she knew she would starve for no person thereafter would either give her meat or lodging and that all men would beat her and hound Dogs at her and that therefore she desired to be out of the World whereupon she wept most bitterly and upon her knees call'd God to witness to what she said Another told me that she was afraid the Devil would challenge a right to her after she was said to be his servant and would haunt her as the Minister said when he was desiring her to confess and therefore she desired to die And really Ministers are oft-times indiscreet in their zeal to have poor creatures to confess in this And I recommend to Judges that the wisest Ministers should be sent to them and those who are sent should be cautious in this VI. Many of them confess things which all Divines conclude impossible as transmutation of their bodies into beasts and money into stones and their going through walls and closs doors and a thousand other ridiculous things which have no truth nor existence but in their fancy VII The Accusers here are Masters or Neighbours who had their Children dead and are engaged by grief to suspect these poor creatures I knew one likewise burnt because the Lady was jealous of her with her Husband And the Crime is so odious that they are never assisted or defended by their relations VIII The Witnesses and Assysers are afraid that if they escape that they will die for it and therefore they take an unwarrantable latitude And I have observed that scarce ever any who were accused before a Countrey Assize of Neighbours did escape that tryal IX Commissions are granted ordinarily to Gentlemen and others in the Countrey who are suspect upon this account and who are not exactly enough acquaint with the nature of this Crime which is so debateable amongst the most learned Nor have the Pannels any to plead for them and to take notice who are led as Witnesses so that many are admitted who are testes inhabiles and suspect And albeit their confessions are sent to and advised by the Council before such Commissions be granted yet the Council cannot know how these confessions were emitted nor all the circumstances which are necessary and cannot be known at a distance Very many of these poor silly Women do reseal at the Stake from the confâ—ssions they emitted at the Bar and yet have died very penitent And as it is presumeable that few will accuse themselves or confesse against their own life yet very many confess this Crime 3. The method I shall use in treating of this Crime shall be 1. Upon what suspicion Witches may be apprehended 2. What Judges are competent 3. What Ditty 's are relevant 4. What probation is sufficient 5. What is the ordinary punishment As to the first I know it is ordinary in Scotland not only that Magistrats do apprehend Witches almost upon any dilation but even Gentlemen and such as are Masters of the Ground do likewise make them prisoners and keep them so till they transmit them at their pleasure to Justices of Peace Magistrats or to some open Prisons But all this procedor is most unwarrantable for Gentlemen and such as are vested with no authority should upon no account without a special warrand apprehend any upon suspicion that they are Witches since to apprehend is an act of jurisdiction and theâ—efore I think no prison should receive any as suspect of Witch-craft until they know that the person offered to them be apprehended by lawful Authority 2. Since imprisonment is a punishment and constantly attended with much infamy to the name and detriment to the affairs of him who is imprisoned especially in Witch-craft I do conclude that there must some presumption preceed all inquisition For the meanest degrees of inquisition though without captour does somewhat defame And that the person should not be apprehended except it appear by the event of the inquisition that she lyes under either many or pregnant suspicions such as that she is defamed by other Witches that she hath been her self of an evil fame that she hath been found Charming or that the ordinary Instruments of Charming be found in her House And according to Delrio's opinion lib. 5. Sect. 2. ad assumendas informationes sufficiunt levia judicia sed gravia requiruntur ad hoc ut citetur reus ut judex specialiter inquirat IV. Witch-craft was crimen utriusque fori by the Canon Law and with us the Kirk-sessions use to inquire into it in order to the Scandal and to take the confession of the Parties to receive Witnesses against them as is clear by the Process of Ianet Barker and Margaret Lawder Decemb 9. 1643. But since so much weight is laid upon the depositions there emitted Kirk-sessions should be very cautious in their procedors By the Act of Parliament Q. M. 9. Parl. 73. Act. All Sheriffs Lords of Regalities and their Deputes and all other Judges having power to execute the same are ordained to execute that Act against Witch-craft which can import no more but that they should concur to the punishment of the Crime by apprehending or imprisoning the party suspect But it doth not follow that because they may concur that therefore they are Judges competent to the cognition of the Crime since the relevancy in it is oft-times so intricat and the procedor requires necessarily so much arbitrariness and the punishment is so severe that these considerations joyntly should appropriat the cognition thereof solely to the Justice Court Nor find I any instances wherein these Inferior Courts have tryed this Crime And albeit the Council do oft-times grant Commissions to Countrey-men yet that seems dangerous nor can I see why by express Act of Parliament it should have been appointed that no Commission should be granted for trying Murder and yet Witch-craft should be so tryed by Commissions The Justices â—hen are the proper Judges in Witch-craft V. As to the relevancy in this Crime the first Article useth to be paction to serve the Devil which is certainly relevant per se without any addition as is to be seen in all the inditements especially in that of Margaret Hutchison August 10. 1661. And by Delrio Carpz p. 1. quest 49. and others but because the Devil useth to appear in the similitude of a man when he desireth these poor creatures to serve him therefore they should be interrogat if they knew him to be the Devil when they condescended to his service Paction with the Devil is divided by Lawyers in expressum tacitum an expresse and tacit paction Expresse paction is performed either by a formal promise given to the Devil then present or by presenting a supplication to him or by giving the promise to a Proxie or Commissioner impowered by the Devil for that effect which is used by some who dare not see himself The formula set down by Delrio is I deny God Creator of Heaven and Earth and I adhere to
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
hate such as design to inform them as if he were more my friend who would set my Family by the ears than he who instructed my Children and Servants in necessary duties There are but too many who endeavour now to make all whom they hate pass for such as love Arbitrary Government but as in many passages of my former life I have preferred my Countreys interest to my own so in this Book I endeavour to oppose Arbitrariness where it is most dreadful and that is in matters Criminal in which Life and Fortune are equally expos'd for he who disinterestedly declares his own opinion before private cases occurr wherein interest or inclination may byass him doth in so much praeclude himself and others too as far as his authority can reach from the power of being Arbitrary and let others say what they please I will stand more in awe of my conscience then of my enemies and govern my self more by my own reason then by the giddie multitude I hope I need not be jealous that our publict differences will make any unkind to this Book which is published for their service and which is now more accurate than when it at first pleased them in Sheets I did Print it not only to correct the many false Copies which were abroad but to divert me from refining too much upon our publict debates and I wish the reading it may have the same effect upon others And that all of us would turn things to their true light and consider without passion how happy we are who live under a Prince of our own Religion and Blood whose clemency is as extraordinary as his restitution who governs us by our own Laws and countrey men and distribute all his own revenue amongst us That we enjoy by his prudence a profound Peace whilst others bleed or starve in lasting Wars That all the Commerce of Europe is gathered in amongst us that we are free from those sucking Taxes under which they groan and are but lately rescued from a Rebellion in which after we had emptied our Veins and Purses for Religion and Liberty we became Atheists and Slaves THE INDEX PART I. 1. OF Crimes in general and by what Law they are judged in Scotland 21. The division of Crimes 25. Blasphemy 29. Heresie 34. Simony Baratry 37. Treason Laesae Majestas 64. Sedition 67. Poyson 72. De Incendiariis or Fire-raisers 80. Witch-craft 109. Murder 139. Of Duels 148. Self-murder 152. Paricide 159. Incest Sodomy Bestiality 163. Rapes or Ravishing 169. Adultery 185. Bigamie 190. Theft 211. Theft-boot and Receipt 218. Hame-sucken 223. Breaking of Prison 230. De Dardanatiis or Fore-stallers 236. Usury 248. The Bribing Partiality and Negligence of Iudges 255. Deforcement 268. Falshood 286. Stellionatus 290. Perjury 303. Of injuries personal and real and of infamous Libels 309. Poynding of Oxen in time of Labouring 314. Bearing of unlawful Weapons 317. Beggars and Vagabonds 319. Robbery Oppression vis publica privata 331. Art and Part Ope Consilio 347. Some Crimes punished amongst the Romans which are not directly in use with us PART II. 351. OF Iurisdiction in general 355. Of the Iudge competent de foro competenti 364. Iurisdiction of the Parliament in Crimes 367. Iurisdiction of the High Constable in Criminals 372. The Iurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. 374. The Iurisdiction of His Majesties Privy Council in Criminals 385. Of the Exchequers Iurisdiction in Criminals 386. The Iurisdiction of the Lords of Session in Criminals 393. The Admirals Iurisdiction in Criminals 397. The Iurisdiction of the Commissars in Criminals 401. The Iurisdiction of Regalitis in Criminals 411. The Iurisdiction of Sheriffs in Criminals 417. The Criminal Iurisdiction of Barrons 420. Of Iustices of Peace 423. The Iurisdiction of the Iustices and of the several Imployments and Officers of that Court. 429. The Iurisdiction of the Iustices over Souldiers and of Military Crimes 434. Advocations of Criminal Causes 442. Of Inquisition 446. Of Accusations and Accusers 456. Of Advocats and Procurators 462. Of Libells and the forms of Process thereto relating 476. Of Exculpation and the other priviledges competent to the Defender 488. Of Assizes 511. Of Probation by Confession 522. Probation by Oath by Writ and by Presumptions 527. Probation by Witnesses 543. Of Torture 546. Of Remissions 551. Of Prescription in Crimes 556. Of Punishments de poenis 567. Of Criminal Sentences and their Executions PART I. TITLE I. Of Crymes in general And by what Law they are judged in Scotland 1 How Crymes differ from Delicts and Malefices 2 In what consists the nature and essence of a Cryme 3 By what Lawes Crimes are punish'd in Scotland 4 How far dole or design is necessar to the committing Crimes and how tendencies and insinuations are punisht 5 Whether Minors can commit Crymes 6 Whether such as sleep can commit Crymes 7 Whether such as are drunk are punishable for Crymes 8 Whether furious persons are punishable 9 Whether an university or collective body be punishable GOD Almighty having created this Lower World to be equally an instance of his power and of his goodness did furnish it with great variety of excellent and wonderful productions but lest these should be defac'd at pleasure by man who having ruin'd himself doth little value and is much inclined to ruine every thing besides therefore God did not only imprint upon his soul some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 common principles whereby he is led to love order but did likewise fence the aeconomy and government he had placed in the world with rewards and punishments And it was just that as these who did vertuously were to be rewarded so these who were vitious should be punisht which punishments are the subject-matter of the Criminal Law and of this Treatise I. Transgression or peccatum is by Modestinus l. obligamur ff de obl Act. made the root of all enormities and is divided delicta into quasi delicta crimina Quasi delicta are such faults and transgressions as are not so hainous that they deserve to be punisht criminally such as small ryots delicta are such as deserve a more severe punishment but yet because they tend not to wrong the Common-wealth and publict security immediately therefore do not deserve to be punisht by any express Law as Crymes Crymes are these injuries done to the Common-wealth which are so immediat and heinous as that they are punished by express Law This distinction is used by Matheus but Farinacius makes delictam the genus and divides it in crimen maleficium with us this subtilty is not observed for the word Crime comprehends both Crymes and Delicts The Summonds raised for accusing in both are called Criminal Letters and the Court in which both are judged the Criminal Court Neither use we the word malefice in any Cryme but in witch-craft in which it signifies that prejudice and damnage which arises from the unlawful means used by Sorcerers II. In
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
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
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
by the Lords of Secret Council to have the sole criminal Jurisdiction and did repledge servant to Sir Thomas Nâ—colson the Kings Advocat arraigned before the Magistrats of Edinburgh for a Slaughter and Assoilzied him upon production of a Remission And upon the 5. of September 1672. Gilbert Earle of Errol did repledge Iames Iohnstoun Violer arraigned before the Magistrats of Edinburgh as Sheriffs within themselves for stabbing of his Wife the day before Easter the Magistrats had taken his judicial confession and summonded the Assize there was no formal repledgiation because the Magistrats passed from him upon the Constables application and upon the 6. of that Moneth of September the Constables Deputs sentenced him to be hang'd and to have his right hand which gave the stroak cut off and affixed upon Lieth wind Port and ordained the Magistrats of Edinburgh to cause put the sentence to execution upon the 9. of that Moneth Likeas the Coach-man of a Noble-man having about the same time wounded a Child the Constable commanded the Towns Guards to apprehend the Delinquent which they accordingly did till he was freed by a Remission II. Out of this high Magistracy of Constable sayes Lambert an English Lawyer were drawn those inferiour Constables of hundreds which Office we borrowed from them and they are with us subservient to the Justices of Peace and are to be chosen by them two out of every Paroch and as many in Towns as may be proportional to the greatnesse thereof and they have power to apprehend all suspicious idle or guilty persons and may require the neighbours to assist them and if the guilty persons flee they may require the master of the house to make open doors all which with many other particulars are entrusted to them by the 38. Act. 1. Par. Ch. the 2. III. His Majesties Predecessors used of old to build Castles in the considerable Towns of the Kingdom and for preserving the Peace both in that Town and in the adjacent Countrey and the Governours of those Castles were called Constables though they were more properly Castellains or Chastellains as the English Lawyers observe these had the power of riding the Fairs and having had the Keys of the Tolbooth delivered to them they exercised a criminal jurisdiction during those Fairs but it was found that this jurisdiction did not extend to Fairs that were granted posterior to the Office of Constabulary nor to the customes thereof as was found the 18. of Iuly 1676. betwixt the Earl of Kinghorn and the Town of Forfar but these Offices depend absolutely upon prescription use or custome which either extinguisheth or limits them most variously but because those Constables use to extort customes at those Fairs it is therefore appointed by the 60. and 61. Acts 13. Parl. Ia. 2. that the Constable shall not exact any such customes except his Festment bear him thereto and that old use and custome shall not be sufficient Which Acts are ratified by the 33 Act 5. Parl. Ia. 3. But if the Infestment in the general bear cum feudis devoriis c. Possession by vertue of that general Right will be found sufficient though the particular Casualities be not exprest in the Infestment as was found in the former case betwixt the Earle of Kinghorn and the Town of Forfar This Officer was amongst the Athenians call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE V. The Jurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. THe Chamberlain was an office to whom belonged the judging of all Crimes committed within Burgh and he was in effect Justice-general over the Burrows and was to hold Chamberlain-Aus every year for that effect the form whereof is set down in Reg. Maj. in a Book intituled the Chamberlain-Air Iter Camerarii he was a Supream Judge nor could his Decreets be questioned by any Inferiour Judicatory Iter. Cam. cap. 35. and his sentences were to be put to execution by Bailiffs of Burghs ibid. cap. 37. he made the prices of all Victual within Burgh cap. 33. and of these who wrought in the Mint-house Statute Da. 2. cap. 38. He is called Camerarius à Camera id est testudine sive fornice quia custodit pecunias quae in Camer is praecipue reservantur This office belonged heretably to the Duke of Lennox but its priviledges are by his absence run in desuetude Magistrats of Burghs as such have no Jurisdiction but what is competent by their Charter of erection wherein ordinarily they have power of Pit and Gallows but sometimes they are Justices within themselves as Edinburgh who have right also to all escheats of their own Burgesses or other Criminals judged by them for crimes committed within their own Burgh Sometimes they are Sheriffs within themselves and ordinarily they are Justices of peace within their own Jurisdiction The King may erect a Burgh Royal within the bounds of another Jurisdiction as of a Regality but in that case though the Lord of Regality consent to the erection yet it will not prejudge the Bailie of Regality whose Right of Bailiery was constitute prior to the erection of the Casualities that were formerly due to him albeit it was alledged that the Lord of Regality might disolve and dismember that part from the Regality without the Bailies consent and so it not being in the Regality it could not be subject to the Bailiery the 27. of February 1666. Lord Colvil contra the Town of Culross TITLE VI. The Jurisdiction of His Majesties Privy Council in Criminals 1. In what consists the Iurisdiction of the Council their President and number 2. Their procedur in punishing Ryots 3. Whether a power to eject be a sufficient defence against a Ryot 4. The punishment of Riots 5. Precognitions fully considered 6. The Council name Assessors to the Iustices and sometimes review their Sentences 7. They grant Letters of Intercommuning and Commissions for Fire and Sword 8. They sometimes ordain Houses to be delivered under pain of Treason I. THe Affairs of this as of all other Nations are either such as concern the policy of the Kingdom in general or such as respect the distributing of Justice betwixt privat parties the policy or government of the Kingdom is regulated by His Majesties Privy Council in which the Chancelor is President if he be present but in his absence the President of the Council precedes This Office of Precedent of the Council is a distinct imployment and it gives him the precedency from all the Nobility The number of this Judicator is not definit depending upon His Majesties Commission but all the Officers of State are Members of it ratione officii it has its own Signet and its Letters past by a Bill subscribed by any one of the Council upon which warrand the Letters are in their several forms extended and subscribed by the Clerk of the Council and they bear also to be ex deliberatione Dominorum Secreti Consilii they must be execute at least upon six free dayes and a
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
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