proportionable to the violence offered by the Aggressor and so exceeded not moderamen inculpatae tutelae for the said Pannel struck not him with any mortal Weapon but only gave him a thrust with his hand which was necessary to throw the Defunct off him Upon which debate the Justices sustain'd the Libel only to infer paenam extraordinariam and remitted also the Pannels defences of casual Homicide self-defence and that the Wound was not mortal to the knowledge of the Inquest XI It is here controverted whether he who intended to kill one by a mistake killed not him but another be punishable as a Murderer seing as to the person killed the Murderer had no design yet I think he should die seing the design of killing a man and not any one particular man is Murder and the killer intended to deface God Almighties Image and to take from the King a Subject And I find that this is determined to be Murder by Bolton cap. 11. num 24. by whom likewise it is given as a rule nihil interest utrum quis occidat an acausam mortis prabeat And thus a Son for having caryed his Father being sick in a frosty night from one Town to another was executed as a Murderer because the Father died And a Harlot having exposed her Child in an Orchard where a Kite killed it was execute as a Murderer also ibi volunt as reputatur pro facto And if this were not Murder this Crime might be Palliated under other shapes This Defence viz. that the killer had no design to Murder is a Negative and so can only be proved by presumptions as if there was no deadly fead formerly amongst the Parties 2. If the Parties were Kins-men or intimats 3. If the killer struck with a Staff having a Sword or Pistol or having these struck only with the hilts of his Sword or with the head of his Pistol and generally it is rather presumed to be homicidium culposom then dolosum premeditatum nam nunquam praesumitur dolus By our Law Slaughter and Murder did of old differ as homicidium simplex premeditatum in the Civil Law and Murder only committed as we call it upon fore-thought fellony was only properly called Murder and punished as such K. Ia. Par. 3. cap. 1. where it is Statute that Murder is to be capitally punished but Chaudmella or Slaughter committed upon suddenly shall only be punishable according to the old Laws vid. Acts 95.96 Par. 6. Ia. 1. 22. Par. 4 I. 5 35. Par. 5. Ia. 3. Act 31. Par. 6. Q M. The old Laws to which these Acts relate are Statute William c. 5. Stat. Allexander c. 6. Stat. Rob. 2. c. 9. in which it is declared that Muâ—derers who are guilty of fore-thought fellony shall not have the priviledge and advantage of refuge in the Girthâ— but that such as are guilty of Chaudmella or casual Slaughter shall be sheltered in the Girth Yet I find that none of these are in any other old Statute to determine punishment of casual Slaughter but that it was not punishable as Murder is clear by the opposition and in all our Laws betwixt single Slaughter and fore-thought-fellony all casual Slaughter was of old comprehended under the word Chaudmella which is a French word Chaud signifying Hot and Mesler signifying to mix But in effect this Melletum answers properly to rixa homicidium in rixa commissum which is but one species homicidii non dolosi XII By the late 22. Act Parl. 1. Ch. 2. Sess. 1. It is Statute that casual Homicide Homicide committed in self-defence and Homicide committed upon Thieves shall not be punished by death And seing this Act mentions not Homicide committed in rixa or homicidum culposum and seing homicidium culposum differs from casual Homicide it may be doubted if under the one the other may be comprehended and it may be urged that casual Homicide is in this Act a general term comprehending all Homicide which is not committed by fore-thought fellony because what is not designed is casual and what is not fore-thought is casual and the Doctors do use the Word Casual oftentimes in this general sense as is clear by Gothofred prax crim hoc tit And by the rubrick of this Act which bears an Act concerning the several degres of casual Homicide It appears that the word Casual is taken there in a Lax Signification albeit I confess that the inscription is most improper seing Homicide in self-defence and Homicide committed upon Robbers are not Species of casual Homicide but whether Homicide in rixa be comprehended under that Act was contraverted in William Dowglas case and by that Decision it is clear that in in our Law though Murder was not at first designed yet if it was designed the time the stroak was given the killer is guilty of Murder that premeditation is requisit to make Murder Capital being only such as antecedit actum licet non congressum The Civilians in the case of Homicidium per plures commissum state three questions The first is where the Murder was committed upon fore-thought fellony and then indefinitly all the assisters are punishable by death The second is when it is not certain but it is only suspected and presumeable that it was deliberatly committed and then all may be tortured but if they deny the design they are all only punishable by an arbitrary punishment because of the uncertainty The third is when the Murder was certainly committed in rixa or tuilzie and then either the author of the Pley is certainly known and he is punishable by death in the rigour of the Law Albeit many Lawyers are positive that no Countrey uses this rigour I remember that in William Dowglas's case this was urged for there several Gentle-men having made a quarrel which was only proved by one witness they went to the Fields of Lieth and Hoom of Eccles was killed but it was not proved who was the killer and the quarrel was only proved by one witness who likewise proved that Spot had the quarrel with Eccles and that William Dowglas had none and yet the Assise found William guilty and he thereupon died because present XIII Homicide likewise committed upon Thieves and Robbers breaking houses in the night or committed in time of masterful depradations are free from punishment by the foresaid Act 22. And albeit it be declared lawful to the Justices to fine such as are assoilzied from Murder upon the defences of casual Homicid and Homicide in defence yet such as kill Robbers or night Thieves are free from all arbitrary punishment By this Act likewise it is lawful to kill such as assist or defend the depredators or oppose their pursuit by force and by the 6. Act of the second Session of that Parliament it is Statuted that the Parties whose goods are robbed shall acquaint the Sheriff or Justices of Peace of the Paroch who shall require all Parties to concurr and if any of the
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
for above an hundreth Pounds shall be sustain'd except it be otherwise warranted then by the consent of the Clerk Albeit by the 75. Act Parl. 6. K. Ia. 5. the Barrons Precepts for Summonds in that Court is so called should be execute as Summonds before the Lords and Coppies should be left and they indorsed upon yet the 11. of Iuly 1634. Hay against Airth it was found that executions by a Barrons Officer are valid though not given in Writ and that the same are probable by Witnesses III. A Barron having power may judge of Theft if the Thief be taken in the fang quon attach cap. 100. where it is Statuted that baro qui libertatem habet de sock sack toll theam possunt judicare furem sasitum de aliquo furto manifesto sicut haud haebband back beirand de praxi Barrons do not punish Slaughter yet it may be urg'd that they have power to do so because 1. The power of Pit and Gallows would import the power of judging life and death 2. By the 77. cap. quon attach omnes Barrones qui habent furcam Fossam de latrocinio de hominis occissione habeant furcam id est curiam as the marginal note bears and by the 13. cap. Leg. Mal. 2. It is Statute that Malefactors who hold of Barrons may be condemned after the same manner that other Malefactors are except in the four Pleys of the Crown in which Barrons have no power from which it may be very clearly inferred that quo ad other crimes they have nam exceptio firmat regulam in non exceptis 3. By the 91. Act Parl. 1. I. 2. It is Statute if a man be slain in the Barrony if the Barron be Infest with such freedom he may proceed as the Sheriff doth And albeit Hope in his larger Practiques observes that these words of the Act if he be Infest with such freedom may receive various interpretations yet I see no interpretation they can properly receive except this that these words are meant if he have the Jurisdiction proper and competent to a Barron which is Pit and Gallows nam verba generabia interpretanda sunt secundum subjectam materiam Albeit wilful Fire-raising be one of the Pleys of the Crown yet a Barron may cognosce upon and punish the raisers of Fire rashly within Husband Towns in the Barrony I. 1. Parl. 4. cap. 75. The words of which Statutes are if Fire happen within Husband Towns of Barronies we leave them to be punished by their Lords in like manner as Bailiffs in Towns do within Burgh in which Act by the word Lords are meant Barrons for they are in several Acts of Parliament called Lords of their own Land or Barrony A Barron may unlaw for absence for ten Pounds but not above and for blood he may unlaw for fifty Pounds but not above VITLE XIV Of Justices of Peace OUr Justices of peace were called Irenarchae which signifies in the Greek the keeper of the peace irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam dicebantur etiam latrunculatores sen latronum expulsores Their Office was to apprehend Rebels and Thieves whom they could only examine and send to the President of the Province but could not judge them themselves their office is more fully described lib. 10. C. tit 75. but to speak properly latrunculatores were our Constables called by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justices of peace and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desuetude it was revived by 38. Act 1. Parl. 1. Sess. K. Ch. the 2. By this Act they are allowed to meet four times in the year and to adjudge of Servants fees and of mending the high wayes they have power to punish the cutters and destroyers of planting green wood slayers of red and black Fishes makers of moor-burn keepers of Crooves wilful Beggars Egyptians and their receptors Drunkards prophaners of the Sabbath as to all which His Majesty promises to give them ample commissions and to the end their power may not prejudge any other Court formerly erected it is appointed by that Act that fifteen dayes shall expire after the committing of the fact for which the committer is to be conveened Which interval is given to the Judge competent to do diligence and if he omit the same during that time then the Justices may judge the same and one Justice has power to bind the party complained upon to the peace under such pecunial Sums as he shall think fit and that either at the instance of a complainer who shall give his oath that he dreads harm or the Justice himself may exact the sum though none complain And if any person being charged to make his appearance before the Justice of peace shall refuse it he be a landed man whose rent exceeds a thousand Merks or ten Chalders of Victual then he shall inform any of his Majesties Privy Council or if he be a meaner person he may cause bring him by force before himself If the Sheriff or Bailiff condemn any person in blood-weit or any other pain but not proportionally to the offence then the Justices shall inform the Privy Council that they may take order therewith but if there be no satisfaction made by the Sheriff or Bailiff to the party the Justices may modify a reasonable satisfaction If the Sheriff or Bailiff do by collusion clear the Delinquent of an Assize the party once cleared is not to be further questioned but the Judges are to be punished by the Privy Council The Justices of peace are declared Judges competent to all Ryots and breaking of peace if the committeeâ—s be under the degree of Noblemen Prelats Councellours and Senators of the Colledge of Justice who may refer the Summonds to the parties oath if he be personally Summoned and thereupon hold him as confest but if the Summonds be not personally execute then the defender is to be summoned of new at his dwelling house and these two citations at his dwelling house shall be equivalent to one that is personal if the committers be above the foresaid quality then the Justices though they cannot judge them may for preventing of Ryots command them to find caution for keeping of the peace and to compear before the Privy Council and though they compear not yet whatever breach they commit in the interim shall be repute as great a contravention as if they had found caution At the end of every quarter Session the Justices of peace are to send to the Clerk of the Council a Catalogue of all such persons as they either have committed or have under surety with a short abreviat of the cause thereof which is that which the Civil Law in the former Title cals transmittere cum elogio to the end that the Council may determin betwixt and the quarter Session what shall be done with them
that these who Blaspheme in jest are to be less severly punished and that Rusticity mitigats the ordinary punishment in this case but Gothofredus is as to the last of a contrary opinion because Rusticity excuses not from the knowledge of the Law of Nature much less of God but they may be reconciled thus that open gross Blasphemy is equally punishable in both but not consequential and indirect Blasphemy as if a Countrey-man should erre in the Persons of the Trinity which some remot High-landers are so ignorant of as not to know those should rather be pitied then punished except they add obstinacy to Blasphemy vid. Cabal cas 296. IV. The punishment of Blasphemy is Death by the Law Nov. 77. by the Canon Law Publick repentance for the first fault and the standing at the Church Door with an infamous Mitre or Paper Hat for a relapse V. By our Act 21. Sess. 1. Par. 1. C. 2. Blasphemy Railers against God or any of the Persons of the blessed Trinity shall be likewise punishable by death if they obstinatly continue therein From which Act it is observable 1. That this Crime can only be tryed before the Justices and therefore not before the Lord of a Regality though they have equal power as hath been formerly observed 2. Distraction is only excepted here so Ignorance Passion Rusticity or Railery excuses not nam exceptio firmat regulam in non exceptis and yet these may excuse from the ordinar punishment in some circumstances but are never defences against the relevancy 3. It may be doubted why the denying God or any of the Persons of the Holy Trinity is only punishable by death if they continue obstinat therein And yet the railing upon or cursing God or the Trinity is simply punishable without obstinacy and the difference seems to be that cursing or railing against God cannot proceed from Ignorance but argues Malice whereas the denying Gods Attributes or the Trinity may proceed from Ignorance It may be doubted if with us a person who should call himself the Son of God or the Messias could be punished as a blasphemer and it is said that the Parliament of England thought he could not and therefore Iames Nailor was only scourged for this Crime Yet I think he could be reached by our foresaid Act as a person who rail'd upon God and the Trinity For to make our selves equal with them is to rail against and vilifie them VI. Cursing of Parents viz. Father or Mother but no others is punishable by death if they be past sixteen or arbitrarly if they be below sixteen and above punishable vid tit parricid Act 20. Par. 1. Sess. 1. Ch. 2. Justices of Peace are by the 38. Act 1. Par. Ch. 2. to punish such as curse and swear profanely and exact from a Noble man twenty merks a Barron twenty merks a Gentle man Heretor or Burges ten merks a Yeoman fourty shilling a Servant twenty shilling a Minister the fifth part of his Steipend and the Husband must pay his Wifes fine ergo regulariter the Husband is not liable for the Wifes fine if there be no warrant therefore by Statute By the 16. Act 5. Par. Q. M. the swearing abominable Oaths are to be fin'd but that Act is only temporary By the 103. Act Par. 7. I. swearers and blasphemers ar to be punished by the Magistrats and if they fail by the Privie Council Notà by this Act that Women are to be punished in penal Statutes conform to their Blood and their Husbands quality that is to say conform to their Blood if unmaried or to their Husbands quality if maried and therefore may be doubted whether these Women who have precedency according to their Birth though maried as an Earles Daughter when maried to a Gentle man or those who have precedency by a Patent above their Husbands quality should not be punished according to their precedency though maried The Justices did in May 1671. fine a Woman in Dumfreis in 500 merks for drinking the Devils health but did not find it Blasphemy TITLE IV. Haeresy 1 The definition of Heresy 2 Whether Invocation of Spirits be heresy 3 The punishment of Heresy 4 Iesuits and trafficquing Priests how punished 5 The specialities ontroduced in punishing this Crime HEresy is committed when a Christian owns pertinatiously errors condemned by the Church I said when a christian own'd them because Pagans and Mahumetans are not punish'd as Hereticks Simancas de haereti cap. 31. num 3. for these are enemies to our faith in general and erre not in particular points of it I said who err'd pertinatiously because such as erre ignorantly or as having err'd perversly do not pertinatiously adhere to their error are not to be esteem'd haereticks And this repentance is to be receiv'd any time even after sentence to stop the execution Carer fol. 642. except they have relaps'd in their Heresy for their second fall is not to be taken off by repentance but though their repentance secures them against death in the first fall yet the are to be punished by perpetual Imprisonment Igneus in l. ff ad Sillan Cook hoc tit II. Though some make the adoration and invocation of Spirits to be Heresy yet others do more judiciously determine that if these devils be invocked to reveal things to come then that invocation is of the nature of Heresy for that is to attribute omniscience to the Devil which is one of Gods attributes but if the Devil be invocked for a particular end or interest such as that he may learn the invocker how to prevail with a mistriss or how to gain a Princes favour in these cases the invocker is not to be call'd a Heretick Clarus § Haeresis num 25. but neither do's that distinction please me for such as invock the Devil are not properly Hereticks especially if they have renounced their Baptism for there is no reason to call them Hereticks who not only erre in the faith but have renounced the faith intirely and as Pagans are not Hereticks because they worship false Gods so neither should they who worship the Devil and these who have renounced their Baptism for they are in the same condition with these who were never baptized III. The punishment of Heresie in the opinion of the Doctors is to be burnt and confiscation of the Delinquents Moveables Clar. num 13. But by the Law of England Hereticks are only to be burnt if they will not abjure By our Law Heresie was in the first instance try'd by the Church and the Secular power did not meddle to condemn Hereticks till they were first condemned by the Church Ia. 1. Par. 2. Act. 28. In which it is ordain'd that the Bishops shall inquire into Heresie and if they be found that they be punished as the Law of the Holy Kirk requires and if it misters that Secular power be called in support and helping of holy Kirk From which Act it is observable first that the Kirk was Judge to Heresie in
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
decisions then Philosophers to continue in the errors of their Youth But yet when the arguments pro and contra weigh equally and reason seems puzled where to encline the authority even of our former decisions should cast the ballance especially where the same reason then urg'd was there pressed and in the interpretation of Laws of which decisions are the best interpreters if a whole tract of decisions can be produced it would infallibly bind wherein Craig diag de jure quo utimur agrees with Callistrotus l. 38. de leg in ambiguitatibus quae ex legibus profisciscuntur consuetudinem aut rerum perpetuo judicatarum auctoritatem vim legis obtinere Where these decisions have proceeded upon a debate by which the reason of Judges is much ripened and the future inconveniences fully considered for as Pomponius well observes l. 2. § his legibus ff de origine juris his legibus latis caepit ut naturaliter evenire solet ut interpretatio desideraret prudentium authoritate necessariam esse disputationem fori And Durie in the case of Hoom of Cowdoun-knowes shewes us how the L. of Session thought it not derogatory from their honour to retreat a sentence after debate which they had pronounced when no Advocats were compearing We follow the Civil Law in judging Crimes as is clear by several Acts of Parliament wherein the Civil Law is called the common Law And Robert Leslies Heirs are by the 69. Act. Par. 6. Ia. 5. ordained to be forefaulted for the Crime of Treason committed by the father according to the Civil Law And forefaultor in absence was allowed by the Lords of Session in Anno 1669. because that was conform to the Civil Law and falshood is ordain'd to be punisht according to the Civil and Canon Law Act 22. Par. 5. Q. M. And that the Civil Law is our rule where our own Statutes and customs are silent or deficient is clear from our own Lawyers as Skeen Annot. ad l. 1. R. M. c. 7. ver 2. And by Craig l. 1. diog 2. As also from our own Historians Lesly l. 1. cap. leg Scotor Boet. l. 5. hist Camer de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nations as Forcat lib. 1. hist. Angl. Petr. diamitis Geograph Europ tit D. Escosse and Duck de auth jur civ lib. 2. cap. 10. and though the Romans had some customs or forms peculiar to the genious of their own Nation Yet their Laws in Criminal cases are of universal use for Crymes are the same almost every where as Boet. well observes leges Romanas à Iustiniano collectas tanta ratione sermonis venustate esse ut nulla sit natio tam fera vel ab humanitate abhorrens quae eas non fuerit admirata And K. Ia. 5. was so fond of the Civil Law as Boet. observes lib. 17. that he made an Act ordaining that no man should succeed to a great Estate in Scotland who did not understand the Civil Law and erected two professions of it one at Saint Andrews and another at Aberdeen And when Iames the 2. did by the 48 act of his 3. Parliament ordain that his Subjects should be governed by no forraign Lawes he designed not to debar the respect due to the Roman Lawes but to obviat the vain pretences of the Pope whose canons and concessions were obtâ—uded upon the people as Laws by the Church men of these times The 4th branch of our Criminal Law are the Books of Reg. Maj which are in criminalibus lookt upon as authentick Thus the Thief must be punisht before the recepter and assysers must be pares curiae c. For which and many other maximes there is no warrand besides what is contained in these Books of Reg Majest But why should this be doubted seing they are cited as such Act 47. Parl. 6. Ia. 3. where it is said that wilful and ignorant Assysers shall be punisht after the form of the Kings Law in the first Book of the Majesty and by the 98. act 14. p. l. 3. transgressions of that act are to be punisht conform to the Kings Laws and of Regiam Majestatem likeas by the 54. P. 3. I. 1. a Comittee of Parliament is ordained to meet and examine the Book of the Law that is to say Regiam Majestatem and Quoniam atta chiamenta which is repeated 115. Act. 14. P. I. 3. And albeit they contain many things which are not in use with us yet they have been in use and this objection would conclude the Acts of Parliament not to be our Law It is then my opinion that K. Ia. the 1. hath brought down some of these collections from England with him Nor find I these books cited before this time It is doubted whether the Secret Council can by any Act or Proclamation either introduce a cryme which can infer tinsel of life or escheat for the Parliament can only dispose upon our lives and fortunes And it being the representative of the Nation every man is in Law said to have consented to what the Parliament doth I find Craig to have been of opinion that no Act of Secret Council can infer a Crime pag. 38. Nor can the Council by their Acts warrand any to do what would be otherwise a Crime for ejus est nolle cujus est velle And none can take away a cryme but such as can introduce a cryme and therefore M r. Archb Beath being pursued for killing some men he alledged that these men were bringing Meal from Ireland And that by Act of Council it was lawful to sink or kill such as contraveened the Act. To which his Majesties Advocat did reply that the Acts of Secret Council could not warrand the killing of a free Leidge and the committing of murder which reply was found relevant But since the Council are to secure the peace and that many accidents may emerge wherein the publick peace cannot be preserved without this power it were hard to limit them too much IV. Whether dolus or a wicked designe be requisite in all crymes is largely treated of by the Doctors and is most fully debated in the process of Ochiltrie Balmerino and the Marquiss of Argyle And by the texts § placuit just de furt l. 3. ff De injur l. pen. ff ad Leg. jul de Adult It seems that the wickedness of the designe makes only an action criminal but in my judgement this inquiry may be resolved in these conclusions 1. That seeing man can only offend in what is voluntar to him it must follow that the will is the only fountain of wickedness And consequently it was at first the designe of Law-givers only to punish such Acts as were designedly malicious 2. Because design is a private and conceal'd act of the mind which escapes the severest probation Therefore in some cases this dolus is allowed by Law to be inferred from conjectures and presumptions where the act is
man retains in nothing so much a desire to be like his Maker as in that he would be Supreme and no wonder that this Crime should be incident to him in this laps'd condition when his will is crooked and his judgement blind since the very Angels in their purity and Man in his innocence were tempted by it so that since men have subjected themselves to Government we may easily conclude they found a great convenience in this submission else they had never offered so much violence to their own inclination To Societies and Laws we owe every moment the preservation of our lives and fortunes which nothing but Discipline does secure and without an intire submission these Societies would be but Companies of Robbers and Laws but meer toyes How many dangers do Governours incurr And by how many cares and fears are they disquieted Wherefore it is most just that those who govern should be more secure against their Subjects then against their enemies since they may be most easily wrong'd by those who live in their own bosome and who have easie and open access to them In other Crimes one or at most few are wrong'd whereas in rebellion and Laese Majestie the whole Society is offended And therefore it was most just that those who design the ruine of the Common-wealth or the Supreme Governour which Crime we call Treason should of all others be most severely punished And the Basilicks l. 1. h. 1. observes well that Treason is a kind of Sacriledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Treason was by the Civil Law divided in Perduellionem Laesam Majestatem Perduellion was that Treason which was committed against the Prince or Common-wealth immediatly Adversus populum Romanum vel securitatem ejus Laese Majestie as opposed to Perduellion was committed by speaking against the Prince revealing his secrets c. This Crime was punish'd per legem juliam the branches whereof are the raising of Arms against the State the being in accession to the flight of such as were Hostages to the Common-wealth or to the killing of any Magistrat of the Common-wealth the keeping correspondence with the enemies the continuing to govern a Province after a a Successor was named the Levying of an Army and running in to the Enemies All which are expresly enumerat ff ad leg Iul. Majestat II. Betwixt these two Hottoman assignes these four differences 1. That Perduellion was that whereby the Common-wealth was in general wrong'd qui summam rei publicae lube factare conati sunt Laesa Majestas was that whereby the Common-wealth was only wronged in a part or by consequence as to suffer the enemies of the Common-wealth to escape or to conceal them c. The 2. is the Crime of Laese Majestie might have been pursued before the ordinary Judge in foro but Perduellion could not be pursued but in the great Meetings of the People à populo Romano comitiis centuriatis in campo martio Whence probably did arise the judging Treason by Parliaments with us The 3. was that the Crime of ordinary Laese Majestie was not punished with death as Perduellion was but with banâ—shment The 4. was that the ordinary Laese Majestie was punish'd by death but Perduellion was punishable after death III. Treason may be with us divided in Perduellion which we call High Treason called by the English Law alta proditio or rebellion which is only with us a rising in Arms against the King and in ordinary Treason and Laese Majestie such as to conceal and not reveal Treason And in Statutory Treason which is not Treason properly of its own nature but is declared to be so by a particular Statute as is that of Murder under trust Theft in Landed-men c. IV. Perduellion in the Civil Law is that which we call Rebellion in our Acts of Parliament and it was so called extravagan Hen. 7. qui sunt rebelles And there it is Statute that rebelles infideles imperii qui quom docunque aliquid machinantur contra prosperitatem imperii But I find not the word Rebellion used in the Law before that time Yet sometimes Rebellion is in our Law taken for that which is committed against the Kings Person as in the 3. Act 1. Parl. K. Ia. 1. where it is said No man shall rebell against the Kings Person openly nor notourly But the Adverb there used openly and notourly in that and the subsequent Acts interprets sufficiently the word rising against the Kings person to be the same with us that is called Perduellion in the Civil Law viz. Siquis hostili animo adversus principem vel rempublicam animatus sit To raise Arms against the King then or to rise in open rebellion is the first and highest degree of Treason Ia. 2. Par. 6. Act 25. where it is called a raising in fear of War against the King which Act comprehends all the kinds of Treason like lex prima ff ad L. Iul. Majest And therefore I will follow that method And though it be added in that Act that it shall be Treason to rise in fear of War against his Person or Majesty of what ever age he be of without the consent of the three Estates Yet the consent of the three Estates will not defend the rising in Arms against the King as was found in the case of the Marquiss of Argyle being pursued upon this Act in Anno 1662. for rising in Arms against the Marquiss of Montrose then the Kings Commissioner For the Analysis of that Act must run run so as that these words Without consent of the three Estates cannot be added to all the former treasons committed against the Kings Person which are contained in that Act For many things in that Act could not be justified by the Authority of the three Estates for else the three Estates and not the King would be Soveraign for they only are Soveraign against whom Treason can be committed But these words must only be taken as added to the last Crime prohibit which is the assailing of the Castles or Houses where the Kings Person is which may be lawfully done by Authority of the Estates For if the King being very young were taken prisoner as our Kings oft-times were in their minority it had been absurd to think that these who went to assail by the authority of the three Estates that Castle where the Kings Person was should be punish'd as Traitors because of their obedience But to suppress all pretext that might arise from that Act it is declared by the 5 Act 1. Parl. 1. Sess. Ch. 2. That the King hath the only power of making War and Peace And that it shall be Treason for any number of men less or more upon any ground or pretext whatsoever to rise or continue in Arms to maintain any Forts Strengths or Garisons or to make Leagues or Treaties amongst themselves or with forraign Princes without his Majesties authority and approbation first interponed thereto or to attempt any of these things under
the King's will From which Act it is likewise to be observed that the command of the Magistrate doth in things belonging to his Office excuse the Liedges and therefore it may be asserted that the Liedges rising in obedience to commands of the Sheriff or Lord of Regality are not punishable except it was clearly palpable to them that their insurrection was in contempt of his Majesties Authority which appears to be the meaning of the foresaid l. si quis contra evidentissimam jussionem c. And seing the Liedges are oblidged to obey their Magistrats and to rise when he calls them as is evident by many Acts of Parliament and without this allowance his Majesty could not be served it were hard to punish them for that obedience which would be punishable if they refused it III. The convocating the Liedges in Bands of Men of War for daily or monethly wages without special licence is declared likewise to be punishable by death by the 75. Act 9. Parl. Q. M. which Act is ratified by the 12. Act 10. Parl. K. Ia. 6. And the making of all Leagues and Bands amongst the Liedges without his Majesties consent are discharged and the contraveeners are declared to be punishable as movers of Sedition and unquietness to the trouble of the publick peace of the Realm therefore to be punished with all rigour to the example of others Both which Acts are ratified by the 4. Act 1. Ses. Charl. 2. And yet it may be contended that such Seditions as these are punishable as Treason since the making of Bonds and Leagues amongst the Liedges is declared by the foresaid 4. Act to be one of his Majesties Royal Prerogatives And sure it is Treason for any of his Majesties Liedges to usurp his royal prerogative But sure it is that to convocat the Liedges simply without Bonds or Leagues can no wayes be accounted Treason much less the being present as such Convocations though in Arms And thus it was found in the case of a Baxter who was pursued as guilty of the Convocation raised against the Customers in Anno 1665. That naked assistance at such meetings per se was not relevant to infer death but only an arbitrary punishment as is clear by the 5. Act 1. Parl. Ia. 1. whereby all men are forbidden to travel with more not they can sustain and if they do they may be put under sicker Burrows till the King declare his will And by the 85. Act 6. Parl. I. 1. Electing of Deacons was discharged as Sedition Convocations are allowed in some cases as for pursuing of Thieves and Sorners as Ia. 6. Parl. 14. cap. 247. This Crime of simple Convocation is ordinarily pursued before the Council and is seldome punished either by the Council or Justice Court tanquum crimen per se but as the agradging quality of a Ryot or other Crime TITLE VIII Poyson 1. The punishment of Poyson by our Law 2. How far the giving good Druggs irregularly is punishable 3. Whether the poysoning Iews or Excommunicat Persons be punishable 4. Whether the poysoning Beasts or Fields be punishable by this Statute 5. Whether endeavours to poyson be punishable 6. The aggravations of this Crime 1. POyson is by our Law declared to be punishable as the Crime of Treason but it is not declared Treason Act 31.7 Parl. Ia. 2. By which all persons are discharged to bring home Poyson for any use by which any Christian man or woman may take bodily harm and that under the pain of Treason and that being convict they shall forefault to the King Life Land and Goods but notwithstanding of these words for any manner or use Apothecaries and others do daily bring home Poyson But to this it may be answer'd that they bring the same home not as Poyson but as Druggs and the Law presumes that the Liedges are in no hazard of that Poyson which is in the hands of skilful men This was likewise the opinion of the Doctors Gothofred prax criminal § venenum But notwithstanding that the buying or giving of Poyson is declared Treason by the Law yet I find no instances in the Journal Books where any have been convict as Traitors upon this account But on the contrary Iohn Dick for poysoning his Brother and Sister is only ordained to be execute but is not forefault ult March 1649. If any Stranger bring home Poyson any manner of way it is provided by the 32. Act of that Parliament that they shall be punished the same manner of way and that no remission or safe conduct shall be profitable to them The reason of this severity proceeds from the abominableness of that Crime plus est enim hominem veneno necare quam gladio dicit gloss in § ead lâ—ge just de publicis judicibus per textum l. 1. de mal Math. For he to whom Poyson is given cannot defend himself and Poyson is a way of death so much hated that though the Law hath allowed executions by the Sword yet it hath never allowed any execution by Poyson Those who give Poyson were by the Civil Law called venenarii and they were only punished capitally per l. Corneliam de sicariis l. 1. § 1. adl Cornel. de sic And it may be proved by presumptions Clarus Quest. 4. vers fin But the Body must in this case be sighted by Physitians and the poysonous quality must be proved The buying of Poyson though with a design to kill thereby if murder do not actually ensue is not thought capital by the Doctors but only punishable paena extraordinaria Gothofred prax criminal § venenum num 21. Yet with us the very buying is by this Act of Parliament capital II. Whether to give Druggs that are not of their own nature poysonable too frequently and contrary to the nature of the disease be punishable by this Law or as murder or be punishable at all was debated in Kennedies case the 8. of February 1676. and that it was punishable was contended because venenum or pharmacon was in Law nomen generis and exprest good Druggs as well as ill l. venenum ff de verb. sig And the best of Druggs given in great excess is Poyson for Poyson consists in excess of quantity as well as quality and whatever overpowers our nature is poysonable to us And since the one may kill as well as the other and that killing is that which is punish'd the Law should punish the one as well as the other And whatever may be said where the design was not known yet here the design of killing was communicated to Kennedie And it is proved that he refused to give meer poyson left the external marks after death should discover that Poyson was given but that it was safer to give constant purgations to be thrown in by his Servant in his drink upon all occasions and that without his knowledge and contrary to the nature of his disease he having a Flux All which circumstances shew a design to kill
Sodomy in which endeavour is punishable by the opinion of the Doctors though by the Law of England Sodomy requires habuisse rem veneream puerum carnaliter cognovisse Cook p. 59. albeit the manner of death is not exprest in this act yet practick hath determined the same to be hanging as in the case of Barnoch who was hanged for committing Incest with his own Sister Decemb. 8. 1641. And of Ioan Knox who was hanged for committing Incest with her husbands brother May 1646. Sometimes it is likewise punished with heading as in the case of Iames Strang who was beheaded for committing Incest with his brothers daughter the 4. of April 1649. III. Sodomy is when a man lyes with a man for which both are punishable by death l. cum vir nubit C. de adult they are burnt in France and Savoy as Gothofred observes By the 25. act Henry the 8. Sodomy is declared Fellony and the punishment of Fellony by the Law of England is in all cases to be hanged by the neck till death Though Carpzovius and the other Doctors are of opinion that confession alone is not a sufficient probation in this Crime except other presumptions concur for clearing that the Crime was truly committed yet with us the confession it self without any other adminicles is sufficient to inferr the punishment of death except the confessor be known or at least suspected to be distempered Mastrupatio est ubi quis propriis manibus aliove instrumento se polluit punitur ut sodomia Carp Part. 2. Quest 76. haec paena non est in usu apud nos IV. Bestiality is when a man lyes with a beast which the Romans also punished with death and in which some Lawyers affirm the endeavour is as highly punishable as the crime it self effectus sine affectu Papon lib. 22. tit 7. art 1. Damhaud cap. 96. n. 16. Which opinion they found upon the attrocity of the Crime and it seems that he deserves not to live who could harbour such horrid thoughts but especially if he did all that was in his power to put his design in practice and was only letted by some interveening accident 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But yet other Lawyers conclude that even in this crime the endeavour is punishable by a less severe punishment then death which seems clear by l. 1. § fin ff de extraord crim qui puero struprum abducto ab eo vel corrupto comite persuaserit aut mulierem puellamve interpellaverit quidve impudicitiae gratia fecerit perfecto flagitio punitur capite imperfecto in insulam deportatur And though in hotter Countreys where Custome and Climat lessens this Crime the Crime is by their Lawyers thought punishable less severely yet with us death ought to punish it if the delinquent was only letted by others And in both thir crimes of Sodomy and Bestiality witnesses who are lyable to exceptions will be received because of the attrocity of the crime Bos. de judiciis We have no particular statute for punishing either Sodomy or Bestiality for they are crimes extraordinar and rarely committed in this Kingdom but our Libels bear That albeit by the Law of the Omnipotent God as it is declared in the 20. c. of Leviticus As well the man who lieth with mankind as the man who lieth with a beast be punishable by death Yet c. the ordinar punishment in both these is burning and the beast is also burnt with which the Bestiality is committed as in the case of Iames Fiddes who being convict of Bestiality was ordained to be burnt in the last of May 1650. And Major Weir April 1670. Yet sometimes it is only punished by hanging and thus Iohn Logie was only hanged in Iuly 1642. and Iames Wilson was only hanged for the same crime 15. Feb. 1649. which last Sentence bore that the execution should be very early in the morning and ordained the Mare with which the Buggery was committed to be drowned in any Mosse or Loach TITLE XVI Raptus Ravishing 1. The nature of a Rapt described and its punishment 2. Whether the violent lying with a woman without the carrying her away be a Rapt 3. If the carrying a woman away upon any other accompt then lust be a Rapt 4. If the carying her away without lying with her be a Rapt 5. If a womans carying away a man be a Rapt 6. Whether a subsequent consent purges this Crime 7. Some instances of the punishment of this Crime 8. Whether the parents consent not being obtained makes a Rapt 9. Whether minors and such as force common whores be punishable for a Rapt RApt or Ravishing is that crime which is committed in the violent carrying away a woman from one place to another for satisfying the Ravishers lust And is in the Civil Law punishable by death l. un C. de Rapt virgin c. In our Law it is one of the four points of the Crown that is to say the cognition of it belongs only to his Majesties Justices and not to any other judge R. Maj. l. 1. c. 1. N. 6. and is punishable by death and confiscation of the Committers movables For albeit I remember not that the punishment of death be expresly appointed for it Yet in the 8 cap. l. 4. R. M. It is said expresly that it shall be punished as the other Crimes above related and these are Murder Treason and fire-raising which are all capitally punished And by the Act. 4. P. 21. I. 6. it is declared that albeit the consent and declaration of the woman ravished declaring that she went away of her own free will may free the committer from capital punishment Yet shall it not free him from such arbitrary punishment as His Majesty shall inflict by Warding confiscation of their goods or imposing upon them pecunial mulcts Which act insinuats that the Crime is otherwayes Capital else that act had been unnecessar II. The definition given of a Rapt l. 4. c. 8. R.M. is that it is the unjust oppressing of a woman by a man against the Kings peace in which it differs from the Civil Law at least from some Doctors who alledge that lying with a woman or abusing her body violently is not a Rapt except she be carryed from one place to another Albeit they do confesse that this violence is punishable by deportation or banishment and is as some affirm non Raptus sed Stuprum l. 3. C. de ad leg Iu l. de vi But yet other Lawyers and chiefly Mathaeus doe conclude that albeit the away taking and the forcing or violent abusing a womans body be differently punished yet they are degrees of the same crime and both are Rapts But according to our Law both are Rapts and both punishable by death Neither does our Law make any distinction inter Raptores deforciatores mulierum betwixt Ravishers and Deforcers of women and it were most unreasonable that he who defloures a woman violently should not be as severely punished
the Judge making election of one of the pains cannot thereafter make use of the other l. ff senatus de acusationibus vid. Cabal resol criminal cap. 3. where this general question is fully handled and to the considerations there adduced by him I would adde this that where there are several punishments appinted by Laws whereof the one derogats not from the other that the Judge should follow that of the two which is most in use And therefore seing Confiscation of moveables and imprisonment is alwayes used in this case that punishment should be certainly followed by the Juge for since custom may antiquat Laws and is a warrand for a Judge to proceed criminally where there is no Law it should much more determine betwixt two Laws which of them should be followed But there is the less difficulty in this case that none of the acts makes deforcement to be capital And these words that their lives shall be in the Kings will do not infer de jure the pain of death as is elsewhere fully debated but it may be doubted if their persons may not likewise be punishable seing not only by the former act are their lives to be in the Kings will but likewise by the seventh Act 17. Parliament I. 6. It is declared that deforcement of Officers shall be punished by the escheat of their moveable goods and punishment of their person according to the Laws of before So that there is geminatio legum which makes the Law much stronger And I remember that some Sea men in Bruntisland having rowed off their Boat when the Customers Officers were about to poynd some unfree goods bought out of Captain Dewars Ship by rowing off of which Boat the Messenger who was to Poynd fell in the Sea The Commissioners of the Thesaury did summarly in Iuly 1669. ordain the Sea-men to be whipt which was accordingly done III. Messengers have as the Badge of their Office a Blason bearing the Kings Armes and a Wand of Peace if they bear not the Blason it is believed and that is the first objection against the conception and relevancy of the Lybel they may be deforced because by that act only people are obleidged to know that they are Messengers and the Wand of Peace is that whereby they touch a Rebel and declares him to be their Prisoner and when they are deforced they use to break the Wand of Peace but though their Libel bear alwayes that the Wand of peace is broken yet if the troubling of the Messenger be proven though this quality be not proven the assize will still find guilty as was found in the case betwixt Murray and French 13. Iuly 1669. where it was likewise found that albeit ordinarily the Messenger who was deforced doth give in with his Libel an exemption of deforcement wherein after the ordinary form he relates how he execute the Letters and how and by whom he was deforced yet that execution is not absolutely necessary for proving the deforcement but that the deforcement may be proven by witnesses for else there could be no deforcement if the Messenger were killed so that he could make no execution or if he were bribed by the deforcer and so would give none but that an execution of deforcement was only necessary to the effect the Letters might be repute as validly execute as if they had been really execute It uses sometimes to be alledged against the relevancy of the Libel in this crime that the Libel is not relevant because it bears not that the Messenger had the letters of Caption in his hand and shew them to the Party whom he apprehended be vertue of that Caption for without seeing of the Letters the Party is not obliedged to obey and if it were otherwayes any man might take a free Liedge and keep him till he should get a Caption though he had none at the time of the execution But upon the 19. of February 1672. Gordoun of Braco was found guilty of deforcement though the Messenger his having a Caption was neither libelled nor proved and that because the Rebel did not crave to see a warrand and the Messenger was answerable if he did execute without a warrand Neither did the Lords think that the Messenger was bound to put the warrand in the Rebels hands left he should destroy it But he was bound to shew it to any disinteressed person who was present In the same Process it was likewise found that a Messenger might execute a Caption under silence of night though it was pretended that this might give a colour to Robbers to enter in to honest mens houses under night upon pretext of executing of Captions though Poyndings indeed cannot be execute after the Sun is set because a Poynding is a sentence and requires formam judicii and no Court can be kept under silence of night Some Judges ordain Officers to take Raes from a Mast and arrest Ships without a written order the haste of the executâ—on so requiring and therefore I think that though such have not a written warrand they cannot lawfully be opposed for it is the duty of all good Subjects to enquire first if he who pretends to have authority have it already though he see no written warrand but not rashly to oppose what may be lawful Another ordinary objection against the Libel is that the Messenger and his assisters did transgress their power and warrand and so it was lawful to resist them and thus upon the 18. of Novemb. 1667. Mr. Archibald Borthwick being pursued for deforcement it was alledged that he compeared as Procurator for the Lord Borthwick who had arrested Sandilands and the Tennents Corns as Master of the Ground and so alledg'd the Messenger could not poynd the Corns till the Master was payed wherein the Messenger did unjustly and so he had good reason to stop the poynding This alledgiance was found relevant but if justly it may be doubted And Lawyers are very positive that no man can stop any execution upon such pretence of unjustice where the unjustice can be no otherwise redressed by appellation or otherwise which they call resistentia licita per subsidium Menoch de recup possess remed 8. num 30. 31. Cabal resol crim cas 132. And their opinion seems most just for it were dangerous to make private persons and such also as are interessed Judges to the justice of what is done against themselves 2. Nunquam recurrendum est ad remedium extraordinarium quamdiu locus est ordinario but so it is that if a Messenger do any wrong in the execution of his Office he is lyable therefore ad damnum interesse and finds caution for that effect to the Lyon at his entry 3. Messengers are Judges in poyndings and it is not lawful to resist Judges upon pretence that they judge unjustly And this suggests to me another distinction which is that either a Messenger or Executer doth wrong the party interessed via juris as in omitting formalities and repelling
without inserting any part of the Process in the Journal Books wherein also I found that Malefactors were ordain'd to be execute very early in the morning for bestiality which was occasioned by the confession of one who asserted that the reason of his committing that crime was a curiosity he contracted at his seeing one execute for it And in such crimes no man needs to be deter'd nor wâ—ll terror restrain him whom nature cannot Since then executions for some crimes incite some to curiosity and vex others with horror and are necessary to none some may be more properly punished privatly then publictly and thus such persons as are popular and are execute only for crimes for which the people have a kindness will be more happily execute privatly then publickly because the persons executed are by publick executions obleidged to die rebelliously and the people are confirmed in their good opinion of them by their courage at death II. Constantine did forbid that any Malefactor should be crucified and this he did because of his respect to the Cross he likewise did forbid to stigmatize the face l. 17. C. de paenis because the face is Gods Image Martyrus was of opinion that banishment was not lawful lest the person so punished should be forced to live amongst Turks and others by whom he might become more flagitious then formerly and I have oft thought it inhumane to send our Malefactors to our neighbours and imprudent because it will occasion the sending of theirs from home whereby we may be likewise troubled with such as they have banished and it is probable that Correction-houses would be both safer and more advantagious for in these they may serve the publick whom they have offended but with us no Judge can confine a man whom he banisheth to any place without his Jurisdiction because he hath no Jurisdiction over other Countreys and so cannot make any Acts nor pronounce any sentences relative to them Torturing punishments at death are also very inexcuseable for they oft-times occasion blasphemies in the dying Malefactor and so damn both soul and body whereas the soul should be allowed to leave quietly this Earth and go in peace to the Region of Peace nor doth these terrifie others from the like offences for these who fear not death will fear nothing III. It was a rule amongst the Civilians that no man could obliedge himself to any thing under a corporal pain quia nemo est dominus suorum membrorum But with us it is most ordinary for a man who is guilty of a crime to obliedge himself never to return to Scotland under the pain of death thus Hamiltoun was hang'd Anno 1649. for returning to Scotland after she haâ— enacted her self never to return under pain of death and her dittay was only founded upon that contravention and certainly contempt being added to the former guilt may make a crime that was not capital become so and this contravention implies in effect paenam effracti carceris which is oft-times capital so that though a person cannot bind himself when he is guilty of no crime to perform any thing under pain of life or limb yet if he be guilty of a crime he may consent and enact himself as said is IV. Whether when Law allows a Judge an arbitrary power in punishing that Judge may inflict death in that case is much contraverted Chassan and Socin think that he cannot and this seems clear 1.4 qui vexant annonam debent puniri extra ordinem non tamen animae amissione Inst. de publ ind And Pappon relates a Decision of the Parliament of Paris finding that it could not 2. This would make Judges very arbitrary and render the Lives and Fortouns of the Leidges very unsecure 3. Seeing Lawyers are of opinion that no mans life can be taken away without an expresse Law it seems very consequential to this that no mans life can be taken away upon so general a Law 4. By the 20. Act Parl. 1. Sess. 1. Ch. 2. death and arbitrary punishment are opposed For these who haveing past sixteen years of age beat or curse parents are ordained to die but if they be within sixteen and past pupilarity they are ordained to be arbitrarly punished Whereas if arbitrary punishment might be extended to death this difference would be ineffectual and the Law thereby evacuat And by the 5. Act 1. Parl. Ia. 6. the punishment of saying and hearing Messe is escheating of their goods and an arbitrary punishment of their persons for the first fault banishment for the second and death for the third so that arbitrary punishments is lookt upon as lesse then death else the first fault should be as seveerly punished as the third against both the principals of reason and the design of the Law-giver 5. Arbitrary punishment is appointed ordinarly for so mean and inconsiderable faults that it were inhumane to think that these could be extended to death Skeen also de verb. sig verb. iter sayes that if the Pannel come in will it is lawful for the Justice to fine him according to his offence but he speakes not there of his power to inflâ—ct death eo casu and yet Skeen ad cap. 6. l. Malcolimbi vers 2. Wherein it is statute that the Marischal and Constable shall punish offenders according to the quality of the offence observes that paena extraordinaria may be sometimes extended to death because of the aggradging circumstances and cites for this l. ult ff de priv delict 16. de paenis but these Laws are ill cited as will appear by reading them When the pain is by Law or custome arbitrary and the defender comes in will he must presently find caution to satisfie the Kings will betwixt and such a day this is the constant custome and was practized the 22. of November 1600. Advocatus contra Patrick Mc. creif and others but where the crime is punishable by an expresse and determinat punishment there though a defender come in will it ought not to be received and thus the Marquise of Argile being pursued before the Parliament for Treason offered to come in will but his submission was not accepted V. It is uncontraverted with us if when any crime is punishable by death the Moveables falls to the King though the Act bear not that the crime shall be punishable by death and confiscation of Moveables and according to the Civil Law proscriptus eratis cujus bona expressim confiscabantur damnatus vero cujus bona tacite publicatio enim bonorum sequebatur tacite paenam capitalem Matheus cap. 2. de Sicartis num 2. And albeit the Judge should omit in his Sentence the punishment due by Law yet ipso jure there is by the damnation jus quaesitum fisco as was found after a large debate in the case of Wauch who being a landed man found guilty of Theft though he was only fined by the Sheriff in a thousand Pounds yet the Donator to the Escheat was found to have
concurrers kill any of the Robbers they are declared free upon which it may be doubted if such as kill Robbers without acquainting the Sheriff or Justices of Peace are punishable and it seems they are seing this Act explains the other and modifies somewhat the indefinite power given to private persons who upon pretence of such invasions which might prove very dangerous and therefore the last did wisely require the concourse of the Magistrate and upon this consideration I know that it was consulted that notwithstanding of this such as had not acquainted the Sheriff or Justices could not be exculpat And yet it may be argued that this Act narrates not the other nor bears expresly a rectification of it but without lessening the priviledge therein granted adds a new one and so being introduced in favours of possessors should not be interpret to their disadvantage By the Civil Law licebat nocturnum furum occidere And by the 227. Act 14. Par. Ia. 6. it is declared lawful for the Leidges to conveen and execute Thieves and they are all made Justices for that effect upon which Act a defence was propon'd for the inhabitants of Kintail who took a Robber and execute him by their own authority in a formal Court But by the Civil Law and Doctors it was not lawful furem vel predatorem diurnum occidere except the thing stoln was of great value and could not be otherwayes recovered or that he defended himself and resisted his being apprehended all which defences may be proved by the assertion of the killer Farin 125. part 4. And if any other Probation were requisite the benefit of these Acts were a snare rather then an advantage and necessity legittimats many things which are otherwayes hard XIV By the Civil Law it was lawful for the Father to kill his own Daughter if he found her committing adultery and to kill also her adulterer l. part 1. ff de Adult which was allowed rather in hatred to adultery then because the Law considered it was too hard for a Father to restrain his passion in that case for if it had been allowed to the father only upon this last accompt it had been allowed much more to the Husband to kill his wife if he found her committing adultery for his relation beeing nearer and his honour more concerned then the Fathers his passion behov'd to be also more violent and yet the Law being jealous of the Husbands violence does only allow the Husband to kill the adulterer if he be a mean person but if the adulterer be a person of quality or if the adulterer be found elsewhere then in the Husbands own house it it not lawful to kill them for the injury is hightned by polluting the Husbands own house and becomes a kind of adulterous Hamsuckin And yet if the Husband kill in either of these cases that Law ordained the husband only to be punished by some arbitrary punishment but not by death l. Marito ff de Adulter But this last determination doth not satisfie justice for it seems reasonable that it should be rather lawful to kill a person of quality committing adultery then a mean person both because adultery is more ordinar amongst them as having more ease and being more luxoriously fed and because the husband cannot be so easily presumed to have had former quarrels with a person above his rank and so should be believed to have killed him meerly to satisfie his just revenge As also since they can sooner prevail they ought to be more rigidly punished The Law has deny'd this priviledge to women who may not kill their Daughters or Husbands the reason whereof I conceive to have been that the Law considered that Husbands were more prejudged then the Wives by adultery since thereby not only was their bed defiled but their estate carryed away to another mans children or else it thought women too passionat to be intrusted with such a licence or that it was undecent to allow women the use of Armes And yet I believe their just grief would secure them against the ordinar punishment and though some prerogative be due to the man over his wife but not è contra yet women may complain that men being the only Legislators have taken too great a measure of favour to themselves in this Law I have not observed any decision of this in our Law and since our statutes have secuted murderers in other cases as in self-defence killing of thieves c. And yet have not priviledged this case it may seem that the husband nor rather cannot kill by our Law and the most that they could expect were that after they were found guilty by the Law the Council might either change the doom of death into an arbitrary punishment or might recomend the party to his Majesties clemency for a remission But it were hard to punish with death amongst us what almost all Nations allow as lawful and what may be yet a further check to that growing vice And this seems juster then to allow with the Civil Law that the Husband or Father who are persons interessed should be judges in their own concern and should be judges when they are in passion and because they are in passion Nor can I see why the Law should punish even him who possesses by his own authority what is truly his own and yet should allow here the parties interessed to punish with death by their own authority or that passion which only infers mitigation of the pain elsewhere should here infer absolute impunity for this were to make one irregular Act legittimat another since passion is a transgression against reason as Adultry is against Law But since this indulgence is personal and only granted to the Father and Husband because of their just passion and near relation it is not reasonable that it should be extended to such as kâ—ll by the Fathers or Husbands Command which command none ought to obey being contrair to Law Nor ought this indulgence to extend to the Father or Husband when they kill ex intervallo and not when they find the Committers in the very transgression for the Law allows no passion to continue therefore what ever revenge is allowed to it is only allowed if it be executed immediatly ex in continenti And though in civil cases that is said to be done ex in continenti or immediatly which is done before the doer go about any thing else Yet I conceive that interpretation would be too lax in this case and that the killer could not plead this priviledge except he killed them in the very Act or rising from it Homicidium deliberatum or upon fore-thought Fellony is still punishable by death and confiscation of the movables of the Defunct for His Majesties use Stat. Rob. 3. cap. 43. And albeit Lawyers say that it is still rather presumable to be casual then deliberat and that by our Law and custome designe is still libelled yet because it is impossible to