EDINBURGH The seventh of April 1677. IT is ordered by the Lords of His Majesties most Honourable Privy Council that none shall Re-print or Import into this Kingdom this Book Entituled The Laws and Customs of Scotland in Matters Criminal By Sir George Mackenzie of Rose-haugh for the space of Nineteen years after the Date hereof under the pain of Confiscation of the same to Thomas Brown George Swintoun and Iames Glen Printers hereof and further punishment as the Council shall think fit to inflict upon them Extracted be me Thomas Hay THE LAWS AND CUSTOMES OF SCOTLAND In Matters CRIMINAL Wherein is to be seen how the Civil Law and the Laws and Customs of other Nations do agree with and supply ours By Sir GEORGE MACKENZIE of Rose-haugh EDINBVRGH Printed by Iames Glen Anno Domini MDCLXXVIII TO HIS GRACE JOHN Duke of LAUDERDALE Marquess of March Earl of Lauderdail and Guildford Viscount Maitland Lord Thirlestane Musselburgh Boltoun and Petersham President of His MAJESTIE' 's most Honourable Privy Council of SCOTLAND Sole Secretary of State for the said Kingdom Gentleman of His MAJESTIE' 's Bed-Chamber and Knight of the most Noble Order of the Garter May it please Your Grace THough the number and wit of such as use to write Dedications may seem to have exhausted all that can be said upon such occasions yet I have a new way of address left me which is to write nothing of you but what is true by the confession of your enemies who admire more the greatness of your Parts than of either your Interest or Success And how you have made so great a turn in this Kingdom without either Blood or Forfeiture shewing neither revenge as to what is past nor fear as to what is to come continuing no longer your unkindness to any man than you think he continues his opposition to his Prince All have at sometime confest that you have been the Ornament as well as Defence of your Native Countrey to whom every Scottish-man is almost as dear as every man is to his own Relations And I am sure that your enemies will find it easier to put you from your Office then to fill it and none of them can wish you to be removed without being himself a loser by it Nor can I be so unjust even to such as oppos'd you as not to acknowledge that I have heard them talk of you so advantagiously when design and interest oblidged them to dissemble as almost convinced me that the most of them opposed you only in publick rather from the glory of having so great an Adversary than from the justice of the undertaking And your Countrey has in their late Confluences where they crouded in mighty numbers and with a remarkable joy to meet you when a privat man shew'd greater respect to your naked merit then to the highest Characters by which others were marked out for publict honour Having writ this Book to inform my Countrey-men and to illuminat our Law I could not present it more justly to any than to your Grace who has derived your Blood from a Noble Family which has been still eminent in our Courts of Justice since we had any and who are your self the greatest States-man in Europe who is a Schollar and the greatest Schollar who is a States-man For to hear you talk of Books one would think you had bestowed no time in studying men and yet to observe your wise conduct in affairs one might be induced to believe that you had no time to study Books You are the chief man who does nobly raise the study of the Civil Law to a happy usefulness in the greater and general Affairs of Europe and who spends the one half of the day in studying what is just and the other half in practising what is so All which may be easily believed from me who am as great an instance of your generosity as an admirer of it Especially since you have left me nothing to wish so that what I say needs not flow from flattery and so must be presumed to flow from conviction and gratitude in Your Graces most faithful and most humble Servant George Mackenzie THE DESIGN THe great concerns of men are their Lives Fortunes and Reputation and these three suffering at once in Crimes it is the great interest of mankind to know how to evite such accusations and how to defend themselves when accused And yet none of our Lawyers have been so kind to their Countrey as to write one Sheet upon this pleasant and advantagious Subject which made it a task both necessary and difficult to me In prosecuting this design I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers and having added to them these Observations I have my self made during my twenty years attendance upon that Court either as Iudge or Advocat I collationed all with our Statutory Law the Civil Law and the Customs of other Countreys and the opinions of the Doctors And as I may without vanity say that few valuable Authors treat of Crimes whom I have not read So there is nothing here which is not warranted by Law or Decisions or in which when I doubted I did not confer seriously with the learned'st Lawyers of this Age and yet I doubt not but in some things others may differ from me as the best Writers do amongst themselves And having only designed to establish solidly the Principles of the Criminal Law I wanted room for treating learnedly each particular case or even for hinting at all such cases as may be necessary And without wearying my Readers with Citations which was very easie I have furnished the Book with as much reason as is ordinarly to be found in Legal Treatises The reason why I have so oft cited the Basilicks Theophil and the Greek Scholiasts was not only because none before me have used them in Criminal Treatises but because I conclude them the best Interpreters of Justinians Text For these Books having been Writ in the same Age and place and some of them by those who compiled the Latine Text they must understand it best of all others of which I have given many instances in this Book and shall here adde one there forgot which is that the Latine Interpreters doubt much what is meant by remittendum in the constitution Si quis Imperatori male dixerit some interpreting it pardoned some to be sent back to the Emperour But the Basilicks render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies only ignoscendum I cannot but admire much the wisdom of God who gives not only inclination but pleasure to such as toyl for the good of others for I am sure few men would have from any weaker impulse bestowed so much time and so many thoughts upon an imployment which without bringing gain will certainly bring envy and censure For I find it is the genius of this Age to admire such as make the publick good bend to their designs and to
they may be known and examined and therefore the Lords 21. Feb. 1672. Littlegil contra Somervel found it not sufficient that a witness in a bond craved to be improven was designed indweller in Edinburgh but ordained even the assigney to condescend more particularly though the assignay contended that he being a singular successor who had got a right to the bond he could not know who were the witnesses made use of nor was he obliedged to consider any more when he got his assignation but that the bond had witnesses without requiring who these were and so though the cedent who had gotten the bond might be oblieged to condescend yet he could not and yet improbation being pursued against a bond granted by Sir Lewis Stewart to his son Kettlestone in which bond one of the witnesses was designed Iohn Carnagy servitor to the Earle of Southesk though there were many moe Iohn Carnagies who then served the Earle The Lords found that Kettlestone was not obliedged to designe more particularly which of the Iohn Carnagies wrot the bond and that it was relevant for the improver to offer to prove that at the date of that bond the Earle of Southesk had no servant who could write such a bond 7. February 1672. Another great errour committed by such as take men to be witnesses to the Writs and Evidents delivered to them is that they imploy witnesses who has not seen the party subscribe nor has not so much as inquired at him whether that was his subscription whereas if that paper were challenged as false or null it would be declared null if not false though the witnesse should depone that he was in the next room and it was brought to him immediatly whilst the ink was not yet dry and that he knew his masters subscription if he could not positively depone that either he saw his master subscribe or that his master had declared to him that that was his subscription And this remembers me of this pretty case wherein I my self was consulted A Gentlewoman being to subscribe her contract of marriage desired that because she was ashamed to writ before so many friends she might have the Paper delivered to her to be subscribed in another room and the same having been sent with her to the other room she caused her sister-in-Law who went alongst with her subscribe the same for her pretending that she could not write well and returning thereafter she told the witnesses that that was her subscription which Contract being thereafter quarrelled upon the nullity of not being truly subscribed before witnesses the Lords sustained the Contract the matter of fact above specified being offerred to be proved though it was alledged that this was in effect to make up an obligation of great importance by witnesses In the indirect manner the Lords use to consider the presumptions adduced for the improver in his indirect Articles of approbation and for the party accused in his articles of approbation amongst which indirect articles the chief are Alibi a false date and comparatio Literarum If the party who has been said to have subscribed the writ be proved to be elsewhere as for instance to have been at Edinburgh whereas the writ is alledged to have been subscribed that same day by him in Cathnes this is a very concluding presumption of Falshood since a man could not by the swiftest journey be at both these places in one day and therefore this is a most concluding presumption to annul the Bond but I think it is no convincing argument which can inferr that the Bond is false since people by errour or mistake may and do oftentimes insert a wrong date neglecting the date as a matter of no importance and therefore the Lords did very justly assoilzie from an improbation of a writ which was proved to be false in the date since the witnesses insert were alive and did depone upon the verity of the subscription 23. May 1667. Lord May contra Rosse and upon the 10. of Iuly 1669. Gardner contra Colvil a writ was not improven though it was proved not to have been subscribed of the date that was insert In respect there was a writ of that same tenour truly subscribed that day which being a-missing the granter a long time thereafter subscribed another of the same tenour and date and the first being thereafter found and both produced the user abode by the first simply and by the last as to the verity of the subscription but not of the date which was so insert for the reason foresaid so that though the date be amongst the substantial solemnities requisite to a writ as is clear by the foresaid Acts of Parliament and by the 13. Act 9. Parliament Iam. 1. so that the improver may force the user of a writ to condescend upon a particular date if the date be blank and that the falsenesse of the date will inferr the writ to be false except this presumption can be taken off by a strong contrary probation yet that it may be so taken of is clear from the cases foresaid and in this sense Craig is to be understood who sayes pag. 156. Si falsa data apposita sit totum instrumentum vitiatur nam quod in ea data quae exprimitur non est verum etiamsi aliam datam substituere velit is qui eo utitur non est audiendus quod in data falsa non fuit factum nunquam factum praesumitur If the writ craved to be improven be unlike in its subscription to the other subscriptions used by the subscriber at the time when the Paper quarelled is said to be subscribed then it is most suspect and if both the subscriptions of the witnesses and granter be found to be one hand writ but all of them are unlike the true subscriptions then the writ will be improven by occular inspection as was found in the Earle of Wâ—ymes case contra Gall Iuly 1675. But yet it were hard to infer the corporal punishment of falshood from this probation which is but at best presumptive for the granter of a Bond or other writ might upon designe subscribe to strangers his name far otherwayes then he uses to do meerly that he or his Heirs may thereafter quarrel the same and therefore Cravet Consil. 386. concludes that comparatio sola non relevat in criminalibus and all Lawyers conclude that recognitio scripturae privatae insert plenam probationem si jungatur cum uno teste vel alia somi plena probatione Alex. Consil 239. In the indirect manner the Lords uses to receive witnesses ad futuram rei memoriam and to receive witnesses sometimes by commission as in Captain Barclayes case Albeit it was there alledged that witnesses in the indirect manner of improbation are only received ex nobili officio which could not be committed or delegat and which seems stranger the Lords uses to take the oath of the defender himself albeit regularly in crimes the defender is not obliedged
is probable 3 The nature and punishment of it in Scotland 4 Baratry Ecclesiastick 5 Baratry Civil SImony is the selling or buying any Church Office cupiditas emendi aut vendendi aliquid spirituale aut spirituali annexum So called from Simon Magus who offered to buy the Grace of God And the Canonists teach that it is Simony to paction for any advantage in administrating the Sacraments but not to take reward after they have administrate them II. In this Crime infamous persons whoors and other witnesses who are not habiles or at least who are not omni exceptione majores are here receivable cap. sicut de Simon because it is ordinarly carried on with much privacy and clandestine dealing for which reason likewise Lawyers conclude that it may be proved by presumptions It is crimen mere ecclesiasticum and cannot be punished by Laicks the punishment is depravation III. With us Simony is once mentioned and that is Act 1. Par. 21. Ia. 6. Wherein it is Statute that if the Arch-Bishop or Bishop deprehend that the person who is presented hath made any Simonaical paction with the Patron whereby he hath so hurt the Benefice as that he hath not reserved a sufficient maintenance for himself and his successors suitable to the value of the Benefice that the Bishop may refuse the presentation and the Lords of Session are declared to be Judges to any debates arising betwixt the Bishop Patron and Person upon that account From which Act it is observable 1. That it is implyed and tacitly acknowledged that Simony is a Crime by our Law seing this is punished as a Branch thereof and therefore I conceive that what ever is punisht as Simony by the Canon Law is punishable with us and that a Minister or other Benefic'd Person who bargains or transacts with any to get them a Church or Benefice and gives or promises Money therefore is punishable even by our Law 2. That by this Act a paction whereby the incumbent reserves to himself a competencie suitable to the Benefice is not Simony and what this conpetencie is is left arbitrary to the Judge because it is not determined 3. That this Crime is probable with us by Oath because of its clandestine convoyance as said is By the Stat. Eliz. 31. the person committing Simony is declared uncapable to enjoy that Ecclesiastick Office IV. Baratry is a kind of Simony Socinus reg 55. Bald. part 5. Consil. 21. which with us is committed by these who go to Rome to buy Benefices without licences from the Chancellor or their ordinar I. 1. P. 7. cap. 106. the pain of it is banishment and never to bruik honour or imployment for the future within the Kingdom This word comes from the Italian word Baratry which signifies corrupting of Judges for our Law presumed that these who went to Rome to get a Benefice designed to get it by corruption But though Baraters are called canpones beneficiorum by the Doctors as Craig observes pag. 371. Yet our Kings being of old very submissive to the See of Rome durst not directly at first forbid application to Rome but did only forbid the carrying abroad Money out of the Kingdom knowing that nothing could be done there without Money But thereafter this Crime growing greater the Parliament did by the 84. cap. P. 6. I. 3. forbid expresly the going to Rome to purchase Benefices or to be its collectors under the pain of being demean'd as Traitors and never to bruik Benefice or use Worship which is ratified by the 53. Act 5. P. I. 4. But though the punishment is that of Treason by these Acts yet by the 2. Act 1 P. I. 6. the punishment of Baratry is declared to be prescription banishment and never to bruik Honour nor Office within the Kingdom and all applications to Rome are punishable as Baratry This Act being after the Reformation And by this last Act it is declared that Baratry may be punisht either by the Justices or Lords of Session And upon this Act Iames Arch-Bishop of Glasgow was exauctorated after the Reformation for going to Rome V. The Sons of Noble Men and others passing to Schools beyond Sea's without the Kings Licence are also said to commit Baratry I. 6. P. 6. cap. 71. And the Council uses to ordain Noble Men who breed their Children abroad in Popish Schools to bring them home under a great fine as they did lately to the Lords of Mordingtoun and Semple in anno 1668. Before which Act also all Laicks going out of the Kingdom without consent of the King or Licence from the Chancellor committed Baratry I. 4. P. 5. cap. 53. And though Craig debates pag. 371. whether the punishment of this be the same with Treason because it is said to be punishable as Treason cap. 84. Pa. 6. I. 3. Yet it is clear that this punishment is restricted by the Act 2. P. 1. I. 1. To the being declared incapable of Trust and Banishment This Prohibition of Laicks going abroad was first at Carthage and is now in vigour at Naples and many other places And though it be now in desuetude at least is not punisht except in Privy Councellours Yet I see no reason why any should say that this Crime takes only place in Vassals holding immediatly of the King for the Act is general And yet Merchants are warranted by divers Acts of Parliament to Traffique abroad and so fall not under this Prohibition TITLE VI. Treason Laesa Majestas 1 Treason is divided by the Civil Law in Perduellion and Laese-Majestie 2 The differences betwixt Perduellion and Laese-Majestie 3 Treason with us may be divided in Perduellion Laese-Majestie and Statutory Treason 4 The nature of Perduellion or rising in Arms which is the first species of Treason 5 The second species of Treason is committed against the Kings Person 6 The third is the recepting such as have committed Treason 7 The fourth is to hold out Houses against the King 8 The fifth is to assail Castles where the King resides 9 The sixth is to raise a fray in the Kings Host. 10 The seventh is to trouble any who kills a declared Traitor 11 The eighth is to impugn the Authority of the three Estates 12 The ninth is to decline the King or Councils Authority 13 The tenth is to conceal and not reveal Treason 14 The eleventh is to desert the Kings Host. 15 The twelfth is to deny the Kings Prerogative in having the sole power in calling and dissolving Parliaments 16 How the killing Counsellors is punishable 17 The several branches of Statutory Treason 18 To accuse any man for Treason if the accused be assoilzied is Treason 19 Treason is not Baleable 20 Summonds of Treason ought to be execute by Heraulds 21 Whether less probation be sufficient in Treason then in other Crimes 22 Treason may be pursued after the Committers death 23 Traitors may be forefaulted in absence 24 How disobeying the King is punishable 25 The punishment of Treason in general UNhappy
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
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
word may comprehend negligence is to be put from his office for three years if he be an Heritable Officer and if he be not Heritable he loses his office Which distinction I find also observed by Bald. ad l. manicipia ff de serv. fugit where he says that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo and Farin Q. 3. n. 423. is of opinion that majores officiales non removetur sed minores facile removeri possunt TITLE XXVI Deforcement 1. To whom was the execution of Law committed by the Romans and to whom by our Law 2. What is Dâ—forcement and what are the several degrees thereof 3. The Messenger must have his Blason and give an execution of Deforcement 4. Whether may a Messenger be deforced who wants his Caption or transgresses his power 5. What witnesses can prove a Deforcement or if the Messengers execution can prove it 6. These who deforce may be pursued Civilly for the debt LAws are only the idea or picture of Justice but execution is its life and though those who have the execution of Laws and Sentences committed to them be ranked but amongst the lowest servants of Justice yet they have the happinesse to be these who compleat that great work and amongst whose hands it becomes perfect and therefore the Laws having committed its most excellent part to them it should be and is in a most eminent way careful of them and in providing for their safty it secures its own honour I. The execution of sentences was committed amongst the Romans to the apparitors mention'd of the Codex in three several Titles and these were erected in a Colledge which was stiled collegium or familia apparitorum as our Heraulds are in a fraternity by the 125. Act. Parliament 12. K. I. 6. The Italian Doctors call them now Beroarii so that these who would know what the doctors hold in cases of deforcement must look to the Indexes at these words According to the Roman Law it was a species of laesae-majestie to resist the execution of sentences l quisquis ad l. Iub majest l. Iulianus ff de officio ejus cui mandata est jurisdictio and Guid. Pap. quest 557. observes that from these Laws does rise the practique of France qua puniuntur capitaliter verberantes apparitores in exe cutione officii nam qui mandata principum exaequuntur videntur vivae principium imagines ac adeo graviter puniri debent ac injuriantes Statuas principum With us the execution of sentences is committed to Heraulds Pursevants Messengers Macers and the execution of sentences of inferiour Courts to the respective officers of these Courts and the resisting beating or wounding of these in the execution of their office is in our Law that Crime which we call Deforcement Leg. Burgal cap. 135. II. Deforcement then is defined to be that Crime which is committed in opposing Macers Messengers or any others who use to execute sentences whilst they are executing their office And upon that accompt so that if either the Officer was not in execution of his office or if the Officer be beat upon any other accompt as if a scuffle should arise occasioned unjustly by himself this would not infer a deforcement as shall be said hereafter Though this crime be amongst the most attrocious because the King and Soveraign power is in their person despised and therefore this crime is called Dispectus Regis stat Williel cap. 4. verse 5. And Justice is after much pains taken by the Judges and expences layed out by the Parties disappointed yet it is only punished by confiscation of moveables and an arbitrary imprisonment and the one half of the Moveables so escheated falls to the King and the other half to the Party at whose instance the Letters were execute I. 6. P. 12. cap. 150. The words whereof are If an Officer of Armes or Sheriffs in that part or other person whatsoever be deforced molested invaded or pursued to the effusion of their blood by any person or persons whom they shall Summond or others of his causing and command the time he is executing of any Summonds Letters or Precept direct by His Highnesse or other Judges that he shall loss c. From which Act it is to be observed 1. That Deforcement is committed by troubling of any Officer belonging to any Court 2. That those words to effusion of their blood seem to be a quality put in a sentence by it self and so may be thought to relate to all the former words molested invaded or pursued yet the words of the Act are only wrong pointed and these words or pursued to the effusion of their blood should all be put in one sentence for de practica simple opposing or molesting the Messenger though without blood will infer a Deforcement 2. Though by the Act it would seem only these against whom Letters and Charges are raised or such as they hound out can be guilty of Deforcement yet if any others do deforce a Messenger though they be neither the parties interested themselves or hounded out by them yet they are likewise guilty of Deforcement As is clear by the 4. cap. stat Williell vers 1. And by the 84. Act 11. Parliament K. I. 6. And seeing the crime lies in the opposition to the Messenger whoever is guilty of that act commits this Crime 3. Though this act make only causing or commanding a crime yet certainly if any person interested does ratihabit the Deforcement committed by any other person by either giving him good deed or by receiving his Letters or Blason taken from him he is eo ipso guilty of Deforcement As the Council found in the case of the Earl of Seafort against the Lord Mackdonald anno 1669. upon full debate In which 〈…〉 lords in the Highlands should be lyable for deforcement committed upon the grounds if they did not deliver up the offenders 4. Though the execution be disappointed and stopped yet is declared by the Parliament to be as sufficient as perfected and it were unjust that the party having done all that in him say that the disappointment eo casu should be prejudicial to him 5. Seing the punishment of this act is only confiscation of Moveables and imprisonment whereas by the Act 84.11 Parl. K. I. 6. The lives and goods of the offenders were to be in the Kings will It may be doubted whether the Judge may punish by either of the Acts seing the last does not expresly abrogat the first or whether both should stand in vigour and force Concerning which question the general Lawyers have very many learned debates but the most solid and approven conclusions are that when a crime is punished by several pains in several Laws or Acts which Acts do not derogat one from another expresly that it is in the election of the Judge to punish the delinquent by either of the pains l. quoties ff de actionibus obligationibus But
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
by the Lords of Secret Council to have the sole criminal Jurisdiction and did repledge servant to Sir Thomas Nâ—colson the Kings Advocat arraigned before the Magistrats of Edinburgh for a Slaughter and Assoilzied him upon production of a Remission And upon the 5. of September 1672. Gilbert Earle of Errol did repledge Iames Iohnstoun Violer arraigned before the Magistrats of Edinburgh as Sheriffs within themselves for stabbing of his Wife the day before Easter the Magistrats had taken his judicial confession and summonded the Assize there was no formal repledgiation because the Magistrats passed from him upon the Constables application and upon the 6. of that Moneth of September the Constables Deputs sentenced him to be hang'd and to have his right hand which gave the stroak cut off and affixed upon Lieth wind Port and ordained the Magistrats of Edinburgh to cause put the sentence to execution upon the 9. of that Moneth Likeas the Coach-man of a Noble-man having about the same time wounded a Child the Constable commanded the Towns Guards to apprehend the Delinquent which they accordingly did till he was freed by a Remission II. Out of this high Magistracy of Constable sayes Lambert an English Lawyer were drawn those inferiour Constables of hundreds which Office we borrowed from them and they are with us subservient to the Justices of Peace and are to be chosen by them two out of every Paroch and as many in Towns as may be proportional to the greatnesse thereof and they have power to apprehend all suspicious idle or guilty persons and may require the neighbours to assist them and if the guilty persons flee they may require the master of the house to make open doors all which with many other particulars are entrusted to them by the 38. Act. 1. Par. Ch. the 2. III. His Majesties Predecessors used of old to build Castles in the considerable Towns of the Kingdom and for preserving the Peace both in that Town and in the adjacent Countrey and the Governours of those Castles were called Constables though they were more properly Castellains or Chastellains as the English Lawyers observe these had the power of riding the Fairs and having had the Keys of the Tolbooth delivered to them they exercised a criminal jurisdiction during those Fairs but it was found that this jurisdiction did not extend to Fairs that were granted posterior to the Office of Constabulary nor to the customes thereof as was found the 18. of Iuly 1676. betwixt the Earl of Kinghorn and the Town of Forfar but these Offices depend absolutely upon prescription use or custome which either extinguisheth or limits them most variously but because those Constables use to extort customes at those Fairs it is therefore appointed by the 60. and 61. Acts 13. Parl. Ia. 2. that the Constable shall not exact any such customes except his Festment bear him thereto and that old use and custome shall not be sufficient Which Acts are ratified by the 33 Act 5. Parl. Ia. 3. But if the Infestment in the general bear cum feudis devoriis c. Possession by vertue of that general Right will be found sufficient though the particular Casualities be not exprest in the Infestment as was found in the former case betwixt the Earle of Kinghorn and the Town of Forfar This Officer was amongst the Athenians call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE V. The Jurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. THe Chamberlain was an office to whom belonged the judging of all Crimes committed within Burgh and he was in effect Justice-general over the Burrows and was to hold Chamberlain-Aus every year for that effect the form whereof is set down in Reg. Maj. in a Book intituled the Chamberlain-Air Iter Camerarii he was a Supream Judge nor could his Decreets be questioned by any Inferiour Judicatory Iter. Cam. cap. 35. and his sentences were to be put to execution by Bailiffs of Burghs ibid. cap. 37. he made the prices of all Victual within Burgh cap. 33. and of these who wrought in the Mint-house Statute Da. 2. cap. 38. He is called Camerarius à Camera id est testudine sive fornice quia custodit pecunias quae in Camer is praecipue reservantur This office belonged heretably to the Duke of Lennox but its priviledges are by his absence run in desuetude Magistrats of Burghs as such have no Jurisdiction but what is competent by their Charter of erection wherein ordinarily they have power of Pit and Gallows but sometimes they are Justices within themselves as Edinburgh who have right also to all escheats of their own Burgesses or other Criminals judged by them for crimes committed within their own Burgh Sometimes they are Sheriffs within themselves and ordinarily they are Justices of peace within their own Jurisdiction The King may erect a Burgh Royal within the bounds of another Jurisdiction as of a Regality but in that case though the Lord of Regality consent to the erection yet it will not prejudge the Bailie of Regality whose Right of Bailiery was constitute prior to the erection of the Casualities that were formerly due to him albeit it was alledged that the Lord of Regality might disolve and dismember that part from the Regality without the Bailies consent and so it not being in the Regality it could not be subject to the Bailiery the 27. of February 1666. Lord Colvil contra the Town of Culross TITLE VI. The Jurisdiction of His Majesties Privy Council in Criminals 1. In what consists the Iurisdiction of the Council their President and number 2. Their procedur in punishing Ryots 3. Whether a power to eject be a sufficient defence against a Ryot 4. The punishment of Riots 5. Precognitions fully considered 6. The Council name Assessors to the Iustices and sometimes review their Sentences 7. They grant Letters of Intercommuning and Commissions for Fire and Sword 8. They sometimes ordain Houses to be delivered under pain of Treason I. THe Affairs of this as of all other Nations are either such as concern the policy of the Kingdom in general or such as respect the distributing of Justice betwixt privat parties the policy or government of the Kingdom is regulated by His Majesties Privy Council in which the Chancelor is President if he be present but in his absence the President of the Council precedes This Office of Precedent of the Council is a distinct imployment and it gives him the precedency from all the Nobility The number of this Judicator is not definit depending upon His Majesties Commission but all the Officers of State are Members of it ratione officii it has its own Signet and its Letters past by a Bill subscribed by any one of the Council upon which warrand the Letters are in their several forms extended and subscribed by the Clerk of the Council and they bear also to be ex deliberatione Dominorum Secreti Consilii they must be execute at least upon six free dayes and a
full Copy must be given because all dyets here are peremptor and not with continuation of dayes the reason whereof is ut reus veniat instructus ad defendendum whereas before the Session a short Copy is sufficient because the Summonds is given out to see and a time allowed to answer The dyets are here so peremptory that if the defender be cited to a day whereupon the Council sits not if he appear at the day to which he is cited and take Instruments at the Council Chamber he will not be thereafter oblieged to attend nor can he be denounced Fugitive for being absent for seeing it is peremptory against him it is reasonable that it should be peremptory for him Where many parties are cited as defenders upon a Bill to the Council any one or two will be allowed to answer for the rest they finding caution and enacting themselves to be lyable for whatever shall be discerned against those for whom they undertake which priviledge is granted if no personal punishment be concluded against the defenders but if either the complaint conclude or that the crime will in Law infer a corporal punishment then the offering to find caution to answer will not be allowed nam noxa caput sequi debet and no man can bind his body for another nam nemo est dominus suorum membrorum the pursuer may appear by his Procurator but the defender must either be present or send a testificat of his sicknesse upon Soul and Conscience And yet it is the priviledge of any Councellour that he may undertake to answer for any defender that is cited quo casu the defender will not be unlawed or denounced fugitive upon his absence but his defences will be received as if he were present nor can any Bill for receiving a complaint passe against a Councellor but in presentia The Council by the first constitution were only to take cognizance of what concerned the publict Peace and were neither Judges in civil cases nor crimes but in so far as these impinged upon or were violations thereof but now that Judicator doth under the notion of Riots and breaches of the publict Peace hear to many causes Civil and Criminal But seeing the design of this Treatise aimes only to illustrat our criminal Law I shall only-consider the procedor of the Council in so far as they can cognosce upon crimes II. The most ordinar crimes which are punished by the Council are these which we call Riots in our Law A Riot is a breach of the Peace committed by oppression or wronging His Majesties Lieges by force and violence instances whereof are the dispossessing any of His Majesties Subjects by a convocation of the Liedges or otherwise the affronting of Magistrates by raising tumults against them c. For the better understanding of which crime it will be fit to consider that jura maxime oderunt violentias rapinas pluribus modis succurrant vim passis spoliatis for here the publick is wounded in breaking its Peace and privat persons are wronged by the prejudice done Upon which account the Law hath furnisht more remedies against this then any other crime for either it may be pursued civilly per interdictum unde vi so call'd from the first words of the Edict which runs thus unde vi tu illum dejecisti terestituere cogam which interdict restor'd only the possession of immoveables wheras moveables being spoilzied were craved back actione vibonorum Iustinian also introduced that he who rest and violently took what was his own should lose it l. 7. C. unde vi for in this the resumer usurps the power of the Magistrat whose ministry is requisit in inverting the present possession The Canon Law likewise hath introduced beneficium cap. redintae grandae 4. cap. 3. quest 1. and Menoch relates 17. remedies and Philip. Franc. 24. for recovery of possession and seeing the thing possest is still presumed to belong to the possessor and that hardly the right of moveables can be otherwise proved then by possession the Law did most reasonably both for securing Property and punishing Violence establish that great rule that Spoliatus est ante omnia restituendus and conform thereto the Council who are never Judges to Property but only to Possession so that in effect all their sentences are interdicts do still restore the possession to the person ejected and likewise punish arbitrarly the violence committed for we have no expresse Statute taxing the punishment By the Law of England it is accounted no Riot or routs except three at least were present and that something was done ad terrorem populi for breaking of the Peace Bolton cap. 31. III. The two ordinar defences which are propon'd against riotous ejections are that by a Writ it was lawful and agreed upon betwixt parties that the defender might have ejected the pursuer if he removed not at the day appointed which will defend against a Riot and yet Craig relates a case P. 198. where one who had granted a Tack only for a Year having ejected the Tacks-man after expiring of that Year was pursued actione unde vio in an action of ejection and was forced to transact albeit he contended that the word only was exclusive of any future possession but where by expresse paction it is declared lawful for him who enters to enter brevi manu without processe or hazard of ejection it would appear that this paction is unlawful seeing no man can warrand violence and this seems as unlawful as if one should oblidge himself never to pursue for any injury to be done him which paction the Law declares expresly unlawful nemo potest renunciare juri publico and this were to allow privat persons the power of Jurisdiction Nor can it be thought but this paction was extorted and albeit the party injured were excluded by this paction yet His Majesties Advocat may certainly pursue vindictam publicam if opposition was made and violence used Notwithstanding of which I remember that the Earl of Argile having obtained a Decreet of removing against George Campbel and it being suspended till the next Term The Lords ordained it to be insert in the Bill that the Earl might eject him brevi manu the next day after the Term by his own authority but the Earl was Sheriff here himself and so his Jurisdiction was only prorogat and the Law is expresse that privatus potest ex consensu prorogare jurisdictionem ejus qui aliqualem habet sed non potest privatus consensus tribuere jurisdictionem ei qui nullam habet vid. Hanc quaestionem apud Bart. ad l. creditores C. de pign hipoth But here also the Lords warrand to eject was a delegating of their own Jurisdiction I conceive also that where there is no violence nor opposition made the voluntar consent may allow the ejection especially in a Master towards his own Tennent who hath a natural Jurisdiction in that case and that his ejection is also
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
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
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 though a person be at the horn for a civil cause it appears most unreasonable that because a person is not able to pay a great Sum for which he is denounced that he shall not therefore be admitted do defend his own innocence against a crime laid to his charge It seems likewise reasonable that some distinction should be made betwixt a pursuer and a defender in this case for it seems unreasonable that he who accuses another for a crime should debar him from self-defence though the debarring him from pursuit be not so unfavourable and upon this accompt in a case betwixt Ninian Spence and Hector Bannatine the Justices found that the pursuer in a Criminal pursuite could not by horning debar à defendendo the person whom he himself had called It may be likewise alledged that though the Kings Advocat may debar a Pannel from his defences when he is at the horn that no privat party can seing they are not prejudged by the Rebellion as the Fisk is but this last distinction is rather reasonable then legal and therefore I mention it rather as a good overture then a standing Law VI. Infamous persons cannot accuse according to our Law and what persons are accompted infamous is particularly enumerat in the foresaid 11. cap. Stat. Willielm 1. Infames dicimus omnes illas personas esse qui pro aliqua culpa damnantur notabili 2. Et omnes qui christianae legis normam abiiciunt ecclesiastica statuta contemnunt omnes sures sacrilegio 3. Omnes capitalibus criminibus irretitos Sepulchrorum violatores Apostolorum Successorumque eorum Reliquorum Sanctorum Patrum libenter violantes Statuta 4. Et omnes qui adversus Patres armantur qui in omni mundi parte infamia notantur 5. Similiter incestuosos perjuros homicidas receptatores malefactorum adulteros raptores maleficos de bellis publicis fugientes eâ— qui injusta vel indigna sibi petunt loca teneri aut sacrae ecclesiae auferunt facultates qui accusant non probant et qui contra innocentes principum animos ad iracundiam provocant omnes qui pro suis sceleribus ab ecclesia expelluntur 6. Et omnes quos ecclesiasticae seculares leges infames pronunciant Item servos ante legitimam libertatem abeuntes publice paenitentes bigamos omnes qui non sunt integro corpore qui sanam mentem non habent vel intellectum qui furiosi manifestantur 7. Hi omnes supra dicti nec ad sacros ordines promoveri debent nec ad accusationem vel Testimonium admitâ—i VII A person accused was not oblidged to answer of old but for one crime in one day except there were several pursuers quoniam attachiamenta cap. 65. by which accumulation of crimes was expresly unlawful sed hodie aliter obtinet for now there is nothing more ordinar nor to see five or six crimes in one Summonds or Inditement and to see one accuser pursue several Summonds and yet seing crimes are of so great consequence to the defender and are of so great intricacy it appears most unreasonable that a defender should be burdened with more then one defence at once and it appears that accumulation of crimes is intented either to laese the same of the defender or to distract him from his defence VIII To the end that persons may not be unjustly pursued the Civil Law did appoint two remedies 1. That the pursuer should find Caution to insist 2. That he should be pursued as a calumniator if his pursuit was found to be malicious As to the first the form amongst the Romans was that the accuser was oblidged de ferre nomen rei apud praetorem atque se inscribebat libello judici porrecto vel incodice publico quaerela deposita cui inscriptioni subscribebat ad talionis paenam se obligabat in casum calumniae Inscriptionis formula à pparet l. 3. ff de accus Consulibus illis die illo apud praetorem illum Titius professus est se Meviam legem julia de adult ream deferre quod dicat eam cum seio in civitate illa domo illius mense illo consulibus illis adulterium Commisisse Which inscription was only necessar in attrocious but not in lighter crimes nam illa de plano discutiebantur l. levia ff de accus but in some cases the necessity of inscription was remitted even in attrocious crimes as when a Woman suorum injuriam prosequitur parentes filii necem è contra And generally where the pursuer could not be pursued for calumny he needed not in scribere because inscriptions were onlâ—â—â—â—essar to the end the pursuer might be punished if he were found guilty of Calumny Nor were these inscriptions necessar in reconventions ante categoriis because in these the pursuer intended not to calumniat but only to defend himself by recriminating the pursuit The inscriber was according to the Civil Law oblidged to find Caution se perseveraturum in accusatione usque ad sententiam l. 7. ff de accus the reason whereof is by one of the Greek Scoliasts said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ne facile quis ad accusationem per currat Suitable to this our Law has ordained that the pursuer when he raises a criminal Libel shall find Caution to insist in the intended pursuit and this Caution is found either by the Cautioner enacting himself in the Journel Books which Act is to be subscribed by him or else if the Cautioner be absent he sends a Bond bearing a clause of Registration in the Journal Books which is accordingly therein Registrat this Caution was first appointed by the 34. Act Parl. 4. Ia. 5. by which the Justice-clerk is oblidged to take sicker surety that the pursuer shall bring back the criminal Letters indorsed and execute but the Cautioner is not oblidged with us as he is by the Civil Law that the pursuer shall insist and the penalty appointed by that Act is an Earl or Lord two thousand Merks a great Barron one thousand Merks a Fermer five hundred Merks an unlanded Gentle-man two hundred Merks a Yeoman two hundred Merks But of old accusers behoved to find Caution to insist Reg. Maj. cap. 1. l. num 6. and if he cannot find a Cautioner it is said there that his Oath may be taken in all cases of fellony and the reason given is lest too much severity in exacting of Caution deterr the prosecution of a publick crime and it may be doubted if Cautio juratoria cannot properly come in under the notion of sicker security and there can be little hâ—zard to the Common-wealth seing the Law presumes that His Majesties Advocat will be still so just as to pursue the publick revenge where the party is unable Whereas by admitting this cautio juratoria ansa praebetur perjurio and the defender is disappointed of his damnage and interest if the party fail By the 29. cap. Stat. Rob. 3. pursuers before
a subvassal by a subvassal and a Burges by a Burges but a lower person may be judged by a higher and by the chap. 2. Stat. Alex. 2. A Knight should be judged by Knights or free holders but by an Act of Sederunt 1. Iune 1591. The Lords of Session declared all such as were landed men sufficient to passe upon Assizes of Error though the old Laws required noble men and Gentlemen only in such cases And albeit of old it was uncontravertedly received that none should passe upon the Assize of Noblemen except Noblemen Nor upon the Assize of Barrons except Barrons yet of late it hath been much debated and especially in the case of Douglasse of Spot 9. May 1667. at which time he being accused for killing Home of Ecles it was alledged that Spot was a Barron and so could not be judged but by Barrons holding of the King conform to the citations above duced It was replyed by His Majesties Advocat 1. Neither the books of quon attach or the Statutes of King Alexander are binding Laws but only books of Apocripha 2. Though they were Laws yet they are not in viridi observantia seing Burgesses and others are daily admitted by the late practique to passe upon Barrons Assizes and at the time of the making of these Laws Assizers were Judges both to the relevancy and probation whereas now in effect they are but witnesses and therefore since the Law reposes much lesse confidence in them now then formerly it should not now be so scrupulous in their election 3. Burgesses are in Parliament allowed to sit upon the Assize of and forefault Noblemen and it were against reason that they should be admitted to the more solemn Judicators and be rejected in Judicators where cases of less importance are ordinarily judged and in which the Sentence pronounced may be easier repealed 4. Dyets before the Justice-Courts being alwayes peremptor it is probable that dyets behoved very frequently to be deserted if only Noblemen were to be Judged by Noblemen Barrons by Barrons 5. By the state of King Alexander above cited it is only requisit that Knights be judged by Knights but it is not added there that Barrons should be judged by Barrons which shews that that priviledge was not allowed to them even in those dayes and lastly seing all mens lives are of extraordinary concernment it is not reasonable to think that he who can be judge of any mans life may not be Judge of the lives of all men To which it was duplyed as to the first That debate is opponed whereby it is evinced in the Title by what Laws Crimes are judged in Scotland and the Books of quon attach and Reg. Majes are our Law and the Act of Sederunt above-cited dispencing with that priviledge in some cases doth demonstrat that regularly this priviledge taketh place with us Likeas Skeen in his Treatise concerning the procedure before the Justice General cap. 4. sect 3. cites these Laws as binding and gives for a rule that no man can be judged in that Court but by his peers To the second it was duplyed that this being a declinatur and being arbitrary for parties to plead the benefite thereof it cannot be said to be antiquated unlesse it had been alledged that it had been pleaded and repelled But as this citation out of Skeen who is but a late Author did show the same to be in viridi observantia so Noblemen have lately had the same indulged to them as in the cases of the Earl of Traquair and Lord Ochiltree which was allowed to them upon the Laws here cited To the third founded upon Burgesses sitting upon forefaulters in Parliament the same doth not meet the case seing the Parliament may abrogat Laws and so are not in their procedure tyed to them and though Burgesses singlie be not Peers to Noblemen yet the collective body of the Parliament by which they are condemned are much more their Peers To the fourth it was duplyed that inconveniences are only to be looked to in the making of Laws but not after and the inconveniences of the other side are much more pressing it being very inconvenient that an Assize of 15. mean Tradsmen should be admitted to try a Duke or Marquesse and it was a vast mistake to think that Assizes are only witnesses and not Judges seing they vote and their verdict is called a Sentence and if Art and Part be Libelled the relevancy is in these cases which uses to be of all cases most intricat Simply referred to them without any debate To the fifth it was duplyed that the inference is meerly conjectural but if the Text be considered it will appear that by Knight there is meaned Vassal or free holder for the Latine translation renders the word Knight not eques but miles and it is said there that a Knight shal be judged by Knights or free holders So that the particle or is in that place exegetick and not disjunctive And to the Last it is duplyed that all mens lives are not equally precious in the eyes of the Law for even by the Roman Law mean people were judged to dye for many crimes which were not capitally to Noble Romans and though with us the punishment may be the same yet the way of procedure against Noblemen is justly allowed to be more solemn Upon which debate the Justices ordained a new Assize to be summonded whereof the most part should be Barrons and the remanent landed Gentleman It was thereafter doubted whether an apparent Heir of a Barron has the same priviledge so that none can passe upon his Assize who are not Barrons or Landed men and it was alledged that the apparent Heir had this priviledge and was a Barron in the construction of Law for his marriage or escheat would fall though not entered and as a Barron though denuded remained still a Barron or a Prelat though for age demitting would be still a prelat so the apparent Heir of a Barron though not entered should be still a Barron as was found 23. December 1674. To which it was answered that an appearent Heir was not nomen juris and priviledges ought to be strictly interpreted and the appearing Air of a Barron would not have an Heir as was lately found in Sir Allexander Seatons case quē sequitur in comodum c. Whereas in Law all Barrons may have Heirs nor did the instances adduced from the Casualities of marriage or escheat militat in this seing these proceeded ex natura feudi non ex vi privilegii and was introduced in favours of the superiour and not of the appearent Heir Upon which debate the Justices 19. of Iuly 1675. repelled the objection against the Assizers and found the priviledged extended not to the appearent Heirs of Barrons Mackintosh contra Frazer of Culbokie Not is this priviledge extended to Landed men though infest if their Lands be not erected in a Barrony VIII Albeit it be ordinarly received that Assisers may Judge upon their proper
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