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A50574 The laws and customes of Scotland, in matters criminal wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours / by Sir George Mackenzie ... Mackenzie, George, Sir, 1636-1691. 1678 (1678) Wing M166; ESTC R16497 369,303 598

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EDINBURGH The seventh of April 1677. IT is ordered by the Lords of His Majesties most Honourable Privy Council that none shall Re-print or Import into this Kingdom this Book Entituled The Laws and Customs of Scotland in Matters Criminal By Sir George Mackenzie of Rose-haugh for the space of Nineteen years after the Date hereof under the pain of Confiscation of the same to Thomas Brown George Swintoun and Iames Glen Printers hereof and further punishment as the Council shall think fit to inflict upon them Extracted be me Thomas Hay THE LAWS AND CUSTOMES OF SCOTLAND In Matters CRIMINAL Wherein is to be seen how the Civil Law and the Laws and Customs of other Nations do agree with and supply ours By Sir GEORGE MACKENZIE of Rose-haugh EDINBVRGH Printed by Iames Glen Anno Domini MDCLXXVIII TO HIS GRACE JOHN Duke of LAUDERDALE Marquess of March Earl of Lauderdail and Guildford Viscount Maitland Lord Thirlestane Musselburgh Boltoun and Petersham President of His MAJESTIE' 's most Honourable Privy Council of SCOTLAND Sole Secretary of State for the said Kingdom Gentleman of His MAJESTIE' 's Bed-Chamber and Knight of the most Noble Order of the Garter May it please Your Grace THough the number and wit of such as use to write Dedications may seem to have exhausted all that can be said upon such occasions yet I have a new way of address left me which is to write nothing of you but what is true by the confession of your enemies who admire more the greatness of your Parts than of either your Interest or Success And how you have made so great a turn in this Kingdom without either Blood or Forfeiture shewing neither revenge as to what is past nor fear as to what is to come continuing no longer your unkindness to any man than you think he continues his opposition to his Prince All have at sometime confest that you have been the Ornament as well as Defence of your Native Countrey to whom every Scottish-man is almost as dear as every man is to his own Relations And I am sure that your enemies will find it easier to put you from your Office then to fill it and none of them can wish you to be removed without being himself a loser by it Nor can I be so unjust even to such as oppos'd you as not to acknowledge that I have heard them talk of you so advantagiously when design and interest oblidged them to dissemble as almost convinced me that the most of them opposed you only in publick rather from the glory of having so great an Adversary than from the justice of the undertaking And your Countrey has in their late Confluences where they crouded in mighty numbers and with a remarkable joy to meet you when a privat man shew'd greater respect to your naked merit then to the highest Characters by which others were marked out for publict honour Having writ this Book to inform my Countrey-men and to illuminat our Law I could not present it more justly to any than to your Grace who has derived your Blood from a Noble Family which has been still eminent in our Courts of Justice since we had any and who are your self the greatest States-man in Europe who is a Schollar and the greatest Schollar who is a States-man For to hear you talk of Books one would think you had bestowed no time in studying men and yet to observe your wise conduct in affairs one might be induced to believe that you had no time to study Books You are the chief man who does nobly raise the study of the Civil Law to a happy usefulness in the greater and general Affairs of Europe and who spends the one half of the day in studying what is just and the other half in practising what is so All which may be easily believed from me who am as great an instance of your generosity as an admirer of it Especially since you have left me nothing to wish so that what I say needs not flow from flattery and so must be presumed to flow from conviction and gratitude in Your Graces most faithful and most humble Servant George Mackenzie THE DESIGN THe great concerns of men are their Lives Fortunes and Reputation and these three suffering at once in Crimes it is the great interest of mankind to know how to evite such accusations and how to defend themselves when accused And yet none of our Lawyers have been so kind to their Countrey as to write one Sheet upon this pleasant and advantagious Subject which made it a task both necessary and difficult to me In prosecuting this design I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers and having added to them these Observations I have my self made during my twenty years attendance upon that Court either as Iudge or Advocat I collationed all with our Statutory Law the Civil Law and the Customs of other Countreys and the opinions of the Doctors And as I may without vanity say that few valuable Authors treat of Crimes whom I have not read So there is nothing here which is not warranted by Law or Decisions or in which when I doubted I did not confer seriously with the learned'st Lawyers of this Age and yet I doubt not but in some things others may differ from me as the best Writers do amongst themselves And having only designed to establish solidly the Principles of the Criminal Law I wanted room for treating learnedly each particular case or even for hinting at all such cases as may be necessary And without wearying my Readers with Citations which was very easie I have furnished the Book with as much reason as is ordinarly to be found in Legal Treatises The reason why I have so oft cited the Basilicks Theophil and the Greek Scholiasts was not only because none before me have used them in Criminal Treatises but because I conclude them the best Interpreters of Justinians Text For these Books having been Writ in the same Age and place and some of them by those who compiled the Latine Text they must understand it best of all others of which I have given many instances in this Book and shall here adde one there forgot which is that the Latine Interpreters doubt much what is meant by remittendum in the constitution Si quis Imperatori male dixerit some interpreting it pardoned some to be sent back to the Emperour But the Basilicks render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies only ignoscendum I cannot but admire much the wisdom of God who gives not only inclination but pleasure to such as toyl for the good of others for I am sure few men would have from any weaker impulse bestowed so much time and so many thoughts upon an imployment which without bringing gain will certainly bring envy and censure For I find it is the genius of this Age to admire such as make the publick good bend to their designs and to