for above an hundreth Pounds shall be sustain'd except it be otherwise warranted then by the consent of the Clerk Albeit by the 75. Act Parl. 6. K. Ia. 5. the Barrons Precepts for Summonds in that Court is so called should be execute as Summonds before the Lords and Coppies should be left and they indorsed upon yet the 11. of Iuly 1634. Hay against Airth it was found that executions by a Barrons Officer are valid though not given in Writ and that the same are probable by Witnesses III. A Barron having power may judge of Theft if the Thief be taken in the fang quon attach cap. 100. where it is Statuted that baro qui libertatem habet de sock sack toll theam possunt judicare furem sasitum de aliquo furto manifesto sicut haud haebband back beirand de praxi Barrons do not punish Slaughter yet it may be urg'd that they have power to do so because 1. The power of Pit and Gallows would import the power of judging life and death 2. By the 77. cap. quon attach omnes Barrones qui habent furcam Fossam de latrocinio de hominis occissione habeant furcam id est curiam as the marginal note bears and by the 13. cap. Leg. Mal. 2. It is Statute that Malefactors who hold of Barrons may be condemned after the same manner that other Malefactors are except in the four Pleys of the Crown in which Barrons have no power from which it may be very clearly inferred that quo ad other crimes they have nam exceptio firmat regulam in non exceptis 3. By the 91. Act Parl. 1. I. 2. It is Statute if a man be slain in the Barrony if the Barron be Infest with such freedom he may proceed as the Sheriff doth And albeit Hope in his larger Practiques observes that these words of the Act if he be Infest with such freedom may receive various interpretations yet I see no interpretation they can properly receive except this that these words are meant if he have the Jurisdiction proper and competent to a Barron which is Pit and Gallows nam verba generabia interpretanda sunt secundum subjectam materiam Albeit wilful Fire-raising be one of the Pleys of the Crown yet a Barron may cognosce upon and punish the raisers of Fire rashly within Husband Towns in the Barrony I. 1. Parl. 4. cap. 75. The words of which Statutes are if Fire happen within Husband Towns of Barronies we leave them to be punished by their Lords in like manner as Bailiffs in Towns do within Burgh in which Act by the word Lords are meant Barrons for they are in several Acts of Parliament called Lords of their own Land or Barrony A Barron may unlaw for absence for ten Pounds but not above and for blood he may unlaw for fifty Pounds but not above VITLE XIV Of Justices of Peace OUr Justices of peace were called Irenarchae which signifies in the Greek the keeper of the peace irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territoria faciunt stare concordiam dicebantur etiam latrunculatores sen latronum expulsores Their Office was to apprehend Rebels and Thieves whom they could only examine and send to the President of the Province but could not judge them themselves their office is more fully described lib. 10. C. tit 75. but to speak properly latrunculatores were our Constables called by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justices of peace and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desuetude it was revived by 38. Act 1. Parl. 1. Sess. K. Ch. the 2. By this Act they are allowed to meet four times in the year and to adjudge of Servants fees and of mending the high wayes they have power to punish the cutters and destroyers of planting green wood slayers of red and black Fishes makers of moor-burn keepers of Crooves wilful Beggars Egyptians and their receptors Drunkards prophaners of the Sabbath as to all which His Majesty promises to give them ample commissions and to the end their power may not prejudge any other Court formerly erected it is appointed by that Act that fifteen dayes shall expire after the committing of the fact for which the committer is to be conveened Which interval is given to the Judge competent to do diligence and if he omit the same during that time then the Justices may judge the same and one Justice has power to bind the party complained upon to the peace under such pecunial Sums as he shall think fit and that either at the instance of a complainer who shall give his oath that he dreads harm or the Justice himself may exact the sum though none complain And if any person being charged to make his appearance before the Justice of peace shall refuse it he be a landed man whose rent exceeds a thousand Merks or ten Chalders of Victual then he shall inform any of his Majesties Privy Council or if he be a meaner person he may cause bring him by force before himself If the Sheriff or Bailiff condemn any person in blood-weit or any other pain but not proportionally to the offence then the Justices shall inform the Privy Council that they may take order therewith but if there be no satisfaction made by the Sheriff or Bailiff to the party the Justices may modify a reasonable satisfaction If the Sheriff or Bailiff do by collusion clear the Delinquent of an Assize the party once cleared is not to be further questioned but the Judges are to be punished by the Privy Council The Justices of peace are declared Judges competent to all Ryots and breaking of peace if the committeeâ—s be under the degree of Noblemen Prelats Councellours and Senators of the Colledge of Justice who may refer the Summonds to the parties oath if he be personally Summoned and thereupon hold him as confest but if the Summonds be not personally execute then the defender is to be summoned of new at his dwelling house and these two citations at his dwelling house shall be equivalent to one that is personal if the committers be above the foresaid quality then the Justices though they cannot judge them may for preventing of Ryots command them to find caution for keeping of the peace and to compear before the Privy Council and though they compear not yet whatever breach they commit in the interim shall be repute as great a contravention as if they had found caution At the end of every quarter Session the Justices of peace are to send to the Clerk of the Council a Catalogue of all such persons as they either have committed or have under surety with a short abreviat of the cause thereof which is that which the Civil Law in the former Title cals transmittere cum elogio to the end that the Council may determin betwixt and the quarter Session what shall be done with them
Regality were in Law no part of the Regality but off the Royalty and that such as lived in these Palaces could not be cited at the Head Burgh of the Regality but at the Head Burgh of the Shire the 11. of Ianuary 1662. L. Carnegie against the Lord Cranburn IV. Whether His Majesty may erect Regalities within the bounds of Heritable Sheriff-ships is controverted with us and if he may certainly he may thereby evacuat the Office of Sheriff-ships though bought with real Money which is hard And yet the Exchequer past a Signator of Drumlanrigs albeit Niddisdale within the bounds of which Sheriff-ship it is erected be an Heritable Sheriff-ship and the like decision is related by Hop M. h. t. and the reason seems to be that His Majesty by granting an Heritable Sheriff-ship alters not its nature and the nature of a Sheriff-ship is that His Majesty is not thereby divested of Jurisdiction and the Sheriff appointed being but His Majesties Deput his Creation cannot hinder His Majesty to erect a new Jurisdiction within its bounds as he may erect a Burgh-royal therein or a Justiciary c. When Lands are dispon'd in Conjunctsee the Heritor retains still the Office of Regality Hop hoc tit V. Albeit it be regularly true that Lords of Regality have the same jurisdiction with His Majesties Justices yet this rule suffers two exceptions 1. In the case of Treason to which the justices are only judges competent and that not only where the Treason libelled amounts to the crime of Perduellion but even in Statutory Treasons such as firing of Coal-heughs theft in landed men c. And some Lawyers are likewise of opinion that these crimes which are declared to be the four Points of the Crown viz. Robbery Murder Fire-raising and Ravishing of Women should not be liable to their jurisdiction which opinion is founded upon the 2. cap. leg Malcolm 2. By which it is Statute that all Robbers Forces of Women Murderers of Men and Burners of Houses shall answer before the Kings Justiciar and are therefore called Pleys of the Crown And by the 14. cap. Stat. Alex. 2. it is ordained that in all the Courts of Bishops Abbots and the Lords whatsomever these four Pleys shall be reserved from their Court to the Kings own Court because they belong to the Crown which is confirmed by the 76. cap. quon Attach Likeas Skeen de verb. signif Upon the Word Placitum is clear that these four Pleys of the Crown belong only to the Crowns jurisdiction or Justice-general in the same manner with Treason he there likewise observes that they are called placita from the French Word placitare which signifies Litigare as Mollineus observes Sup. cur Parl. parti Primo cap. Sexto And yet de facto Lords of Regality do ordinarly judge upon these crimes without any Commission And I find that the 22. of Iuly Brown is assoilzied from a pursuit of Fire-raising because he had been formerly pursued before the Marquess of Hamiltoun and assoilzied Actions of Deforcement also in my opinion being intented before the Iustices cannot be repledged for the Kings Messenger being then Deforced it is not fit that His Majesty should be oblieged to seek justice from inferiour Judges where His Officers of State cannot attend to pursue and cap. 27. l. 4. Reg. Maj. it is said that ad solam curiam Regis pertinet placitum de namo vetito and this the Justices sustain'd the 23. of November 1675. in the case of William Crighton though the debate was not allow'd to be booked The 2. exception is that no Bailie of Regality can repledge from Justice Airs Act 29. Parl. 11. Ia. 6. which was likewise Statute formerly by the 26. Act Ia. 2. Parl. 6. But in this case the Bailie of Regality may sit with the Justice-general yet seing the forsaid Act of the 11. Parl. King Ia. 6 allowes only no Repledgiation to be from Justice Airs holden by the Justice-general it may be doubted if when Justices Airs are holden by the Justice Deputs or others by vertue of particular Commissions there may not be Repledgiation allowed in that case but I think there cannot seing the Act of Parl. Ia. 2. is general and Skeen remarks this as a priviledge of the Justice Air qua talis VI. Regalities are divided with us in Ecclesiastick and Laick Ecclesiastick Regalities were such as were erected in favours of Bishops Abbots c. And there are but very few Abbacies in Scotland which were not erected in Regalities and when these were annexed to the Crown by the foresaid 29. Act Parl. 11. K. Ia. 6. It is declared that the Bailie or Stewart of the Regality shall have the same power he had before to Repledge from the Sheriff or Justice-general in case he have prevented the Justice-general by apprehending or citing the Person before he be apprehended or cited by the Justice but if the Justice have prevented as said is then the Bailie or Stewart of the Regality shall not have power to Repledge but he may sit with the Justice-general if he pleases so that in effect by this act there is difference betwixt Ecclesiastick and Laick Regalities that in Laick Regalities there is a Right of Repledging still as said is wheras Ecclesiastick Regalities have not this priviledge except they preveen the Justices but otherwise the Bailie of Regality may only sit with them Which difference seems to â—e acknowledged in the debate at His Majesties Advocats instance against several Fore-stallers upon the 26. of Iune 1596. And thus Mr. Iohn Prestoun then Depute to the Regality of Musselburgh was not allowed to Repledge but to sit with the Justices in the tryal of some Witches upon the 29. of Iuly 1661. The reason of this difference was that the Regalities having been only granted in favours of the Religious Houses which were supprest The Regalities became extinguisht with them and His Majesty having ex gratia only renewed their Offices to the Lords of Erection he thought that they were abundantly gratified by this new concession without allowing them the power to exclude his own Justices in case of prevention and this was also a favour to the Liedges in not troubling them with two Courts Nor were the Lords of Regality much prejudged for by this same Act they retain the whole right to the Escheats and Fines even of these who are condemned by the Justices And therefore the Lords found that the Lord of Regality had right to the Escheats of such as were condemned by the Justices or Justices of Peace the 22. of Iuly 1664. Elizabeth Sutherland contra Conradge so that this holds not only where the Justices sit with the Lord of Regality but likewise where the Justices condemn without the others concourse and yet it may be urged that since the Lord of Regality serves not in that case he ought not to get these Casualities which are the reward due to these who do justice and the Lord of Regality has himself only to
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
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
of Regality is no more Judge competent to these then he is to Treason I was once consulted whether a Lord of Regality might place a Gallows upon any part of his Vassals Land lying within his Regality and at first it seem'd that he might for unaquaeque gleba servit and what was lawful in some part was where there is no restriction lawful in any part but if there was a former place fix'd upon by custome I think the Lord of Regality could not alter the same 2. If there were any apparent design of affronting the Vassal I believe he could not use this priviledge as if he did offer to place the Gallows at his Vassals Gate or at his Garden-door or any such places for where the Law sayes that quilibet potest uti jure suo it adds modo hoc non faciat principaliter in aemulationem alterius 3. Even in other places there is some moderamon decorum to be observed and I doubt not but upon application to the Council they would appoint some persons to choose an indifferent place for even in these servitudes ubi unaquequae gleba servit hoc accipiendum est â—iviliter sayes the Law non judaice for if a man should grant me a servitude of a way to my house through any part of his ground yet I could not compel him to throw down his Garden walls or to suffer me to go thorrow his Corns if there were or might be another passage found though it were not so near TITLE XII The Jurisdiction of Sheriffs in Criminals 1. The origine of this office and how it is conveyed in Scotland 2. He is the chief preserver of the peace and so many convocat the Liedges apprehend sayers of Masse false Coyners c. 3. He is not Iudge to the four Pleys of the Crown 4. The way of procedure before the Sheriffs 5. Whether he may judge where no privat party complains 6. He should attend the Iustice Aires 7. How he is to be punished if he transgress in his office ALluredus in the League made with Guntherus King of Denmark divided England in Satrapias centurias decurias and called Satrapiam a Shire that is to say a Section or division of Land from the word Shire which signifies to cut so that a Sherifdom is a Jurisdiction within the bounds of a particular limited Countrey It is called in our Latine stile vice comitatus and though most of the Shires in Scotland be erected in Sherifdomes by particular Acts of Parliament yet by an unprinted Act in Anno 1504. It is declared that His Majesty may erect unite or divide Sherifdoms without consent of Parliament And though his Majesty erect a Burgh-royal or Barrony within the Sherifdome yet they still continue to be under the Jurisdiction of the Sheriff and they have a cumulative Jurisdiction with him but not privative of him Sheriffs in Scotland are either during life and then the office passes by a signatour and passes the great Seal or otherwise it is conferred as an heretable right quo casu though it be transmitted in the same way and manner with other heretable rights yet because it is merum jus incorporeum it requires no seasing but albeit all these heretable offices were upon good reasons discharged by the 44 Act 11. Parl. K. I. 6. seing industria personae respicitur in judice And albeit K. I. 6. and King Charles the first did design to buy in all the heretable Sherifships and bought in many yet there are many of them to this day injoyed by Noble-men and others II. The Sheriffs of Scotland have a Civil and Criminal Jurisdiction but the last of these is that which we are only to consider as peculiar to this Treatise The Sheriff is in effect the supreme Justice of peace to whom is mainly entrusted by the Law the securing of the quiet and tranquility of that part of the Kingdom which is subject to his Jurisdiction and therefore though no other person be allowed to ride with gatherings of the Liedges yet the Sheriffs is nor can he be pursued for a convocation upon that account seing he may convocat at his pleasure for repressing of tumults and upon many other accounts as was found in February 1664 betwixt the Earl of Seaforth and the Laird of Ballingown for it doth belong to his office to discharge all convocations of the Liedges and if they refuse he should continue his Court and advertise the King K. Ia. 3. Parl. 14. Act. 104. Albeit in civilibus neither the Sheriff nor Barrons can hold Courts in feriat or close time of vacance Yet in Criminals he may hold Courts during the time of vacance quia periculum est in mora as is observed by Haddingtoun the 19. Ianuary 1623. And Sheriffs has not power to exact caution from a Malefactor to underly the Law for he cannot proceed except either the defender be cited or deprehensus inflagranti crimine 25. Mart. 1628. The Sheriff is Judge competent to the crime of Witch-craft Quen Mary her 9. Parl. Act. 37. albeit de praxi none used to judge Witch-craft but the Justices or such as have a particular commission from the Council They should apprehend the sayers and hearers of Masse Act 5. Pa. 1. K. I. 6. And the strikers of false Coyn I. 3. Pa. 3. cap. 18. but they are not allowed by the Law expresly to proceed in either of these cases from which it may be argued that they are not Judges competent thereto for else the Law had expresly allowed them the same inclusio unius est exclusio alterius They should apprehend punish and banish Sorners I. 2. P. 6. cap. 22. Egyptians I. 6. P. 12. cap. 124. Idle-men Ia. 1. P. 3. cap. 66. Shooters with fire-works Q. Mary Par. 4. cap. 9. Fore-stallers I. 5. P. 4. cap. 20. Transporters of Neat and Sheep and other Cattel Ia. 6. Par. 7. cap. 124. Ia. 6 Par. 12. cap. 129. The destroyers of Planting K. I. 6. P. 6. cap. 84. III. Sheriffs may at any time condemn for Blood-weits but the penalty cannot exceed fifty Pounds The Sheriff nor no other inferiour Judge can Judge the four Pleys of the Crown viz. open Robbery Fire raising and ravishing of Women and Murder Yet of old Sheriffs might sit upon Slaughter if the committers were attactht within fourty days thereafter cap. 59. quon attach And Act 89. Par. 6. I. 1. And if he be taken red hand he should be execute by the Sheriff within that Sun ibid. And yet by the 28 Act Parl. 3. K. I. 4. Three Suns are allowed conform to the old Laws and if the committer of the Slaughter flee the Sheriff shall acquaint the next Sheriff and so from one Judge to another until the committer be apprehended and when he is taken he is to be sent back to that Sheriff where the crime was committed where justice is to be done upon him and if he be found guilty of Fore-thought Fellony he shall dye
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