Selected quad for the lemma: state_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
state_n	earl_n	lord_n	scotland_n	1,700	5	9.4213	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

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

genere malitiae So that every ones having power to pursue a Cryme or a Crime being declared publick by an express Law are not the true constitutive differences betwixt a publick Cryme and a private but are only the effects thereof for when the Kingdom or State doth find that any Cryme is of dangerous and universal consequence then they allow very justly that every privat man may accuse With us in Scotland the vestiges of this distinction are yet to be seen for albeit his Majesties Advocat may pursue without the concurse of the party injured Yet no other person will be allowed to pursue any Cryme nisi suam vel suorum injuriam prosequatur and that every privat person may not pursue in all Crimes is clear from c. 2. lib. 4. Reg. Maj. where in Treason it is said that every man may pursue which had been unnecessar if every person might pursue in every Crime and thus M c cal having raised Letters in his own name against Charles Lindsay for killing his Father in Iuly 1668. the Justices would not sustain the pursuit at his instance because he could not prove that he was son to the defunct and since his Majesties Advocat represents in all criminal pursuits the publick and as it is presumeable that he will not refuse his concurse so he will be punished if he refuse the same It were therefore inconvenient and unnecessary that every privat man should be allowed the liberty of pursuing Crimes in which he were not interested this distinction is much abused in the Books of Reg. Maj. For in them publick Murder is defined to be that which is committed by forethought fellony and private Murder which is committed without being known to any but the persons who were complices stat Malcom 2. c. 15. II The Civil Law likewise divides Crimes in ordinary and extraordinary extraordinary were these wherein the Law had appointed no particular punishment ordinary crimes were such as were punishable by a liquid pain determined by the Law and was therefore called crimen legittimum III. Crimes are likewise divided into such as were capital or not capital Capital crimes are such as are punishable by death banishment or loss of liberty so called à capitis diminutione but with us these crimes are only called capital which are punishable by loss of life or limb IV. Crimes are either occult or manifest occult crimes are these which either are occult of their own nature as Hamesucken Conspiracy Adultery or such as are occult by accident such as Murders committed by Inn-keepers upon their Guests Though murder of its own nature be not occult since it is oft-times openly committed This division is considered by Lawyers either in order to probation because in occult crimes less exact probation is accepted And thus with us the being rob'd at Sea was found probable by these in the Ship because no other probation could be had there And it is against the interest of the Common-wealth that Crimes should pass unpunish'd Or they consider this division with respect to prescriptions because it is debated whether when a Statute appoints a Crime to be pursu'd betwixt and such a day that time should run in occult crimes from the time the crime was committed or from the time it was known In occult crimes also torture is admitted more easily then in other crimes V. Crimes are divided in such as are atrocious and such as are not Atrocious crimes are these wherein the guilt is very great VI. In Scotland crimes are divided in statutory and such as are not punished by an express Statute as common Adultery Bestiality c. And albeit it was controverted in the Lord Rentouns case Ian. 1666. that the poynding of Oxen in the time of labouring could not be accounted a crime because it was not declared punishable by an express Statute yet the Justices found that eo ipso it was forbidden by a Statute It was in so far a crime because Authority was thereby contemned especially having been formerly declared a crime by the Civil Law And it were unreasonable to think that Adultery albeit it be not notour should be a crime albeit its penalty is not exprest by a Statute And with us especially of old it was most ordinary to forbid crimes without express sanctions as may be seen in several Acts of Parliament Likeas by the Civil Law extraordinary crimes were declared to be such as were forbidden by Law but where the penalty of the Law was not determined from all which it appears that the essence of a crime consists in its being forbidden and not in having its punishment stated by an express Statute though I wish it were otherwise What Crimes are called Crimes of the Crown or Pledges of the Crown is treated largely Title Regalities What Crimes are called Crimina excepta is declared in the Title Treason TITLE III. Blasphemy 1 What is Blasphemy 2 The several kinds of Blasphemy 3 Whether Ignorance Repentance or Railery be good defences against the punishment 4 What is the punishment of Blasphemy by the common-Law 5 What by our Statutes 6 Cursing of Parents and swearing how punished BLasphemy is called in Law divine laese Majesty or Treason and it is committed either by denying that of God which belongs to him as one of His Attributes or by attributing to him that which is absurd and inconsistent with his Divine Nature II. These who swear by the Head or Feet of God are guilty of this Crime by the common Law c. 51. si quis per dei capillum 22. quest 1. videntur enim amplecti anthropomorphitarum haeresin quae membra deo tribuebat By that Cannon they are also punishable who delate not Blasphemers Albeit regularly what is spoken in passion be more moderately punished yet it lessens not a Blasphemers Crime Hostien tit de maled except he speak at such a rate as clearly indicats that he is furious or somewhat distracted or if he recover himself and testifie immediatly his contrition thus Socin relates consilio 102. that a Jew who had denied the Omnipotence of God was absolved from a pursuit of Blasphemy because he immediatly threw himself upon the ground and kist it and testified an extraordinar horrour which Lawyers say is an extraordinar punishment and oftentimes exceeds the fear of Death And there are some Lawyers as Abbas felin ad cap. 13. de jure jur who conclude that either he who blasphems passionatly is unlawfully imployed when he falls into that passion as in playing at Cards Drinking c. and then his passion doth not lessen his Crime But if he be honestly employed as doing business treating for his Friend and then if he blaspheme only in passion it lessens his guilt and should mitigat his punishment but why should passion excuse Blasphemy more then Murder if it be not because the fall cannot be repaired by Repentance a man being killed but the fault in Blasphemy may be extinguished by Repentance III. Clarus thinks