man retains in nothing so much a desire to be like his Maker as in that he would be Supreme and no wonder that this Crime should be incident to him in this laps'd condition when his will is crooked and his judgement blind since the very Angels in their purity and Man in his innocence were tempted by it so that since men have subjected themselves to Government we may easily conclude they found a great convenience in this submission else they had never offered so much violence to their own inclination To Societies and Laws we owe every moment the preservation of our lives and fortunes which nothing but Discipline does secure and without an intire submission these Societies would be but Companies of Robbers and Laws but meer toyes How many dangers do Governours incurr And by how many cares and fears are they disquieted Wherefore it is most just that those who govern should be more secure against their Subjects then against their enemies since they may be most easily wrong'd by those who live in their own bosome and who have easie and open access to them In other Crimes one or at most few are wrong'd whereas in rebellion and Laese Majestie the whole Society is offended And therefore it was most just that those who design the ruine of the Common-wealth or the Supreme Governour which Crime we call Treason should of all others be most severely punished And the Basilicks l. 1. h. 1. observes well that Treason is a kind of Sacriledge 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I. Treason was by the Civil Law divided in Perduellionem Laesam Majestatem Perduellion was that Treason which was committed against the Prince or Common-wealth immediatly Adversus populum Romanum vel securitatem ejus Laese Majestie as opposed to Perduellion was committed by speaking against the Prince revealing his secrets c. This Crime was punish'd per legem juliam the branches whereof are the raising of Arms against the State the being in accession to the flight of such as were Hostages to the Common-wealth or to the killing of any Magistrat of the Common-wealth the keeping correspondence with the enemies the continuing to govern a Province after a a Successor was named the Levying of an Army and running in to the Enemies All which are expresly enumerat ff ad leg Iul. Majestat II. Betwixt these two Hottoman assignes these four differences 1. That Perduellion was that whereby the Common-wealth was in general wrong'd qui summam rei publicae lube factare conati sunt Laesa Majestas was that whereby the Common-wealth was only wronged in a part or by consequence as to suffer the enemies of the Common-wealth to escape or to conceal them c. The 2. is the Crime of Laese Majestie might have been pursued before the ordinary Judge in foro but Perduellion could not be pursued but in the great Meetings of the People à populo Romano comitiis centuriatis in campo martio Whence probably did arise the judging Treason by Parliaments with us The 3. was that the Crime of ordinary Laese Majestie was not punished with death as Perduellion was but with banâ—shment The 4. was that the ordinary Laese Majestie was punish'd by death but Perduellion was punishable after death III. Treason may be with us divided in Perduellion which we call High Treason called by the English Law alta proditio or rebellion which is only with us a rising in Arms against the King and in ordinary Treason and Laese Majestie such as to conceal and not reveal Treason And in Statutory Treason which is not Treason properly of its own nature but is declared to be so by a particular Statute as is that of Murder under trust Theft in Landed-men c. IV. Perduellion in the Civil Law is that which we call Rebellion in our Acts of Parliament and it was so called extravagan Hen. 7. qui sunt rebelles And there it is Statute that rebelles infideles imperii qui quom docunque aliquid machinantur contra prosperitatem imperii But I find not the word Rebellion used in the Law before that time Yet sometimes Rebellion is in our Law taken for that which is committed against the Kings Person as in the 3. Act 1. Parl. K. Ia. 1. where it is said No man shall rebell against the Kings Person openly nor notourly But the Adverb there used openly and notourly in that and the subsequent Acts interprets sufficiently the word rising against the Kings person to be the same with us that is called Perduellion in the Civil Law viz. Siquis hostili animo adversus principem vel rempublicam animatus sit To raise Arms against the King then or to rise in open rebellion is the first and highest degree of Treason Ia. 2. Par. 6. Act 25. where it is called a raising in fear of War against the King which Act comprehends all the kinds of Treason like lex prima ff ad L. Iul. Majest And therefore I will follow that method And though it be added in that Act that it shall be Treason to rise in fear of War against his Person or Majesty of what ever age he be of without the consent of the three Estates Yet the consent of the three Estates will not defend the rising in Arms against the King as was found in the case of the Marquiss of Argyle being pursued upon this Act in Anno 1662. for rising in Arms against the Marquiss of Montrose then the Kings Commissioner For the Analysis of that Act must run run so as that these words Without consent of the three Estates cannot be added to all the former treasons committed against the Kings Person which are contained in that Act For many things in that Act could not be justified by the Authority of the three Estates for else the three Estates and not the King would be Soveraign for they only are Soveraign against whom Treason can be committed But these words must only be taken as added to the last Crime prohibit which is the assailing of the Castles or Houses where the Kings Person is which may be lawfully done by Authority of the Estates For if the King being very young were taken prisoner as our Kings oft-times were in their minority it had been absurd to think that these who went to assail by the authority of the three Estates that Castle where the Kings Person was should be punish'd as Traitors because of their obedience But to suppress all pretext that might arise from that Act it is declared by the 5 Act 1. Parl. 1. Sess. Ch. 2. That the King hath the only power of making War and Peace And that it shall be Treason for any number of men less or more upon any ground or pretext whatsoever to rise or continue in Arms to maintain any Forts Strengths or Garisons or to make Leagues or Treaties amongst themselves or with forraign Princes without his Majesties authority and approbation first interponed thereto or to attempt any of these things under
the pain of Treason From which Act it is observable 1. That the authority of the three Estates is not able to defend the rising in Arms or making Leagues seing that is declared to be his Majesties prerogative 2. That the rising in defensive Arms is Treason by these words upon what pretext soever 3. That nudus conatus is in this case Treason by these words to attempt By the English Law the conspiring to raise a War is not Treason except it be de facto rais'd and with them if three or four rise to throw down private Houses or for any privat cause it is but a Ryot but if these three or four rise to reform Laws or Religion or upon any publick account then it is accounted the Levying War against the King Cook hoc tit pag. 9. who likewise tells us that if three conspire to Levy a War it is Treason if in the meer conspirers if the rest thereafter Levyed actually a War though he was not present and in that sense only I would interpret the severe l. 19. Basil. h. t. propter cogitationem dignus est poena 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And the English Law requires still ouuert fait an open deed This rising in Arms is likewise called seditio regni vel exercitus Reg. Majest lib. 4. cap. 1. cap. 11. ibid. ad tit sedit The second species of Treason is to commit Treason against the King's Person and I find that this is the first kind of Treason exprest in the former Act 25. Parl. 6. Ia. 2. whereby it is declared Treason to lay hands upon his person violently what ever age he be of Which words were added to clear that it was Treason to rebell even against his authority before he was Proclaimed or Crowned For the being Crowned or Proclaimed is tantum declaratoria juris sed nihil novi juris tribuit it being the jus sanguinis and succession of blood which makes him King This species of Treason is likewise declared Act 3. and 4. Parl. 1. Ia. 1. and in thir cases affectus sine effectu punitur and thus the Master of Forbes was hurled through the Calsey hanged and quartered for imagining this is an English term which signifies a design to shoot K. Iames the 5th 17. Iuly 1537. And the Countess of Glames was burnt for imagining to poyson the said King Iames the fifth 17. Iuly 1537. By the Law of England it is not Treason to kill a King out of possession Cook pag. 9. But this seems unjust if the King's title be clear as our Kings was in exile Though in dubious cases such as betwixt the Bruce and Baliol possession may difference the case To kill the King 's eldest Son is with them Treason 25. Stat. Edw. 3. The third species of Treason is the resetting any who hath committed Treason or that supplies them in redde help or counsel cujus opera dolo malo hostes populi romani pecunia aliave re adjuti erant This is likewise discharged Act. 97. Parl. 7. Ia. 5. Where all the Liedges are forbidden to reset supplie or maintain our Soveraign Lords Rebels under pain of death and if any disobey to inforce id est to second the King against notour rebels against his person when they be required and commanded they shall be punished by the King as favourers of such Rebels except they have for them a reasonable excusation Act 4. Parl. 1. Ia. 1. From which Act it may be debated the refusing to assist against rebels that are not notour or against Rebels that have not committed any other Treason then Perduellion cannot infer with us the guilt of Treason The Doctors here debate whether a Wife resetting her own Husband or a Father his Son commits Treason And albeit it may be alledged that the relation of Soveraign and Subject is the chiefest of all others and so all other relations should cede to it and rebellion against the State looses all relations l. post liminium ff de capt postlimin Yet the ordinary distinction is that if any of these relations assist a Rebel with things that are necessary for him as a man as meat drink c. In that case they are not guilty of Treason But if they assist these relations with any thing that may be serviceable to them in their Treason then they are guilty Farin quest 113. num 280. And Matheus hoc tit cap. 2. num 20. For albeit Rebels lose all the priviledge of the Municipal Law yet they retain those priviledges that flow from the Law of Nations and Nature Bartol ad l. amissum ff de capt postlim And thus Caesar pardoned Pompey's Sons and Tiberius Piso's Son albeit they followed their Fathers after they were declared Traitors But I find in our Law many decisions of this question as in Iuly 1537. where Ianet Dowglas Lady Glames is convict and burnt for fortifying and assisting the Earl of Angus and George Dowglas her Brethren Traitors and Rebels And 18. Iuly 1537. the Mr. of Glames is hang'd and drawn for concealing and not revealing the treasonable design of his Mother to poyson the King but the Countess of Errol being pursued for assisting the Earl of Bothwel at least for not revealing a Letter she had received from the Earl of Bothwels Lady desiring assistance It was alledged for the Lady that the Countess of Bothwel was no Rebel though her Husband was and that she had not consented This was delay'd Anno 1596. VII The fourth species or point of Treason is to stuff the Houses of them who are convict of Treason and holds them against the King or that stuffs any of their own Houses in furthering of the King's Rebels which is expressed also by the former Act Yet I think this rather exegetick of the former point then a separat point of Treason for both these may be comprehended under help redde or counsel Robert Stewart was hang'd for keeping out his House against the King and the Earl of Orknay his Father was hang'd for hounding out his Son the one the 5. of Ianuary and the other the 1. of February 1615. And Cunninghame of Tourlands was forefault and execute for assisting his Brother in keeping out the House of Cunninghame-head 15. February 1601. But yet when Houses are ordained to be rendered being kept only for privat causes under pain of Treason though the party disobey yet if he thereafter yeeld that manner of keeping out Houses will not be punished as Treason but Arbitrarily as in Burgies case 1668. The 2. of February 2674. Mackloud of Assint was Pannel'd for having Garrison'd his House of Arbreak and convocating his Majesties Liedges to the number of 400. men under Pay and Collours Against which it was alledg'd that Assint here only fortified his House and convocat his men to oppose the Earl of Seaforth but not the King Nor did he pretend any quarrel against the Government but against privat oppressions To which it was answered that this was
expresly Treason by the 6. Parl. K. Ia. 2. Cap. 14. whereby it is Statute that none rebel against the King's Person or Authority And the House being here Garrison'd to defend against the Sheriff who was comming to eject in his Majesties Name To resist him was to resist his Majesties Authority and being Garrison'd in furtherance of Rebels and rebellion it was Treason by the 25. Act 6. Parl. K. Ia. 2. Likeas the Convocation being of about 400. men or thereby under the command of Captains Ensigns and other Officers It was likewise Treason by the 75. Act 9. Parl. Q. M. and the 5. Act. 1. Parl. Ch. 2. The Justices did find the Garrisoning of the House not relevant to infer Treason but only to infer the punishment of deforcement whereupon the pursuers were forced to alledge of new that they insisted against him for having Garrison'd his House after the publication of the Letters of Fire and Sword raised at the Pursuers instance against Assint upon which debate they found that the Garrisoning and providing of the House after the publication of the Letters of Fire and Sword was relevant to infer the punishment of Treason Likeas they refused to sustain that Article wherein was Libel'd the raising of Men and the disposing them in Companies under Collours to be relevant except it were alledg'd that they were an hundred men or upwards and were under Collours or Muster'd or under weekly or daily pay And that all this was done after the publication of the Letters of Fire and Sword both which Interloquutors seem'd surprizing For as to the first it seem'd that the Garrisoning of any House against a Sheriff or any Judge is to Garrison it against the King ' Authority for a Sheriff doth represent the King in his Authority as much as any Souldier doth And it is undenyable that to Garrison Houses against the King's Souldiers is Treason Nor can it be denyed but that if this were allowed no sentence could receive execution in Scotland since every man might Garrison his House and every man might deny that he Garrison'd his House against the King And to put in a Garrison and authorize them to defend the House was so clearly a War-like action that there was no place left to debate upon intentions And though the defending Houses be ordinarily pursued as deforcement yet the formal Garrisoning of it imports much more And the commission of Fire and Sword did not add any thing to the Crime committed in Garrisoning the House For the design of such Letters is only to warrand and command the Liedges to prosecute them as Rebels So that before the raising of the Letters they were accounted open and notorious Rebels for Letters of Fire and Sword are only granted against such and therefore Assint in Garrisoning his House to defend such did expresly commit Treason against the 25. Act 6. Par. Ia. 2. The second part of the Interloquutor seem'd likewise very hard for raising men in fear of War and Listing them under Colours or swearing them to Colours is certainly exercitum comparare though there were no commission of Fire or Sword for the design of these Letters is not to make a Traitor but to prosecute actual Rebels And though this Army was not Levied to oppose immediatly the King's Government yet even to raise an Army within the Kingdom though no design could be proved was Treason for that was to usurp the King's power But much more was this Criminal when the Levy was made upon the wicked design of opposing the execution of the King's Laws to see which executed was the chief part of his Kingly Government And it is clear by the foresaid 17 Act 6. Parl. Ia. 2. that it is Treason to make War against the King's Liedges against his forbidding and if any do the King is to gang upon them with assistance of the hall Lands and to punish them after the quality of their trespass VIII The fifth point of Treason is to assail Castles or places where the King resides or is for the time ibid. But this must be only understood to be Treason if the assaulter know the King to be there or if he be not upon design to rescue him quo casu he must be warranted by the Estates as said is IX The sixth point of Treason is to raise a fray in the King's Host or Army wilfully Ia. 2. Parl. 12. Act 54. upon which Act the Mr. of Forbes was hanged for raising sedition in the King's Host at Iedburgh 14. Iuly 1537. X. The seventh point of Treason is to trouble any who kills a declared Traitor which Act extends only to the Kin Friends Fortifiers and Maintainers of these who are killed as Traitors because it is presumeable that when these who are so related trouble the killer it is presumeable the trouble arises upon that account 2. These relations are discharged to bear the killers any grudge or injure them by word or writ Nota It appears that the reason of this grudge needs not be proved but is presumed presumption juris de jure for here lex praesumit disponit super praesumpto XI The eighth point of Treason is to impugn the dignity and authority of the three Estates or to seek and procure the innovation and diminution of their power or authority Act 130 Parl. 8. Ia. 6. But this is to be understood of a direct impugning of their authority as if one contended that Parliaments were not necessary or that one of the three Estates may be turned out XII The ninth point of Treason is to decline the King's Authority or the Authority of his Council in any case whether Spiritual or Temporal And the King's Council are declared to be Judges competent to all causes whatsoever whether Spiritual or Temporal of what ever degree or function the defenders who are summoned shall be Act 129. Parl. 8. K. Ia. 6. which Act was made to repress the insolencies of the Ministry who about that time used constantly to decline the King's Authority in Ecclesiastick matters Conform to which Act Mr. Andrew Crightoun was sentenced to be hanged and demain'd as Traitor Septemb. 1610. And Mr. Iames Guthrie was execute in Anno 1662. for declining the King and his Councils jurisdiction at Striviling when he was challenged for some words spoken in the Pulpit From this Act it may be observed that the King is in his own Person Judge competent over all Causes and all Persons even though the pursuit be at his own instance which will appear both from the Rubrick and Statutory part of the Act albeit regulariter no man can be Judge in his own cause XIII The tenth point of Treason is to conceal and not reveal Treason But concealing in this case is not Treason except the concealer could have proved it for else he had by revealing and not proving made himself guilty of Treason This concealing of Treason is by the English Law called misprision of Treason and is punish'd only
doubted whether Lords of Regality or Subjects having a Justitiary are Judges competent to Treason and it seems not for the reasons foresaid XIX The second priviledge of treason is that those who are pursued for treason should be immediatly committed to prison and their goods should be put under sicker Burrows id est Caution under which they must remain ay and while they suffer an Assize Ia. 2. p. 12. c. 49. and Reg. Maj. lib. 4. c. 1. But it seems very hard in our Law that there is no time prescribed for the pursuer to insist but that the person suspect may be kept in prison for a long time though he be very innocent and offer himself to a tryal whereby the most innocent of Subjects may be ruined in their Fortunes and Families without any just cause And yet upon the other hand it were hard that Traitors should be allow'd to go abroad because probation cannot be presently had which it may be the traitor hath abstracted or that the King or State should be forc'd to discover too soon by a pursuit a treason which he is bound in policy to cover for some time And as in War so in Treason which is as dangerous many things are allow'd to be done which are not otherwise regular the interest of all preponderating the interest of any one or a few XX. The third speciality in treason is that all Charges of treason should be execute by Heraulds and Pursevants bearing Coats of Arms and by Macers and that for the greater solemnity else these Charges are declared null Ia. 6. p. 12. c. 125. Likeas the ordinary custome is to execute Summonds of treason after that manner But it was found upon the 5. of December 1666. in the Action intented at his Majesties Advocats instance against Mackulloch and others that this Act did only relate to Summonds of treason or any other Charges wherein men are ordain'd to obey under pain of Treason But that inditements of treason given to men who are in prison may be execute by ordinary Messengers And yet the Act sayes that all Executions given otherwise then is appointed by that Act shall be null XXI Women and others may be Witnesses in this Crime though in other Crimes they cannot and one Witness is sufficient here and famosi impuberes of what ever age are receivable as Witnesses by an express Act of the Sederunt of Lords of Session in Anno 1591. Likeas Cod. fab hoc tit def 4. sayes est privilegium criminis Laese Majestatis ut facilius probetur And that it may be proved per famosos socios criminis And that it was decided in Savoy 1591. vid. Pappon lib. 24. tit 2. But the English do most justly conclude that because the punishment is severe in treason therefore it ought to be proved by manifest and direct proof and not by presumptions or strains of wit Cook pag. 12. And that two witnesses are necessary for proving treason he proves most learnedly pag. 26. By the Civil Law famosi mulieres were admitted to accuse in this Crime though not in any other Crime l. 7 and 8. ff ad l. jul maj But this last priviledge should only hold in Perduellion Mascard de prob lib. 1. conclu 462. and not in Statutory Treason And that this should hold in no species of treason was Math. opinion pa. 372. because per l. ult cod de prob in capitalibus causis Idoniis testibus atque appertissimis documentis opus esse dicitur nec excipitur crimen Majestatis Neither doth it follow that because persons who are not admitted in other Crimes are admitted to be accusers in this that therefore these who are unfit to be Witnesses in other Crimes should be admitted in this for there is little hazard in an unfit accuser but there is great hazard in unfit Witnesses And this I think much more suitable to reason then the former Statute for the greater the hazard is the probation should be so much the clearer And though testes inhabiles may be received or one Witness may prove sufficiently for subjecting the Pannel to the torture which is all that can be infer'd from that Act of Sederunt which sayes only that they ought to be received Witnesses but sayes not that they ought to be received in all cases Yet it were against all reason that any condemnatory verdict or sentence could be founded upon such probation I find also by the Law of Savoy that socii criminis famosi are admitted to be Witnesses not in treason generally but in Perduellion And that Act is by their Lawyers restricted so that the Pannel cannot be condemned to death or forfeiture upon such depositions but only to torture Nor will he be tortured upon such depositions except the deponent be upon Oath and abide the torture also at his deposition Cod. fab lib. 9. tit 5. All which seems most reasonable but yet it seems that no man is to be repute socius criminis but he who is convict or hath confess'd the Crime and dilates others for else a man being accused for treason cannot alledge that the Witnesses led against him were socii criminis for that were to confess himself to be guilty for no man can be socius criminis to the Pannel except the Pannel be guilty himself and was socius to the witness therein nam relata se mutuo ponunt And this was so found in Assint's Process but it was there alledg'd that though socius criminis could not be received for the Pannel yet he could be received against him And that was the sense of the Doctors who exclude socius criminis from being a witness in treason But as to this I doubt very much for if a person confessed his accession it seems unjust that he could condemn others being infamous himself And yet in open treasons as rising in Arms it seems necessary to receive such as were in Arms for none else can come near an Army of Rebels and so the Crime must be proved by these or by none XXII The fifth priviledge is that treason is not extinguisht by death in all cases as other Crimes are But that treason committed against the Kâ—ngs Person or Common-wealth may be inquired into after death and the committers Heir may be forefault therefore Ia. 5. p. 6. c. 69. which Act bearing to be founded upon the Civil Law these general words contained in it against the Kings Person or Common-weal must only be extended against such treasons as were by the Civil Law accounted Perduellion And therefore it is most necessary to know the Civil Law in this case and what was therein called Perduellion Seing albeit all treasons may by an natural interpretation be said to be committed against the Kings Person or Common-wealth yet the Civil Law declared only that species of the Crime of treason which they called Perduellion to be punishable after death l. ult ff ad l. jul Maj. plane non quisquis legis juliae Majestatis