and his Majesty having jus quaesitum to the moveables of the offender it is unjust that any private Party should have it in his power to indemnify the transgressor and albeit thir two last species of Theft be not expresly contained in the Act yet seeing the act bears that Lords of regalities Sherriffs nor others shall not sell c. under the word others generally all transgressors are comprehended and by the 2. Act 1. P. I. 5. it is declared that he who transacts with a Thief for Theft committed against himself shall be guilty of Theft-boot and shall be punishable as the principal Thief from which it appears that the punishment of Theft-boot in private persons is the same with the punishment of the thief whereas in the first Act. P. 13. I. 6. there is no punishment statuted against private persons who are guilty of Theft-boot only against Judges transacting or ransoming and Skeen verb. Bote. defines Theft-boot to be when any person agrees with a Thief or puts him from the Law And yet I remember that in Ian. 1665. Angus Mackintosh being pursued by the Sheriffe Depute of Inverness for Theft-boot as he who had componed with a Thief who had stoln some meal from him the Lords of Session did Advocat this pursuite to themselves because they thought this crime of Theft-boot in desuetude and therefore they resolved to hear it themselves that they might clearly determine what Theft-boot was and how far it was to be extended II. The Civil Law knew not such distinct
crime as recept of Theft but it was comprehended under the definition of Theft for recept is defined to be occultatio latronum vel malt â—â—oorum ab eo qui latronem apprehendere poterat pecunia vel surreptorum parte accepta l. 1. ff de recept it is the wilful concealing or protecting a Thief by him who might have taken and apprehended him and that either for money or a part of the stoln goods from which definition it may be inferred 1. That such as lodge Thieves in Inns are not lyable for recept except it be likewise proved that they knew the person lodged to have stoln goods which ignorance will not excuse if it be affected and designed ignorance as if all the neighbours knew or if it was intimat to them or if any person offered to inform and the Inn-keeper would not know or if the guest offered an extraordinary reward or offered to bribe servants or kept a very jealous watch which presumptions may infer an arbitrary punishment but not death 2. It may be inferred that the lodging a kinsman a wife or husbands entertaining one another will not inferr recept because that is presumed to be done rather out of love then avarice or dole l. 2 ff de recept which was extended as Chassan observes rubr 1. § 5. N. 13. to a Mistris concealing her sweet-heart In all which cases the receptors are only to be excused if they communicat not in the Theft for else they are to be punished as Thieves for that is not the effect of love but of fraud III. Recept of theft with us is punishable as the principal thief Stat. 21. Alex. 2. Where it is said that whosoever shall recept the thing stoln willingly and knowingly he shall be punished as the principal Thief and from this it may be concluded that recept with us is properly when the thing stoln is recepted and not when the stealer without the Theft is receipted for to as the recepting of the Thief it appears only to be punishable when Letters of Intercommuning are published prohibiting all the Leidges to recept or fortifie a malefactor else Letters of Intercommuning were unnecessary nor see I why the receptor of a Thief should be in a worse condition then the receptor of a Murderer and our practice speaks still of recept of Theft not of Thieves at least recept of this nature falls not under this special crime but only under the Thief general crime of recepting malefactors but if the receptor of a take money or good deed for the recepting even his person eo casu he is guilty of Theft-boot but by the 21. Act P. 1. I. 6. It is declared that whosoever intercommuns with Thieves or assists them in their theftous stealings or deeds either in going or coming or gives them meat harbour or assistance or trysts with them any manner of way they shall be pursued either Civilly or Criminally but this act strikes not against such as have entertained the Thief any considerable time after the committing of the Theft and before Letters of Intercommuning were execute IV. The receptor with us cannot be punished or thole an Assize till the principal thief be first convict for if he be assoilzied the receptor cannot be punished Stat. David 2. cap. 29. but by the 83. cap. quon attach it was only declared that the receptor should not be punished till the principal was either convict or attained i. e. accused with us Now it is inviolably observed that the principal thief should be first discussed as was found 〈…〉 and in Anno 1663. a verdict against George Grahame before the Justices finding him guilty of fraudulent using of a Bond was rescinded because the principal thief was not first discussed the case was this Achmuty granted a Bond to the Lady Bairfoot for eight hundreth Merks she assigned it to George but thereafter payed him another way and retired the Assignation and after this she put both Bond and Assignation in a Bonnet case and George having come by the bond as he pretended from Mistris Billing Daughter to the Lady who alledged she had got it from her Mother for debt he sends it to Ireland and recovers payment whereupon he was pursued for fraudulent using and recept and his discharge of the former assignation was produced and the Bond was proven to have been in the Ladies custody Whereupon he was convict by the Assize but this verdict was rescinded with the Justices Interloquutor because the Libel was not relevant till Master and Mistris Billings had been first discust and the verdict was unjust because it was not proved that they saw George Grhame deliver back the Bond and the general discharge might have been given spenumerandae pecuniae and if such using as this might be termed Theft all actions of exhibitions would be turned in pursuits for theft But it may be doubted whether if the Principal Thief dye the receptor may be punished seeing after death the Principal theft cannot be enquired into for though that priviledge be granted quo ad the discussion yet it inferrs no indemnity to the receptor and we see that where the benefite of discussion is granted to Heirs or Cautioners he who hath the benefite may be pursued if the party who would have been first discust be in solvendo and the reason of this maxim should hold when the Principal Thief is alive and not when he is dead is because it is presumable that the pursuer is malicious against the receptor for else he would doubtlesse pursue the Malefactor who did the most immediat wrong to him which it is probable the receptor knew not It may be also doubted if the Thief dwell in England or in France whether the pursuer must first discusse him V. If the thing stoln by the wife be found with the husband he is not to be punished except he expresly promise to defend his wife or warrand her but if the thing stoln by the husband be found under the wifes keys or under her care she is punishable as a thief Stat. Wil. c. 19. quon attach c. 12. but these Chapters are confused and de practica both man and wife are lyable if they were accessory to any other Thefts but no otherwise Albeit the concealing of Theft be Criminal in others yet it is not so in a wife ibid. And yet the husbands authority is said not to be sufficient to defend her in atrocious crimes though she be obliedged generally to obey him ibid. From which it may be observed first That theft is accompted an atrocious crime for that Chapter treats of Theft albeit this be much controverted amongst the Doctors who after a long debate whether Statutes ordering the procedor in atrocious crimes generally should be extended to Theft which they refer to the arbitration of the Judge who is to Judge according to circumstances And certainly picking or petty Theft is not an atrocious crime except where the Thief made a trade of it amongst
they were tyed to strict Law but they thought that the Council might allow some mitigation III. Another Species of Usury by our Law is to take annualrent before hand that is to say before the term of payment which was ordinarly done by retaining a years annualrent when the Money was first lent and this is determined to be Usury by the 222. Act Parl. 14. K. Ia. 6. and thereafter by the 28. Act. Parl. 23. K. Ia. 6. by which last it was likewise Statute that whosoever shall detain the time of the lending or shall exict crave or receive from the Debitors annualrent at the time of the lending or add the same to their principal summes or whosoever shall exact or crave annualrent shall commit Usury And this seems to be founded upon that principal of the Civil Law whereby puniebantur qui plus petebant plus tempore petere dicebatur qui petebas ante tempus debito constitutum Upon these last words of the Act of Parliament forbidding the exacting or craving annualrents before the term of payment there was a dittay founded against Purdie in the year 1666. for taking ten pounds Scots as the annualrents of fifty merks upon the 18. of Iuly whereas no annualrents was due till Martimas that year Against which dittay it was alledged 1. That this Species of the dittay was meerly Statutoâ—y and so was not to be extended either beyond the interest of the Leidges to salve which it was inferred or beyond the expresse words of the Act but so it is that it was only the interest of the Leidges that they should not be forced to pay interest before hand but that they might voluntarly pay their annualrents without any danger to the receiver which may sometimes be for the advantage of the payer as for instance if a person who were lyable for annualrents at Martimas might be for his own advantage desirous that his Creditor might receive his annualrents in September because he would not have the conveniency of paying them at Martimas and might be either at expences or in hazard to send them And therefore seeing the receiver here had raised no charge of Horning nor used no other diligence for compelling the Debitors to pay the annualrents his voluntar offer of them should not prejudge the receiver especially seeing by the narrative of the Act it will appear that the eviting of oppression in exacting Money before the term was that against which the Act of Parliament intended only to guard 2. Though by the first part of the Act exacting craving or receiving annualrents at the time of the lending be expresly forbidden Yet when the craving annualrents before the term of payment which is the clause founded upon in this dittay the Act speaks only thereof craving or exacting but doth not forbid simply receiving 3. Consuetudo etiam mala injusta excusat usurarium à pena Bar. in lege siquis fugitivus ff edil edict Socinus consilio 170. And it was very notour that in this caise there was nothing more ordinar then for honest and just men in Scotland to take annualrent before the term from willing Debitors either to supplie their own necessity or to gratify their Debitor upon occasions And it were very unjust that the Pannel who was a poor Merchant should ensnare himself in apicibus juris thinking himself warranted in what he did by the practice of the countrey and of the most intelligent persons therein 4. De minimis non curat praetor nor should severe and statutory punishment be inflicted for errours where no person is any way considerably prejudged And in which it cannot be presumed there was any guilt seeing the advantage was so small for the only share the Pannel reapt of this was the annualrent of ten pound from Iuly to Martimas which could not exceed three shilling scots so that to conclude an honest sincere Merchant who was otherwise intigerrimae famae guilty of Usury and to infer confiscation of all his Moveables and Infamy which is the punishment of Usury is against all sense and reason who are not as the justices tied to strict Law Notwithstanding of all which the Justices did find the dittay relevant as founded upon the above-written clause of the foresaid Act but the grounds above related being represented to the Council they rescinded the Justices Interloquutor and yet the Justice did again condemn Hugh Roxburgh 28. of November 1668. upon the same Act and like dittay but that Interloquutor was likewise stopt by the Council IV. The third Species of Statutory Usury with us is committed by these who to cheat the Law colour their fraud by taking not more anualrent directly then that is prescribed by the Lew but taking wodsets of Land from the borrower for more then their annualrent can extend to and set back-tacks to them for payment of what is agreed upon To prevent which and all such Usury which is called by the Law usura velata it is statute by the 247. Act Parl. 15. K. Ia. 6. that whoever receives such wodsets or enters into any such bargains for which more is taken either in Money or by any other transactions whereby any thing that is taken may be reduced in Money to more then the ordinar annualrent upon whatsoever colour or pretext shall be guilty of Usury And by the 62. Act Par. 1. K. Ch. 2. It is declared that for the future it shall be Usury to receive proper wodsets of Lands and others exceeding the annualrents of the sums and bearing by expresse provision that the lender shall not be lyable to any hazards of the Fruits Tennents Warr or Trouble for clearing of which Act it is necessar to know that wodsets with us are either proper or improper proper are these wherein the wodsetter runs all hazard of the Lands wodset to him and is to expect no more annualrent for his Money then what Fruits of the Lands remains after all hazards Improper wodsets are these wherein the wodsetter is only countable for what rent he receives from the lender nor is he lyable to the hazard of Bankrupt-tennents Warrand Pestilence which distinction founded upon these hazards is very agreable to reason and the common Law for Usury being a certain gain he who gets for his Money but a hazard of gain commits not Usury for that is emptio jactus retis as if I should lend Money and get for my security the hazard of what rent could be collected from a loading of Timber coming from Norway c. And upon this ground the Law allowed fenus nauticus to be much greater then all others seeing the lender run the risk therein of all Sea hazards But if the hazard be not so great as may compense the excess of the annualrent taken beyond what the Law allows eo casu it excuses not from Usury as if a wodset be granted of a Miln or Salmond fishing if the said rents do ordinarly exceed the annualrents by any considerable excess
within degrees defendant to the party were received witnesses even where the pursuit was pursued by their own friend 13. Iuly 1669. Murray against French Upon a new pretext that brothers and servants c. are habil witnesses where they are testes instrumentarii and witnesses in executions are testes instrumentarii but in my opinion there is a great difference betwixt these two for the reason why testes instrumentarii are received though they be otherwayes in habiles is because they are chosen of common consent of both parties who are present at the subscription but that cannot be alledged in such as are witnesses in executions who are only chosen by the Messenger himself After this crime is proven the ordinary verdict is The Assize finds the Pannel guilty of Deforcing such a Messenger But yet where the Assize find only the Pannel guilty of troubling the Messenger in his office and would not find him guilty of deforceing The justices finds these termes to be equivalent and punished the Pannel as a deforcer in the case of Robert Herris Iuly 1667. VI. The party deforced has beside this Criminal action a Civil action for deforcement against such as have been accessory to the deforcement for payment of the debt which debt is ordained by the 117. Act 7. Parl. Ia. 6. to be payed together with the modification of his expences out of the first and readiest of the deforcers escheat And it is declared that he shall be preferred to the King From which Act these two doubts may arise 1. Since by the Act it is declared that the persons convict of deforcement shall be lyable for payment of the debt by this Civil Action that therefore this Civil Action is not competent until the Parties pursued be first found guilty of deforcement But yet it was found the 25. of Iuly 1663. in the case of David Mitchel that the party injured might pursue either Civilly or Criminally and that this priviledge was introduced by that Act as a further advantage to the party deforced but because this Action was founded upon a Criminal ground therefore they ordained the deforcement to be proved by most unsuspect Witnesses The second doubt is whether by this Act the deforcers other Estate be lyable to this Action as well as his Moveables And though it may be urged that that Act appoints only the Creditor to be preferred to the King and to be payed out of the first end of the deforcers Moveables Yet it was found the 13. of December 1672. in this case Murray against French that this Act did allow Action for payment simpliciter For the Lords thought that the Act did in the first place ordain payment of the debt and expence that the preferrence was a new superadded priviledge And it were against all reason that the Creditor should be frustrat of his Action because the Deforcer had no moveables though he had an opulent heritable Estate In this case it was likewise found that the Party deforced might pursue either ad vindictam publicam Criminally or might pursue Civilly this Action for dammage and interest and that the one Action did not consume or exhaust the other And therefore though the Pursuer here had prevailed in a Criminal pursuit against this Defender quo ad vindictam publicam that yet he might pursue this Civil Action for dammage TITLE XXVII Falsum Falshood 1. The several species of Falshood by the Civil Law 2. The producers or users of false Writs commit Falsehood 3. The punishment of Falshood by our Law 4. The Lords of Session are only thereto in the first instance 5. The Lords proceed in the tryal of Falshood either summarly or by way of action 6. The direct and indirect manner of probation 7. After the Writs are improved the forger is remitted to the Iustices 8. False witnesses how punished 9. False Coyners how punished 10. False Weights how punished 11. The assuming a false Name suppositio personae falsae how punished FAlshood is by the Civilians defined to be a fraudulent suppression or imitation of Truth in prejudice of another it was by them divided in falsum quod ipsa lege Cornelia vindicatur quasi falsum quod senatus-consulto constitutiâ—nibus vindicabatur Matheus hoc tit But suitable to our practice I shall divide Falshood in these four Branches 1. That Falshood which is committed in writ 2. That which is committed by witnesses 3. The forging and falsifying of Money 4. The using of false weights and measures I. As to the first Branch he commits Falshood who either expresseth in writ that which was not done or omits to expresse that which was done So that Falshood in writ may be committed either in commission or omission Falshood is committed by commission either by fabricating a false writ or by signing it or causing another sign it qui instrumentum falsum dolo malo scripserit signaverit vel signare curaverit recitaverit mutaverit subjecerit amoveritcelaverit deleverit interleverit resignaverit all which species of Falshood are enumerat by Ulpian leg 2. ad leg Cornel. 9. § penult l. paulus Cod. ad legem Cornel. de falsis which are prettily exprest but much more fully l. 2. Basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In these termes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with which Theophil differs much inst § 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the punishment of Falshood was very different according to the several kinds and degrees of guilt as will hereafter appear II. Falshood in writ is committed by producing a false writ if they know it to be false which some Doctors think punishable only if the writ produced by them was suspect and it is said to be suspect if either it appear vitiat by occular inspection or if the writer or producer used to produce false writs or if it contain things that are improbable The user of false writs is said to commit Falshood l. majorem Cod. de fals which only holds if he knew the writs produced by them to be false and therefore Clarus relates a caution used by the practitioners which is that the user of the writ gets a dyet affixed to him to deliver at if he will abide thereby and at the day affixt he must either simply abide thereat without any qualification quo casu if it be improven the user is punished as a forger Albeit the Doctors commonly are of opinion that even in that case the user is to be more meekly punished then the fabricator Paena foilicet relegationis which caution is likewise in use with us but in this we differ that by our practique the user will be allowed to abide by the writ though not simply as a writ true yet as a writ really made over to him and in the forging whereof he had no interest as in the Earl Levins case 1665. but though this qualified abiding at the writ be allowed in an Heir or singular Successor yet that it is only allowed where there is some
qualitate gravissime puniendus est And by the Basilicks there is no punishment exprest to that special kind of Falshood and so it is left only punishable tanquam falsum And though Matheus doth infer this to be capitally punished from l. 3. l. jul Majest Yet I think there is a great difference betwixt a mans pretending falsly that he is a Souldier which is that Crime which is punished l. 27. h. t. and the taking up Arms against the State which is punished dicta l. 3. IV. Because the Crime of Falshood doth oftimes arise upon Papers produced before the Lords of Session and because the tryal thereof requires an exact and long and a much more tedious search then the forms of the Justice Court can allow whose dyet is peremptor therefore by the Acts foresaid it is declared that the Lords of Session are Judges competent to the tryal of Falshood And albeit that Act doth not expresse their jurisdiction to be exclusive of the Justices yet I remember that in an accumulat accusation of Theft and Falshood pursued by the Lord Blantire against M cculloch his servant it was found by the justices that they would not proceed to judge the Falshood but remitted the same to be tryed before the Lords in an improbation and I believe that the tryal of Falshood in prima instantia doth only belong to the Lords as that of divorce doth to the Commissaries for else most of all Falshoods would be only pursued before the Justices seing the tryal there is much shorter and lesse expensive than before the Lords whereas I find not any action of Falshood in prima instantia recorded in all the Books of Adjournal V. The Lords do sometimes proceed to the tryal of Falshood summarie per modum simplicis quaerelae upon a Bill without any formal Summonds and thus they found Binnie a falsary for counterfeiting the Signet Iun 1666. But this they do only in two cases 1. When the Falshood is committed by a Member of the Colledge of Justice 2. When the Signet or any part of a Proâ—esse is ex recenti falsified The way of procedor in this Crime before the Lords is this a Summonds of Improbation is raised and continued and three terms of old but now two only are by the regulations given to the defender to produce the writ called for to be improved If the Papers called for be not produced certification is granted against them whereby they are declared such as can never be made use of as true Papers in any time coming but upon this presumptive Improbation whereby the Writs are only perfictionem juris declared null the party who is called to produce them is not repute a forger or punished as such for non constat eo casu de corpore de licti or that ever there were any such Paper as is called for nor was there ever certification granted or any further inquiry made into the Falshood it self till November 1669. at which time certification having been granted against some Papers made by the Tutor of Towie to Captain Barclay the Lords found they might proceed a little further by examining the Witnesses albeit it was alledged that this had never been done 2. That non constabat de corpore de licti 3. That by the certification res erat judicata and so the Lords functierant officio 4. That the Writs being improved were no longer dangerous non erat amplius nociva nullus potest puniri defalso ubi falsum non erat nocivum and albeit it was alledged that it would be very prejudicial to the Common-wealth if a person who falsified Writs might destroy them when he found they could not be advantagious and so escape it was answered that there was no hazard in this because if the forger used them not the Common-wealth nor no Person could be prejudged but if he did the party injured might force him to leave it in the Clerks hands and intent and Improbation By the 62. Act. 7. Parl. Q. M. the Judge is allow'd to exact caution from such as propon Improbation and though some doubt whether this caution may be exacted as well when Improbation is proponed by way of exception as when it is pursued by way of action yet since the danger is the same it both and that by the Act this is declared to extend as well at the raising of the Summonds as at the proponing of the objection and that lex non distinguit I see no reason for this doubt and this it was decided the 25. of Iun 1675. The Sums for which caution is to be found in this case is left to the arbitrement of the Judge and though this Statute appoints only caution to be found yet the Lords doth ordain the Money oftimes to be consigned VI. There are two ways of improving a Writ viz. the direct and indirect manner the direct manner of improbation is by the Writer and Witnesses insert the indirect manner is by Witnesses not insert but by presumptions and other extrinsick arguments But it is a rule in our Law that whilst the direct manner of improbation is extant that is to say whilst Writer and Witnesses insert are alive no tryal can be taken by the indirect manner As to the direct manner we have this general Maxime viz. that such Witnesses as are dead are proving Witnesses But this holds only presumptive for if of five Witnesses insert two should improve the other three being dead the writ will be declared false whereas if these three were alive and did formally approve the writ would subsist though improven by two To prevent Falshood in all manner of Evidents our Law in place of Seals which were used of old and which might have been easily counterfeited did by the 117. Act 7. Parl. I. â— require that all Evidents should be subscribed by the Party and Witnesses and by the 80. Act Parl. 6. Ia. 6. all writs of Importance are ordained to be subscribed by the principal Parties if they can subscribe or by two famous Notars before four famous Witnesses denominat by thâ—â— special dwellings or by some evident token by which the Witnesses may be known and though usually men take writs of the â—reatest importance subscribed before any Witnesses yet there is nothing more imprudent for if I take a Gentlemans two Servants or a Fathers two Sons when the master or father are disponers witnesses to their Disposition or Bond of the greatest importance and one of these should deny his subscription the writ would be null as was found in Commissar Fleemings case and if both denyed their subscriptions the writ ought in strict Law to be declared false but yet if there were pregnant circumstances and adminicles to astruct the truth of the subscriptions I conceive the writ could not be improven even though these interested witnesses should deny their subscriptions From the foresaid Acts of Parliament it is clear that the witnesses should be specially designed to the end
to swear Before any debate upon the indirect manner the Lords use to ordain the pursuer to give in his articles of improbation and to ordain the defender to give in his articles of approbation And albeit there be not publicatio testimoniorum in our Law in Civil Cases yet because improbations have a criminal effect and tend to take away the life of the defender therefore the Lords use in this case to ordain the depositions of the witnesses to be seen by both parties and both parties being fully heard to debate in praesentia the Lords do either improve or Assoylzie If the Lords improve they have by the foresaid acts of Parliament power to impose an arbitrary punishment suitable to the crime And therefore they do sometimes ordain the forget to be taken to the Crosse with a paper Hat if the cheat was but small or the person in great necessity And sometimes they only ordain the forger to be imprisoned and rebuke him without discovering the falshood as they did lately to a Gentleman who being otherwayes very discreet was by his poverty driven to counterfit the subscription of his friend to a bond of Suspension Sometimes likewise they refer the forgers to the Council who upon that reference use either to condemn the forger to perpetual imprisonment as they did Captain Barclay or else they use to send them to the Mercat Crosse with a paper hat as they did Tulloch a Nottar for forging a charter 4. Iuly 1638. but this mitigation is only allowed when the forger hath been induced to commit that crime by the perswasion of others or by his own simplicity and hath ingeniously confest VII The ordinary way of procedor taken by the Lords when they have improven the papers and found them to be false is to remit the forger to the Justices against whom an indictment being drawn up and the Assize sworn the Lords Decreet is read without repeating any further probation and the Assize must condemn thereupon else they will be pursued for errour And therfore the verdict eo casu bears finds the Pannel guilty in respect of the Decreet of the Lords of Session Upon this verdict the Justices are tyed expresly to condemn the defender to be hanged as Halyday for counterfeiting a Discharge 8. February 1597. Iames Tarbet for being art and part of counterfeiting a false Charter 16. February 1600. And if the falshood be atrocious they sometimes before the execution ordain the right hand to be cut off If the Lords remit not the case to the Justices when they find the Papers to be false they ordain the Papers improven to be cancelled in their own presence but if they remit the forgers to the Justices then the Papers are carried to the Justice court and when the sentence is pronounced there against the Pannel the papers are likewise cancelled at the command of the Justices VIII The second species of Falshood is that which is committed by witnesses in their depositions which may be many wayes commâ—tted as 1. By taking money to depon or not depon Si quis pecuniam ad dicendum vel non dicendum testimonium acceperit l. 20. ff h. t. 20. by concealing the truth or expressing more then the truth though they received no money l. 16 § ult hoc tit 3. By deponing things expresly contradictory but in this case the contradiction must be palpable and not consequential nam omnis interpretatio praeferendo est ut dicta testium reconcilientur Witnesses either are such as were sworn and if they swear falsly eo casu they are guilty of perjury vid. tit perjury or else they are such as are false witnesses without an oath as witnesses in papers and these are punishable tanquam falsarii Bart. ad l. si quis ff ad l. Corn. Clar. hoc tit num 11. and of these I design to treat only at least principally in this Title He who depones falsly in one point is repute false in all his deposition whether the points be coherent or not But he who depones falsly only in extrinsick circumstances is not to be equally punish'd as if he had depon'd falsly upon the substantials of what is interrogat and yet in both cases he is falsarius And thus the Lords ordained one of Barclays Servants to be sent to the Cross with a Paper Hat because he prevaricat only in his deposition about the carrying of a Letter though that was extrinsick to the debate and was mainly used to try the Witnesses honesty Oblivion or forgetfulness excuseth sometimes à paena ordinaria falsi if it be invincibly or strongly founded but not otherwise Witnesses deponing falsly and such as induced Witnesses were by our Law punished according to the disposition of the common Law Act 80. Parl. 6. I. 5. but thereafter by piercing their tongues and escheating of their moveables to the Kings use and are never to brook honour office or dignity and are to be further punish'd in their persons at the sight of the Lords according to the quality of their fault Q. M. Parl. 6. Cap. 48. By the Lords in this Act are meant the Lords of Session who may punish Witnesses ex incontinenti during the dependence of the Process before themselves wherein the Witnesses depone falsly but if either the falshood was committed by deponing in another Court or if the Lords be functi officio as to the Process wherein the falshood was committed eo casu the Lords cannot judge the falshood or punish the false Witnesses Sometimes the Lords ordain the Witnesses to be remitted to the Council thus the Lords ordain'd the Witnesses who had confest that they subscribed Witnesses to a Disposition granted by the Tutor of Towie to his Nephew to be remitted to the Council who banâ—sh'd them And sometimes they themselves ordain them to be banish'd or to have their tongues pierc'd or to be set upon the Cock-stool with a Paper Hat yet they cannot ordain them to die because the arbitrary power granted by this Act cannot in Law be extended ad infligendam paenam mortis as is fully cleared else-where and therefore the Lords use to remit the falsarie to the Justices if the Crime deserve death But it may be questioned if the Justices can inflict the pain of death in any case upon false Witnesses since that Crime is not declared capital by any Act But to this the answer is that they may and do inflâ—ct capital punishment upon the committers of this Crime in some cases And by the foresaid Act Ia. 5. it is declared punishable according to the disposition of the Common Law by which is meant the Civil Law de practica Witâ—esses have been hang'd for bearing false witness as Croy and for suborning others to bear false Witness as Cheyn March 15. 1605. And Grahame March 8. 1615. At which time also Dunlop and some others were hang'd for offering themselves to be false Witnesses albeit they did not actually depon because they were not received
the offer having before their examination come to light IX The third kind of falshood is committed by falsifying money falsum nummartum which is accounted so great a Crime that it is commonly excepted out of Remissions as may be seen in Crightouns Remission March 15. 1661. This Crime is committed 1. By forging true money without Authority 2. By Coyning false money and impressing Copper Lead or any base Mettal with the stamp of the Prince or of other currant money 2. By mixing and allying worset with nobler mettals in currant Coyns 4. By venting and passing or out-putting as our Law terms it the adulterat money coyned by others or intertaining the Forgers or being art and part redde or of the Council with the Coyners By the Civil Law qui probos nummos cudunt sed non in officina publica tenentur lege Cornelia nummaria l. 12. C. de falsa monet qui adulterinos cudunt qui veros adulterant radunt fingunt l. qui cunque l. seque ff hoc tit qui nammos probos lavant constant aut vultu principum signatos reprobant l. 1. C. de vet numis pot By our Law every Burgh should have a clipping-house which was a house for trying money for the tryal was by clipping and sworn men who should clip evil money who are to have a penny for ilk pound that is clipped and the haver was to tyne the false-money I. 6. p. 1. c. 19. and the clipped money if it be evil stuff or false coyn should be returned to the owners I. 4. P. 4. Act 4. They who falsifies money or counterfeits the Kings Irons are to be justified id est punished according to the old Law Act 124. P. 7. I. 5. By which Act though it be added according to the old Law yet we have no Law de falso nummario prior to this except Act 40. P. 5. I. 3. which punisheth only the home-bringers of black money with death By the Act 70. P. 9. Q. M. the home-bringers of false coyns or lay-money should be dilated and the dilater is to have the half of all his goods moveable and immoveable for his revealing And it seems by that Act that it is made treason for confiscation of Lands or moveable Goods is only in the case of treason and I find no other Act that can be the foundation of Drummonds conviction as a traitor Et de practica this Crime hath been diversly punish'd Reid was hang'd for forging false money with the Kings Irons Iuly 13. 1602. Drummond burnt for forging false money Novemb. 27. 1601. And his Brother Patrick Drummond buâ—nt also for art and part red counsel and concealing the treasonable forging coyning and out-putting for venting is still a Crime and is designed out-putting in our stiles of false money Meinzies also was hang'd for art and part as said is Iune 30. 1603. Thomson was hang'd and forefault for bringing home and out-putting false money Ianuary 19. 1603. X. The fourth species of Falshood is false weights and measures adulterinae staterae which are punish'd per l. Corneliam l. annonam ff de extraord crim falsae measurae which are punish'd per relegationem ibid. With us the using false measures or weights of old was punish'd by a Fine leg Burg. cap. 52. And the Bailies of the Burghs were declared Judges competent thereto for the first three faults but the fouâ—th was declared to be only punishable by the Justices because the committers life was to be in the Kings will cap. 74. ibid. But now such as use false measures or weights deceiving the people are to be indicted as falsars Act 47. P. 4. I. 4. By which Act havers cannot be punish'd except they use since the Act ordains users to be punish'd and mentions only such as deceive the people which is not done without using And by the 2. Act Parl. 19. Ia. 6. the users of false weights and measures are to tyne their hail goods and geir which punishments derogats not from the former Act inflicting the punishment of falsit as hath been debated more fully in the Title of Deforcement De practica I find that Brown was fyn'd for false measures by the Councils warrand in 100. merks pen. Iuly 1629. And that Porteus was found guilty though using was not proved since having of false weights in the Shop presumes using except this presumption be taken off as by alledging that the weâ—ghts were presently bought or borrowed or laid aside as light May 1671. By the foresaid last Act the Sheriffs Lords of Regalities and Stewarts are declared Judges competent to this Crime but their Commission there is only tempory for a year and therefore it may be concluded that these are not otherwayes Judges competent to this Crime else this Commission had been unnecessary The using also a longer Ell or Yard is also punishable though it would appear that here the Merchant himself is only prejudged for he may receive as well as give out by it nor doth the Law presume that a man would keep any measure to his own disadvantage I find also that there was a Merchant in Elgin puâ—sued before the Justices Iuly ult 1672. for false weights in swaâ— far as he going to a Mercat dragg'd his Tobacco after the Boat in the salt water which made it weigh more then otherwise it would have done and so the people were cheated But the dyet was deserted and though the defender alledg'd that this was done for keeping the Tobacco from drying too much and mouldering into pieces yet the Magistrats of Elgin had fyned him formerly for the same fault in 20. pound Scots even for the ill example paena falsi arbitraria tenetur qui in sua mercatura addit inutile ut pulverem arenam c. aut species aridas detinet in loco humido Carp pag. 375. XI Falshood is also committed by assuming a false name vid. Stellionatum and by presenting one person for another at the subscribing of Papers suppositio salsae personae which is punished tanquam partum sui positum by the Civil Law I find one David Donaldson hang'd for this imposture having made use of a false person who design'd himself to be the person who should by the agreement have subscribed the Assignation Decemb. 12. 1611. The svpposing a false birth that is to say the laying in one child for another is punishable as a false deed with the punishment of falshood since thereby men are cheated out of their Estates l. ad Corn. de fals the words whereof being periculum capitis subeat is found to extend to death Boer decis 82. And the Mid-wife who brought in such a false Child is punâ—shed by death Pegner decis 80. But I find that Farin relates that periculum capitis was in this case extended no further then scourging But yet since this was a great cheat and doth steal away an Estate from the righteous Heir and adulterats the off-spring it ought to be panish'd as severely
as their especially since it can be committed only by such as being trusted aggrage their guilt by their unfaithfulness This crime is called by the Latins partus suppositus and by the Basilicks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE XXVIII Stellionatus 1. The several kinds of Stellionat by the Civil Law 2. What it is and how punishable by our Law THe heart of man is deceitful above all things and such as have been conversant in businesse and Courts of Justice have found that cheats do amongst men multiply and vary themselves into so many formes that Legislators were forced to invent this general name of Stellionat under which they might range all cheats and thence sprung that maxime l. 3. ff hoc tit ubicunque titulus criminis deficit illic stellionatum objiciemus Which must be interpret and restricted in its generality by the preceeding words Stellionatum objici posse his qui dolo quid fecerunt So that to infer this crime it is requisite that there be a cheat or fraud used and that the cheat want an other name for there are frauds which cannot be comprehended under this Title as falsifying Wâ—its counterfeiting Seals The ordinary species of Stellionat in the Civil Law are to sell or impignoraâ— or to give for payment fraudulently of our debt these things which belong to others And to corrupt or change merchandise which we formerly sold To exact likewise debt which was formerly payed and known to be payed is Stellionat l. 29. ff mandati but the craving of it is most Criminal if recept of what is craved follow not upon it Bartol ibid. And so far is receiving Criminal that the receiving payment of a debt formerly payed is Stellionar though simple craving without receiving will not infer it but it is most observeable that fraud is still requisite to the construction of this crime and its essence II. By our Law we have no expresse statute against Stellionat except only act 140. P. 20. I. 6. Which bears that no duty shall be disponed to two sundry persons which is crimen Stellionatus of the Law from which Act it is to be observed that our Law presupposes the Civil Law to be our Law as to that crime For it does not determine what is to be accompted Stellionat or appoint a particular punishment for Stellionat but only clears declaratorly that the disponing duties or rents of Lands to several persons shall be accompted Stellionatus And therefore what ever was punished as Stellionat by the Civil Law may be punished as such by ours not only à pari or by extension but by approbation the Roman Law having by the allowance of that Act become ours and therefore the making of double assignations or dispositions of Lands or of any thing else besides Rents mentioned expresly in that Act is punished as Stellionat in our practique which is warranted likewise by the 105. Act P. 7. I. 5. By which Act though Stellionat be not mentioned yet it is thereby punished for it is there declared that whosoever makes double Dispositions of Lands he shall be called at the Kings instance and punisht at the Kings will But it may be doubted why double alienations should be punished as Stellionat seing qui rem unam duobus vendit falsi est reus l. qui duobus ff ad l. Corn. de falso In answer to which I conceive we must distinguish betwixt these who whilst they are selling being desired to clear if the thing offered to be sold hath been formerly sold or not say that it was not In which case he is guilty of a manifest lye and so of Falshood But if he only sell one thing twice without denying that it was formerly sold or was not his own then he is only guilty of Stellionat seing though there be a cheat in this case yet there is no lye An instance whereof fell out into my own experience for there being two Writers to the Signet of one name and money being directed to one of the two the bearer delivered it to the other as due by his Master to him which case was thought by those who consulted it to be Stellionat seing though the receiver had not said to the bearer that his Master was his debitor yet he should not have received the money for he was obliedged to know that the same was not due to him And yet according to Farinacius opinion who thinks that dolus in committendo tantum insert stellionatum sed non dolus in ommittendo It might be debated that this case was not Stellionat seing the receiver of the money was only guilty of omission in not clearing the bearers mistake But I differ in this from Farinacius For seing Dolus in ommittendo may be a great cheat in it self and that the party wronged is as much lesed thereby I know no reason why the one may not infer stellionat as well as the other And albeit dolus in ommittendo were not Stellionat yet this case was seing the recept of money sent to another is more then omission By that Act Iames 5. It is likewise declared that Superiors receiving double Resignations shall be punished as these who grant double Dispositions And certainly that part of the Act was most just seing if the Superior was conscious to the design of making these double Resignations he cannot but be art and part of the cheat of making the double Dispositions whereupon the Resignation flowed and so should be equally punished and in effect a Superior granting new Infestments upon divers resignations to divers persons does grant double Rights for to grant a new Right upon the old Vassals Resignation is to dispon And seing the buyer is prejudged more by these Resignations then by these Dispositions upon which they slowed that being a more compleat act then the other it were unreasonable that the Superior should not be punished as well as the Seller and yet because it is not presumed that any would cheat where there is no gain and that the Superior in receiving resignations in favorem gains little therefore this part of the Act is now in desuctude I find likewise that other species of Stellionat are punished by our Law as in Anno 1634. Iames Clerk was pursued because a Sword being sent by Cuthbertson to Moubray a Sword-slipper Clerk did say to the bearer that he was Moubray and so took the Sword which Libel the Justices would not sustain to infer falshood but tanquam crimen in suo genere and yet L. 13. ff ad L. Cor. de falso assumptio falsi cognominis est crimen falsi The punishment then of this crime could not be certain and determinat seing the crime is various in its own nature but it is arbitrary and punishable at the discretion of the Judge according to the circumstances and measures of the fraud committed And it is called Stellionat from a Serpent called Stellio which is beautified by Starry spots stellatis guttis distinctum and is the
it was answered that the words of the Act of Parliament are conceived disjunctively Likeas it seems that if the Parliament had designed to add the word common to Receipt and Stouthreif they would have added the same to prevent this objection and it seems indeed that Stouthreif which is that species of Theft that we call Robery deserves to be punished as Treason in landed men though they do not commonly commit the same because it being easier for landed men to commit Robbery and it being more probable that they would Rob than steal this crime ought to be as severely punished in them as common Theft and accordingly the foresaid alledgiance being proponed for Iames Wood the 21. May 1601. it was repelled III. In this process likewise the said Iames having been pursued for robbing the writs and evidents belonging to Bonitown It was alledged that the pursuer ought to condescend upon the Lands to which these evidents belonged because if that were condescended on the Pannel would prove that the said Lands and consequently the evidents did belong to himself which alledgiance was likewise repelled nor was it found necessary that a Civil precognition should proceed in this case and in Iune 1668. it was found that a Libel was relevant bearing in general that Jewels or Pearls were stolne without condescending upon the particular number of them and it being alledged for the Macgibbons Decemb. 8. 1676. that the Libel was not relevant not condescending upon the persons from whom the goods were robbed nor what goods were robbed but only in the general that the Pannels did frequently rob the houses of Garntilly and Strathurds tennents To this it was answered that though where privat parties pursue ad interesse privatum such a condescendance is nessary because the informers may know nor can the private damnage be repaired except his losse be liquidly proved yet when the pursuit is at His Majesties instance and that an habitual and constant trade of robbing and sorning is libelled It is sufficient to libel in general and if the speciality be not proved the Pannels have no prejudice for they will not be found guilty nor will the probation be concâ—uding but it is all one to His Majesty which of His subjects be robbed or what be taken away it being His Majesties interest that no constant and habitual Robbery be committed in his Kingdoms nor is there any thing more ordinary then to sustain Libels against such as are guilty of open rebellion without condescending upon the particular persons who were killed or robbed in that Rebellion And whereas it was urged that if the particular goods alledged to be robbed were condescended on the Libel might be elided by this suitable defence viz. that they had a right to the goods or had the consent of the owner It might have been answered that they were not precluded from such defenses by the generality of the Libel for the Pannels might alledge that the taking away of such and such goods could not inferr Robbery because they had a right to these goods or were warranted to take them away by the consent of the owner The Justices sustained this Libel notwithstanding of the generality foresaid Alexander Steil being pursued in August 1669. for stealing and Robbing evidents writs and cloaths out of Captain Barclays house who was his Master at that time It was found that the pursuer behoved to prove that the saids evidents were taken away by force or breaking up of doors and that the servants having of them was not sufficient to infer Theft though he had delivered them to a third party and albeit this should be proved yet the Justices found this alledgeance relevant viz. that this deposition alledged to be stollen being given to the Pannel that he might counterfeit the subscription and he having no freedome to comply therewith he did run away to the Lord Fyvie and delivered up the same to him without any reward which alledgeance was found relevant as said is though it seems to be contrary to the Libel and as to the wearing cloaths the Libel was not found relevant except it had been proved that they belonged to Captain Barclay and were under his locks at the time since it was offered to be proved that the servant had worn these cloaths publickly in his Masters service which purged the presumption of Theft It may be doubted what a poor servant could do if he had broken up the doors really at his Masters desire who had sent him home to bring papers though he could not prove the command otherwayes then by his masters oath for his master might alwayes easily prove the breaking up of the doors IV. So odious is this crime and so frequent was it that by the 21. Act Parl. 1. Ia. 6. all such as recept fortifie maintain or give meat harbour or assistance to any such Robbers are declared art and part but it would appear that this Act strikes only where there are Letters of Intercommuning and that because the Act it self bears to the effect it should be known to what purpose they Intercommuned and because it were too severe to punish men as thieves except they were put in mala fide so to do by publick Proclamation or Letters of Intercommuning V. By the 227. Act Parl. 14. I. 6. It is declared for the same hatred against Robbers lawfull to all his Majesties Leidges to concur and joyn against Clann and Border Thieves and to take and execute them all Magistrats and Free-holders being made Justices for that effect by the said Act. But this part of the Act is now in desuetude and it appears to have been but temporary quo ad the power of executing but Robbers may be lawfully seized on without authority VI. Oppression is ordinarly but a quality of other crimes but yet there are sometimes special dittayes founded thereupon per se and there are some particular Acts declaring several species of it to be punishable as reif or by other specifick punishments mentioned in the saids Acts and thus it is oppression to compel the Kings proper Tennents to ride or do service of Avarage Carriage Shearing Leading c. and should be punished accordingly Act 21. P. 2. I. 4. It is oppression to take Caups that is to say a duty for protection to be given by privat men to such as thieves and other great men Acts 18. and 19. Parl. 2. Ia. 4. vid. de verb. signif It is oppression for a Crafts-man to take custome or any other taxation from another of that same Craft or for them to make privat Acts among themselves prejudicial to the people Acts. 42. and 43. Parl. 4. Iames. 4. Act. 111. Parl. 7. I. 5. and Act. 4. Par. 19. Ia. 6. It is oppression for Customers to exact more then their due Act. 46. P. 4. I. 4. It is oppression to molest Magistrats of Burghs and other Merchands to use their priviledges and liberties Act. 26. Parl. 4. Ia. 5. It is a kind of
be because diverse exceptions were formerly propounded against the relevancy of the Summonds whereby parties were frustrat of justice and it appears by that Act that the pursuer was before the making of that Act oblieged to Libel that the defender was accessory to the committing and so guilty of the crime in swa far as c. and so was forced to condescend upon the manner of the accession which seemed unjust to the Parliament because as I conjecture the accuser could not know all the accession before the examination of the witnesses for it is not lawful to witnesses prodere testimonium to declare what they will depon and this made it impossible for the pursuer to condescend exactly whereas if he erred in exact Libelling the Pannel or defender was assoilzied because the probation did not quadrat with the Libel As for instance if a person was accused for accession to the murder of one in swa far as he gave direction to A. B. to kill him possibly the defender was guilty of accession though not by giving direction yet by counselling A. B. or by directing P. or any other to commit murder In these and the like cases the Pannel was guilty and yet could not be condemned because the Libel was not proved Yet upon the other hand it seems hard that such a general Libel as this should be relevant since it were as reasonable to Libel in general that a person is guilty of murder which generality would not be allowed Likeas the defender seems by this precluded of many defences which would be competent to him if the Libel were more special And by the practice of other Nations the Libel must condescend specially upon the manner and nature of the accession But that which seems to me most inconvenient is that the Assizers are Judges to the relevancy of the condescendency which infers art part Albeit many questions in jure are there started which are very intricat and which have troubled the greatest and most accurate Doctors for by our practique the pursuer who Libels art and part will not be oblieged to condescend how the defender is art and part or accessory to the Crime committed as was found in the pursuit at Sinclars instance against Captain Barclay But the Libel being relevant when art and part is Libelled the defender must go to the knowledge of an Inquest and probation is thereupon led in which many impertinent and irrelevant Interrogators are propounded whereas if the Justices were Judges to the relevancy no impertinent Interrogator would be allowed since nothing could be interrogated but what were found to depend necessarily upon the accession which was found relevant As also after the probation is closed the Advocats upon both sides are forced to debate the relevancy of the probation and how far the accession is relevant and here Laws decisions and Doctors are alledg'd to Assizers who understand neither As for instance if art and part of murder be Libelled probably the pursuer will interrogat if the witnesses heard the defender say that it were no fault though the person who is killed were stab'd or approve the murder after it was committed upon which much debate might arise for the defenders Procurators would contend that the Article was not relevant And though the Justices did allow or the Assizers did desire that the witnesses should answer to these Interrogators as they usually allow all Interrogators reserving the relevancy to be debated after probation is concluded then a learned debate would ensue before the Assizers after closing of the probation upon these points So that the Assizers are against the intention even of our Law Judges to the relevancy and to the points of Law by whose ignorance also the Liedges are oft-times much prejudged But when the pursuer designs to have the relevancy of his condescendency judged by the Justices he uses to Libel that the defenders are art and part of the Crime Libelled in so far as they gave order or advised the committing of it c. quo casu the relevancy of art and part being specially condescended upon is decided by the Justices who are Judges to all that is in the Libel Though it be sufficient to Libel generally that the complices are art and part yet the Libel must bear expresly who are complices for it is not sufficient to Libel who are complices generally but their names and designations must be specified K. Ia. 6. Parl. 6. Act 76. Because the Assizers are Judges to the relevancy of Art and part and that the debates made to the Assize are not upon record being only delivered viva voce therefore it is that there are but few decisions here adduced for clearing the relevancy of this part of the dittay To the end that all the Leidges who may be assizers may understand what accession is relevant to infer a guilt they will be pleased to understand that one may be art and part by deeds preceeding the crime either by counsel or command consilio aut mandato by deeds concomitating the Crime as by help or by countenancing ope assistentia or by deeds subsequent to the committing of the crime as by ratihabiting or recepting all which I shall treat separatly III. How far the advising and counselling a man to commit a crime is punishable as an accession and art and part of that crime is thus resolved by the Doctors if say they the committer of the crime would have committed it however and though he had not been advised thereto then the adviser is not liable so as to suffer the same punishment with the committer but it is to be less severely punished whereas if the committer of the crime would not have committed and perpetrate the crime if he had not received that advice then the adviser and committer are equally to be punished Clar. quest 89. But I am not satisfied with this opinion for since the adviser did all that in him lay to have the crime committed and that the effect followed he is surely as guilty as if he had committed it seing in crimes we look to the design and not to the event in maleficiis spectatur voluntas non exitus maleficia propositum distingut at least the adviser is equally guilty whether it had been committed with or without his advice even as he had been guilty in case of assistance though the crime would have been committed without his assistance nor is guilt spared by lessening And it is impossible to know whether the committer would have committed it without the advice and counsel given Other Doctors are of opinion that in atrocious crimes the adviser and committer are equally punishable which certainly holds in Treason but that in lesser crimes the adviser is to be lesse severely punished then the actor and this distinction I like better and is more consonant to our Practique In our Law advice and counsel comes under art for advice is a species of contrivance and art and
Causes in the first instance And of old if a person accused for treason did absent himself the Criminal Court not no other Inferiour Court could proceed to take tryal by probation against him and so all they could do was only to denounce him fugitive for his absence upon which denounciation his escheat did only fall but he could not be forefeited and therefore since it was unjust that he should by his own absence procure to himsâ—lf an impunity and exemption from forefeiture the Parliament did by their supream power cite the person guilty to appear before them and did lead probation in absence against him and forefeit him in absence though guilty But it being found inconvenient that Parliaments behooved either to be called or such Delinquents pass unpunished therefore by the 11. Act 2. Parl. Ch. 1. It is Statuted that the Justices may proceed to try Crimes by probation even when the person cited is absent in cases of treasonable rising in Arms and open and manifest rebellion against his Majesty or his Successours and their Authority so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents except only Perduellion oâ— open and manifest treason And albeit it may seem strange that the Justices should have been allowed to lead probation against absents in this which is the greatest of Crimes and not in Crimes of lesser importance yet this proceeded from the just detestation which the Parliament had of this Crime and that the punishment thereof might not be delayed where the delay might prove so dangerous II. If the Parliament forefeit any person after cognition of the Cause their sentence cannot be quarrelled by any Inferiour Judge Act 39. Parl. 11. K. I. 6. And though it be added to that Act that no forefeiture lawâ—ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicatory for these words Lawfully and orderly led seem unnecessary since after cognition of the cause by the Parliament no Inferiour Judicatory can quarrel a Decreet of Parliament even though it be pretended that the said Decreet was not lawful and orderly yet if a person be only denounced Fugitive by the Parliament the Lords of the Session may suspend in that case if the Process was not orderly led but whether they can reduce even in that case est altioris indaginis And some think that though it were very inconvenient that such a â—ecreet should receive present execution where possibly the party was not lawfully cited yet that such respect is to be payed to the Parliament as that the illegality of that procedure before them though not objected before sentence should remain undecided till the next Session of Parliament III. If the Parliament should remit any such Process for Crimes to any of their own number to be decided finally before them it hath been doubted whether their decisions could be reduced by the Session And this Act of Parliament reaches only to decisions in Parliament But yet since Decreets pronounced by Commissioners of Parliament are reputed with us Decreets of Parliament and since Decreets pronounced by Commissioners for valuation of Teinds are not reduceable because these Decreets are repute Decreets of Parliament as being pronounced by such Commissioners of Parliament it seems that Decreets pronounced by such Commissioners in Crimes after probation could not be quarrelled and reduced by the Session or other Inferiour Judicatories TITLE IV. The Jurisdiction of the High-Constable in Crminals 1. The Original of the word Constable and his power 2. The Office of petty Constables 3. The Iurisdiction of those who are Constables of His Majesties Castles I. SOme describe the word Constable from the word Coning which signifies a King and Staple which signifies a Stay or Hold in the Saxon language because Constabularies were only erected in those places where the King keeped House and thus the Constable was judge of old to all crimes committed within twelve Leagues of the Kings House and Habitation l. Malcol c. 6. Though Skeen there observes that the best Manuscripts bear only two Leagues or four Scots Miles Our Craig and other Authors derive the word Constable from the Comes stabuli under the Roman Empire nam Constabularius sayes he nihil aliud est nisi praefectus aequitum since the Reign of King Robert the Bruce this Office of High-constable stands heretably in the noble Family of Errol and their being some debates concerning his Iurisdiction Francis Earle of Errol obtained Commission under the great Seal dated the 23. of Iun 1630. Seal'd penult March 1631. to the Persons therein specified or any nine of them impowering them to search the Acts of Parliament consuetude Monuments and Registers of the Kingdom and all Evidents that the Earl of Errol or the Lord Hay his Son should produce concerning their Honours Hostilogies Priviledges and Immmunities belonging or which had belonged to the Office of Constabulary from the first institution thereof This Commission I have seen with the report thereof dated the 27 of Iuly 1631. bearing the Commissioners to have met with the Earle of Errol and his said Son and to have considered their Instructions Warrands and Customes of other Countreys anent the Constables Priviledge and in the third Article of the report which relates to the Criminal Jurisdiction only here treated of they set down these words The Constable is Supream in all matters of Ryot Disorder Blood and Slaughter committed within four Myles of the Kings Person or of the Parliament or Council representing the Royal Authority in his absence and that alse well within the Court as outwith the same And the tryal and punishment of such crimes and offences is proper and due to the Constable and his Deputs and the Provost and Bailies of that Centre or Burgh and all other Judges within the bounds where the said facts are committed are obliedged to ride concurr fortifie and assist the Constable and his Deputs in taking the saids Malefactors and to make their Tolbooth patent for receiving them therein As was clearly evident by production of Warrands granted by His Majesties Predecessors to that effect and which likewise appeared by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable for the time concerning that purpose the King having seen this report did approve it in a Letter directed to His Secret Council of this Kingdom from the Court at Theobals the 11. of May 1633. Registrat in the Books of Secret Council the 15. day of that Moneth and in the Commission report and Letter foresaid the Constable is designed High-constable and his Office the High-office of Constabulary The Constable is still in use since that time to judge Riots within the bounds foresaids and to interrupt the Town of Edinburgh when he knows of their medling providing the Riots be committed in time of Parliament and I was told that in time of Parliament holden at Edinburgh Anno 1640. and 1641. the Earle of Errol was found
Merks though she was found guilty of nottour adultery which is death by our Law Sometimes they ordain no sentence to follow upon the verdict of an inquest as in the case of Purdy who was condemned for Usury in so far as he had taken Anualrent a month before the term of payment upon his Debtors voluntar offer And sometimes they ordain some of their own number to revise the processe and verdict Which Assessors do ranverse the whole Process and ordain it to be torn out of the Criminal Registers as in the case of George Grahame who being pursued for theft it was alledged that the Assize had found him guilty of recept and so the verdict was found disconform to the Libel and consequently the whole process was null Yet when Mr. William Somervel was found guilty of Murder upon the deposition of one witnesse the Council refused to review the verdict as unwarrantable for they found that they could not quarrel an Assize which condemned seing Assizers can only be quarrelled for error when they assoilzie And when his Advocat cited to them the 47. Act. Par. 6. K. Ia. the 3. Whereby it is ordered that where a party finds himself grieved by an Assize by partial malice or ignorance it shall be lawful to him to cite them before the Council and if the error be proved the party shall be restored to the condition he was in before the sentence To this it was answered that this Act speaks only of Civil cases and that by the Council here is meant the Session To which it was replyed the Rubrick and Act are general and treats of all persons wronged qui totum dicit nihil excipit And the reason of the Law is comprehensive of both From all this some do conclude that if the Justices erre in judging the relevancy or if the Assize find that proved which was not remitted to them that in either of these cases the Council may review the sentence but that they cannot quarrel the sentence upon the accompt that the verdict is not sufficiently warranted by the probation Sometimes also the Justices are concluded by the Decreet of the Secret Council which is repeated to the Assize as full probation So that the Justices have only the execution of their sentence remitted to them Thus Fleeming was convict before the Council of having uttered most disdainful speeches against the King and therefore was remitted to the Justices to be examplarly punished and upon production of their Decreet which Decreet is still exprest in the dittay he was hanged 17. May 1615. VII If the Law cannot receive full execution and obedience via ordinaria by the Criminal sentence then the Council upon production of Letters of Horning following upon any Criminal sentence and duely execute and registrat use to grant Letters of Intercomuning whereby all His Majesties Liedges are prohibit to intercomune with any of the Rebels so denounced which Letters must be published at all the Mercat-crosses of the Shyrs and Jurisdictions within which such persons reside whose intercomuning is suspected and registrat there And if need be the Council will likewise grant a commission for Fire and Sword to such persons as they will name against the persons who are disobedient in the Criminal Letters as said is And ordinarly this commissions of Fire and Sword are given to the persons interested which occasions many great abuses And these commissions are sometimes granted against parties who were never cited but upon a naked complaint exhibit to the Council which is most irregular The Council do sometimes grant commission to bring in parties dead or alive and that upon naked Petitions without any previous tryal as they did against the Laird of Dinbaith upon a Petition wherein it was represented that he had run away with the publick money delivered to him by the Shire for paying their Cesse and Excise But this seems hard and it were to execute a free Subject before he be heard or sentence pronounced against him for these privat petitions may be most unwarrantably founded VIII If any person keep out his House in Garrison against his Majesty the Council first uses to issue out Letters against him to deliver up his house under pain of treason and they ordain a Herauld to go and summond him for that effect and if he refuse they ordain him to be processed before the Justice-general and do immediatly before any criminal sentence grant a commission of Fire and Sword against him as in the case of Burgie Iune 1668. They used likewise of old to ordain Noble-men and others who could not be apprehended by Captions for civil Debts to deliver up their persons in any of his Majesties Castles under the pain of treason which though it be now indesuetude yet it was most reasonable and of excellent use seing it is most absurd that any of his Majesties Liedges should contemn his Laws and that such poor persons as pay his Majesties Taxes and Impositions and who are obliedged to venture their lives for him should not likewise have the assistance as well as the protection of his Laws So that when the ordinarâ— remedies of Caption Comprysing and others fail these and other extraordinary remedies should be allowed untill his Majesties Laws be obeyed and the party so injured be fully and finally repaired TITLE VII Of the Exchequers Jurisdiction in Criminals THE Exchequer are only His Majesties Chamberlains and have no Jurisdiction in criminals and yet they fine and confiscat such as transgresse pecunial Statutes or wrong His Majesties Rents quo casu they do in effect judge crimes for it is a crime to abstract customes or cheat the publick and without this Jurisdiction they could not manage His Majesties Rents so that this is jurisdictio emanatâ— founded upon that rule quando aliquid conceditur omnia concessa videntur sine quibus hoc explicari nequit but is seems de jure they should not even eo casu cognosce for by the 89. Act 1. Parl. Ia. 6. It is statute that such as commit fraud in transporting forbidden Goods shall be punished at Justice Airs at least the Justice also have powers I remember that in Iuly 1668. the Exchequre did fine a very intilligent Person for filling up a blank Signature subscribed by the King and ordain'd to be filled up by the Exchequer which some thought irregular for either he had committed a Crime eo casu he should have been remitted to the Justices or if he had committed none he could not have been fined And albeit the Exchequer or any other Court may fine or imprison such as injure their Jurisdiction or may ordain dammage and interest to be repayed to the party injured in any thing before their Court yet no person having here been prejudged and the injury having gone no fuâ—ther then à simplex conatus there could be no damnage and interest incurred But it seems the Exchequer are still Judges in criminibus repetundarum de residuis The
Commissioners of the Thesaury did in Iune 1669. ordain two Skippers in Bruntistand to be scourged at that Mercat Cross because when a Customer came to enter a Boat wherein unfree Goods were were alledged to be they did put off the Boat from the Rock where it lay whereby the Customer fell into the Sea and had almost drowned TITLE VIII Of the Jurisdiction of the Lords of Session in Crimnials 1. The Lords of Session use to pass Bills for Criminal Letters 2. They Advocat Causes belonging to the Iustice Court 3. They are Iudges in crimine falsi 4. They have made Statutes for regulating the Iustice Court 5. Whether they can review the Sentences of the Iustice Court 6. They suspend the Sentences of the Iustice Court 7. They are Iudges to such as kill or wound one another during the dependence of a Processe before the Session 8. They grant Warrand to Advocats to compear for such as are pursued for Treason I. THE Lords of Session have regularly no jurisdiction in criminals and yet they pass the Bills whereupon all criminal Summonds are rais'd For all Summonds in criminals must have a Bill which must pass under the Hand of His Majesties Advocat and for which he gets ten Merks and his servant one therafter it is carried to the ordinar upon the Bills and is subscribed by him as a common Bill The reason why thir Bills are past by the Lords seems to be because the Justice-deputs were not ordinar residenters in Town their sallaries not being sufficient for defraying that charge or else because the Clerk of the Bâ—lls is a Member and Servant of the Colledge of Justice yet this was one of the grievances given in by the Justices to the Parliament Anno 1662. And it is very unreasonable that those whose imployment it is to understand criminal cases should not have the passing of these Bills and many of the Lords refuse to pass these Bills whereby the Liedges are prejuâ—ged And it is most unreasonable that the Justices should not know what they are to judge especially this warrand being a part of the Process and so falls naturally under the cognition of these who are Judges to it And it is probable that if any of the Justices would pass their own Bill it would sustain But now the Justices use ordinarly to pass their own Bills because the Justices are now of the Session but still other Lords who are not Justices may pass such Bills But albeit these Lores cannot judge crimes yet they may and do punish injuries committed against any of their own Members by fining or confining II. They likewise Advocat Cause from the inferiour Courts to the Justices thus in Anno 1664. Mackintosh being pursued before the Sheriff of Inverness for theft-boot they Advocated the cause to the Justices albeit it was alledged that they could not be Judges to the Cognition To which it was answered that the consequence was ill inferted for the Council did Advocat and could not cognosce and the Lords of Session did Advocat Breivs for serving Airs and yet they were not Judges themselves for both in this and that case an Inquest was necessar III. They are likewise Judges in crimine falsi and their sentence is a sufficient warrand to the Assize to condemn without repeating the probation and when the Inquest refuses to condemn upon that warrand they are of new inclosed as was done in Binnies case and will be liable to an Assize of error if they assioilzie and their Decreet bears the Lords remit him to the Justices to be punished tanquam falsarius and to underly the Law criminally and ordain'd that ordinance to be insert in their Books of Sederunt And that order is in the Justice Court call'd an Act of Sederunt the 2. of Iuly 1662. Albeit the Act of Parliament Ia. 6. Parl. 11. requires that all probation in criminals should be led in presence of the Assize yet the answer is that the Lords Decreet is only probation here and that is read in face of the Assize The Lords likewise determine the punishment in falshood and remit in their Decreet the party to the Justice to be only banisht or scourged or have his Tongue boar'd according to the quality of the guilt And I have seen a Gentle-man whom I will not name in Anno 1664. only imprisoned by the Lords for forging of a false Bond of suspension because he was ingenuous and in necessity And albeit this may seem irregular yet seing the Lords are only privy to the Depositions it is necessar they should have this allowance I find it one of the rules set down by the Doctors that ubi cunque iudex principaliter cognoscendo reperit incidenter crimen esse comissum potest de crimine illo cognoscere C. si adversus liber l. pen. And the example of this rule is instanced in Charta falsa l. pen. C. de probat And upon improving an Instrument or Writ they have ordained omnes testes instrumentarios falsi fabricatores to be fal sariâ—s and remitted them to the Justices the 16. of February 1660. Fern Innes and Tarbat hang'd But I remember not that they have in any other case cognosced upon crimes incidenter albeit the foresaid rule would give them an incident Jurisdiction in all cases IV. I find that the Lords have made Statutes to regulat the Justices Courts for upon the 1. of Iune 1593. they declared that all landed men should be esteemed pares curiae and might sit upon Noble-mens Assizes being pursued tanquaritemerè jurantes sup assisa and the Council uses to consult them in intricat cases which are referred to them by the Justices And thus in Anno 1667. they were consulted whether the West Countrey Rebels might be forefaulted in their absence V. But whether they be Judges competent to reduce or review what is done by the Justices or in the Justice Court in any case is not yet decided but I have seen a reduction of a Verdict of an Inquest pronounced against Mr. William Somervel whereby he was found guilty of Usury The reason of reduction was that the Inquest had erred in calculo and it was contended that the Lords were competent Judges to review errors in calculo for that was in effect but a civil Medium and where no criminal conclusion was craved nor could follow they were Judges as in the case of Reductions of Retours where the verdict may be reduce as past upon ignorance It was also urged that seeing the Lords made Statutes to regulate the Justice Courts and past their Bills they might cognosce upon palpable errors committed ignorantly by Assizes and it were hard that the Liedges should not be repon'd against Errours of such ignorant persons as Assizers ordinarly were VI. The Lords of Session do suspend the execution likewise of all sentences in the Justice Courts but these Suspentions when once raised are discust before the Justices They likewise sometimes discuss these Suspentions before the Session
And thus an Assithment modified by the Justices being exorbitant the Lords by way of Suspension did lessen the sum The reason of which Decision was because they found this case to be but of the nature of damnage and interest and not to concern corporal punishment the 16. of December 1664. Innes contra Forbes VII By Act of Parliament 1555. such as kill or wound to the effusion of blood or any other way one another during the dependence of a criminal Process which dependance is declared to continue from the execution of the Summonds till the compleat execution of the Decreet that the pursuer committing the said crime shall for ever loss the cause and the defender being guilty is to be condemned in the plea. The pursuer or defender being convict before any competent Judge in criminals without any probation except summar cognition to be taken by conviction or putting the committer to the Horn and denouncing him fugitâ—ve By this Act the committer losses his life-rent Escheat immediatly after denounciation without being Year and Day at the Horn and giving of counsel is art and part in this crime This Act was to continue only for three Years and is prorogat for seven Years by the 138. Act Parl. 8. Ia. 6. and is thereafter made perpertual by the 219. Act 14. Parl. Ia. 6. I have oft seen Process intented upon this Act before the Lords But it is necessar albeit not observ'd that cognition be first taken by the Justices or other criminal and competent Judge Yet without this Process was sustain'd by the Lords in prima instantià but this defence was not there alledg'd and Process was sustain'd albeit no effusion of blood followed the 29. of Iuly 1662. Harper against Hamiltoun where it was debated whether the Lords might summarly receive probation of it themselves or remit the tryal to the Justices for which doubt I thought there was no great ground because by the Act foresaid the Justice is only Judge in prima instantia And yet in Sleiches case 1673. It was found that no previous tryal before the Justices was necessar The Earle of Niddisdale pursuing the Tennents of Duncow February 1672. they alledged absolvitur because the Earl had beat some of them who were sent to execute a Summonds at their instance against him at least he had given order to beat them or ratihabited the beating of them To which it was answered that 1. The beating some of them could only found an exception to such as were beat and this the Lords found relevant though the Summonds execuâ—â—d was for a common Cause and so in effect those who were beat represented all the pursuers 2. It was alledged that order to beat them was only probable scripto vel juramento for though a crime ordinarly in a criminal Court be probable pro ut de jure yet here quo ad civilem effectum it could not be so proved for else a Noble-mans whole and ancient Heritage might oft-times be taken away by Witnesses since Processes depending might extend to a Noble-mans whole Estate 3. It was alledged that ratihabition or any deed ex post facto did not infer the contravention of this Act which required explicit deeds as beating bleeding c. The Lords before answer to these two last alledgiances ordained Witnesses to be led before answer for clearing the nature of the Act and violence committed against them but in this case as in all others if the one party beat the other being forced thereto by self-defence the striker will not eo casu fall under the certification of the Act of Parliament as was found the last of Ianuary 1673. Iohn Sliech against Swintoun In which case the Lords also found that the certification of this Act did reach such as wounded one another during the dependence of a pursuit before an Inferiour Court though it was alledged that this respect was only due to the Lords of the Session and that the Act should only reach such as pursued Actions before them for to lose the whole Pley was too great a punishment for an incident Riot before an Inferiour Court I find likewise that one Weir having been pursued for slaughter the 15. of Iune 1591. he alledged he was absolved by a Rolment of Court at Aberdene To which it was replyed that the King had given a warrand for a further tryal which reply founded upon His Majesties Warrand was repelled as contrary to Law and because it was but a privat Rescript not subscribed by the Chancellour nor past Council And in respect the Lords of Session had given a Warrand to proceed notwithstanding of the Kings privat Warrand It is also observable though I think it irregular that Ludwharn having raised in Anno 1596. a pursuit against Momat and others for taking him out of his House without a lawful Warrand gave in a Bill to the Lords complaining that the Duke of Lennox as Leivtennent of the North intended to repledge wheras that Jurisdiction was only cumulative with the power of the Justices and that he had a Letter from His Majesty ordaining the Justices to proceed wherefore he craved that the Justices might be commanded to proceed which Petition was granted VIII Albeit regulariter the Parliament or Council grant Warrands to Advocats to appear for such as are Pannell'd before the Justices yet I find that the Lords granted a Warrand in Balmerinochs case to Advocats to compear for him And seing Advocats are subject to the Jurisdiction of the Lords it is most reasonable that the application be made to them for the same reason likewise I find that when any of the Lords are appointed Assessors in Criminal cases by the Council that they must have a Warrand also from the Lords for sitting there as in Toshes case 1637. TITLE IX The Admirals Jurisdiction in Criminals 1. The Iurisdiction of the Admiral extends to all Crimes committed within Flood-mark 2. Our Admiral has execute Pirats 3. Whether it be lawful for such as apprehend Pirats to execute them by their own Authority in the Ocean or when Iudges refuse 4. Any Nation may Iudge Pirats 5. Whether the Iustices have a cumulative Iurisdiction with the admiral 1. THe Lord high Aâ—miral and his Deputs are by the Laws of all Nations Judges competent to the tryal of all crimes committed at Sea and by an unprinted Statute with us the Admiral is competent in all controversies actions and quarrels concerning crimes faults and trespasses upon Sea or so far as the same flows or ebbs vid. Ship-laws corrected by Balfour tit Admiral c. cap. 2. Our Learned Countrey-man King in his Treatise which I have sayes Admirans habet merum imperium mixium jurisdictionem simplicem potest enim non solum jus dicere quod est jurisdictionis simplicis exequi imperare judices dane coercere quae sunt meri imperii sed est in facinerosos animadvertere quod est meri imperii de omnibus igitur contraversiis marinis cognoscere
potest Amirans marinas intelligo quae negotiationis causa ineuntur sive extra mare sive in mari celebrantur delicta tamen ex necessitate intra mar is fluxum perpetrari debent In Scotland the Deans of Gild were as Walwood observes tit 23. ordinary Judges of old betwixt Mariner and Merchand Likeas the Water-Bailiff betwixt Mariner and Mariner and the Justice-general was Judge in Criminals but now no judge may meddle says he with the Admiral causes but only by way of assistance and that by Commission in difficult causes as was found in that action Antoni de latour against Christian Marteis 6. of November 1642. II. In October 1635. Bernard Gilermo and some Spanish Dutch and French Pirats being apprehended Mr. Iames Robertson then Admiral-deput craved that the Council would name Assessors to him in the tryal of these forreigners and they being named a Court of Justiciary of the Admirality for the Registers of the Admirality give it that Title was kept at Irwine and these Pirats indicted and hanged for Piracies committed by them upon French Spanish and Dutch Merchands the parties injured are received witnesses else these crims at Sea could not be proved this tryal was by an Assize as before the Justice III. By the Martim Law of England it is lawful for any man who takes a Pirat in the Ocean to hang him at the Main-yard because as it seems to me the Ocean is within no mans Jurisdiction so every man is left to his own natural liberty but this may prove very dangerous for thus men may execute their revenge in place of Justice and may make innocent men Pirats for their private advantage and Judicaturs are established to prevent such injuries and upon that pretext men may as well adjudge Prizes taken upon the Ocean but yet if a Ship be on her voyage to remot places as the Indies so that the takers cannot keep the Pirats till they come to a Harbour they may in that case execute them at Sea for that is a kind of self-defence and necessity makes Law But I think this necessity must be proved vid. Grot. de jur belli lib. 2. c. 20 § 14. And for this same reason I differ from that Author who asserts num 12. that if the taker bring a Pirat to a Port and the Judge refuses or delayes Justice so that the taker must lose then the taker may execute Justice himself for this were to make every man Judge not only of the Pirat but of the Judge to whom application was made and a Privat person might as well pretend that if a Judge delayed or denied Justice against such as we pretend did either rob or affront us we might do Justice upon them our selves contrary to many Laws and particularly to l. nullus C. de judaeis The same learned Author Iuris Maritimi doth tell us cap. 4. num 14. that if a Spaniard rob a Frenchman on the high Sea both their Princes being in amity amongst themselves and with England and that the Ship is brought into the Ports of Enland the French-man may proceed against the Spaniard to punâ—sh him but if the Ship be brought intra prasidia of that Prince by whose subject the same was taken it may be doubted if he can proceed Criminally but the taker must resort to the Pirats own Countrey or where he carryed the Ship But in my opinion a Pirat may be Judged by the Judge of any Nation for he is an enemy to all Nations and though he be not deprehended committing a crime in the Sea of that Prince or State within which he is deprehended and so seems not lyable to their Jurisdiction nec ratione loci delicti nec originis nec domicilii yet he who is of no Nation is of all nations as Vagabonds are and he who is an equal enemy to all Nations commits a crime against every Nation IV. Though the Admirals Criminal Jurisdiction extends no further then crimes committed at Sea or within Flood-mark yet he is some times Judge ratione contingentiae ob continentiam causae as if a man rescue a Pirat out of Prison though this Crime be committed without Flood-mark yet the Admiral is Judge because it hath dependance upon and arises from the principal Crime to which he is Judge and if the Admiral begin to present Pirats or Malefactors at Sea he may continue his pursuit and apprehend them at Land and without his own jurisdiction but he must in that case seek concurrence from the Magistrat of the place Locen cap. 3. num 2. V. Though the Admiral has a Criminal Jurisdiction yet some alledge that he has not this properly as Admiral but by vertue of a Commission of Justiciary contained in his Gift and therefore when the Admiral proceeds to thy Crimes the Court is not called the Court of Admirality simply as in other cases but the Court of Justiciary of the Admirality It is likewise doubted whether the Admiral hath the sole power of judging Crimes committed at Sea or if the justices have a cumulative jurisdiction with them and may preveen and that the Justices have a cumulative jurisdiction is clear for I find that in Anno 1613. the Justices did hang one Iohn Davidson and Iohn Lowes English Pirats and in Anno 1610. they hanged Peter Love Iohn Cock and others Likewise English Pirats which last were hanged upon their own confessions emitted before the Privy Council and all of them were hanged within Flood-mark I have likewise seen the Justices Advocat Causes from the Admiral Court but whether the Admirals sentence in Criminals can be reduced by the Criminal Court as their sentences in Civils can be reduced before the Session I will not determine TITLE X. The Jurisdiction of the Commissars in Criminals 1. The Iurisdiction of Church-men 2. Our Commissars are Iudges competent to verbal injuries 3. How far they are Iudges competent to improbations I. CHurch-men are discharged to sit Judges in Crimes and the Canons of the Greek Church give them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A bloodless Iurisdiction upon which account the Law gives them audientiam sed non jurisdictionem tit C. de Episcop audient With us these Bishops abstain from votting in criminal Processes brought in to the Parliament though there they sit as Heritors rather then as meer Church-men and so might pretend to a voice upon that account II. The Commissars are the Bishops Officials and so have least criminal Jurisdiction of all other Courts but yet they are Judges competent to verbal injuries which are by the Law accounted crimes and the reason why they are the only Judges competent to this crime is because that Court as being an Ecclesiastick Court curia christianitatis considers these verbal Injuries as Scandals and so they are allowed not only to punish the same with Pecuniary Mulcts but with Church Censures such as to make the offender stand at the Church Doors to expiat a Slander though it was alledged that the
inflicting of such punishments was only proper to Kirk Sessions the 15. of February 1669. But though they be the only Judges competent to verbal Injuries where they are Scandals yet in verbal Injuries done to persons of quality which are called in Law scandala magnatum the Council sustains it self Judge competent the King being as the Author so the Protector of all the priviledges of the Peerage and in verbal Injuries likewise done to Magistrats the Council are also Judges Magistrats representing the King and being his Instruments in the Government When verbal Injuries are done by Members of a Court to one another that Court is likewise Judge competent all Courts how inferiour soever having an innat Power to chastise its own Members and to preserve the esteem due to it self and therefore if any stranger who has a Process depending before any other Court as the Session Sheriff c. do abuse contumeliously any third Party though no Member yet these respective Courts may punish the same if the injury be done in face of Judgement and if it be done to any Inferiour Judge extrajudicially that Judge if he be in the actual exercise of his Office he may likewise punish the same except the offender be a Member of the Colledge of Justice for in that case the Judge extrajudicially injured must complain to the Lords but cannot imprison them summarly because if this were allowed these Members might be abstracted from serving the Liedges as an Advocat when he is to plead a Cause or a Clerk when he is to give out a Decreet and this last has been frequently so decided Though verbal Injuries amounting to Scandals are only to be punished by the Commissars yet where they have nothing in them of Scandal but are rather reflections upon the Honour of the party injured as to call a Gentle-man a Puppy or an Ass it may be the Privy Council and not the Commissars are Judges competent The Commissars are also Judges competent to Adultery in so far as concerns Divorce vid. tit adulterii III. How far the Commissars and Inferiour Judges are Judges competent to the improving of Writs and declaring them false has been variously decided but they may be reduced to these conclusions 1. No Inferiour Judge is competent to try the falshood of Writs by the indirect manner of improbation that is to say by presumptions for that way of tryal being in effect nobilis officii is only competent to the Lords of the Session 2. Commissars and other Inferiour Judges are only competent to improbations even where the direct manner is extant if improbation be propon'd by way of exception or reply for then the tryal of Falshood falls in necessarily as a part of the Process and without this were allowed to these Inferiour Judges they could proceed in no case for if a pursuit were intented before them upon a Bond they behoved to sist if the Bond were alledged to be false or to stop if the defender should offer to improve the execution of the Summonds but yet they are not competent by way of Action even where the direct manner is extant as was decided the last of November 1630. Williamson contra Cushney 3. If the Commissar or other Inferiour Judge pronounce once a Decreet he cannot thereafter reduce his own Decreet as having proceeded upon false executions though the executions were given by his own Officer since they are only Judges competent to such forgeries incidenter but after sentence they are functi as was found the 29. of Ianuary 1677. Cowan contra the Commissar of Glasgows Phiscal and according to these conclusions the late instructions given to the Commissars are to be interpreted TITLE XI The Jurisdiction of Regalities in Criminals 1. The Origine of Regalities 2. They are accounted Inferiour Iudicaturs 3. Why the Heritor of a Regality is called a Lord of Regality 4. Whether His Majesty may erect Regalities within the bounds of Heritable Iurisdictions 5. They cannot repledge in case of Treason nor from Iustice Airs 6. The difference betwixt Ecclesiastick and Laick Regalities and from whom they may repledge 7. The form of a Repledgiation 8. Regalities must have a Burgh of Regality and to what that Burgh is tyed 9. The effects of a Lord of Regalities power I. BY the Feudal Law to which Regalities owe their origine alia erant regalia alia erant feuda regalem dignitatem habentia which is the same difference in our Law betwixt Regalia and Regalities Regalia are such priviledges as immediatly belong to the Crown and do not originally belong to nor can be communicat by any else such as to Coin Money to open Mines of Silver Gold c. But Regalities are Fews which are granted by the King to a Subject they have as large a Jurisdiction as the Sheriffs have in Civils or the Justices in criminals the habilis modus of granting which Rights is by Signator wherupon a Charter follows which passes the great Seal II. Regalities are accounted inferiour Judicaturs cap 76. quon attach by which it is Statute that no inferiour Judge shall judge the Pleys of the Crown and Regalities are expresly numbered amongst inferiour Courts Act 173. Parl. 13. K. Ia. 6. By which it is likewise Statute that he who strikes any person in presence of the Justices shall incurr the pain of death but he who strikes any before the Sheriffs Lords of Regality or other inferiour Judge shall only pay a hundred Pounds but though they be accounted inferiour Judges when compared with the Justices or Commissioners of Justiciary yet they have greater power in the way of their procedor and in the proportioning of their fines then Sheriffs or other inferiour Judges have for they may fine in a hundreth Pounds though Sheriffs and others cannot as was found the 30 of Ianuary 1663. Stewart against Bogle And generally they have the same power and the same allowance with the Justices except when an express Law makes a difference betwixt them The 43. Act 11. Parl. K. Ia. 2. appoints that no Regalities should be granted without deliverance of Parliament which nullity of old could not have been received opt exceptionis if it was clad with possession Hadd 1610. and they were still subject to Revocation by the King if they were otherwise granted as may be seen by the Revocation 1633. and all preceeding III. He in whose favours the Regality is granted is still called the Lord of Regality though he be otherwise but a Barron the reason of which I take to be because by the Feudal Law tria erant tantum feuda regalem dignitatem habentia quibus inerat jurisdictio regalis viz Ducatus Marchionatus Comitatus and by the same reason it is that no Lands can be comprehended under this jurisdiction by our Law but such as belong to him in whose favours that jurisdiction was granted either in Property or Superiority and therefore it was found that His Majesties Palaces though situated in Burghs of
blame who did not either preveen or repledge Bailies of Regalities may likewise repledge from the Kings Lievtenent as was found the 19. of August 1596. And as is clear by the foresaid Act of Annexation and likewise from any Commissioners appointed by the Council as was found in May 1568. And from the Justices of Peace in Riots and Bloods as was found by the Lords of Session Iuly 1617. though these causes being of small moment and requiring summar and unexpensive cognitions seem to require easier and less solemn tryals in the procedor then repledgiations will allow And yet by c. 11. de appell I find that licebat in remimina appellare nor can the parties injured complain since they might have made their application to the Lord of Regality Nor should their errour prejudge his jurisdiction VII The manner of repledgiation from any Court is that either the party himself who hath the power of repledging or some other having a Procurator from him compears and produces his Charter of Erection from the production of the Seasing is not sufficient seing that is but assertio Notarii yet sometimes without production of the Charter repledgiation will be sustain'd because it is notour that the repledger hath a Regality as in the Duke of Lennox case 1637. As also repledgiation will be sustain'd upon production of the criminal Register bearing that it was formerly sustain'd to the same persons May 1668. Arducaple against the Commissioners of the High-lands Yet it may be doubted whether the production of a Lord of Regalities retour will be sufficient to instruct that he hath a Regality and it appears it should since a retour is a sentence and so is a sufficient instruction till it be reduced He who offers to repledge must find Caution of Culrach to do justice within year and day upon the person whom he repledges and if the Judge to whom he is repledged doth not justice within year and day he tines his Court as we call it for year and day and the Culrach for so the Cautioner is called who hath upon his becoming Cautioner borrowed the Defender is in an unlaw and the Judge from whom he was borrowed or repledged may proceed to do justice as formerly Skeen de verb. sig The Pannel likewise who is repledged must find Caution for his own appearance before the Lord of Regality to underly the Law for the crimes laid to his charge the 16. of May 1599. Patrick M ckalla against the Regality of Lennox No person can be repledged except he be present at the Court from which he is desired to be repledged for a party who is absent cannot find Caution to sist himself before the Court to which he is repledged as was found in the case of Armstrong who being pursued for murdering some Customers was desired to be repledged by the Earl of Annandale Anno 1666. Nor can a person be repledged after defences are proponed for him for this being recusatio judicis it must be ante omnia propon'd dum res est integra VIII When Regalities are erected there is a Burgh of Regality expressed therein and though that Burgh may choose Bailies yet the Bailie of Regality hath still a cumulative jurisdiction with those Bailies of the Burgh of Regality in that same way that other Superiours retain still a cumulative jurisdiction with their Regality as was found the 24. of Ianuary 1668. betwixt the Bailie of Killimure and the Burgh thereof This Burgh is oblig'd to maintain a sufficient Prison not only for Criminals but for Debitors by the 273. Act 15. Parl. Ia. 6. And all Captions bear the Letters to be direct to Bailies of Regalities c. And yet by that Act these Burghs seem only to be oblig'd to intertain Prisoners where there are Provost Bailies and Common-good Nota that these words of that Act by the Sheriff to Stewarts and Bailies of Regalities are ill printed for the word to should be or The Lords likewise decided thus against the Bailies of Regalities the 7. of Iuly 1668. Hamiltoun contra Callender In this Burgh all Courts must be holden Yet defenders are oblidg'd to compear at any other place within the Regality to which they were expresly cited As Had observes in a case the 16. of March 1622. Or if the Lord of Regality was in use to hold his Court else where for a considerable time without interruption the Vassals or any other Defender is oblidg'd to appear thereat though it be not the place design'd in the Charter of Erection as Had. observes December 1624. And if the party who is desired to be Repledged dwelt within the Regality the time of the committing of the Crime the Repledgiation will be sustain'd though at the time of his being accused he be removed without the Regality as was found the 21. of November 1632. in the case of one Weems who was desired to be Repledged to the Regality of Methwen Lords of Regality are oblidged to hold Justice-Courts twice a Year 3. Parl. K. Ia. 2. Act. 5. and if they be negligent in causing rest and stolen Goods be restored the Sheriff may fulfil their place Act 11. Parl. 15. Ia. 2. And when Erections fall into the Kings hand the Inhabitants thereof may be justified id est judged by the Justices Act 26. Par. 6. K. I. 6 but this Act can only take place till a Stewart or Bailie be appointed For Regulariter the Kings own Stewarts of Regalities may repledge from the Justices A Lord of Regality cannot fit himself in his own Court but must administer by a Bailie who is sometimes admitted by a simple Commission during his life or otherwise he is admitted to be Heritable Bailie which Right passes by Infestment but this Bailie is in Lands belonging to the King and is properly call'd the Stewart of the Regality though sometimes the Kings Deputs in Regalities are likewise call'd Bailies as in the 5. Act. 3. Parl. K I. 2. IX Lords of Regality cannot cite Witnesses without their own jurisdiction but they must have Letters of Supplement for that Office though generally they may proceed in the same way that the Justice-General doth but they may exact Caution to enter as Law-will from the defenders after sentence is given as was found the 7. of October 1668. betwixt Mr. Iohn Prestoun and Mr. Iohn Pape which seems to be a greater priviledge then the Justices have who cannot presently exact Caution of any person for paying an unlaw but can only raise Letters of Horning upon the Act of Adjournal The Lords of Regalities have right to the single Escheat of rebels living within their jurisdiction as also to the Escheats of all persons condemned for crimes committed by the Inhabitants within their jurisdiction albeit condemned by the Justices from which general rule Hope in his lesser Practiques excepts only the case of Treason but it may be doubted whether exception may not be likewise made of all other Pleys of the Crown seeing the Lord
therefore Act 89. Par. 6. Ia. 1. Ratified Act 28.3 Par. K. Ia. 4. with this addition that if any heretable Sheriff omit his duty in prosecuting of this crime after this manner he shall lose his heretable office for three years but if he have only that office for the time he shall lose it during all that time From which Acts it may be concluded that the Sheriffs is not only Judge competent to Slaughter but to murder and both to the one and to the other at any time if he has either apprehended the person or has ex in continenti done diligence for apprehending him but the Sheriff is not Judge competent to murder though committed within his jurisdiction except in either of these cases IV. The way of procedure before the Sheriff is by an Assize and the Procurator-Fiskal is pursuer in place of His Majesties Advocat Yet sometimes the Sheriff or Barron may condemn upon the Pannels confession without an Assize as Dur. observes penult Ianuary 1622. but if the party be present the Sheriff cannot condemn him as holden pro confesso though he refuse to depon but co casu he must put him to the knowledge of an Assize as was found 24. Iuly 1633. Dickson contra Halyday And albeit a blood proven by confession may be punished by an unlaw of fifty pounds yet when blood is punished upon contumacious refusal to swear the unlaw cannot exceed ten pounds 17. February 1624. V. The Sheriff may pursue when any person compears and insists with him in the pursuite but if the crime be pursued by way of inditement without the concurrence of any party the Justice general is only Judge competent thereto Skeen verbo Sheriff but that rule is too general and may admit of this distinction viz. that either the Thief is taken with fang and then the Sheriff may proceed to judge him though no privat pursuer insist against him Nor needs there three fangs for justifying that pursuit Albeit Sheriffs now never proceed but where three fangs are proved Or else no fang is found eo casu the Sheriff cannot judge the thief except there be a pursuite intended at the instance of a privat party VI. The Sheriff should assist in all Justice Aires holden by the Justice General or the Chamberlain and should produce the verifications of all the Summonds which is made to the Justice Air and should make provâ—sions at the Justice Air and his Clerks which should be allowed in the first end of his accompts to the Exchequer and he should arrest such persons as the Crowner cannot arrest and should those an Assize upon the last day of the Justice Air anent the execution of his office Ia. 3. Parl. 14. cap. 102. and if he be found culpable the Justice General may remove him from his office till the next Parliament and put another in his place to officiat in the interim St. Rob. Bruce ex lib. Sconen related by Skeen ibid. but much of this is antiquated by custome for the Thesaurer sends along with the Justice Air a person specially commissionated by them who defrayes the charges of the Justices and Justice Clerk VII If the Sheriff fail in his duty he was punished of old by the losse of his office during his life and imprisonment during His Majesties pleasure St. David Cap. 13. 69. but now for negligence in his office he tines the same for year and day and is punishable in his person and goods at his Majesties pleasure Ia. 2. Par. 14. cap. 37. And yet the Lord Yester having suffered two Thieves negligently to escape and his heretable office of Sheriffship being upon that accompt taken from him by King Iames the fifth that Decreet was reduced for it was found too small to infer the loss of an heretable office Stat. Sessionis pag. 34. which is observed by Hop likewise in his larger Practiques If the Sheriff absolutly refuse to do Justice he loses likewise his office and is punishable at his Majesties pleasure but if he do injustice he loses his office if it be heretable for three years but if it be not heretable he loses it during the time he was to enjoy it formerly and in both cases he is punishable arbitrary in his person and is obliedged to refound the damnage and interest sustained by the parties laes'd K. I. 3. P. 5. cap. 26. but if he bribe or give partial counsel he forefaults his fame honour and dignity and is likewise punishable in his person and goods K. I. 5. Par. 7. cap. 104. If the case be difficult the Lords of Session will sometâ—mes Advocat the cause from the Sheriff to the Justices as in the case of Theft-boot pursued by Connadge the Sheriff deput of Invernesse against Makintosh And sometimes the Council will discharge the Sheriff to proceed without Advocating the Cause if they find either the case to be difficult or the Sheriff and his Deputs to be suspected TITLE XIII The Criminal Jurisdiction of Barrons 1. In what cases Barrons may judge 2. The Clerk of that Court needs not be a Nottar 3. Whether he may punish Theft or Fire-raising I. A Barron in our Law is generally understood to be one who is Infest in any Lands though not erected in a Barrony in which sense he has no Jurisdiction but only that he can unlaw his own Tennent for Blood committed upon his own ground as was found the penult of Ianuary 1622. Iohnstoun against the Laird of West-nisbit but a Barron properly is he who is Infest with power of Pit and Gallows fossa furca A Barron Judges crimes in the same manner as they are judged by the Sheriff and may like him proceed in time of vacance to judge these crimes to which he is otherwise competent But it has been controverted whether Barrons have been Judges competent to Processes for penal Statutes since the penalty there was to be applyed to the Kings Fisk and so should be judged in his own Court but the Lords found the 3. of February 1674. that they were Judges competent to penal Statutes by the constant custome of this Nation Albeit in civil cases Barrons may appoint Bailies yet Balfour cap. 63. observes that in criminalibus no person below the degree of a Barron may sit upon Blood nam potestas gladii est meri imperii quae nullo modo delegari potest except there be an express power given by the Soveraign for that effect as in the case of Justices and Sheriffs who have power to Deput and that power of Deputation were unnecessar if it were otherwise competent II. The Clerks of all other Courts must be Notars but the Clerk of a Barron Court needs not be a Nottar and yet the Decreet of a Barron for an unlaw will be sustain'd founded upon a confession though the confession be not subscribed as is observed by Durie the penult of Ianuary 1622. But by an Act of Sederunt it is ordain'd that no sentence of any Inferiour Court
TITLE XV. The Jurisdiction of the Justices and of the several imployments of the Officers of that Court. 1. Who were Iudges to crimes in Greece and at Rome 2. The jurisdiction of the Iustice Court with us 3. The power of the Iustice-general and Iustice-deputs 4. The Office of Iustice-clerk 5. What Actions are peculiar to the Iustice-court 6. The Macers and Crowners of the Iustice-court I. ALL Nations have committed the cognition of crimes to the wisest of their Judges because our lives are our greatest concern and if the Judge erre there his errour can seldom be repair'd The Athenians had the Areopage for their Criminal Court which was the most famous Court then in the World of whom the Grecians us'd to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And they judged Homicide in a particular place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was very numerous and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 institute by Solon for judging crimes were likewise 50. At Rome Praefectus Urbis judged all the crimes that were committed within the Town intra centesimum lapidem and the Proconsuls and Presidents judged crimes in the Countrey But the praefectus praetorio praefectus augustalis Comes Orientis vicarius praefecti praetorio had also a criminal jurisdiction The Justice Court with us had for its Members the Justice-General the Justice-Clerk the Justice-Deputs the Clerk-Depute the Dempster the Officer and the Macers II. The Justice-General is constitute by a Gift under the great Seal either ad vitam or by a temporary Commission but still under the great Seal his Sallary of old was five Pounds for every day of the Justice Air leg Malcol cap. 2. num 3.1 but now it is arbitrary and the ordinary Sallary by his Gift is two hundreth Pound Sterling to be uplifted by himself out of the Fines of Courts and if he cannot attain to payment that way out of the Exchequer The Justice-Court of old was the only Soveraign Court of the Nation and had then a great part of that Jurisdiction which the Session hath now for they were Judges to Recognitions Brieves of Mortancestrie Dissasine Purpresture and districtions for debts Reg. Maj. lib. 1. cap 5. num 2. lib. 2. cap. 74. quon att cap. 52. 53. lib. 3. cap. 28. And after the constitution of the Session they remain'd still Judges to Perambulations and Brieves were directed in Latine for tryal thereof and the reason hereof seems to be because as the Civil Law observes ad armacurritur in sinibus regundis and the fittest person for compeseing such tumults was the Justice-general but now the Sheâ—â—ffs and Lords of Session cognosce such cases and I having caused raise an Advocation from the Sheriff of Tividale at the instance of some Iedburgh men to the Justice-general ex hoc capite the Lords would not sustain the Advocation but remitted the case back to the Sheriff whom they found also competent so that such Brievs may yet be directed to the Justice general though he have not a privative jurisdiction therein III. I find the Justice-general call'd the chief Justice in all the Registers Annis 1637. and 1638. and the principal Justiciar Anno 1503. The Justice-Deputs were not limitted to any definit number but usually they were two and have each a pension from His Majesty when they were constitute by a Gift from him which passes the Privy Seal only and these were still call'd His Majesties Justice-Deputs and are not Deputs to the Justice-general for else they could not sit in judgement with him as they do and in effect they have an equal power and voice with him but when he makes a Deput he should not sit with him nam delegatus non simul concurrit And I find Mr. Alexander Colvil call'd in his Gift General-justice-deput which is done to denotat the universality of the Jurisdiction and to distinguish them from Justices in that part such as are these Noble-men and others who have the power of Justiciary over their own Lands And in Binnies case the Lords having remitted him to be tryed by the Justice-general and his Deputs the Justice-deputs declar'd that they accepted only of the remit as meaning they were His Majesties Justice-deputs and when His Majesty directs any Letter to them he directs it to our trusty and well beloved Cozen and Councellour to our trusty and well beloved our Justice-general and Justice-deputs Of old I find there were eight Justice-deputs The Justice-deputs had formerly the priviledge of being Present at the Council which was very fit because many criminal cases comes in before them and they retain still the priviledge of being Present at Parliaments they were call'd attornati justiciarii quon attach c. 61. assis R. David c. nullus By the 1. Article of the Regulation 3. Session 2. Par. Ch. 2. the Office of Justice-deputs is supprest and five of the Lords of Session are adjoined to the Justice-general and Justice-clerk four of the number being a Quorum except at Justice Courts because then the Justices are divided and two may be a Quorum their present Habit is Scarlet adorned with white and this I find the Kings of old had vestem purpuream sed albi habens non nihil admixtam Perion de magistr Rom. pag. 574. IV. The Justice-Clerk has his place from His Majesty by a Gift under the great Seal with power to appoint Deputs for whom he shall be answerable and is call'd in his Gift clericus nostrae justiciariae but whether the Justice-clerk be a Judge or a Clerk only has been doubted and that he is a Judge appears not only from our inviolable present custome wherein he sits and presides when the Justice-general is not present and takes precedency from the other Justice-deputs but likewise by the 87. Act 11. Parl. I. 6. expences are ordained to be modified to the party cleansed by the â—ustice Justice-clerk and their Deputs sed ita est that modification of expences is a judicial sentence at least is actus jurisdictionis jurisdictio tantum explicaâ—i potest per judicem non peractuarium vel referendarium As to the reason of the name of justice-clerk it is received by Tradition that because clerici or Church-men of old could not sit in Criminal Courts seing the Law gives them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bloodless jurisdiction therefore they were allow'd to nominat a Clerk who might represent them who was therefore called non clericus justiciarii the Clerk of the Justice Court but justiciarius clericus yet this seems a groundless conjecture for in no Municipal Law could Church-men sit upon blood and therefore could not Deput qui facit per alium facit per se and what necessity was there for their having an interest in the criminal jurisdiction and to evidence that he was Clerk of the Court the Clerk who officiats hath his place by Deputation from him and is called Deput to my Lord Justice-clerk nor could he deput Clerks except he were principal Clerk
But I believe this invasion has been made by the Justice-clerk upon that Court after he was created an Officer of State but to solve this doubt my Lord Rentoun at his admission is found by Act of the Secret Council to be a Member and one of the Judges of the Justice Court and to have a Vote there the 10. of December 1663. and now he sits in the Justice-generals Chair when he is absent The Justice Court have a Seal which they append to publick Acts and is kept by the Justice-cleâ—k-deput This Deput is admitted by the Justice clerk by way of Commission giving him power to be Clerk to all Couâ—ts holden by His Majesties Justice-general or Deput or any having particular Commissions either at Edinburgh or else where and therefore no justice Court either in the border or elsewhere is lawful except it be served either by the Justice-clerk-deput or any having Commission from him It seems that of old the Writers to the Signet did use to write criminal Letters without receiving Caution but that is discharged by the 34. Act 4. Par. Ia. 5. And now though Writers to the Signet may subscribe the Letters yet the Justice-clerk-deput can only write the deliverance upon the Bill and receive caution And therefore he writes upon the Bill soverty is found and subscribes the famine Hâ—s receiving caution is likewise warranted by the 78. Act 6. Parl. Ia. 4. V. The Justices are only judges competent to these crimes which are call'd placita coronae the Pleys of the Crown which are four with us wilful Fire raising ravishing of Women Murther and Robbery or Reif l. Malcol 2. cap. 13. and the cognition of these belongs not to Burghs leg burg c. 6. nor to no other inferiour Courts Quon Attach c. 76. leguntur St. Alex. c. 14. faemina efforciata arsione rapina murdrum Molineus in stil. cur paris part 1. c. 13. observes that in France three crimes belong to the cognition of the High Justices wilful Fire ravishing of Women and Murder nor can any other Judge proceed to judge these Crimes except they be particularly warranted by a Gift from His Majesty to that effect Skeen verb. murder VI. The Justice Court has its Macers in which they are not stented to a particular number and though of old amongst the Romans a pursuer might be his privat authority and force draw the defender before the judge in jus rapere in jus trahi which they borrowed from the Grecians as they did most of their Law for Demosthenes their great Lawyer tells us in orat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Yet ordinarly even the Grecians had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Apparitors as the Romans call'd them who were the same with our Macers qui volentes vocabant recusantes urgebant The Mace used by these with us in the Justice Court is an Iron Rod which was the symbol of power as appears by the verse 2. Ps. The Coroner was an Officer who took inquisition of Murders in corona populi the Laird of Ednam was the heretable Coroner in Scotland but this Office is absolet now except at Justice Airs where the Coroner yet presents all Malefactors and takes them to and from Prison TITLE XVI The Jurisdiction of the Justices over Souldiers and of Militiary Crimes 1. When are the Iustices-Iudges to Souldiers 2. A debate concerning free quarter 3. Haddo's case 4. Sometimes Commissions are granted for trying Souldiers 5. How deserters are punished 6. Who were Iudges competent to Souldiers amongst the Romans I. ALbeit Souldiers should be tryed by a Court martial for crimes committed by them in a Military capacity as deserting their Colours resistâ—ng their Officers c. yet when they commâ—t other Crimes they are lyable to a tâ—yal before the Criminal Court. For as Voet. observes delicta militum sunt vel communia vel propria lib. 2. de remilit And thus French and two other Soulâ—iers under Morgan in the English Garison of Leith were put to the knowledge of an inquest for killing a Burgesse of Edinburgh albeit Morgan offered to repledge them Ianuary 1662. and yet in anno 1666. the Justices would not proceed against some Gentlemen for the slaughter because they were both Souldiers but it seems the Crime should have been tryed before the Justices seing the crime and not the persons determin the Jurisdictions and their Crimes was only a Combat which is no specifick crime to Souldiers and this is conform to a decision Novemb. 1627. Where Captain Bruce having been pursued for killing Captain Hamiltoun did petition the Council shewing them that this crime was committed in Flanders and that he was assoâ—lzied therefra by a Council of War upon which probation the Council commanded the Justices to desist But Sir William Bellenden being challenged before the Council for many Ryots and Crimes committed when he was in the West they would not remit him to a Council of War albeit that declinator was proponed August 1667. And Militia Souldiers were judged by the Justices for Murder committed by them in the execution of other Officers commands the 3. of February 1674. II. The most considerable Military questions which I remember in all the Adjournal books are first that which was debated 5. Decemb. 1666. the case wherof was some west countrey men had formed themselves in an Army and were declared Traitors by the Council and being thereafter beat at Pentland hills Captain Arnot Major Mackulloch and others were taken by some of his Majesties inferior Officers upon quarter but being pannelled before the Justices as Traitors it was alledged for them that they could not be put to the knowledge of an inquest before the Justices because they having been modelled in an army and taken in the field fighting as Souldiers they behoved to be judged by the Military Law and by that Law such as get quarter in the field are by that quarter secured therin for their lives and cannot be hereafter quâ—rrelled To which it was replyed that there can be no quarter but where there is a bellum justum and it is not the number nor form of the Army but the cause that makes bellum justum and publick insurrections of subjects against their Prince are rather Sedition then bellum and these insurrections being Treason none can remit Treason but the King and therefore quarter could not be equivalent to a remission but all the effect of quarter in this case is to secure these who get the same from present death To which it was duplyed that all who got quarter from any who are authorized to be Souldiers are by that quarter against that authority from whom these Souldiers derive their power and these who get the quarter are not to dispute whether these Souldiers had a sufficient power to give quarter or whether bellum be justum or injustum for that were in effect to destroy quarter in all cases and to make all such as take up Armes to be desperat and irreclaimable
and the power of giving of quarter is naturally inherent in all Souldiers as such and as the Council without expresse remission from the King upon submission might have secured their lives so might Souldiers by quarter for they have as much power in the field as the others at the Council Table 2. Lawyers are very clear that quarter should be kept though given to subjects who are Rebels Grotius lib. 3. Cap. 19. where after he hath fully treated that question de fide servanda concludes that sides data etiam persidis rebellibus subditis est servanda And this hath been observed in the civil Wars in Holland and France and by his Majesty and his Father at home during the late troubles 3. Quarâ—er is advantagious to the King and so should be kept for these who were taken might have killed his Majesties General or Officers and by giving quarter to his enemies he redeemed his Servants and if the only effect of quarter were to be reserved to a publick tryal none would accept quarter Notwithstanding of which reply the defence was repelled and the Pannels condemned and thereafter execute The second question was that which was debated in Haddo's case 16. March 1642. At which time that Loyal Gentleman Haddo being pursued for killing Mr. Iames Stalker Servitor to the Lord Frazer he alledged that the said Mr. Iames was killed in the open field in a conflict betwixt the Convenanters and Ante-Covenanters All which Acts of ostility were remitted by the pacification To which 〈◊〉 was replyed that the Pacification did only secure against acts of hostility which were done in furore belli but this was a privat murder for the said Mr. Iames having been taken a Prisoner Haddo did come up to him and asked whose servant he was and hearing that he was servant to the Lord Frazer he said your masters man is the person that I am seeking and thereupon ordered to kill him which was accordingly done by which it clearly appears that this was a privat murder done in cold blood and upon premeditat malice and Mr. Iames Stalker being a Prisoner any who killed him was liable for his murder ex jure militari and the pacification could no more defend the committer then if he had gone into a prison and killed a prisoner or if he had committed a Rapt upon a woman likeas Murderers are expresly excepted from the pacification 2. Haddo was no general person and so could not give order for his execution and so the killing of the defunct was not warrantable by the Law of Armes To which it was duplyed that the pacification did secure against all deeds whatsoever done upon the field by persons engaged in either party without debating whether the deed was lawfully or unlawfully done and the occasion and not the manner of killing is to be considered And as to the manner it is answered that Mr. Iames had never got any quarter and so was not a Prisoner in War and therefore might have been killed by any engaged in the quarrel whether general person or other But the truth is the said Haddo did command that party which was equivalent to his being a general person and albeit the pacification did expresly except murders yet that behoved only to be interpret of such murders as had no contingency with the troubles nor were occasioned by them this debate was not decided but was remitted to the Parliament and that worthy Gentle-man executed for rising in arms against the Estates of Parliament III. I find that there was a Commission granted by the Parliament in Anno 1644. to two Bailies of Edinburgh to sit and hold justice Courts upon such Souldiers as were runaways and that upon this Commission Iames French was condemned by them for running away from his Collours contrary to the Act of Parliament 1644. and was hanged accordingly From which these observations may be made 1. That the Justices are not Judges competent to crimes that are meerly Military 2. That we have no standing Law for executing runaways beside the Martial Law nor was there any Law founded upon this inditement except the Act of Parliament 1644. which is now abrogat 3. It is observeable that one Mr. Alexander Henderson as Procurator Fiscal and not His Majesties Advocat was here pursuer From all which it seems somewhat strange that this Process should have been insert in the Adjournal Books IV. But albeit deserters were here punisht with death yet regulariter milites gregarij or listed Souldiers are only punishable in time of Peace with degredation and in time of War with death because the hazard is then greater l. 5. § 1. ff de remilit and by that Law they may be killed by any man lib. 2. Cod. quando liciat unic c. But this arbitrary killing is not now in use as Voet de jur militat very well observes if superiour Officers leave their charges they commit Treason l. 2. ff ad leg jul majest vid. tit Treason V. Constantine having extinguisht the Office of praefectus Praetorio who was the Supream Judge in all Military cases The Magistri militum succeeded and were sole Judges of all crimes committed by Souldiers both in Civil and in Military cases and if Souldiers had offended the Civil Magistrat might have secured but he was obledged to remit them cum elogio to their own Officers l. 9. ff de custod reor vid. tit C. de remilit TITLE XVII Advocations of Criminal Causes 1. Advocations defined 2. No Advocation from the Iustices 3. How Advocations are raised from inferiour Courts and the forms thereto relating 4. The ordinary Reasons of Advocations examined 5. Whether the Iustices are proper Iudges to their own competency I. ADvocation is the away calling of an intended cause or pursuit from an inferiour incompetent judicatory to a higher and more competent and is the same thing with us that recusatio judicis was with the Romans and is by the Doctors call'd advocatio or evocatio which is by them defined to be litis pendentis coram inferiore ad superiorem absque provocatione facta translatio Gail lib. 1. obs 41 num 7. and is founded upon cap. ut nostrum de appell l. jud solvitur ff de jud II. Their is no Advocation raised of pursuits intented before the Justices but if ther be any design of stopping a pursuit depending before them there useth to be a Petition given in to the Lords of Secret Council who if they find the desire of the Petition just will ordain the Justices to stop all further procedor or will remit the inquiry to any other Court as they did in a pursuit intented at the instance of the Earl of Caithness against some Vassals of the Earl of Sutherland which they stopt as to the Earl himself and ordained his Vassals to be pursued before his own Regality Court sometimes also they ordain Assessors to be Justices so that there is never a cause formally Advocat from before the Justices
albeit those courses and Repledgiations be equivalent to Advocations III. Advocations may be rais'd from inferiour criminal Judges by the Lords of Session as in the case of Theft-boot before the Sheriff of Inverness and Advocat by the Lords because of the intricacy of the case albeit it was alledged there that the Lords were not Judges competent in such Advocations because they could not be Judges to the crimes pursued To which it was answered that though they could not be judges themselves yet they might remit the pursuit to these who were competent even as Brieves raised for serving a person Air may be Advocat to the Lords who may remit the case to another Inquest But Durhie observes the 9. of Ianuary 1629. that Kincaid of Waristoun craving that the Process against him for slaughter might be Advocat by the Lords to the Justices because of the ignorance of the Barron Bailie or else that they would grant Assessors the Lords continued the Diet till application should be made to the Council but if the Council would not interpose then they should do justice therein by remitting the same to the Justices or otherwise But Advocations in criminal cases are ordinarly raised by the Privy Council who have the most natural power in such cases Advocations are raised upon Bills and the Letters pass the Signet of the Session if the Bills be past by the Lords of Session or of the Council if the Bill be past by the Lords of Council This Advocation must be execute by a Messenger and a full Copy must be given of the Letters as in other Summonds for in effect an Advocation is a Summonds and the Diets in Advocations are peremptor as in all other criminal pursuits Neither is the Advocation given up to see as in other criminal pursuits at the day of compearance and therefore a full Coppy should be given to the end the defender may be ready to answer The pursuer of the Action must be cited and the Judge from whom the Action is to be Advocat must be also cited to the effect he may defend his own jurisdiction and if both these be not cited the Advocation will not be sustain'd When the day of compearance comes if the Advocation be raised before the Session it is called before the Session and if the reasons of Advocation be found relevant the cause is remitted to the Justices but if that Advocation be raised before the Council it is called before the Justices and they are Judges to the relevancy of the reasons and both pursuer and defender must prove all that they alledge instantly The Advocation of a criminal pursuit doth contain the reasons upon which it is founded as in civil Advocations but though in civilibus the raiser of the Advocation will be allowed to add a reason though it be not libelled which is called an eiked reason yet that is not allowed in criminalibus because all must be proved instanter and the defender is not able to prove his answer instantly if he know not what is the reason which he must answer whereas in civilibus he will get a term to prove his answer to the eiked reason IV. The ordinary reasons of Advocation are 1. Consanguinity or Affinâ—ty within degrees defendant viz. cousins german or nearer for whatever is a sufficient reason to cast a Witnesse should in my opinion much more be sufficient to decline a Judge since there may be penury of Witnesses so that the Witness challenged may be necessary whereas if a Judge be suspect he may be supplied by another Deput or a superiour Judge and a Judge may by himself ruine a Cause which one Witnesse cannot do and though we have no expâ—esse Law for this yet the Lords encline ordinarly to sustain this and particularly in the Moneth of Decem. 1676. Ross contra Collodine where a Decreet was turned in a Libel because pronounced by a Nephew albeit it was there alledged that by the 212. Act 14. Parl. I. 6. a Brother Father and Son were only to be declined as Juâ—ges for that Statute relates only to the Lords of Session who because of their great Eminency and Trust are not to be as easily suspected as inferiour Judges It may be doubted whether the Justices or any of them may be declined as within degrees defendant for though they must now be Senators of the Colledge of justice yet they sit not there as such nor are the Justice-general or Justice-clerk alwayes of that number but yet I think that since the Justice Court is a supream Judicatory in its own kind and that this respect that is put upon them is because of their Eminency and presum'd integrity that therefore they being the same persons ought to have the same priviledges and the Justice-general and Justice-clerks being superior in order to the Lords of Session who are Justiciars ought at least to have as great trust but though the Admiral be a supream Judge also yet it may be doubted if this Statute should be extended to him because men of meaner parts may officiat there It may be also doubted whether this declinator against fathers brothers and sons should extend to the degrees of affinity as well as those of consanguinity so that a father or brother in Law may be declined and though the Lords lately would not decline one of their number though brother in Law to the pursuer yet it may be argued that albeit Acts of Parliament must be strictly interpreted yet where there is a parity of reason and the words may in propriety admit of the extension there the extention is to be allowed but so it is that here a brother in Law is to be suspected and a brother in Law is in propriety of speech a brother Likeas since witnesses may be cast upon the suspition of affinity why may not Judges especially seing in the Statute 1621. against dispositions made by Bankrupts and in the opinion of Lawyers degrees of affinity and consanguinity are still equiparat and so wise are we in this point that a pursuite at the instance of a Procurator-fiskal was Advocat upon this Statute because the Procurator-fiskal was brother to the Judge though he was only pursuing ratione officii and had no interest himself and expresly renounced all interest in the pursuite 28. Ianuary 1629. Whether this statute is to be extended to unlawful relations so that a Bastards brother c. may be declined vide my observations upon the Statute 1621. Another reason of Advocation like to this is that one of the members of the Court is pursuer as for instance the pursuite is at the instance of one of two Sheriff deputs before his own colleague habet quippe Societas jus quoddam fraternitatis in se l. verum ff praesocio vid. c. insinuante de offic deleg cap. Postr de appel and that none should judge where the colleagues pursue but that the pursuit should be carryed away to another Judicature is appointed by a
Statute in France anno 1560. but we have no such Statute and one colleague with us may be witnesse for another and why not then Judge A third reason of Advocation is that the Judge is suspect as if he had given partial counsel or if he has repelled a just defence or as being severe above what the Law allows 4. That he is incompetent the case pursued being only proper to be tryed by the Justices as being one of the four Pleys of the Crown viz. Treason Murder Fire-raising and Ravishing of Women but sometimes though the first Libel have inferred Treason as in the case of Peddies Ianuary 1667. yet if the pursuer will restrict his action to damnage and interest but will desert the dyet as to the criminal pursuit it may be sustain'd 5. That the case is very intricat as in a pursuit of Theft-boot which was Advocat from the Sheriff-deput of Invernesse eo ex capite Members of the Colledge of Justice also pretend that they cannot be pursued before any other Court because this would draw them from attending the Session but the Act 39. Pa. 6. Q. M. whereon this is founded seems only to hold in Removings so that no Action concerning Removings should be Advocat but in these cases viz. deadly fead where the Judge ordinary is party or the defender a member of the Session and yet de praxi that part of the Statute is extended to all Advocations But they cannot Advocat from the Justice Court If the cause be Advocated the pursuer of the first Libel which is Advocated must find caution de novo to insist in the pursuit else the Justices will desert the dyet which caution is necessary because the Judicature before which the caution was found is altered and neither the pursuer nor his cautioner are bound to insist before any other court The defender likewise of the first cause and who raised the Advocation is obliedged to renew his caution that he will underly the Law else the Justices will imprison him The taiser of the Advocation must intimat to the pursuer of the principal cause that he has raised an Advocation to the end that the said pursuer may be ready to insist at the day to which the advocation is raised and when the Procurator-fiskal is the pursuer before the Court from which the cause is Advocated the raiser of the Advocation should intimat to His Majesties Advocat to the end he may be ready to insist for His Majesties Advocat is in the Justice-Court what the Procurator fiskal is in inferiour Courts The office of both being to pursue vindictam publicam V. The old custome was as some alledge that the Lords of Session judged all the Advocations which were raised in Criminal causes from inferiour Judges even to the Justice Court and very judicious Lawyers do yet hold that the Justices cannot judge whether they be competent Judges in causes Advocated from inferiour Criminal Courts but that the Lords of Session should cognosce whether the cause should be Advocat and if they sustain the reason of Advocation that they should remit the cause to be tryed by the Justices or remit the tryal to the Court from which it was Advocated if the reason of Advocation be not relevant for they think it unreasonable that the Justices should be Judges of their own competency but since the Justices are supream and soverain Judges as well as the Lords of Session and since the Justices are now many and are Lords of the Session also it seems reasonable that they should be Judges to their own competency especially since these reasons of Advocation do very frequently did upon Subtilties of the Criminal Law and cannot be well judged but by such as understand that Law exactly as for instance I have seen an Advocation raised of a Libel in the case of Treason from before a Lord of Regalities Court upon this reason viz. that the ground of the accusation was for drowning a Coal-heugh which was Treason in our Law to the which crime of Treason none but the Justices were Judges competent In which Advocation these points were necessarily debated 1. Whether Lords of Regality were Judges to Treason 2. Whether though they were Judges competent to Treason founded upon the common Law yet if they were Judges to Statutory Treason 3. Whether though burning a Coal-heugh was Treason by Statute yet if drowning of it fell under that Statute all which poâ—nts were indagationis criminalis and these who could judge such points might judge any criminal case Likeas both by the old and new stile of Advocations raised either by the Council or Criminal Court the Letters bear that the reasons are to be seen and considered by the Justices and immediatly upon the Advocation caution is found in the books of adjournal and to answer before the Justices and the Justices have been in constant possession of judging such reasons And whereas it may be alledged that though the Lords of Session are not Judges to crimes yet the case of competency in the matter of Jurisdiction is meerly Civil and so it would seem proper to be judged by the Lords especially since it is nor just that the Justices should be Judges in their own cause To which it may be answered that though this case be civil yet it has so necessary a contingency with what is criminal as I have observed that they ought not to be divided since the Lords of Session are judges competent to Advocations wherein their own â—urisdiction is controverted why should this be denyed to the Justices who are a part of themselves and such supream Judges are above suspition especially since they can gain nothing by their Jurisdiction TITLE XVIII Of Inquisition 1. The nature of Inquisition and when it is competent 2. The King and Party may pursue separatly 3. Citations super inquirendis when competent I. WHen a crime is committed the Council or the Justices did of old take a previous Inquisition of it by examining Witnesses and taking such other information as they thought fit And these depositions and exâ—minations are called informationes by the Doctors but though they may examine Witnesses before the intenting of a criminal pursuit yet after it is once intented the Justices found the 8. of Ianuary 1672. that they could not examine Witnesses for the Inquisition ends by the intenting of the pursuit ubi incipit accusatio desinit inquisitio The Doctors are very profuse on this subject but I shall only excerpt from them what is most suitable to our forms and practice they define Inquisition to be an information of the crime taken by the Judges own authority ex officio and they divide it in a general Inquisition which is taken of the crime in general without taking notice of any particular informer or defender And a special Inquisition which is taken against a particular person of whose guilt they are informed By the Civil Law no Judge could proceed against any privat
the Sheriff should still find Caution to insist but with us those ubi suam vel suarum injuriam prosequuntur etiam in anticategoriis the accuser must still find Caution wherein we do very reasonably differ from the Civil Law for the defender is as much prejudged and may be as easily troubled if these pretexts were allowed to palliat the pursuers malice as generally he could be in other cases in this likewise we differ from the Civil Law that the defender is oblidged to find Caution for his compearance which he is commanded to do by the Letters by which the Messenger is commanded to denounce him Rebel if within six dayes after the Summonds is execute against him he find not Caution in the Books of Adjournal to the effect foresaid which Caution though it be found yet if it be not intimat to the Messenger the Messenger may still denounce him Rebel for not finding of Caution And though by the Civil Law and ours the Advocat may pursue without consent of the privat party yet he is not oblidged to find Caution nam in eo non praesumitur calumnia yet the Advocat in our practique doth ordinarly oblidge his informer to find Caution else he refuses him his concourse If the accuser be found to have been calumnious or as our Law termes it in the wrong he is oblidged to pay to the party an unlaw of ten Pounds Ia. 3. Parl. 6. Act And if there be moe deeds then one he is liable in twenty Pounds and likewise to pay the defenders expence Act 78. Parl. 6. Ia. 6. Which Acts speaks only of not prevailing though there be no malice and though there be no probabilis causa litigandi but if their pursuit be found to be 〈◊〉 it is arbitrary to the Justices to inflict what punishment they please either in that same sentence wherein the defender is absolved or upon a separat Bill or pursuit as also he is by the Justice constantly ordained to pay what damnage and interest or expence the Justices pleases both to the parties and to the Assizers And albeit according to the Civil Law Procurator fisci non praesumebatur calumniosus yet si procurator fiscalis calumniose instigat judicem ad inquirendum tenetur in damna actione injuriarum concremari debet l. universi C. ubi causa fiscal c. And according to the opinion of the Doctors hodie judex procurator fisci affectate consequentes crimen extraordinarie sunt punendi Q. IX The Justices ordain that because many poor persons were maliciously or ignorantly imprisoned that the Magistrates of Edinburgh should imprison none but where one should find caution in the Books of Adjournal to insist against them and to aliment them and that they should appoint a Procurator dwelling within Edinburgh to whom the Justices might intimat when they desired the pursuer might insist the 5. of Iuly 1661. which should be done and exped very speedily and for this end the Bishop was appointed to visit the Prison every Friday and Wednesday 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 celeriter judicari Basil. l. 21. de custod reor TITLE XX. Of Advocats and Procurators 1. Whether a Procurator should be admitted for the pursuer in his absence 2. His Majesties Advocat may deput when he is pursuer he has also other priviledges 3. In what cases Procurators are admitted in defence 4. What Oath of Calumny is allowed in Criminals THe Doctors make a difference inter simplicem allegatorem who can only propon what is nottour as that the party cited is known to be sick procuratorem who must have a mandat and may propon declinators or dilators defensorem innocentiae who not only can propon dilators but may likewise defend et Advocatus semper neputatur defensor and needs no mandat but his Gown is his warrand and yet in Criminals he must have a Procuratory I. According to the Civil Law Procurators were neither admitted to pursue nor defend l. ult § ad crimen ff de publ jud but by the Law of most Nations a Procurator is admitted to pursue for paena talionis is now taken away which was the reason the pursuers personal presence was requisite Clar. fin quest 14. N. 22. the defender must still be present ne judicium reddatur elusorium With us Procurators are admitted for the pursuer and yet this appears not to want difficulty for if the defender should desire that the pursuer should swear the Libel the dyet would desert if this were refused by the Procurator and though in Civilibus a day may be taken to produce the pursuer to give his Oath of Calumny which Oath of Calumny is the same thing we call swearing the Libel in Criminals yet seing all Criminal dyets are peremptor so that there cannot be a day allowed to the pursuer to give his oath it were unreasonable but he should be present for else the defender is precluded from a very great advantage such as is the pursuers oath of Calumny which if the pursuer himself were present and refused no pursuit would be sustained at his instance likeas if the pursuer were present it might be referred to his oath that he gave the witnesse good deed or that he knew the defender to be alibi by all which it would seem the pursuer should still be present yet this was expresly repelled 4. August 1652. Where Ballindalloch was pursuing Iohn Grant but there it was answered that Ballindalloch was one of the pursuers himself and the remanent were his Servants II. Albeit the Kings Advocat be pursuer in most cases yet he uses ordinarily to constitute a deput who should produce a written warrand under his own hand else cannot be admitted and this deput can desert a dyet though his Procuratory do not instruct him with a particular power for that effect 29. November 1638. Mr. George Norvel Procurator for Mr. Iohn Rollo which is constantly the opinion of the Doctors His Majesties Advocat uses not to pursue a Summonds of Treason without a special warrand under his Majesties hand or a particular order from the Council which he uses to produce ante omnia and is still marked by the Clerk as may be seen in all adjournal Books but particularly in the cases of the Lords of Ochiltree and Balmerinoch His Majesties Advocat with us examines parties and witnesses before the Process be intented which he doth upon pretext that he may thereby know how to Libel exactly and to the end he may not vex parties if he find no ground for the pursuit but many learned Lawyers have alwayes thought this Procedur dangerous for his Majesties Advocat is still a party interested and so should not be allowed to deals with the witnesses for thereby he may strain from them what otherwise they would not depon And if in our last reformation of the Justice Court it was found that the Kings Advocat should not make the roll of Assizers because he is too much interested much
or otherwise the pain is Arbitrary and there the pursuer cannot by his petition determine the same but must leave it to the Judge l. 1. § quorum ff ad S. C. turpil l. ff de privat delicti l. ordine ff ad unicipalem and in the form set down l. 3. ff de accusatio by Paulus there is no conclusion exprest but yet with us there is alwayes a conclusion in every Libel though it be general and I perceive that most of the practitioners are of opinion that at least a general conclusion should be added III. Whether a Libel being libelled qualificate the pursuer may passe from the quality has been thus determined by Lawyers that if the quality amount to another different crime it cannot be past from but if the quality amount only to an aggraging circumstance it may be past from As for instance if the pursuer Libel upon the Act of Parliament whereby murder under trust is Treason and subsume that the Pannel is guilty of murder under trust in so far as the person murdered was father to the murderer if when the case is to be tryed the pursuer should declare that he insists against him as a Murderer simply because he is not sure to prove that the person killed was father I think eo casu the pursuer could not so reform or declare his Libel for that makes the crimes to differ the one being Murder the other Treason and the defender was only obliedged to prepare him to defend against Treason and finding that he was secure as to the crime libelled he needed not prepare other defences or raise exculpations for that effect but these qualities which amount only to aggravations may be past from as was decided 11. November 1672. For Aikma◠having pursued Carnegy of Newgate for oppression conform to the 25. Act 4. Parl. K. I 5. because he had beat him who was a Magistrat in the exercise of his Office the Justices having found that the pursuer could not in the construction of Law be repute a Magistrat because he had not taken the Declaration it was thereafter alledged that the Libel being only founded upon the foresaid Statute conceived in favours of Magistrats and the conclusion being against oppression and not against beating the pursuer could no more insist upon that Libel which was repelled for the Justices found that the beating any man was a crime and the pursuer might insist against the defender for beating him since his being a Magistrat was only an aggraging circumstance Yet this seems a hard decision since the proposition of the Libel did not bear that beating was punishable nor did the conclusion bear that at least the Panel was punishable for beating a free Liedge if this were universaly allowed alternative Libels were unnecessary and this would occasion much looseness in Criminal Libels whereas Lawyers treating of Criminal Libels have laid it down as a principle that in criminalibus non licet vagare and the crimes of oppression and beating are different Nor can it be denyed but that a privat person differs from a Magistrat so that this quality made the persons the crimes and the medium concludendi to differ IV. For the better clearing of our custom in these cases I have set down the form both of the Criminal Letters and Criminal Indictment now in use with us A Criminal Summonds CHARLES c. humbly mean'd and complain'd to Us by Our Lovits A. the relict B. sister daughter and nearest kins-woman C. as Mr. with the remanent kin of Umquhile Main Servant to the said C. and Our right trusty and well beloved Councellor our Advocat for our interest in the matter underwritten upon Listoun without any just cause offence or injury done to him by the said umquhile Man having conceived a deadly hatred and evil will against him with an settled purpose and resolution to bereave him of his life one way or another lately upon the last day of 〈…〉 where the said Main was in quiet and sober manner for the time expecting no harme injury nor pursuite of any person but to have lived under Gods peace and ours And the said Listoun being bodden with a great Batton or rung in his hand and with knives and other invasive weapons first upbraided the said Main with words alledging that he was a common Thief and had stollen c. And thereafter because the said Main had purged himself of that calumny and said he was as honest a man as himself he thereupon ran and rushed the said Main being an aged man of 74. years of age to the ground under his feet struck him in the head craig shoulders and side with the said Batton lap upon his breast and belly with his feet and knees beat him upon the heart and thereby broke and bruised his whole intrals and noble parts thereafter heased and drew him by the heels off the saids lands by the space of a quarter of a mile to a low Vault in c. and imprisoned him therein tanquam in privato carcere he being in the dead thraw Likeas within three hours after his imprisoning in the said Vault the poor aged man dyed of the saids stroaks and hurts likeas to suppresse the Murder the said Listoun with his complices buried him in an obscure place in the night time and swa the said Main was shamefully and cruelly murdered and slain and secretly buried by the said Listoun and his complices and he is Art and Part thereof committed upon set purpose and provision and forethought Fellony in high and manifest contempt of our Authority and Laws in evil example of others to commit the like if swa be OUR WILL IS herefore c. and in Our name and authority command and charge the said Listoun committer of the said Barbarous murder in manner foresaid to come and find sufficient Caution surety to Our Iustice Clerk and his deputs acted in our books of Adjournal that he shall compear before the Iustice or his deputs to underlye the Law for the samen in our Tolbuith in Edinburgh on the Day 〈…〉 of 〈…〉 in the hour of Cause under the pain contained in Our Acts of Parliament and that ye charge him personally if that he can be apprehended and failzing thereof at his dwelling house and by open proclamation at the Mercat Crosse of the head Burgh of the Shyre Stewatry or Regality where he dwels to come and find the said soverty acted in manner foresaid with in six dayes next after he bees charged be you thereto under the pain of Rebellion and putting of him to the Horn the whilk six dayes being by past and the surety not being found that ye immediatly thereafter denounce him Rebel and put him to our Horn and escheat and in bring all his moveable goods to our use for his contemption and cause Registrat thir our Letters with the executions thereof in the books of Adjournal within fifteen dayes thereafter conform to our Act of Parliament
Pannel as is clear by Clar. quest 51. But I find not this term used with us till the Year 1661. at which time it was used first in Argyles processe The English call this to traverse an Inditement from the French word traverser as I suppose which signifies to oppose or cross When a Pannel before that time was pursued in Scotland he behoved presently to propon his defences and have witnesses there present for proving it or else he behoved to refer it to the pursuers witnesses for our Ancestors thought that the pursuers Witnesses being present could not but know all the matter of fact exactly and so were as fit to prove the exculpation as the Libel but this was a mistake for witnesses might have been present when the wound was given who were not present at the beginning when the occasion of the wound was given whereupon the exculpation of self-defence was founded so that other witnesses are oftimes necessary beside these adduced by the pursuer and it is not safe to presume that these will come without a citation or if they come without a citation they are ultroniâ— and so are suspect In anno 1661. the Justices did begin to grant precepts of Exculpation which were drawn by the Clerk and exprest that in respect there was a pursuite of such a nature intended against such a man and that he had defences to propon here the defences were exprest therefore the Justices granted warrand to him to cite witnesses for proving thereof c. That This precept was subscribed only by one of the Justices yet thereafter in anno 1666. the Justices ordained that a formal Summonds past under the signet of the Session should be granted for citing witnesses for Exculpation and they are called now Letters of Exculpation which contain the defence as formerly the precepts did but because the Lords of Session use to scruple to passe such Bills therefore the Justices first consider the defence and if they find it probable they use to subscribe the warrand for a Bill which Bill is past by one of the Justices amongst the common Bills and that Bill is the warrand of the Letters When the Pannel is accused and the Libel read his Advocat doth propon the defence or exculpation v. g. if the Libel be Murder the defence is inculpata tutela c. and after the defence is debated and either admitted or repelled by an expresse signator of processe then the witnesses are accordingly admitted If the Justices refuse to passe a warrand for Letters of exculpation the defender ought not to be thereby prejudged but the dyet will be continued till Letters of Exculpation be raised as was found in my Lord Rentouns case against the Laird of Wedderburn December 1669. And though the summonds of Exculpation should be execute to the same dyet with the Principal Summonds yet if the Justices find it reasonable they may continue the dyet and allow a competent time for raising Exculpation as they did 13. Iuly 1676. In a case pursued by Mackintosh against Grant for in remote Shires the defender has not time to raise and execute Exculpations to the day of compearance in the principal cause The ordinary defences are to be seen in the respectiv Titles to which they relate and it would swell too much and too unnecessarily this Title to repeat them here II. It is ordinarily replyed to defences of Exculpation that they are contrary to the pursuers Libel and so ought not to be admitted to probation and thus Mr. William Sumervel being pursued for murdering of Bessy Rentown it was alledged that it was offered to be proved that the wound was not mortal as appeared clearly to many who saw the same immediatly after it was given Likeas she went that night to her brothers house three miles on foot and never took bed but wrought as a servant in her ordinary imployments for twelve weeks And at last having gone to attend her brother who dyed of a spotted Fever she was by him infected and dyed of a Fever which defence of Exculpation was repelled Decemb. 1669. as contrary to the Libel wherein it was expresly Libelled that he gave her a mortal wound that she died of the wound that he gave her and I find it formerly repelled 15. Iuly 1642. Cheyn against Mowit But this principle viz. that exculpation directly opposit to the Libel should not be admitted seems not to be allowable for all defences of Exculpation might be thereby precluded for the pursuer might so circumstantiat his Libel upon design as that the only exculpation which he feared behoved to be contrary to his Libel and since in Scotland the pursuer is not precisely obliedged to prove all the qualities which he Libels but it is sufficient that he prove the Libel it self the poor defender might easily be cheated for the pursuer might Libel all the circumstances exclusive of the exculpation which he feared and after he had thereby excluded the defence he might contend that albeit the qualities were not proved yet the fact it self being proved it was sufficient 2. In Civil cases some defences are admitted though contrary to the Libel as in Ryots before the Council and in Spuilzies and therefore they ought much more to be admitted in Criminal cases wherein the defender is more favourable then he is in civil cases 3. If this principle did generally hold then self-defence and casual homicide could never be allowed as Exculpations for both these are directly contrary to the Libel used in the case of Homicide which bears still premeditation and fore-thought-fellony But to reconcile these differences that which I find more suitable to reason in these indigested discourses which the Doctors make upon this Subject may be comprehended under these conclusions 1. Where the defence iâ— not absolutely contrary to the Libel it ought only to be admitted to probation 2. Though it be contrary to the Libel yet according to the Doctors a conjunct probation should be granted for besides the former reasons I find the Civilians debate very learnedly whether when the pursuers probation of the Libel is expresly contrary to the probation led by the defender the pursuers or defenders probation ought to be preferred Bossius tit defens reor which question were needless if a mutual probation were not allowed eo casu and Boss. there advises the defender capitulare directe contrarium ejus quod libellatur and when the probations differ the ordinary rules to be followed are that 1. The defenders probation is to be preferred Gloss in cap in nostris detest because it is admitted by the presumption that nemo presumitur diliquisse Boss. ibid. But if the probation be not equal the greater number or these who depon what is most probable or the worthiest persons ought to be believed Boss. ibid. How far this Doctrine is allowed by our practique will appear from a case decided in Iun 1670. In which William Mackie being pursued for killing Hoom in a single Combat
Probations should be led in presence of the Assizers 10. The Assize after inclosure can speak to no man 11. How the Assize ought to proceed after they are inclosed 12. Wilful errour in Assisers how punished and by whom I. ALL judgements were at first pronounced by neighbours and thus amongst the Romans were centum viralia judicia and amongst the Feudalists pares curie were only Judges in place of which last came our Assizes in France England and Scotland they are called a condign inquest because these should be pares â—uriae ita condigni The Word Assize is originally French and signifies properly siting or Session les assises sont les grands jours plaids solemnels Roy Charles Anno. 1413. vid. judicem Regean verb. assise where it will appear that Assize in French signifies a Judicator and in our Law it is often taken for a constitution or Statute which is made by that Session or sitting of the Judges and thus the Statutes of King David are called assisa regis Davidis and assisa terrae is called the Law of the Land Assisa is likewise sometimes called a measour and thus it is said Ia. 3. Pa. 14. cap. 110. that the Barrel should contain the Assize and measour of 14. gallons and the assisa halâ—cum or assize of Herring signifies a certain quantity and measure of Herring which pertains to the King as a part of his Customes Ia. 6. Pa. 15. cap. 237. And in the French Law it signifies a Tax also Regean ibid. But the proper acceptation of the Word Assize as it is now determined by custom is to signifie those who are chosen by our Law to determine either in civil or criminal cases the matter of Probation and are in effect neither properly Judges nor Witnesses but both II. For the more exact clearing of the Office of Assizers in criminal cases the Reader may take notice that the Libel alwayes beats that the pursuer shall Summond an Assize not exceeding fourty five persons which shall be given up in a Roll to the Messenger and should be subscribed by the pursuer which Roll shall be annexed to the end of his execution Ia. 6. Pa. 6. cap. â—6 But albeit this Act appoints that the Roll shall be subscribed by the pursuer yet it is sustained as valid though not subscribed by him if he homologat and ratifie the execution given in by the Messenger albeit it may be alledged that the Summonding of Assizes is eo casu not lawful seing it wants a warrand this subscribed list being by the foresaid Act of Parliament and Summonds it self appointed to be the warrand as also albeit by the Act the Messenger is prohibit to cite any more then fourty five under the pain of five hundred Merks yet the execution is not eo casu declared thereby to be unlawful and by that Act it is likewise declared that upon supplication the Lords may allow more persons to be cited then fourty five Why the pursuer should have had the choice of the Inquest may be doubted And if Assizers may judge ex propria scientia it would appear that to allow the pursuer the choice of the Assize were to put the defender absolutely in his will And I find that Gail l. 2. obs 34. concludes that the custom of some places allowing domino electionem parium pares apud nos signifies Assizers is most unreasonable quia dominus ita est quodam modo judex in propria causa nam est procul dubio eos electurus per quos se victoria potiturum sperat Alvarot ad cap. 1. de contrav send To which difficulty it may be answered in defence of our Law and Practique that 1. Where the Advocat is pursuer it is presumeable that he will be most just and that he will proceed without interest or malice 2. These Assizers are in effect either Judges or Witnesses and the pursuer hath still the choice of both Judges and Witnesses if they be otherwise competent 3. As the defender may decline them if there be any reason for it so they are sworn nor is it presumeable that any will be so impious to condemn a man to dy to please others Upon which presumption our Law leans so much that though Assizers condemn unjustly they are not liable to an Assize of error as is believed But by the third Article of the Regulation 1670. the list of the Assizers is to be made by a Quorum of the Justices and that list should express not only the names but the designation of the Assizers When the day of compearance is come and the Letters are called and the Assizers are likewise called and each absent Assizer is for his absence fin'd in an hundred Merks and their unlawes are to be taken up without any composition Ia. 6. Par. 12. cap. 126. by which act it is likewise appointed that an act is to be extracted upon their said absence and is to be delivered to the swearer or his Clerk within six dayes thereafter that Letters may be direct therupon for taking their unlawes but the pain of ilk absent Assizer at a Justice Air is to be fourty Pounds Ia. 6. Par. 11. cap. 81. If the Assizers Summond be not present others may be Summoned at the Bar or apudacta as we call it Ia. 4. Par. 6. cap. 94. When the Assizers are called fifteen of them are marked and then the dittay is read for the debate upon the relevancy must be in presence of the Assize Ia. 6. Par. 1. cap. 90. seing albeit they be not Judges to the relevancy yet since they are Judges to the Probation which depends much upon the relevancy and seing the Justices remit several defences which are propon'd against the relevancy to the Inquest it is most reasonable they should hear the debate III. The defence against the relevancy begins thus it is alledged by A. C. as Procurator for the Pannel that the Pannel should not go to the knowledge of an Inquest because c. And after all the defences are discust the words of the Interloquutor bear that the Justices either sustain or repel the defence and find or find not that the Pannel should go or not go to the knowledge of an Inquest and if the Justices find the Pannel should go to the knowledge of an Inquest either the Pannel confesses quia in confessum nullae sunt partes judicis therefore he may be banished or scourged without being put to the knowledge of an Assize as in Rutherfoords case the 9 of Iuly 1622 and in Iobs case who was scourged and banished for Bigamy without an Assize 19. Ianuary 1650. But if the crime be capital or the Pannel do not willingly acquiesce to the punishment it is still securer to put the Pannel to the knowledge of an Inquest because the Justices are only competent Judges to the relevancy and the Inquest only can find the Libel proved IV. Albeit it be a received principle in our Law that the Justices
are only Judges to the relevancy and Assizers to the Probation yet to distinguish the limits of their different cognitions becomes very oft difficult upon these two accounts 1. By express act of Parliament Ia. 6. Par. 12. cap. 151. it is Statute that because parties were oft-times frustrat of Justice by alledging irrelevancy against criminal Libels therefore when the persons complained upon are libelled to be art and part no exception or objection shall take away that part of the Libel in time coming so that albeit the greatest debate concerning relevancy amongst Lawyers in criminal cases did arise upon these common places cujus ope auxilio assistentia mandato c. ea crimina erant commissa and from what circumstances these could be inferred yet now the debate upon all this falls not by that act under the cognition of the Assise all these being branches and qualifications of art and part 2. The Probation requires oft-times in it somewhat of relevancy to be previously debated as for instance whether an extrajudicial confession is binding or what Witnesses in Law are receiveable or not all which cases do oft-times confound the cognition of the Justices and Assisers but for clearing of these limits thir following conclusions are to be observed 1. That in Dubio all that concerns Law is to be judged by the Justices and what concerns fact by the Assise 2. Regulariter all that is in the Libel falls under the Cognition of the Justices and therefore I will recommend it as a caution to Advocats that when they are jealous of the ignorance of Assisers and find the case intricat that they do not simply libel that such persons were art and part but that they libel them to be art and part in so far as they rescu'd the malefactors c. For when the qualifications from which art and part are inferr'd are expresly libelled the Justices are Judges to the relevancy of the inference but if these condescend not that they are art and part in so far as c. then the Assizers are only Judges competent thereto though the same be in apicibus juris because of the former act as was found in Captain Barclays case November 1668. where they refused to force the pursuer to condescend quo modo art and part albeit this be very dangerous seing Assizers are oft-times ignorant persons and yet they forced the Pannel to condescend upon the particular qualification of self-defence and would not refer to the Assise to consider the qualities of self-defence which would arise from the Probation as to which I could never find any reason of disparity but that by the act of Parliament the one case is appointed to be decided by Assisers whereas there is no Statute as to the other but to speak ingeniously I find no act of Parliament more unreasonable then this for the Statutoâ—y part of that act committing the tryal of art and part to Assisers seems most unjust seing as has been said before in committing the greatest questions of the Law to the most ignorant of the Subjects is to put a sharp Sword in the hands of blind men and the reason â—â—nductive of this act specified in the narrative is likewise most inept and no ways illative of what is thereby Statuted since debates upon the relevancy could very litle have hindred and never have hindred justice for the relevancy is debated now as copiously as before that act with this only difierence that it was then debated before Judges who could have kept Advocats at the point whereas now it is debated before Assisers who know not how to bound or how to stop them But a better reason for this Law had been this viz. That the pursuer is not allowed to examine the witnesses and so is not presumed to know what they can say and therefore he cannot exactly know al the circumstances which are necessar for founding a clear condescendency in Art and Part untill he hear the Witnesses depon And seing the Assizers are only Judges to the deposition of the Witnesses therefore they ought likewise to be Judges to the qualification of Art and Part but I think that after the Witnesses have deponed the Justices should still determin what is Art and Part and should not leave the same to the Assizers and as they are founded quo ad this upon the former principle that they are only Judges to the matter of relevancy so they are not excluded therefrae by the foresaid act of Parliament for it only ordains that Art and Part being libelled no objection shall take away that part thereof And thus if a man be pursued as Art and Part of Murder the Libel should doubtlesse go to the knowledge of an inquest But when the probation is led the Judge when he heares the Probation to run upon rescue mandat or ratihabition should tell the inquest what Acts in Law do infer either of these and then to leave it to them to judge if these Acts which he declares to be relevant be proved And it is much fitter then to leave poor ignorant Assizers to the impression of Advocats who may byasse them by their repute authority or confidence 3. Albeit the Assize be Judges of the Probation yet what manner of probation is requisit belongs to the cognition of the Justices and thus the Justices determined in Balcanquels case in Anno 1665. That witnesses could not be proved to have perjured themselves by the depositions of other witnesses but only by writ or reexamination And in the Action of Usury pursued against witherspoon March 1666. They found that Usurary pactions being extrinsick to the writ could be proved by other witnesses then the Witnesses insert And in the case of Wilson November 1667. they found that the receiving more then the ordinary Rent was not probable by the Oath of the payer and yet if any of the Assizers pleases he may desire ad informandam conscientiam judicis any probation whatsoever to be taken and thus often times in the criminal Registers Assizers have caused read Testificats from Chirurgians and others licet regulariter testibus non testimoniis est credendum The last rule is that before the Assize be sworn all the cognition belongs to the Justice but after they are sworn the Justices functi sunt officio and all thereafter falls under the cognition of the Assizers as is clear by the very words of the Justice Interloquutor which runs thus the Justices finds the Libel relevant notwithstanding of the defences and ordains the Pannel to passe thereupon to the knowledge of an inquest But to prevent all thir difficulties I wish that the Justices were Judges both to relevancy and probation which overture seems most fit and advantagious for these subsequent reasons 1. That there is such a contingency betwixt relevancy and probation that they should not be disjoyned and sure they must best understand what probation is requisit who have considered the relevancy upon which it depends and for
knowledge yet the truth of that principle may be doubted upon these reasons 1. Because by the foresaid Act of Parliament par 11. K. Ia. 6. All Probation should be led in presence of an Assise and Pannel but so it is that the privat knowledge of Assisers cannot be laid to be led before them 2. If Probation were led publictly defenders might propon interrogators whereby the matter of Fact might be more fully cleared and even the Witnesses own mistakes might be removed of all which just advantages he is precludit by that principle 3. The great reason why by the act Probation should be led in presence of the Pannel is because in Law it s presum'd a Witness will stand more in aw to depon falsly in presence of the Pannel then otherwise for which cause confronting of Parties and Witnesses amongst themselves when they are contrary is much used and treated of by the Doctors 4. If assisers may give their verdict upon privat knowledge then they could never be pursued for error because if privat knowledge be the rule I can hardly understand how men can be convict as having transgressed against that rule seing albeit it be easier to judge what a man should know yet it is impossible to judge what a man doth know 5. By the Civil Law and the opinion of almost all Divines and Nations judices debent judicare secundum allegata probata IX From the foresaid Act Parl. 11. ordaining all Probation to be received and used in the presence of the Assisers and Pannel it may be deduced by a necessary consequence that no Witness should be examined in criminals ad futuram rei memoriam and that no witnesses should be examined by Commission and albeit it may be objected that in crimine falsi the Probation led before the Lords is not repeated before the Justice and Assisers before whom nothing is used to instruct the falshood but the Decreet of improbation pronounced by the Lords for in that case the Lords being by Act of Parliament declared Judges competent to the cognition of Falshood their sentence habetur pro veritate and is probatio probata so thaâ— the producing of it is the leading of Probation before the Assise This priviledge that no Probation should be led but in presence of the Pannel and Assise may be past from by the Pannel seing it is introduced in his favours and therefore it was found the 9. of March 1671. that the diet could not be continued against Charles Robertson because of the absence of the Witnesses seing he was content to stand to the Depositions formerly taken but they caused him subscribe his consent After the Probation is closed the Pannels Advocats makes a speech to the Assise wherein the termes they use to them is good men of inquest and after they have ended His Majesties Advocat speaks but there are no Duplys or Triplys used and it was the priviledge of His Majesties Advocat to be the last speaker which priviledge was assumed likewise by all other Advocats for the pursuer but by the tenth article of the Regulations 1670. the defenders Advocat is now the last speaker except in the case of Treason and Rebellion so that this priviledge holds only in Perduellion but not in ordinary Treason X. When both these discourses are ended then the Assize are inclosed but before they be inclosed they should endeavour to be satisfied of any doubt for if after inclosing any person speak to them or if any of them come out of the place where they are inclosed until the verdict be pronounced the Pannel is eo ipso clean and innocent Act 91. Parl 11. Ia. 6. the reason inductive of which act seems to be fear of impressing or suborning the Assize and therefore the practice allows Assizers sometimes to send out some of their number to the Justices to receive informations in matters of fact and finds that in so doing they transgress not this act as in Kennedies case August 1662. And after a full debate upon the 24. of December 1672. It was found that any of the Assizers disclosing and coming out of the house after they had past a vott though the verdict was not subscribed be the Chancellour was not sufficient to annul the verdict albeit it was here alledged that there might be great debate upon the wording of the verdict and so the Assize should not have disclosed until the verdict was subscribed By this act likewise the Assizers and not the Justices are Judges competent to this exception against the verdict as was found in the foresaid decision 1672. wherein the Justices found that themselves were Judges competent to the relevancy of any such alledgeance but that it belonged to the Assize to judge the Probation of that exception though it was alledged that the Assizers could not at all be Judges thereto seing they were the delinquents in that case and if most part of the Assize had disclosed it were absurd that they should be Judges to their own Delinquency At that time the Lords did likewise declare that if any Assizer should disclose before the vots were compleat so that the vrdict might be thereupon anulled they were punishable by the Justices and should be obliged to repair the loss which either the King or Party incurred So that Assizers are allowed to speak to Judges or Advocats but are not allowed to make any address to them after inclosure as said is It is likewise observable from this act that albeit the Clerk be discharged to enter in where the Assize sits after they have chosen their Chancellour yet defacto the Clerk sits still with them and it was thought fit he should do so because they being oft ignorant and unaquanted with the forms and procedure of that Court they should have some person to regulat them and none so fit to do it as the Clerk yet by the late Regulation 1670. it is appointed that the Clerk shall not be present and sure the Clerk was worth ten and did influence too much XI After the Assize are inclosed they choose a President who is called Chancellour of the Assize and proceed to read and thereafter to reason upon what is debate and their determination is called the verdict of the Assize which is subscribed by the Chancellour it is called verdict quasi vere dictum and sometimes it is called warda curiae quon Attach cap. ubi aliqua thereafter the Assizers enter again into the Court and there the verdict is read and the Chancellour stands up and owns the same after the verdict is read it should and is by the 9. Act of Regulations 1670. closed and sealed with the Seals of the Court of the Chancellour of the Assize and of so many of their number as the Chancelour shall think fit never to be opened but by orders from the Judge of which verdict the Clerk is to have the keeping and if he open the same he is to be deposed and further punished as the
Judges shall think fit It was thought of old that Assizers behoved presently to determine after Probation was led and that it was not lawful to dismisse them until they did enter and return their verdict and the reason of that opinion is because after the Probation is led there may be hazard of suborning the Assizers if the matter were continued to a new day and it were to be feared likewise that the pursuer finding that the Witnesses which he had led did not prove he might be tempted to suborn others and I think this opinion strongly founded but yet in Anno 1665. c. a Baxter being pursued for Sedition the Justices did at my Lord Advocats earnest solicitation dissolve the Court after Probation was led and continued the matter to a new dyet but the accusation was never further prosecute and that procedure was thought mali exempli yet thereafter His Majesties Advocat continued an Assize who sat upon Macknab for theft for not being clear to condemn upon an extrajudicial confession they proposed the case after they were inclosed whereupon the Justices continued the dyet till the next day and having consulted the Council they thereafter found the confession sufficient and inclosed the Assize notwithstanding of this objection November 1669. XII When the Advocat closes his discourse for the pursuer he protests for an Assise of errour against the Inquest if they assoilzie which Protestation he causes to be marked by the Clerk and it may be doubted if the pursuer or His Majesties Advocat can pursue the Inquest for errour if this Protestation be not used even as a qualified Oath is not allowed except it be protested for And it was debated in the case betwixt the Lady and Laird of Milntoun if a reprobator could be raised where the party laesed protested not for it seing Protestations were such solemn Acts as the Law required in such cases and they were unnecessary and superfluous if what were protested for could be allowed without being protested for and the party to whom such Protestations were competent doth eo ipso passe from his right and seems to acquiesce in what is to be done if he use them not vid. Durand specul tit reprobat in initio but this case was not decided yet the Lords inclined to allow a reprobature if there was reason for it though no Protestation was used and I believe that action of errour may be raised though it be not protested for if the verdict be quarrellable though a Protestation be both more secure and formal and really there is good reason why it should be used seing the Inquest is by that solemn denunciation and intimation warned of their hazard and their errour because it becomes thereby more wilful then otherwayes it would be A Summonds of errour is alwayes raised in Latine and upon Parchment and is direct out of the Chancery Wilful errour is that crime which Assizers commit in pronouncing an unjust verdict and by our Law an Assize condemning cannot be pursued tanquam temere jurantes supra asisa as is commonly believed by the 63. Act 8. Par. Ia. 3. the reasons of which opinion may be three 1. It is not presumeable that indifferent persons would condemn an innocent out of feid or favour though there be some reasons to be jealous that they might be induced out of either pitty or clemency to assoilzie from a crime fully proved 2. No person would be found to go upon an Assize if they might be punished for condemning 3. The penalty of such as temere jurarunt super asisam is only confiscation of the moveable goods cap. 14. lib. Regiam Maje whereas death would be oft-times the punishment if such as condemned might be punished yet I am of the opinion that if the Assizers did condemn an innocent without any Probation or by palpable iniquity that eo casu they might be punished And my reasons for this opinion are 1. That else the people would be stated in a very unfortunat condition if not only they lay open to the hazard of being condemned upon the deposition of any two men but likewise to the arbitrarinesse of an Assize who might condemn without any clear probation 2. Assizers are Judges and Witnesses and therefore must be liable to all the errors for which these are accountable but so it is that if a Judge condemn unjustly or if a person be condemned upon the deposition of any Witnesse who depones falsly that Judge or Witnesse so deponing are liable to a capital punishment why then should an Assizer be exempted seing there is no expresse Law upon which he can found that exemption And in answer to the contrary arguments it may be contended That as to the first it is not concluding seing else it might by the same argument be concluded that no Judge or Witnesse could be pursued when they condemned unjustly seing omnis homo praesumitur bonus at least Perjury should never be punished in a Witnesse nor injustice in a Judge deciding unjustly and by that unjust decision murdering the person pannelled before them because forsooth it is not presumeable that a Witness or Judge would murder an innocent by their sentence or deposition To the second it is answered that all men may be forced to passe upon Assizes upon their perril and thus Assizers are forced though there is hazard also in assoilzing and Witnesses are forced though there be great hazard in Perjury if they depon falsly To the third it is answered that there needs no Law to punish Assiâ—ers condemning unjustly seing they are punishable by the Common Law But that it was necessary there should be a particular Statute to punish such as assoilzied unjustly both because the Common Law was not so express as to this and because men might be induced to think that there was no great hazard in it This errour in Assizers is to be tried by a great Assize of twenty five Noble Persons Act 63. Parl. 8. Ia. 3. but the person assoilzied is to be free ibid. And by an act of Sederunt of the Session Anno 1591. it is declared that all landed Gentlemen shall be in a capacity to pass upon an Assise of errour though they be of Quality and Estate inferiour to the Pannel and wilful errour is only punishable in this case quaelibet probabilis causa ignorantiae excusat Spot tit Retours Ker against Hartwood-mires and by the 47. Act Par. 6. Ia. 3. It appears that no Probation can be adduced to infer this action of errour but what was at first produced the time of their verdict whereas any Probation may be adduced in fortification of the verdict quarrelled tantus est favor innocentiae the punishment of such as are found guilty by an Asssize of errour is the escheating of the Moveables and a Years imprisonment cap. 14. l. 1. Reg. Maj. which is ratified by the 47. Act 6. Parl. Ia. 3. where it is Statuted that wilful or ignorant Assizers shall be
severus ff de pâ—nis D. severus rescripsit confessiones reorum pro exploratis criminibus haberi non aporteri And when the Eclog. sayes cap. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 suitable to l. 4. ff de confessis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui servum occisum intermisse se fatctur licet non occiderit ex confesso tenetur This is to be so interpreted that a man past 21. may be executed upon his own confession without enquiring whether what he confest be true But it doth not follow that if the confessor can prove he confest what was false he ought not to be repon'd TITLE XXV Probation by Oath by Write and by Presumptions 1. In what cases is a Pannel obliged to give his Oath 2. Whether a Pannel is obliged to deponâ— when the Iudge declares that his deponing shall not inferâ— a corporal punishment 3. In what cases can crimes be proved by Write and Whether a Write that is null can prove a crime 4. How far can a crime be proved by presumptions I. PRobation by Oath is not regularly admitted in criminal cases for the pursuers Oath is never probative even in civil cases except it be adduced in supplement but the Oath of supplement by the pursuer is used upon no occasion in criminals Neither is the defender forced to give his Oath in criminals as he is in civil cases both because it is unjust to force a man to condemn himself and because it is most probable that he who is accused for a crime would hazard his Soul by Peâ—jury to redeem his Blood by an Oath But because the excessive love which we bear to life is the occasion of this exemption therefore where the punishment is not corporal corporis afflictiva the defender will be forced sometimes to give his Oath as in the case of Riots and Blood-wyts Sometimes likewise the Law because of the scantness of the Probation obliges him who is accused to give his Oath as in the case of Usury which is a crime odious in it self and cladestinely carried on Ia. 6. cap. 247. Par. 15. And in the case of Simony Ia. 6. Parl. 21. yet neither of these crimes are corporally punished and therefore these rules may still hold 1. That Probation by Oath of the defender is never allowed by Law neither ubi paena est corporis afflictiva nec ubi infamia irrogatur quia nemo tenetur probare suam turpitu dâ—nem fama vita quoad hoc aquiparantur 2. That a person accused may be obliged by an express Law to depon though the crime for which he is accused may infer Infamy 3. That no Law should force the defender in a criminal Process to swear where the crime may infer death nor have we any such Law in our Kingdom II. It is oft contraverted both in the Council and Criminal Court whether though the crime be in it self such as deserves a corporal punishment yet if the pursuer and His Majesties Advocat likewise declare that they will not pursue the same criminally ad paenam corporalem infligendam if eo casu the defender may not be forced to depon which question may be resolved by these conclusions 1. That though the pursuer declare that he will not insist criminally yet that declaration is not sufficient because His Majesties â—dvocat may pursue 2. Though His Majesties Advocat concur with the pursueâ— in the declaration yet it is not sufficient seing His Majesties Officers cannot prejudge His Majesty by any Declaration of others for else they might by such Declarations as these in effect remit crimes 3. The Declaration of the Council is not sufficient because they may not prejudge a criminal action which may be intented before the Justice Court as was found in the case of some Gentlemen and others who being pursued before the Council as Plagiaries for taking away Anna Gibson it was found by the Council that they were not obliged to swear though both the pursuer and Advocat declared they should never be criminally pursued 4. I conceive that neither the Declaration of the pursuer nor defender even in a criminal pursuit before the Justices though agreed to by the Justices would not be sufficient to force the defender to swear for I think that though the defender should co casu upon Oath deny his guilt that he might be of new pursued and convict upon clear Probation for His Majesty and the Publicks interest can never be prejudged by any Declaration of His Officers nor can any remit crimes as I said formerly III. Crimes do not ordinarly use to be proved by Write and when they may be so proved there is little difficulty as to the Probation only it may be observed that it was found in the crime of Falshood pursued against Captain Barclay that a Write may be proved false without pâ—oduction of it and in Purdies case that a discharge was sufficient to prove Usury though it wanted both Writers name and Witnesses seing the pursuer offered to prove the subscription by his Oath but it is observable that Pannels are in Usury obliged to swear and therefore it may be doubted whether a Write not subscribed before witnesses doth prove a crime since all writes of importance are by Act of Parliament declaâ—ed null if they want the Writers name and Witnesses and if they be not believed quo ad a civil effect much lesse in a criminal nor is the Pannel here oblidged to make up the same by his Oath as in civil cases And yet the Marquess of Argile was convict of Treason upon Letters writen by him to General Monck these Letters being only subscribed by him and not Holograph and the subscription having been proved per comparationem literarum which were very hard in other cases seing comparaâ—io literarum is but a presumption and mens hands are oft-times and easily imitated and one mans write will differ from it self at several occasions IV. Presumptions are divided in Presumptions that are violent for strong Presumptions are so called and these that are not violent they are likewise divided in praesumptiones juris presumptiones juris de jure Whether crimes may be proved by pâ—esumptions is much contraverted both in Law and Practique and that they cannot be proved by presumptions is inferred from these reasons 1. Presumptions are only founded upon verisimilitude and what may be may not be whereas all Probations especially in criminals should be infallible and certain conclusio semper debet sequi debiliorem partem 2. If crimes could be proved by presumptions Judges would be arbitrary in all cases seing the Law cannot determine the number and weight of Presumptions as it doth in other Probations 3. The Doctors universally conclude that Presumptions do not prove crimes as is clear by Mascard Farin c. Upon the other hand it may be argued that a crime may be inferred from Presumptions and that for these reasons 1. l. ult Cod. de probationibus ubi asserit
pâ—sse crimina vel idoniis testibus vel apertissimis documentis vel judiciis judubitatis probari l. 2. ff quon apell non recip ubi jubetur curialis observare ne quis homicidarum Adulterorum c. Argumentis convictus testibus superatus vel voce propria confessus audiatur apellare 2. Since Witnesses are only believed because it is presumed they will not damn themselves why may not other Presumptions be likewise received 3. Presumptions are in many cases allowed as a sufficient Probation as the presumption of Cohabitation after the parties are discharged is sufficient be Act of Parliament to infer Adultery 4. The depositions of Witnesses are oft-times founded upon Presumptions as when they depon upon dolus malus ebriety or any other thing which depends upon acts of the mind 5. Many have been condemned upon Presumptions as Ianet Brown who was convict for Murder of her own Child upon presumptions and hang'd accordingly the 25. of Iune 1614. And Scot was convict and hanged for killing of Drumlanrigs Sheep the 20. of February 1616. And after a solemn debate how far Presumptions could prove in criminals in Alexander Kennedies case he was convict and hanged for falshood upon Presumptions in Anno 1662. This difficulty hath forced some of the Doctors to conclude that this case is arbitrary and others to conclude that Presumptions may infer paenam extraordinariam sed non ordinariam Cod. fab tit de paen which last opinion is upon the matter coincident with the first for in arbitrary cases the Judges can never proceed to death and it seems that both these opinions are well founded because not only the committing of crimes but even the giving of scandal and the doing that which is like a crime deserves to be some way punished but this arbitrariness should only in my opinion be allowed to the Council who are a supream Judicatory and are in such extraordinary cases tyed to no express Law TITLE XXVI Probation by Witnesses 1. How witnesses are cited with us 2. Who are testes ultronei 3. What witnesses are not worth the Kings unlaw 4. When women may be admitted to be witnesses and when not 5. How minors are to be admitted witnesses 6. Persons guilty of crimes cannot be admitted 7. Persons within degrees defendant are not admitted and who these are 8. Domestick servants when admitted 9. Moveable Tennents 10. Socius criminis 11. Defenders cited as parties 12. What time is considered in the hability of a Witness 13. Whether Witnesses inhabile may be received at His Majesties instance 14. Who are testes singulares 15. The contrariety in depositions considered 16. Causa scientiae 17. Witnesses ad futuram rei memoriam 18. It is now necessary to give in a list to the defender of the witnesses names who are to be led against him 19. Absent witnesses how punished and compelled 20. What number may be cited for proving each crime IF the crime be pursued by raising of a Summonds that Summonds contains a warrand to cite witnesses but if the pursuite be by way of inditement the Justices grant warrand by precept for citing of Witnesses At the day of compearance the pursuer gives in with his execute Summonds executions likewise against the Witnesses and if the executions against the Witnesses be not legal the dyet is deserted But if the witnesses be lawfully cited and compear not of old there was a warrand given to apprehend them and the dyet was continued but now there are formal Letters of Caption given under the Signet of the Session and not of the Justice-Court and the Letters are still raised by the Justice-Clerks deputâ— who is the ordinary Clerk of Court And if the Sheriff refuse to apprehend the Witnesses by vertue of the Caption the Letters will be direct against himself as in civil cases and this was first observed in the cases of Mackalla against Lindsay After the Justices have found that the Pannel should go to the knowledge of an Inquest he asks the pursuer what way he will prove his Libel and if the probation by witnesses be chosen as the manner of Probation to be used II. The Justices desire the Clerk to call the Witnesses and if any be given in in the list against whom there is no formal execution it is alledged they cannot be received and this is the first objection against the witnesses and is founded upon this reason viz. that he who offers himself to depon without being lawfully cited is presumed to be too desirous to depon and so to have malice These the Civil Law calls testes ultronâ—i yet I find that the Justices sometimes receives witnesses cited apud acta as Alexander Forrester against a Witch the 3. of August 1661. So though they will not receive a witnesse who appears upon an unlawful citation and which he knows to be unlawfull yet they will receive some though not at all cited for the first show a complyance but not the last all the objections against the Wittesses are discust before they be sworn for it is below the Majesty of an oath to administrat the same unnecessarily before it be known whether the person to whom the oath is to be administrat will be received To object against a witness in our Law is called to cast a witness or to set him and by the Doctors it is called to repel a witnesse but because objections against the witnesses or oppositiones contra testes as Farinacius calls them are so largely treated of by him and others I shall therefore only take notice of some particular objections which are mentioned and made use of frequently in our Law and practique And in Law these objections are divided into such as are used contra personas testium and these which are used contra dicta testium I shall therefore first treat of these objections which are used contra personas testium III. Witnesses are not admitted with us if they be not worth the Kings unlaw which we interpret to be ten pounds and because no man can know the value of anothers estate this objection is found therefore only probable by the oath of the witnesse himself as was found in the case of Ruchead against Muire the 9. of December 1668. But this seems strange for since the Law is jealous that he will depon unjustly why it should believe him as to his own quality and therefore I think that in Criminal cases when the hazard is so great the being known to be an actual beggar should be sufficient per se to cast a witnesse without referring the same to the witnesses oath This objection is founded upon the presumption that such as are poor are liable to impression And such as are poor are expresly repelled from being witnesses by the 34. cap. stat 2. Rob. And they were likewise repelled by the Civil Law IV. Women regulariter are not witnesses neither in Civil nor Criminal cases with us nor should they make as much faith with us
prove his exception both because the dyet was peremptor and because he was not allowed to have a diligence for proving thereof for remedy whereof by the 11. Article of the Regulations of the Justice-Court it was appointed that when the Libel or Summonds of Exculpation is execute the names of the inquest and witnesse should likewise be given to the defender to the effect he might know what to object against them and diligences are thereby allowed him for proving his objections Against this Article it was murmured that first this would be very difficult for the pursuer could not know what witnesses were to be adduced and much lesse what Assizers might be present for they could not assure their attendance 2. This might prove a mean of corrupting witnesses and Assizers who if known might be practised But to these it may be answered that no man should raise a Criminal pursuite to vex men in their fame and fortune till he were secure that he could prove hiâ— Libel which infers necessarly that he knew the witnesses who were to be adduced And seing the pursuer might cite 45. he might be confident fifteen of them would obey and be so wise as to evite the penalty And this objection would tend much more against all continuation of Assizers for a whole year which is very ordinary To the second it may be answered that either the witnesses to be adduced are honest and then there is no fear of practising or they are false and obnoxious to corruption and then they should not be received at all And it were inhumane that a mans life and fortune should be laid open to the depositions of these whom the Law durst not allow to be known for fear of being brib'd and corrupted And this inconveenience could hardly have been evited before thir regulations for ordinarily the defender knows who were present and needed suspect that none will be adduced who were not present As likewise when dyets are continued as frequently they were the witnesses were still known but these jealousies are by very much lesse dangerous than the inconveniencies which attend the not allowing the Pannel to know what witnesses are suspitious and should be declined And our Law should either not have allowed objections against witnesses or else should have allowed a dyet and means for proving them nam quando aliquid conceditur omnia concedi debent sine quibus ad hoc perveniri nequimus XIX If witnesses compeared not of old the dyet was immediatly deserted but now Caption will be direct against them and the dyet will be continued for it is unreasonable that the pursuer or Fisk should be prejudged by the contumacy of the witnesses but if two compear it may be doubted if eo casu if the dyet should be continued for two are sufficient for proving the Libel but because moe witnesses than two are oftimes requisite there being many circumstances to be proved therefore it seems hard that the dyet should not be even eo casu continued And at other times there may be objections which may cast such as are present and therefore the Justices continued the dyet against Braco Gordoun the 11. of November 1671. Because the defender would not declare that he would use no objections against such as were present Though regulariter the Justices will grant warrand to apprehend and secure parties who are suspect of crimes till they find surety yet they refused to secure or attach such as were cited to be witnesses lest thereby they should discourage men from compearing to bear witness December 1672. In answer to a petition given in by the Marquess of Montrose Tenents XX. By the custom both of the Council and Criminal Court ten witnesses are allowed to be cited upon every separat matter of fact and Article of the Libel and no moe to evite confusion nor wants there precedents for the number of ten in this case since cap. 5. Legis Mamimiliae inque eam rem is qui hac lege judicium dederit testibus publice duntaxat in res singulas decem denunciandi potentatem facito and I find in Valerius probus this to be an Article edicti praetorii testibusque publice dumtaxat decem denunciandi potestatem faciam to which number witnesses are stinted by a Statute of Lewis the 12. of France Langlaus semestr lib. 3. cap. 5. from which Statute our custom seems to have flow'd TITLE XXVII Of Tortour 1. By whom can Torture be inflicted in our Law 2. Torture purges all Presumptions 3. Whether may persons who are condemned be thereafter Tortured 4. Who are exeemed from Torture 5. How should such be punished who Torture unjustly I. TOrture is seldom used with us because some obstinat persons do oft-times deny truth whilst others who are frail and timorous confess for fear what is not true and it is competent to none but to the Council or Justices to use Tortour in any case and therefore they found that Sir William Ballâ—ndene as a Captain could not Torture though it was alledg'd that this was necessar sometimes for knowing the motions of the enemy and might be necessar and allowed in some cases to Souldiers for the good of the Common-wealth And the Council are so tender in Torture that though many presumptions were adduced against Giles Thyre English man suspected of Murder and Adultery they refused to Torture him albeit it was prest zealously by His Majesties Advocat II. It is a brocard amongst the Doctors that he who offers to abide the Torture purges all other presumptions whiâ—h can be adduc'd against him and yet Alexander Kennedy being pursued for forging some Bonds and nothing being adduced for proving the crimes save presumptions offered to abide the Torture but thâ—s was refused Torture likewise being adduced purges all former presumptions which preceeded the Torture if the person Tortureed deny what was objected against him but yet he may be put to the knowledge of an inquest upon new presumptions as was found after a learned debate in the case of Toshoch who was Tortured for the alledg'd burning the house of Frendraught August 1632. for it was alledg'd that Torture is intended for bringing the verity to light and as he had been condemned if he had confest so he should be assoilzied when he denies else no man would endure the Torture if they were not perswaded that upon denyal they should be cleared but would confess and not endure so much torment unnecessarly so that the inquisition would be the occasion of much sin and make men die with a lie in their mouth and therefore Toâ—ture is called probatio ultima vid. Clarâ— quest 64. Yet Spot Maxwel of Garrery and others were condemned after Torture upon other probation then was deduc'd before the Torture III. I remember it was debated in Council Anno 1666. If the West-countrey-men who were condemned for Treason might after sentence be Tortured for clearing who were their complices and it was found that they could not nam
alledgeances proponed be the Pannel 〈◊〉 and their Procurators and writes produced for instructing thereof that the said matter should not passe to the knowledge of an Assize and answers made thereto be Our Soveraign Lords Advocat and writes produced be him for veryfying thereof The Iustice fand the dittay relevant and did put the samen to the knowledge of an Assize of persons following they are to say 〈◊〉 whilks persons of Assize being chosen sworn and admitted and the said 〈◊〉 being accused of the dittay of the crimes above-writen which were verrified be their own depositions and confession in Iudgement they removed alâ—ogether furth of Court to the Assize house where they be plurality of vots elected and chosed the said C. reasoned and voted upon the points of the said dittay and being ripely and at length advised therewith togither with the depositions 〈◊〉 and other writes produced be His Majesties Advocat for the verification thereof entered again in Court where they all with one vot be the report of the said Chancellour fand pronunced and declared the said D. to be filed culpable and convict of the crimes respective above-writen contained in their said dittay for the whilks cause the Iustice be the mouth of 〈◊〉 dempster of Court decern'd ordain'd and adjudg'd the said 〈◊〉 to be taken to the Castle-hill of Edimburgh or Mercat Crosse and there to be hanged till he be dead and his hail moveable goods to be escheat to His Majesti's use or their heads to be stricken from their bodies and the said 〈◊〉 to be taken to the Mercat Crosse of Edimburgh and there his Tongue to be pierced with an hot botkin and thereafter banisht this Realm not to be found thereintil under the pain of death Or to be scourged and all their moveable-goods to be escheat which was pronunced for doom extracted Act of Conviction THe whilk day 〈◊〉 entered upon Pannel dilated accused and pursued be 〈◊〉 be vertue of Crimes purchast be him against them of Art and Part of demembring of 〈◊〉 of the midle finger of his left hand nearest his little finger committed the 〈◊〉 day of 〈◊〉 upon the Street of 〈◊〉 which was put to the knowledge of an Assize of the persons following they are to say 〈◊〉 whilks-persons of Assize being chosen sworn and admitted after accusation of the A. of the crimes foresaid removed altogither furth of Court to the Assize house where they be plurality of vots elected and choosed the said in Chancellour reasoned and votted upon the points of the said dittay above-specified and being advised re-entered again in Court where they all in voice be the mouth of the said Chancellour fand pronunced and declared the said 〈◊〉 to be filed culpable and convict of Art and Part of demembring the said 〈◊〉 of his midle finger nearest his little finger of his left hand committed the time foresaid whereupon the said 〈◊〉 asked Instruments Extractum c. Doom for Demembring THe whilk day c. being entered on Pannel to hear doom pronunced against them as they that were convict be an Assize in a Court of Iusticiar holden within the Tolbooth of Edimburgh the 〈◊〉 day of 〈◊〉 instant for Art and Part of he demembration of 〈◊〉 ut supra the Iustices be mouth of 〈◊〉 dempster decerned and ordained the said 〈◊〉 to content and pay to 〈◊〉 the sum of three hundred Merks in full satisfaction and assithment of the demembration of him of the said finger and to find caution for payment of the said sum to the said 〈◊〉 upon condition that the said 〈◊〉 should deliver to the said 〈◊〉 sufficient Letters of slaynes for demembring him of his little finger who fand 〈◊〉 with themselves conjunctly and severally soverty and cautioner fore-payed of the said three hundred Merks to the said 〈◊〉 in full satisfaction and assithment of demembering him of his midle finger he grant and and giving a sufficient Letter of slaynes as said is and al 's decern'd all the saids 〈◊〉 their moveable goods and geir to be escheat and in-brought to Our Soveraign Lords use as being convict of the said crime whilk was pronunced for doom and ordains Letters of Horning upon a simple charge of ten dayes and poynding to be direct hereupon Dempster our countrey-man hist. eclest pag. 235. relates this solemnity which is now in desuetude lapidem tollit magistratus signatumque quaerenti tradit ille adversarium testes citat si quid ambiguum majoris momenti ad 12. quos claves appellant refertur atque ita sine scriptis aut impensis lites dirimi sunt solitae II. By the former stiles it will appear that the debate is not insert in the Criminal Sentence as it is in Civil Process with us but it contains oft-times the whole Summonds which Decreets for Civil Causes do not These Criminal Sentences likewise express still the manner of the Probation which is the because of the Decreet as we speak in civil causes and this the Doctors confess to be the custome in other Kingdoms inferitur enim causa in sententia ut quod talis accusatus est de tali malificio quod constat per tefles vel per ejus confessionem quod illud maleficium commisit ideo condemnatus est c. Clar. 93. num 21. After the Sentence is pronunced by the Judge it is writen by the Clerk who reads to the dempster the manner of punishment and it is by him repeated and the manner of punishment is called the doom because it is pronunced by the dempster who adds after he has pronunced the punâ—shment and this I give for Doom And I find that by the custome of Italy the Clerk reads the Sentence and the Judges adds ita absolvo vel ita condemno Clar. ibid. III. Albeit the Sentence bear a punishment less then what the Statute irrogats eo casu the Sentence is not by our Law null but the Fisk hath by vertue of the convâ—ction contain'd in the Sentence â—ight to put in execution or to exact what the Law appoints though the Sentence doth not And thus Iohn Wauch in Selkirk being found guilty of theft by the Sheriff of that Shire he was ordained to pay two thousand Merks or to go to Barbodoes in obedience to which Decreet he payed the two thousand Merks Notwithstanding whereof the Exchequer gifted his liferent-escheat to Mr. Andrew Hedderweik who puâ—sued a declarature in which the Lords found that Wauch being once found guilty of Theft there was jus quesitum Regi which the Sheriff could not prejudge by any Sentence no more then he could remit the punishment altogether for in so far as he did mitigat the punishment in so far he remitted it To which it was answered that Theft was arbitrarly punished by our custome sometimes by death sometimes by fyning according to the several degrees of the guilt which was punishable and custome had in this prorogat the power of inferiour Judges 2. If the Sheriff had done wrong he