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 ...

PART II. (Book 2)

TITLE I. Of Jurisdiction in general.

• 1. Iurisdiction defined, and divided, in imperium merum, mix∣tum & Jurisdictionem simplicem.
• 2. Iurisdiction is either ordinary, or delegat.
• 3. It is either cumulative or privative.
• 4. How a Iurisdiction may be prorogat.

THe Civilians do treat of Jurisdiction very learnedly and profusely, but since most of their Dictats are very remot from our practice in Scotland, I resolve to clear only such general terms as are borrowed by our Law from that of the Romans.

I. Jurisdiction may be defined to be, a publick power granted to a Magistrat to cognosc upon, and determine Causes, and to put sentences following thereupon in execution, in such way and manner as either his commission, Law, or practique do allow.

Jurisdiction was by the Civil Law divided in merum impe∣rium, mixtum imperium, & jurisdictionem simplicem. Merum, imperium est abere potestatem gladii ad animadvertendum in fa∣cinerofos, & potestatas etiam appellatur, Mixtum imperium est potestas qua jure proprio Magistratui competit cui jurisdictio in∣haeret & inest, & dicitur mixtum quia cum jurisdictione est con∣junctum. Iurisdictio simplex differt secundum Bartolum a mix∣to imperio in hoc, quod imperium mixtum expediatur judicis nobili officio, jurisdictio judicis ordinario. With us the Justices have only a criminal Jurisdiction, the Lords of Session and Com∣missars, a meerly civil Jurisdiction, Lords of Regality, and Sheriffs a mixt Jurisdiction, partly Civil, partly Criminal. But in all Jurisdictions, though meerly civil, there is still an innat power, to punish even criminally, such as offend and disturb even the Civil Jurisdiction. Thus the Lords may ordain such as strike any in the Parliament House whilst they sit, or falsify Papers produced before them, or abuse any of their own number, to be degraded, or banished, or to pay a Fyne, or to have their Tongue bored, &c. according to the nature and merit of the offence. For in Law, when any power is granted, every thing is also granted which is necessary for explicating or executing that power.

II. Jurisdiction is divided likewise, in ordinariam & delega∣tam, and here it may be doubted, whether the power of Judging crimes which is merum imperium can be delegat? according to the Civil Law it could not, l. 1. & l. 70. ff. de regulis juris, and seing crimes are of so great concernment, that industria personae in electiono judicis respicitur, there is no reason why they should be cognosced by Deputs. Ordinary commissions with us, also bear a power of delegation which were unnecessa∣ry if the power of delegation were inhaerent naturally in Juris∣diction. And albeit I have seen Justice deputs delegat others to represent them in the Justice Court, yet this practice seems to want both warrand and reason. And it is observed by

Craig, pag. 192. that potestatem gladij qui ab alio quam a princi∣pe habet nemo potest delegare: and by Balfour, cap. 63. that a Barron cannot delegat any person to judge in the matter of blood, except the said power be specially allowed him. But the Law allows even to Deputs, though they have no power, to delegat others, a power to appoint another to judge for them in cases of necessary absence, l. 1. ff. de off. ejus cui mand. which Lawyers do also allow, ex paritate rationis, to such as are sick, Bart. ibid. and the reason of both is, least the Common-wealth suffer by their absence or sicknesse, for it is necessary that crimes be presently tryed.

III. Jurisdiction is divided by our Law, in cumulativam (for so we call that Jurisdiction which is competent to several Judges, and whereby they may preveen one another, and thus Sheriffs, and Barrons have a cumulative Jurisdiction in blood weits) & privatam (for so we call that Jurisdiction which is competent peculiarly to any one Judge.) This di∣stinction is used very much in our Law, and especially by Craig, pag 192. who layes it down as rule, that omnis curia delega∣tur tantum cumulative, sed nunquam privative; non est enim quasi translatio juris ex una persona in alium sed tantum mandata juris∣dictio quae non obstante jurisdictione sive mandato ad huc rema∣net in delegante nec minus dominus post juvestituram vassallo fa∣ctam retinet jurisdictionem & curiam quam antea. And thus albeit His Majesty grant commission to a Sheriff, yet he oft∣times appoints other Deputs, as Mr. William Wallace in Edin∣burgh, Sir Gilbert Stewart in the Sherifdom of Perth. And it was found, that though a prelat had appointed an here∣table Bailiff, yet he was not thereby excluded from sitting himself, although he was thereby excluded from appointing any other heretable Bailiff; as is observed by Hadd. 1. February 1610.

IV. Jurisdiction is said to be prorogat, when a defender does willingly submit to the judicatur before which he is cited,

though otherwayes not altogether competent, & affirmare ju∣dicium, is to submit to a Judicatory altogether incompetent.

It is a received conclusion amongst Lawyers, that a Delin∣quent may prorogat his Ju••isdiction: who has a Criminal Ju∣risdiction, but that by an Act of his, as by compearance, and answering before an incompetent Judge, the Delinquent can∣not prorogat that Judges Jurisdiction, who has no Criminal Ju∣risdiction at all, Clar. quest. 42. And thus if a man were pursued for Theft before the Commissars, their Decreet would be null, though the Delinquent declined not the Court, but if before a Sheriff, the sentence would be valid, though the Delinquent were not of his Territory; and though he were pursued for a crime to which the Sheriff were not othe••wise Judge compe∣tent; but a privat delinquent, by prorogating the ••udges Jurisdi∣ction; as said is, can only prejudge himself by his own comply∣ance, but cannot prejudge any other Judge of his casuality.

TITLE II. Of the Judge Competent, de foro competenti.

• 1. In what place may a Delinquent be tryed.
• 2. Who is Iudge competent, to crimes committed by stran∣gers.
• 3. Where are Vagabonds to be pursued.
• 4. Who is Iudge competent to Ecclesiastick persons.
• 5. Prevention amongst Iudges competent, explain'd and cleared.

I. FOr understanding who is Judge competent in general, to punish crimes, and what founds his competency; or as the Civil Law and Doctors speak, quod est forum com∣petens; it is fit to know, that he who commits a crime, may be judged either in the place where the crime was committed, which they call, forum delicti commissi, or in the place where he was born, which is called forum originis, or in the p••ace where he dwells, which ••s, forum domicilii.

The place where the fault was committed, is of all the three the most competent, for it is most just and fit, that crimes should be punished where they were committed, that others who have seen the crime, may by that punishment be

deterred from committing the like; and that the parties in∣jured may be somewhat repair'd, by seeing the Law justly re∣veng their wrong; and in the place where the crime was com∣mitted, accusers can most easily attend, and probation can be soonest and best heard, Act 6. P. 6. I. 1.

Not only where the crime it self was fully committed, may it be tryed, but where any part of it was committed; and therefore a thief may be judged, not only where he first broke the House, but by the Judge of that place where he was ta∣ken with the things stoln, Carleval de judiciis, pag. 156. But the Judge of the place where he was taken, can only pro∣ceed against the thief in that case, if he be present, but can∣not cite him if he be absent; wheras the Judge of the place where the House was broke, may cite him though he be ab∣sent: And if the Judge of the place where the House was broke, or the thing was first stoln, pleases, he may require the other to remit him, or send him back to him to be judg∣ed. But this last would not hold in our practice; for with us, wherever a thief is taken with a fang, he may be hang'd; nor is that Judge oblieged to send him back, except either in the case of prevention, or repledgiation.

There are some crimes which may be comm••tted in several places, and yet be the same crime, as being begun in one place, and perfected in another; and for knowing who is Judge competent, for trying those crimes, I think we may thus distingu••sh, either the crime is begun in one place, and perfected in another, both in respect of him who commits the crime, and of him against whom it is committed; as if one should wound a man in one Territory, and should follow and kill him in another, or take away a woman in one Territory, and deflour her in another; in which cases, the Judges of either Territory are competent, but so that there is place for prevention, for the scandal is committed in both places, and the peace of both is injured. The other case is, when the

crime is begun in one place, and perfected in another, only in re∣spect of the committer, as if a man in one Territory should stand and shoot one in another; in which case, the Judges of both Territories a••e competent, l. 1. C. ubi de crim. or the crime is begun in one, and perfected in another place, as if a man should in one p••ace, give order that the crime should be com∣mitted in another place, or should ratifie in one place, what was comm••tted in another place; and in that case, Clar. Bar∣tel. and others, are of opinion, that the crime should be try∣ed only in the place where the crime was consumat, because it is not the giving of the mandat, or order to commit the crime, but it is the commission of the crime which infers the guilt: But I crave leave to differ from them, and to think that other Judge is competent, and that because oft-times the giving of a mandat, or order to commit a crime, is of it self a crime; and because he who gave the order, having offended the Jurisdi∣ction where he lived, he ought there to be punished, and the crime committed in the other place, not being his own who gave the order, but because of the order: it must therefore be drawn back to the order, and so he ought to be punished in the place where he gave the order, which should the rather hold with us, that the giving order is art and part, and so is in our Law punishable in the same way, as the principal crime.

If any man commit a crime, in the confines of two several Jurisdictions, or Territories, he may be punished in either, though some Lawyers are so subtile, as to conclude, that if a man be murdered in the confines of two Jurisdictions, the murder ought to be tryed in that Jurisdiction, within which the head of the murdered man fell; but if the committer of the crime dwell also in either of the Territories, or if the Judge of either of the Territories be founded upon any other ground of competency, then that Judge who is so founded doublely,

ought to be preferred, quia duo vincula magis stringunt Decian tract. crim. lib. 4. cap. 17.

II. So well founded is the Judge of the place, where the crime was committed, as to his competency, that some En∣glish Souldiers having in Anno 1662. killed a man in Edin∣burgh, the Justices here were found Judges competent, though it was alledged that they being Souldiers, could only be tryed by a Council of War; and being English Souldiers under En∣glish pay, and a part of the English Army, they could only be tryed in England, all which was repelled, because the crime was committed here; and it was strange why any of the En∣glish did think this hard, since they had execute Queen Ma∣ry, though a Queen: and the Bishop of Ross, though an Ambassadour, for alledged Treasons committed in Eng∣land.

The reason why the Judges of that place where the delin∣quent dwells, is Judge competent to the tryal of the cri•••• is, because it is fit that the Judge purge his own Land, and Territory, of evil doers and malefactors, lest they affect others by their example, or fall themselves to commit the like crimes there also; and the reason why he who is Judge of the place where the malefactor was born, is Judge competent, is because the malefactor may and will probably return to the place of his Nativity, and it is most reasonable that a man may be Judged as to his life, where he first received life; and Judges ought to consider the life and conversation of the de∣linquent, which none can do so well, as judex domicilii: And therefore these two, domicilii & originis, are still equi∣parat in the Law, and what founds the Jurisdiction of the one, founds ofttimes the Jurisdiction of the other, and their joynt competency may be understood by these conclu∣sions,

First, the Judge of the place where a man dwells, or was born, may beyond all controversie, proceed to take tryal of

the crime committed within their own Territory, if the per∣son be found within the Territory. 2. If he be not found, some think they can proceed if the crime was not committed in their own Territory, but others do more justly distinguish, thus, that either he is pursued by way of accusation, at the in∣stance of a private party, and then judex domicilii, is compe∣tent, but that neither of these Judges can proceed to enquire into a crime committed without their own Territory; and though the first part of this distinction be very just, because an accuser has alwayes election where to pursue, yet the last part of it may be justly controverted, for these reasons, 1. Be∣cause every Judge should endeavour to cleanse his own Land of Malefactors who dwell there, and who may either infect his people, o•• commit the like crimes, as was said formerly. 2. It would incourage the committers of crimes, if they might go out of their own Territories, and commit crimes elsewhere, and could not be punished upon their return by the Magistrat where they live, whereas it is probable, that the poor party injured could not follow them to a place so far distant. 3. We see that fathers do, and are obliedged to punish their children for faults done by them, even without their own family: And a Judge is in Law instead of a father to his own people, and should endeavour that they keep themselves free of all guilt. 4. Per. l. 1. C. ubi de crim. dicitur quaestiones posse institui a∣pud judicem loci ubi ipsa commissa sunt, aut loci ubi reus ad est.

And with us, Criminal pursuits are sustained at the in∣stance of the Procurator Fiskal of the Territory where a man dwels, for crimes committed without the Territory, though no privat party inform.

I find likewise that Calderas does distinguish thus, if (sayes he) both the place where the crime was committed, and the place where the delinquent dwells, be under the same Prince, though the Jurisdictions be under different privat Judges, and the privat Territories be different; Yet the Judge of that

place where the Delinquent dwells, may proceed to try a crime committed without his own territory, though the party injured do not insist.

Against which distinction, though it be more plausible then the other distinction, yet the former argument do likewise con∣clude.

The third conclusion is, that the Judges of the place where the Malefactor dwells, may proceed against him, not only if they find him present, but though he be absent, l. 1. & authen, qua in provincia C. ubi de crim. and by the customs of Castil, and Naples, Carlev. num. 747. and thus the Lords sustained an improbation against Burghtown in Iuly 1672. though the deed forged concerned an Irish Estate, and though Burgh∣town dwelt then in Ireland, though he was cited in Scotland.

III. Vagabonds may be punished where ever they are ap∣prehended, for having no certain domicile, every place is in ipsorum praejudicium allowed to be their domicile, Boss. de fo∣ro compet. num. 69. and he is said to be a Vagabond, who has no certain dwelling, licet habeat domicilium originis, these our Law calls Dustifoots, and such are our Aegyptians, study Beggars, who though they may pretend to have a dwelling, to which they may sometime ret••re, yet since ordinarily they use to wander, and do things unlawful, they ought to have no benefit by that domicile.

IV. By the Cannon Law, and in all the Romish Church, as Ecclesiastick person cannot be in the first instance juged by the secular Judge; but though this subject might afford matter of curious inquiry, yet I will not dip into it, since the Parliament did in Anno. 1662. find that Mr. Iames Guthry might be try∣ed by the Parliament in the first instance, for words spoken by him in Pulpit. And as a Minister, albeit he alledged that this Doctrine should have been tryed, first by a Church Judicatur, for the Parliament thought that this might give too great li∣berty to Ministers, and might encourage them by adhering no

one another, to enveigh against, and disturb the Civil Govern∣ment at their pleasure: for if Eclesiastick persons could not be Judged by the secular power, till first the Church Judicaturs did consider the Doctrine; then if these Church Judicaturs did approve the Doctrine, it could not thereafter be found Treason, or any other crime.

V. Where many Judges are competent, they may preveen one another, and prevention is defyned to be anticipatio sive praeoccupatio usus jurisdictionis alicujus judicis circa causam ali∣quam, antequamalius judex circa eam jurisdictione utatur, Pre∣vention is, when one Judge interposes his authority, or when a tryal is entered upon by one Judge, before another Judge do exerce any action of Jurisdiction about that subject.

Prevention may be made, either by the Judge, or by the Party. And prevention is not inferred by raising of a Libel without citation, Decian: lib. 4. cap. 21. but it is inferred by a citatio••, or by the first citation in writ, where moe citations are requisit and by apprehending the Malefactor, because, as Carleval. de judiciis, num. 881. observes, deeds are stronger pre∣ventions then word or writ. Prevention is likewise inferred by the receiving of witnesses in order to an inquisition, ibid.

It seems that the allowed and stated deeds, from which pre∣vention is inferred by our Law, are only these which are enu∣merated by the 29. Act 11. Parl. K. I. 6. viz. apprehending of the offenders person, and executing a Summonds against him, to underlay the Law, and therefore no mention being there made of receiving of witnesses, or inquisition, it appears that these are not sufficient to infer prevention in our Law.

In the competition of this preventions, when one Judge has done one deed, and another Ju••ge has done another, the or∣dinary conclusions for peference are, 1. That when one Judge use first real citations, that is to say, appehends the of∣fender, and the other a verbal, or citation by writ, the real is preferred. 2. When the one does at the same time use a real,

by capture, and the other a written citation, he who has taken the Malefactor is preferred. 3. Where the one has first used the citation, and the other has apprehended the Delinquent, though many Lawyers do prefer the Judge who apprehended, yet the Judge who fi••st cited, will be preferred in our Law: and if a citation be a way of prevention, as was said formerly, I see not why the jus quaesitum, by that prevention, can be there∣after taken away; for though it may be p••etended, that Judges would be thus incouraged to take Malefactors, which is a greater benefit, then the citing them is; Yet I think it is the duty of all Judges, to concur to take Malefactors, though ci∣ted by other Judges; and yet by the foresaid Statute, the Judge who apprehends the Malefactor, before the other cite him, does preveen the citer.

It is agreed to by the Doctors, that when two competent Judges do both proceed to a tryal, and both are equally founded in their Jurisdiction and diligence, that then he who pursues for the greatest crime, ought first, to proceed in his try∣al, because the Common-wealth is more concerned to have a great crime punished, then a small crime, which they extend not only where the crimes are different, but even where the one is aggradged by more atrocious circumstances then the other; as if the one should pursue for wounding, and the other for wounding in the night, or in an ambush, Boss. hoc. tit. num. 102. And he who preveens by citing one of many complices, doth preveen quo ad all. As also he who once cites him who gave order to commit a crime, doth likewise preveen all Judges, quo ad the Committer. Because it is fit that the cognition of the crime be not divided, and ordinarily the de∣fences are common defences, Boss. num. 109. But I think this conclusion should not hold, except the other Judge be present∣ly ready to pursue, for it is the interest of the Common-wealth, that crimes be speedily punished.

Though a Judge competent have once fixed his processe by

prevention, yet if thereafter he be in mora, the other Judge, who has a cumulative Jurisdiction with him, may proceed; for thereby it appears, that by prevention he has designed to ex∣clude the other Judge, meerly in collusion with the delinquent, Novem 9. 1672. Scot contra Riddel.

If Prevention be not proponed either by the Party, or the Judge, the process and sentence will be valid, though led be∣fore the Judge that was preveened.

When Judges ought to remit delinquents to others who are more competent is fully set down, Title Regalities.

TITLE III. Jurisdiction of the Parliament in Crimes.

• 1. The Parliament are Iudges competent to the tryal of Crimes, even where the Pannel is absent.
• 2. Forefeitures in Parliament cannot be quarrelled before any Inferiour Iudge.
• 3. Whether Decreets pronounced by Commissioners of Parlia∣ment can be quarrelled by any Inferiour Iudicatory.

I. Since the Parliament is the Supream Judicatory, it may certainly cognosce all Causes, in the first instance. And of old, if a person accused for treason did absent himself, the Criminal Court, not no other Inferiour Court could pro∣ceed to take tryal by probation against him, and so all they could do, was only to denounce him fugitive for his absence, upon which denounciation his escheat did only fall, but he could not be forefeited; and therefore since it was unjust that he should by his own absence procure to hims••lf an impunity and exemption from forefeiture, the Parliament did by their supream power cite the person guilty, to appear before them, and did lead probation in absence against him, and forefeit him in absence, though guilty. But it being found inconvenient that Parliaments behooved either to be called, or such Delin∣quents pass unpunished, therefore by the 11. Act 2. Parl. Ch. 1.

It is Statuted, that the Justices may proceed to try Crimes by probation, even when the person cited is absent; in cases of treasonable rising in Arms▪ and open and manifest rebellion a∣gainst his Majesty, or his Successours and their Authority: so that the Parliament are yet only Judges to the tryal of all Crimes by probation against absents, except only Perduellion, o•• open and manifest treason. And albeit it may seem strange that the Justices should have been allowed to lead probation against absents, in this which is the greatest of Crimes, and not in Crimes of lesser importance; yet this proceeded from the just detestation which the Parliament had of this Crime, and that the punishment thereof might not be delayed, where the delay might prove so dangerous.

II. If the Parliament forefeit any person after cognition of the Cause, their sentence cannot be quarrelled by any In∣feriour Judge, Act 39. Parl. 11. K. I. 6. And though it be added to that Act, that no forefeiture law••ully and orderly led in Parliament shall be quarrelled by any Inferiour Judicato∣ry; for these words, Lawfully and orderly led, seem unneces∣sary, since after cognition of the cause by the Parliament, no Inferiour Judicatory can quarrel a Decreet of Parliament, even though it be pretended that the said Decreet was not lawful and orderly: yet if a person be only denounced Fugi∣tive by the Parliament, the Lords of the Session may suspend in that case, if the Process was not orderly led; but whether they can reduce, even in that case, est altioris indaginis. And some think, that though it were very inconvenient that such a ••ecreet should receive present execution, where possibly the party was not lawfully cited, yet that such respect is to be payed to the Parliament, as that the illegality of that pro∣cedure before them, though not objected before sentence, should remain undecided till the next Session of Parliament.

III. If the Parliament should remit any such Process for Crimes, to any of their own number, to be decided finally be∣fore

them, it hath been doubted whether their decisions could be reduced by the Session: And this Act of Parliament reaches only to decisions in Parliament. But yet since Decreets pro∣nounced by Commissioners of Parliament, are reputed with us Decreets of Parliament, and since Decreets pronounced by Commissioners, for valuation of Teinds, are not reduce∣able, because these Decreets are repute Decreets of Parlia∣ment, as being pronounced by such Commissioners of Parlia∣ment; it seems that Decreets pronounced by such Commis∣sioners, in Crimes, after probation, could not be quarrelled and reduced by the Session, or other Inferiour Judicatories.

TITLE IV. The Jurisdiction of the High-Con∣stable in Crminals.

• 1. The Original of the word Constable, and his power.
• 2. The Office of petty Constables.
• 3. The Iurisdiction of those who are Constables of His Ma∣jesties Castles.

I. SOme describe the word Constable, from the word Co∣ning, which signifies a King; and Staple, which sig∣nifies a Stay or Hold in the Saxon language, because Consta∣bularies were only erected in those places where the King keep∣ed House; and thus the Constable was judge of old, to all crimes committed within twelve Leagues of the Kings House, and Habitation, l. Malcol. c. 6. Though Skeen there observes, that the best Manuscripts bear only two Leagues, or four Scots Miles. Our Craig, and other Authors, derive the word Constable, from the Comes stabuli, under the Roman Empire, nam Constabularius (sayes he) nihil aliud est nisi praefectus aequitum, since the Reign of King Robert the Bruce, this Office of High-constable, stands heretably in the noble Family of Errol: and their being some debates concerning his Iurisdiction, Francis Earle of Errol, obtained Commission

under the great Seal, dated the 23. of Iun 1630. Seal'd pe∣nult March 1631. to the Persons therein specified, or any nine of them, impowering them to search the Acts of Parli∣ament, consuetude, Monuments and Registers of the King∣dom, and all Evidents that the Earl of Errol, or the Lord Hay his Son, should produce concerning their Honours, Hosti∣logies, Priviledges, and Immmunities belonging, or which had belonged to the Office of Constabulary, from the first institution thereof: This Commission I have seen, with the report thereof, dated the 27 of Iuly 1631. bearing the Com∣missioners to have met with the Earle of Errol, and his said Son, and to have considered their Instructions, Warrands, and Customes of other Countreys, anent the Constables Pri∣viledge; and in the third Article of the report (which relates to the Criminal Jurisdiction only here treated of) they set down these words, The Constable is Supream in all matters of Ryot, Disorder, Blood, and Slaughter committed within four Myles of the Kings Person, or of the Parliament, or Council re∣presenting the Royal Authority in his absence, and that alse well within the Court, as outwith the same. And the tryal and punishment of such crimes and offences, is proper and due to the Constable and his Deputs, and the Provost and Bailies of that Centre or Burgh, and all other Judges within the bounds, where the said facts are committed, are ob∣liedged to ride, concurr, fortifie and assist the Constable and his Deputs, in taking the saids Malefactors, and to make their Tolbooth patent for receiving them therein. As was clear∣ly evident, by production of Warrands granted by His Ma∣jesties Predecessors to that effect: and which likewise appear∣ed by the Exhibition of certain Bonds made by the Town of Edinburgh to the Constable, for the time, concerning that purpose, the King having seen this report, did approve it in a Letter directed to His Secret Council of this Kingdom, from the Court at Theobals, the 11. of May 1633. Regi∣strat

in the Books of Secret Council, the 15. day of that Moneth; and in the Commission report, and Letter foresaid, the Constable is designed High-constable, and his Office the High-office of Constabulary.

The Constable is still in use since that time, to judge Ri∣ots within the bounds foresaids, and to interrupt the Town of Edinburgh, when he knows of their medling, providing the Riots be committed in time of Parliament: and I was told, that in time of Parliament holden at Edinburgh, Anno 1640. and 1641. the Earle of Errol was found by the Lords of Se∣cret Council, to have the sole criminal Jurisdiction, and did repledge servant to Sir Thomas N••colson, the Kings Advocat, arraigned before the Magistrats of Edin∣burgh 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, ar∣raigned before the Magistrats of Edinburgh (as Sheriffs with∣in themselves) for stabbing of his Wife the day before Easter, the Magistrats had taken his judicial confession, and sum∣monded the Assize: there was no formal repledgiation, be∣cause the Magistrats passed from him upon the Constables ap∣plication; 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 affix∣ed upon Lieth wind Port, and ordained the Magistrats of Edin∣burgh 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 Remissi∣on.

II. Out of this high Magistracy of Constable (sayes Lam∣bert

an English Lawyer) were drawn those inferiour Con∣stables 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 ma∣ny 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 adja∣cent Countrey; and the Governours of those Castles were called Constables, though they were more properly Castel∣lains, 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 exercis∣ed 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. be∣twixt 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 there∣to, 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 feu∣dis

& 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

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 Judica∣tory, Iter. Cam. cap. 35. and his sentences were to be put to execution by Bailiffs of Burghs, ibid. cap. 37. he made the pri∣ces 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 for∣nice,) quia custodit pecunias quae in Camer is praecipue reservan∣tur.

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 compe∣tent 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: Some∣times 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 erecti∣on, 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 al∣ledged that the Lord of Regality might disolve, and dis∣member that part from the Regality, without the Bailies con∣sent; and so it not being in the Regality, it could not be sub∣ject to the Bailiery, the 27. of February 1666. Lord Colvil contra the Town of Culross.

TITLE VI. The Jurisdiction of His Maje∣sties Privy Council in Criminals.

• 1. In what consists the Iurisdiction of the Council, their Pre∣sident 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 ei∣ther 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 Prece∣dent 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 Com∣mission, but all the Officers of State are Members of it, rati∣one 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 full Copy must be given, because all dyets here are peremptor, and not with continuation of dayes; the reason whereof, is, ut reus veniat instructus ad defendendum, whereas before the Session, a short Copy is sufficient, because the Summonds is given out to see, and a time allowed to answer: The dyets are here so peremptory, that if the defender be cited to a day, whereupon the Council sits not, if he appear at the day, to which he is cited, and take Instruments at the Council Cham∣ber, he will not be thereafter oblieged to attend, nor can he be denounced Fugitive for being absent; for seeing it is pe∣remptory against him, it is reasonable that it should be pe∣remptory for him.

Where many parties are cited as defenders, upon a Bill to the Council, any one or two will be allowed to answer for the rest, they finding caution, and enacting themselves to be ly∣able for whatever shall be discerned against those, for whom they undertake; which priviledge is granted if no personal punishment be concluded against the defenders; but if either the complaint conclude, or that the crime will in Law infer a corporal punishment; then the offering to find caution to an∣swer, will not be allowed, nam noxa caput sequi debet, and no

man can bind his body for another, nam nemo est dominus suo∣rum membrorum, the pursuer may appear by his Procurator; but the defender must either be present, or send a testificat of his sicknesse, upon Soul and Conscience: And yet it is the priviledge of any Councellour, that he may undertake to an∣swer for any defender that is cited, quo casu, the defender will not be unlawed, or denounced fugitive upon his absence, but his defences will be received, as if he were present; nor can any Bill for receiving a complaint, passe against a Councel∣lor, but in presentia.

The Council by the first constitution, were only to take cognizance of what concerned the publict Peace, and were neither Judges in civil cases, nor crimes, but in so far as these impinged upon, or were violations thereof: but now that Ju∣dicator doth under the notion of Riots, and breaches of the publict Peace, hear to many causes Civil and Criminal. But seeing the design of this Treatise, aimes only to illustrat our criminal Law; I shall only-consider the procedor of the Coun∣cil, in so far as they can cognosce upon crimes.

II. The most ordinar crimes which are punished by the Council, are these, which we call Riots in our Law. A Ri∣ot is a breach of the Peace, committed by oppression, or wronging His Majesties Lieges, by force and violence; in∣stances whereof, are the dispossessing any of His Majesties Subjects, by a convocation of the Liedges, or otherwise; the affronting of Magistrates, by raising tumults against them, &c.

For the better understanding of which crime, it will be fit to consider, that jura maxime oderunt violentias & rapinas & pluribus modis succurrant vim passis & spoliatis, for here the publick is wounded, in breaking its Peace, and privat per∣sons are wronged, by the prejudice done. Upon which ac∣count, the Law hath furnisht more remedies against this, then any other crime; for either it may be pursued civilly, per in∣terdictum

unde vi, so call'd from the first words of the Edict, which runs thus; unde vi tu illum dejecisti terestituere cogam, which interdict, restor'd only the possession of immoveables; wheras moveables being spoilzied, were craved back, actio∣ne vibonorum. Iustinian, also introduced, that he who rest, and violently took what was his own, should lose it, l. 7. C. unde vi, for in this the resumer usurps the power of the Magistrat, whose ministry is requisit, in inverting the present possession. The Canon Law likewise hath introduced, bene∣ficium, cap. redintae grandae 4. cap. 3. quest. 1. and Menoch relates 17. remedies, and Philip. Franc. 24. for recovery of possession; and seeing the thing possest, is still presumed to belong to the possessor; and that hardly the right of move∣ables can be otherwise proved, then by possession: the Law did most reasonably, both for securing Property, and pu∣nishing Violence, establish that great rule, that Spoliatus est ante omnia restituendus, and conform thereto, the Council (who are never Judges to Property, but only to Possession, so that in effect, all their sentences, are interdicts) do still restore the possession to the person ejected; and likewise pu∣nish arbitrarly the violence committed, for we have no ex∣presse Statute taxing the punishment. By the Law of En∣gland it is accounted no Riot, or routs except three at least were present, and that something was done, ad terrorem po∣puli, for breaking of the Peace, Bolton. cap. 31.

III. The two ordinar defences, which are propon'd against riotous ejections, are, that by a Writ it was lawful, and agreed upon betwixt parties, that the defender might have ejected the pursuer, if he removed not at the day appointed, which will defend against a Riot: and yet Craig relates a case, P. 198. where one who had granted a Tack only for a Year, having ejected the Tacks-man, after expiring of that Year, was pursued, actione unde vio, in an action of ejection, and was forced to transact, albeit he contended, that the word

(only) was exclusive of any future possession; but where by expresse paction, it is declared lawful for him who enters, to enter brevi manu, without processe, or hazard of ejection; it would appear, that this paction is unlawful, seeing no man can warrand violence, and this seems as unlawful, as if one should oblidge himself, never to pursue for any injury to be done him: which paction, the Law declares expresly unlawful, & nemo potest renunciare juri publico, and this were to allow privat persons the power of Jurisdiction: Nor can it be thought, but this paction was extorted; and albeit the party injured, were excluded by this paction, yet His Majesties Advocat may certainly pursue, vindictam publicam, if oppo∣sition was made, and violence used: Notwithstanding of which, I remember that the Earl of Argile having obtained a Decreet of removing against George Campbel, and it being suspended till the next Term, The Lords ordained it to be in∣sert in the Bill, that the Earl might eject him, brevi manu, the next day after the Term, by his own authority; but the Earl was Sheriff here himself, and so his Jurisdiction was only prorogat, and the Law is expresse, that privatus potest ex consensu prorogare jurisdictionem ejus qui aliqualem habet, sed non potest privatus consensus tribuere jurisdictionem ei qui nul∣lam habet vid. Hanc quaestionem, apud Bart. ad l. creditores, C. de pign. & hipoth. But here also, the Lords warrand to eject, was a delegating of their own Jurisdiction.

I conceive also, that where there is no violence, nor opposition made, the voluntar consent may allow the ejection, especially in a Master, towards his own Ten∣nent, who hath a natural Jurisdiction in that case; and that his ejection is also allowable, if the Tennent after compt, oblidge himself to remove, and declare that it shall be lawful to his Master to enter, brevi manu, if he pay not what is declared to be due; for there the preceeding compt, is equivalant to a declarator, and the party ejected is not pre∣judg'd

otherwise then by his own not payment: And therefore the Lords, the 19. of December 1661. found not the Countesse of Murray lyable to aspoilzie, for ejecting Dewer her Tennent, because Dewer had by a compt declared that he was debitor, in such a sum, and by a bond oblidged himself to remove, betwixt and a particular day, and if he fail'd, declared it should be lawful for the Countess to enter, brevi manu, to the possession. By the Civil Law, he who violently intromitted, even with what was his own, lost thereby his property in it.

The next defence is, that the pursuer had immediatly be∣fore, possest himself violently, and it was lawful for the de∣fender, to recover his possession, ex incontinenti, nam vim vi licet repellere, and the Law sustains this defence, l. 3. ••. 9. & l. 17. ff. eod. and explains that to be, ex incontinenti fa∣ctum quod factum est priusquam ad aliud negotium fuerit reces∣sum, what time should be allowed for repelling violence, is arbitrary to the Judge; for violence committed by a great man, requires more time for reparations to redress it, then when it is committed by a privat person, for friends must be convocat, and arms prepared, as Bart. and the Glos. instances upon the former Law: But in personal injuries, id tan∣tum diciturex incontinenti fieri quod fit in ipso flagranti cri∣mine.

IV. The violent ejection of His Majesties Liedges, out of their possession, is pursued, either by an action meerly civil, which in moveables is called spoilzie in Lands ejection (which the Civil Law terms still, dejectio & non ejectio) or criminal∣ly as a Riot, which is a mixt action, partly civil, partly criminal. When spoilzies, or ejections are civilly pursued, the conclusion is violent profits (which is the double Rent of the Lands, and restitution of the thing craved: But when this is pursued as a Riot, the punishment is arbitrary, as is also the criminal punishment, The civil action prescribes in three Years, K. Ia. 6. Parl. 6. cap. 8. But the action of

ryot or Criminal Action prescribes not; and yet it may be doubted, if these Actions prescribe not, quo ad, the conclusi∣on of restitution, seing that is a civil conclusion; and it may be debated, that the maxim, spoliatus ante omnia est restituen∣dus loses its vigor after that time, so that one pursued for a ry∣otous ejection, or spoilzie, may alledge that no ryot can be concluded, seing the thing or land controverted was his own. We shall speak of the Criminal pursuite in its own place.

Whether the one of these actions doth exclude the pursuer from all other reparations, so that he who pursues the action of spoilzie, or ejection, cannot thereafter pursue a ryot, or a criminal pursuit, may be controverted; and the Civil Law decides it thus, that quando & una & altera tendunt ad vindi∣ctam tunc una agitur ad vindictam altera vero ad prosecutionem rei familiaris: and thus the having obtained a Decreet of eje∣ction, impeds not the pursuer to intent an action or Criminal pursuit; but after a Decreet obtained for the ryot, a criminal pursuit cannot be intented for these, respiciunt vindictam.

V. The Council cognoses likewise upon Crimes, by way of precognition, which they do in two cases, 1. Where consi∣derable persons are interested in the crimes committed, as Noble men, or Clanns, where there is a hazard of alimenting the feuds, by remitting the criminals to the ordinary course of Justice: Wherefore to prevent future resentments, and ce∣ment old differences, the Council in quorum tutela est pax publica, cognosce upon the crime, and remit much of the ordi∣nary rigor.

The 2. case is, when the crime is so ci••cumstantiat, that it requires 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and lessening of the ordinary punishment: The formes in precognitions are, that either the friends of the parties give in a Bill to the Council (which cannot be granted but in praesentia) deducing the case, and represent∣ing what danger is like to ensue, quo casu, Letters are direct, ordaining the other party to be cited, and both ••arties to cite

such witnesses, and probation, as they will use, or else if no application be made, the Council ordains Letters to be di∣rect, citing both parties. His Majesty having with consent of Parliament appointed that the Justice-court should be ser∣ved by many of the Lords of Session, did, because of their number and ability, discharge all precognition in their Com∣mission; and yet because these precognitions were not dis∣charged in the Commission granted to the Council, the Coun∣cil did sustain themselves Judges competent to precognitions, their Commission bearing to be as full, and to give them as much power as any former Council had. But really it were happy for this Nation, that we wanted all precognitions, since thereby the Delinquent has power to choose such dyets as he pleases, and so may pursue his precognition when he knows the witnesses who could prove his guilt are absent, or may prevail with them to absent themselves for some time; and this is ordinarily practized. Nor have I ever seen any who pur∣sued a precognition brought to condigne punishment; and whereas it is pretended that there are some cases wherein the se∣verity of Law ought to be remitted, upon the considerations of lessening circumstances, wherein equity may be allowed to blunt the edge of Justice. It is answered, that this may be done by the Justices, either upon a special commission for try∣ing the merits of the Pannels pretences, or alter that the Justi∣ces have heard all that will be legally urged by either party, in a full tryal they may delay the execution, and make report to his Majesty of the just state of the case.

The Council likewise sometimes inflict punishments without recognition, by way of citation, as in the case of Giles Thyre English-man, who being incarcerat as ac∣cessory to the death of Mr. Bedford in Lieth, and as guilty of Adultery with Mistris Hamiltoun, wife to the said Bedford, Thyre did upon a petition to the Council, wherein he confest the Adultery, but denyed the murther, (which

Mistris Hamiltoun had likewise at her death acquit him of) obtain himself banished, without being put to the knowledge of an Inquest, by whom he had certainly dyed, as guilty of notour Adultery, 1665.

VI. The Council name likewise Assessors to the Justices before the tryal, these the Grecian Lawyers call'd 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, And sometimes they discharge or continued yets.

After sentences also, the Council, upon application made to them, do either mitigat the punishment, not only where it is arbitrary, but even where it is statutory, as in the case of Brown, whom they ordained only to pay 100. Merks, though she was found guilty of nottour adultery, which is death by our Law. Sometimes they ordain no sentence to follow upon the verdict of an inquest, as in the case of Purdy, who was con∣demned for Usury, in so far as he had taken Anualrent a month before the term of payment, upon his Debtors voluntar of∣fer; And sometimes they ordain some of their own number to revise the processe and verdict; Which Assessors do ran∣verse the whole Process, and ordain it to be torn out of the Criminal Registers, as in the case of George Grahame, who be∣ing pursued for theft; it was alledged that the Assize had found him guilty of recept, and so the verdict was found dis∣conform to the Libel, and consequently the whole process was null. Yet when Mr. William Somervel was found guilty of Murder, upon the deposition of one witnesse, the Council re∣fused to review the verdict, as unwarrantable; for they found that they could not quarrel an Assize, which condemned, se∣ing Assizers can only be quarrelled for error, when they assoil∣zie. And when his Advocat cited to them the 47. Act. Par. 6. K. Ia. the 3. Whereby it is ordered, that where a party finds himself grieved by an Assize, by partial malice, or igno∣rance, it shall be lawful to him to cite them before the Coun∣cil, and if the error be proved, the party shall be restored to

the condition he was in before the sentence. To this it was answered, that this Act speaks only of Civil cases, and that by the Council here, is meant the Session: To which it was replyed, the Rubrick and Act are general, and treats of all persons wronged, & qui totum dicit nihil excipit: And the reason of the Law is comprehensive of both. — From all this some do conclude, that if the Justices erre in judging the re∣levancy, or if the Assize find that proved which was not remit∣ted to them, that in either of these cases the Council may re∣view the sentence, but that they cannot quarrel the sentence, upon the accompt that the verdict is not sufficiently warranted by the probation.

Sometimes also the Justices are concluded by the Decreet of the Secret Council, which is repeated to the Assize as full pro∣bation; So that the Justices have only the execution of their sentence remitted to them: Thus Fleeming was convict be∣fore the Council, of having uttered most disdainful speeches against the King, and therefore was remitted to the Justices to be examplarly punished; and upon production of their Decreet (which Decreet is still exprest in the dittay) he was hanged, 17. May, 1615.

VII. If the Law cannot receive full execution and obedi∣ence, via ordinaria, by the Criminal sentence, then the Coun∣cil upon production of Letters of Horning, following upon any Criminal sentence, and duely execute and registrat, use to grant Letters of Intercomuning, whereby all His Majesties Liedges are prohibit to intercomune with any of the Rebels so denounced; which Letters must be published at all the Mercat∣crosses of the Shyrs, and Jurisdictions within which such persons reside, whose intercomuning is suspected, and registrat there: And if need be, the Council will likewise grant a commission for Fire and Sword, to such persons as they will name, against the persons who are disobedient in the Criminal Letters, as said is: And ordinarly this commissions of Fire and Sword

are given to the persons interested, which occasions many great abuses. And these commissions are sometimes granted against parties who were never cited, but upon a naked complaint exhibit to the Council, which is most irregular.

The Council do sometimes grant commission to bring in parties dead or alive, and that upon naked Petitions, with∣out any previous tryal, as they did against the Laird of Din∣baith, upon a Petition, wherein it was represented, that he had run away with the publick money delivered to him by the Shire, for paying their Cesse and Excise; But this seems hard, and it were to execute a free Subject before he be heard, or sentence pronounced against him: for these privat petitions may be most unwarrantably founded.

VIII. If any person keep out his House in Garrison against his Majesty, the Council first uses to issue out Letters against him, to deliver up his house, under pain of treason; and they ordain a Herauld to go and summond him for that effect, and if he refuse, they ordain him to be processed before the Justice-general, and do immediatly, before any criminal sentence, grant a commission of Fire and Sword against him, as in the case of Burgie, Iune, 1668.

They used likewise of old to ordain Noble-men and others, who could not be apprehended by Captions, for civil Debts, to deliver up their persons in any of his Majesties Castles, un∣der the pain of treason; which though, it be now indesuetude, yet it was most reasonable, and of excellent use, seing it is most absurd that any of his Majesties Liedges should contemn his Laws, and that such poor persons as pay his Majesties Tax∣es and Impositions, and who are obliedged to venture their lives for him, should not likewise have the assistance, as well as the protection of his Laws. So that when the ordinar•• remedies of Caption, Comprysing and others fail, these and other ex∣traordinary remedies should be allowed, untill his Majesties Laws be obeyed, and the party so injured be fully and finally re∣paired.

TITLE VII. Of the Exchequers Jurisdiction in Criminals.

THE Exchequer are only His Majesties Chamberlains, and have no Jurisdiction in criminals; and yet they fine, and confiscat such as transgresse pecunial Statutes, or wrong His Majesties Rents; quo casu, they do in effect judge crimes: for it is a crime to abstract customes, or cheat the publick; and without this Jurisdiction they could not ma∣nage His Majesties Rents; so that this is jurisdictio emanat••, founded upon that rule, quando aliquid conceditur omnia con∣cessa videntur sine quibus hoc explicari nequit, but is seems, de jure, they should not, even eo casu, cognosce: for by the 89. Act, 1. Parl. Ia. 6. It is statute, that such as commit fraud, in transporting forbidden Goods, shall be punished at Justice Airs, at least the Justice also have powers.

I remember that in Iuly 1668. the Exchequre did fine a very intilligent Person, for filling up a blank Signa∣ture, subscribed by the King, and ordain'd to be filled up by the Exchequer: which some thought irregular: for ei∣ther he had committed a Crime, & eo casu, he should have been remitted to the Justices; or if he had committed none, he could not have been fined. And albeit the Exchequer, or any other Court may fine, or imprison such as injure their Jurisdiction, or may ordain dammage and interest to be repayed to the party injured, in any thing before their Court; yet no person having here been prejudged, and the injury having gone no fu••ther,

then à simplex conatus, there could be no damnage and interest incurred. But it seems the Exchequer are still Judges, in cri∣minibus repetundarum & de residuis

The Commissioners of the Thesaury did, in Iune 1669. ordain two Skippers in Bruntistand, to be scourg∣ed at that Mercat Cross: because, when a Customer came to enter a Boat wherein unfree Goods were were alledg∣ed to be, they did put off the Boat from the Rock where it lay, whereby the Customer fell into the Sea, and had almost drowned.

TITLE VIII. Of the Jurisdiction of the Lords of Session, in Crimnials.

• 1. The Lords of Session use to pass Bills for Criminal Letters.
• 2. They Advocat Causes belonging to the Iustice Court.
• 3. They are Iudges, in crimine falsi.
• 4. They have made Statutes for regulating the Iustice Court.
• 5. Whether they can review the Sentences of the Iustice Court.
• 6. They suspend the Sentences of the Iustice Court.
• 7. They are Iudges to such as kill, or wound one ano∣ther, during the dependence of a Processe before the Ses∣sion.
• ...

• 8. They grant Warrand to Advocats, to compear for such as are pursued for Treason.

I. THE Lords of Session have regularly no jurisdicti∣on in criminals; and yet they pass the Bills whereupon all criminal Summonds are rais'd: For all Sum∣monds in criminals must have a Bill, which must pass under the Hand of His Majesties Advocat, and for which he gets ten Merks, and his servant one, therafter it is carried to the ordinar upon the Bills, and is subscribed by him as a common Bill.

The reason, why thir Bills are past by the Lords, seems to be, because the Justice-deputs were not ordinar residen∣ters in Town (their sallaries not being sufficient for defray∣ing that charge) or else, because the Clerk of the B••lls is a Member and Servant of the Colledge of Justice; yet this was one of the grievances given in by the Justices to the Parlia∣ment, Anno 1662. And it is very unreasonable that those whose imployment it is to understand criminal cases, should not have the passing of these Bills; and many of the Lords re∣fuse to pass these Bills, whereby the Liedges are preju••g∣ed. And it is most unreasonable, that the Justices should not know what they are to judge; especially this warrand be∣ing a part of the Process, and so falls naturally under the cog∣nition of these who are Judges to it. And it is probable, that if any of the Justices would pass their own Bill, it would sustain. But now the Justices use ordinarly to pass their own Bills: because the Justices are now of the Session: but still other Lords who are not Justices, may pass such Bills.

But albeit these Lores cannot judge crimes, yet they may and do punish injuries committed against any of their own Members, by fining or confining.

II. They likewise Advocat Cause, from the inferiour Courts to the Justices: thus in Anno 1664. Mackintosh, be∣ing pursued before the Sheriff of Inverness for theft-boot, they Advocated the cause to the Justices; albeit it was alledged, that they could not be Judges to the Cognition. To which it was answered, that the consequence was ill inferted; for the Council did Advocat, and could not cognosce; and the Lords of Session did Advocat Breivs, for serving Airs, and yet they were not Judges themselves; for both in this, and that case, an Inquest was necessar.

III. They are likewise Judges, in crimine falsi; and their sentence is a sufficient warrand to the Assize to condemn, without repeating the probation; and when the Inquest re∣fuses to condemn upon that warrand, they are of new inclo∣sed: as was done in Binnies case; and will be liable to an As∣size of error, if they assioilzie; and their Decreet bears the Lords remit him to the Justices, to be punished, tanquam falsarius, and to underly the Law criminally, and ordain'd that ordinance to be insert in their Books of Sederunt. And that order is in the Justice Court, call'd an Act of Sederunt, the 2. of Iuly 1662. Albeit the Act of Parliament, Ia. 6. Parl. 11. requires that all probation in criminals, should be led in presence of the Assize; yet the answer is, that the Lords Decreet is only probation here, and that is read in face of the Assize.

The Lords likewise determine the punishment in falshood, and remit in their Decreet, the party to the Justice, to be only banisht, or scourged, or have his Tongue boar'd, ac∣cording to the quality of the guilt. And I have seen a Gentle-man, whom I will not name, in Anno 1664. only imprisoned by the Lords, for forging of a false Bond of sus∣pension, because he was ingenuous, and in necessity. And albeit this may seem irregular, yet seing the Lords are only privy to the Depositions, it is necessar they should have this

allowance. I find it one of the rules set down by the Doctors, that ubi cunque iudex principaliter cognoscendo reperit inciden∣ter crimen esse comissum potest de crimine illo cognoscere, C. si adversus liber. l. pen. And the example of this rule is instanc∣ed, in Charta falsa. l. pen. C. de probat. And upon im∣proving an Instrument, or Writ, they have ordained, om∣nes testes instrumentarios, & falsi fabricatores, to be fal sari∣••s, and remitted them to the Justices, the 16. of Februa∣ry 1660. Fern, Innes and Tarbat hang'd. But I remember not that they have in any other case cognosced upon crimes in∣cidenter; albeit the foresaid rule would give them an incident Jurisdiction in all cases.

IV. I find that the Lords have made Statutes to regulat the Justices Courts, for upon the 1. of Iune 1593. they de∣clared, that all landed men should be esteemed pares curiae, and might sit upon Noble-mens Assizes, being pursued, tan∣quaritemerè jurantes sup. assisa: and the Council uses to con∣sult them in intricat cases, which are referred to them by the Justices. And thus in Anno 1667. they were consulted, whether the West Countrey Rebels, might be forefaulted in their absence

V. But whether they be Judges competent to reduce, or review what is done by the Justices, or in the Justice Court, in any case, is not yet decided; but I have seen a reduction of a Verdict, of an Inquest, pronounced against Mr. William Somervel, whereby he was found guilty of Usury. The rea∣son of reduction was, that the Inquest had erred, in calculo, and it was contended, that the Lords were competent Judges to review errors, in calculo, for that was in effect but a civil Medium; and, where no criminal conclusion was craved, nor could follow, they were Judges, as in the case of Reductions of Retours, where the verdict may be reduce, as past upon ignorance.

It was also urged, that, seeing the Lords made Statutes

to regulate the Justice Courts, and past their Bills, they might cognosce upon palpable errors, committed ignorantly by Assizes; and it were hard that the Liedges should not be repon'd against Errours of such ignorant persons, as Assizers ordinarly were.

VI. The Lords of Session do suspend the execution like∣wise, of all sentences in the Justice Courts; but these Suspentions, when once raised, are discust before the Ju∣stices.

They likewise, sometimes discuss these Suspentions be∣fore the Session. And thus an Assithment modified by the Justices, being exorbitant, the Lords, by way of Suspensi∣on, did lessen the sum. The reason of which Decision was, because they found this case to be but of the nature of dam∣nage and interest, and not to concern corporal punishment, the 16. of December 1664. Innes contra Forbes.

VII. By Act of Parliament 1555. such as kill, or wound, to the effusion of blood, or any other way, one another, du∣ring the dependence of a criminal Process (which dependance is declared to continue, from the execution of the Summonds, till the compleat execution of the Decreet) that the pursu∣er committing the said crime, shall for ever loss the cause, and the defender being guilty, is to be condemned in the plea. The pursuer, or defender, being convict before any competent Judge in criminals, without any probation, ex∣cept summar cognition, to be taken by conviction, or put∣ting the committer to the Horn, and denouncing him fugi∣t••ve. By this Act the committer losses his life-rent Escheat immediatly, after denounciation, without being Year and Day at the Horn; and giving of counsel, is art and part in this crime.

This Act was to continue only for three Years, and is pro∣rogat for seven Years, by the 138. Act Parl. 8. Ia. 6. and is thereafter made perpertual, by the 219. Act 14. Parl. Ia. 6.

I have oft seen Process intented upon this Act before the Lords. But it is necessar, albeit not observ'd, that cogni∣tion be first taken by the Justices, or other criminal, and com∣petent Judge. Yet without this, Process was sustain'd by the Lords, in prima instantià; but this defence was not there alledg'd; and Process was sustain'd, albeit no effusion of blood followed, the 29. of Iuly. 1662. Harper against Ha∣miltoun; where it was debated, whether the Lords might summarly receive probation of it themselves, or remit the try∣al to the Justices; for which doubt, I thought, there was no great ground: because, by the Act foresaid, the Justice is only Judge, in prima instantia. And yet, in Sleiches case, 1673. It was found, that no previous tryal before the Justices was necessar.

The Earle of Niddisdale pursuing the Tennents of Duncow, February 1672. they alledged absolvitur, because the Earl had beat some of them, who were sent to execute a Summonds at their instance against him, at least he had given or∣der to beat them, or ratihabited the beating of them: To which it was answered, that 1. The beating some of them, could only found an exception to such as were beat; and this the Lords found relevant, though the Summonds execu••••d was for a common Cause: and so in effect, those who were beat, represented all the pursuers. 2. It was alledged, that order to beat them was only probable, scripto vel juramento: for, though a crime ordinarly, in a criminal Court, be pro∣bable, pro ut de jure, yet here, quo ad civilem effectum, it could not be so proved: for else a Noble-mans whole and anci∣ent Heritage, might oft-times be taken away by Witnesses, since Processes depending, might extend to a Noble-mans whole Estate. 3. It was alledged, that ratihabition, or any deed, ex post facto, did not infer the contravention of this Act, which required explicit deeds, as beating, bleeding, &c. The Lords, before answer to these two last alledgi∣ances,

ordained Witnesses to be led, before answer, for clearing the nature of the Act, and violence committed against them; but in this case, as in all others, if the one party beat, the other being forced thereto by self-defence, the striker will not, eo casu, fall under the certification of the Act of Parliament, as was found the last of Ianuary 1673. Iohn Sliech against Swintoun. In which case, the Lords al∣so found, that the certification of this Act, did reach such as wounded one another, during the dependence of a pursuit, be∣fore an Inferiour Court; though it was alledged, that this re∣spect was only due to the Lords of the Session, and that the Act should only reach, such as pursued Actions before them, for, to lose the whole Pley, was too great a pu∣nishment for an incident Riot, before an Inferiour Court.

I find likewise, that one Weir having been pursued for slaugh∣ter, the 15. of Iune 1591. he alledged, he was absolved by a Rolment of Court at Aberdene. To which it was reply∣ed, that the King had given a warrand for a further tryal, which reply, founded upon His Majesties Warrand, was repelled, as contrary to Law, and because it was but a pri∣vat Rescript, not subscribed by the Chancellour, nor past Council: And in respect, the Lords of Session had giv∣en a Warrand to proceed, notwithstanding of the Kings privat Warrand. It is also observable (though I think it irregu∣lar) that Ludwharn having raised, in Anno 1596. a pur∣suit against Momat, and others, for taking him out of his House, without a lawful Warrand, gave in a Bill to the Lords, complaining that the Duke of Lennox, as Leiv∣tennent of the North, intended to repledge; wheras that Jurisdiction was only cumulative with the power of the Justices: and that he had a Letter from His Majesty, ordain∣ing the Justices to proceed; wherefore, he craved that the Justices might be commanded to proceed, which Petition was granted.

VIII. Albeit regulariter, the Parliament, or Council grant Warrands to Advocats, to appear for such as are Pan∣nell'd before the Justices: yet I find that the Lords grant∣ed a Warrand in Balmerinochs case, to Advocats to compear for him. And seing Advocats are subject to the Jurisdicti∣on of the Lords, it is most reasonable, that the applicati∣on be made to them: for the same reason likewise, I find, that when any of the Lords are appointed Assessors, in Cri∣minal cases by the Council, that they must have a War∣rand also from the Lords, for sitting there, as in Toshes case, 1637.

TITLE IX. The Admirals Jurisdiction in Criminals.

• 1. The Iurisdiction of the Admiral, extends to all Crimes committed within Flood-mark.
• 2. Our Admiral has execute Pirats.
• 3. Whether it be lawful for such as apprehend Pirats, to ex∣ecute them by their own Authority, in the Ocean, or when Iudges refuse.
• ...

• 4. Any Nation may Iudge Pirats.
• 5. Whether the Iustices have a cumulative Iurisdiction with the admiral.

1. THe Lord high A••miral and his Deputs, are by the Laws of all Nations Judges competent to the tryal of all crimes committed at Sea, and by an unprinted Statute with us, the Admiral is competent in all controversies, actions and quarrels concerning crimes, faults, and trespasses upon Sea, or so far as the same flows, or ebbs, vid. Ship-laws corrected by Balfour. tit. Admiral, &c. cap. 2. Our Learned Countrey∣man, King in his Treatise which I have, sayes,

Admirans habet merum imperium, mixium, & jurisdictio∣nem simplicem; potest enim non solum jus dicere, quod est juris∣dictionis simplicis, exequi, imperare, judices dane, coercere; quae sunt meri imperii, sed est in facinerosos animadvertere, quod est meri imperii, de omnibus igitur contraversiis marinis cog∣noscere potest Amirans. marinas intelligo, quae negotiationis cau∣sa ineuntur, sive extra mare, sive in mari celebrantur delicta ta∣men ex necessitate intra mar is fluxum perpetrari debent.

In Scotland, the Deans of Gild were, as Walwood observes tit. 23. ordinary Judges of old betwixt Mariner and Merchand; Likeas, the Water-Bailiff betwixt Mariner and Mariner, and the Justice-general was Judge in Criminals, but now no judge may meddle (says he) with the Admiral causes, but only by way of as∣sistance, and that by Commission in difficult causes, as was found in that action, Antoni de latour against Christian Marteis, 6. of November, 1642.

II. In October 1635. Bernard Gilermo, and some Spanish, Dutch, and French Pirats, being apprehended, Mr. Iames Ro∣bertson then Admiral-deput, craved that the Council would name Assessors to him in the tryal of these forreigners, and they being named, a Court of Justiciary of the Admirality (for the Registers of the Admirality give it that Title) was kept at Irwine, and these Pirats indicted and hanged for Piracies com∣mitted

by them upon French, Spanish, and Dutch Merchands, the parties injured are received witnesses, else these crims at Sea could not be proved; this tryal was by an Assize, as before the Justice.

III. By the Martim Law of England, it is lawful for any man who takes a Pirat in the Ocean, to hang him at the Main∣yard, because as it seems to me the Ocean is within no mans Ju∣risdiction, & so every man is left to his own natural liberty; but this may prove very dangerous, for thus men may execute their revenge in place of Justice, and may make innocent men Pirats, for their private advantage; and Judicaturs are establi∣shed to prevent such injuries; and upon that pretext men may as well adjudge Prizes taken upon the Ocean: but yet if a Ship be on her voyage to remot places, as the Indies, so that the ta∣kers cannot keep the Pirats till they come to a Harbour, they may in that case execute them at Sea, for that is a kind of self-de∣fence; and necessity makes Law. But I think this necessity must be proved, vid. Grot. de jur. belli. lib. 2. c. 20 §. 14. And for this same reason, I differ from that Author, who asserts, num. 12. that if the taker bring a Pirat to a Port, and the Judge refuses, or delayes Justice, so that the taker must lose, then the taker may execute Justice himself; for this were to make every man Judge, not only of the Pirat, but of the Judge to whom application was made, and a Privat person might as well pretend, that if a Judge delayed, or denied Justice against such, as we pretend did either rob or affront us, we might do Justice upon them our selves, contrary to many Laws, and particularly to l. nullus C. de judaeis. The same learned Author, Iuris Maritimi, doth tell us, cap. 4. num. 14. that if a Spaniard rob a Frenchman on the high Sea, both their Princes being in amity amongst themselves, and with England, and that the Ship is brought into the Ports of En∣land, the French-man may proceed against the Spaniard, to pun••sh him but if the Ship be brought, intra prasidia of that Prince by whose subject the same was taken, it may be doub∣ted if he can proceed Criminally; but the taker must resort to

the Pirats own Countrey, or where he carryed the Ship. But in my opinion, a Pirat may be Judged by the Judge of any Nation, for he is an enemy to all Nations, and though he be not deprehended committing a crime in the Sea of that Prince, or State, within which he is deprehended, and so seems not ly∣able to their Jurisdiction, nec ratione loci delicti, nec ori∣ginis, nec domicilii, yet he who is of no Nation, is of all nati∣ons, as Vagabonds are; and he who is an equal enemy to all Nations, commits a crime against every Nation.

IV. Though the Admirals Criminal Jurisdiction extends no further then crimes committed at Sea, or within Flood-mark, yet he is some times Judge, ratione contingentiae & ob continen∣tiam causae, as if a man rescue a Pirat out of Prison, though this Crime be committed without Flood-mark, yet the Ad∣miral is Judge, because it hath dependance upon, and arises from the principal Crime to which he is Judge: and if the Ad∣miral begin to present Pirats, or Malefactors at Sea, he may continue his pursuit, and apprehend them at Land, and with∣out his own jurisdiction, but he must in that case seek concur∣rence from the Magistrat of the place, Locen. cap. 3. num. 2.

V. Though the Admiral has a Criminal Jurisdiction, yet some alledge that he has not this properly as Admiral, but by ver∣tue of a Commission of Justiciary contained in his Gift; and therefore when the Admiral proceeds to thy Crimes, the Court is not called the Court of Admirality simply as in other cases, but the Court of Justiciary of the Admirality.

It is likewise doubted, whether the Admiral hath the sole power of judging Crimes committed at Sea, or if the justices have a cumulative jurisdiction with them, and may preveen; and that the Justices have a cumulative jurisdiction is clear, for I find, that in Anno 1613. the Justices did hang one Iohn Davidson, and Iohn Lowes English Pirats, and in An∣no. 1610. they hanged Peter Love, Iohn Cock and others. Likewise, English Pirats, which last were hanged, upon their

own confessions emitted before the Privy Council, and all of them were hanged within Flood-mark. I have likewise seen the Justices Advocat Causes from the Admiral Court, but whether the Admirals sentence in Criminals can be reduced by the Criminal Court, as their sentences in Civils can be reduced before the Session, I will not determine.

TITLE X. The Jurisdiction of the Com∣missars in Criminals.

• 1. The Iurisdiction of Church-men.
• 2. Our Commissars are Iudges competent to verbal injuries.
• 3. How far they are Iudges competent to improbations.

I. CHurch-men are discharged to sit Judges in Crimes, and the Canons of the Greek Church give them; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 A bloodless Iurisdiction, upon which account, the Law gives them, audientiam, sed non jurisdicti∣onem,

tit. C. de Episcop. audient. With us these Bishops ab∣stain from votting in criminal Processes brought in to the Parliament, though there they sit as Heritors, rather then as meer Church-men, and so might pretend to a voice, upon that account.

II. The Commissars are the Bishops Officials, and so have least criminal Jurisdiction of all other Courts; but yet they are Judges competent to verbal injuries, which are by the Law accounted crimes: and the reason why they are the only Judges competent to this crime, is, because that Court, as being an Ecclesiastick Court, & curia christianitatis, consi∣ders these verbal Injuries as Scandals, and so they are allow∣ed, not only to punish the same with Pecuniary Mulcts, but with Church Censures, such as to make the offender stand at the Church Doors to expiat a Slander: though it was al∣ledged, that the inflicting of such punishments, was only proper to Kirk Sessions, the 15. of February 1669. But though they be the only Judges competent to verbal Inju∣ries, where they are Scandals; yet in verbal Injuries done to persons of quality, which are called in Law, scandala magna∣tum, the Council sustains it self Judge competent; the King being as the Author, so the Protector of all the priviledges of the Peerage; and in verbal Injuries likewise done to Ma∣gistrats, the Council are also Judges, Magistrats represent∣ing the King, and being his Instruments in the Govern∣ment.

When verbal Injuries are done by Members of a Court to one another, that Court is likewise Judge competent, all Courts (how inferiour soever) having an innat Power to chastise its own Members, and to preserve the esteem due to it self; and therefore, if any stranger who has a Process, de∣pending before any other Court, as the Session, Sheriff, &c. do abuse contumeliously any third Party, though no Mem∣ber: yet these respective Courts may punish the same, if the

injury be done in face of Judgement, and if it be done to any Inferiour Judge extrajudicially, that Judge if he be in the actual exercise of his Office, he may likewise punish the same, except the offender be a Member of the Colledge of Justice, for in that case the Judge extrajudicially injured, must com∣plain to the Lords, but cannot imprison them summarly, be∣cause, if this were allowed, these Members might be abstract∣ed from serving the Liedges, as an Advocat when he is to plead a Cause, or a Clerk when he is to give out a Decreet: and this last has been frequently so decided.

Though verbal Injuries amounting to Scandals, are only to be punished by the Commissars, yet where they have no∣thing in them of Scandal, but are rather reflections upon the Honour of the party injured, as to call a Gentle-man a Pup∣py, or an Ass; it may be the Privy Council, and not the Com∣missars are Judges competent.

The Commissars are also Judges competent to Adultery, in so far as concerns Divorce, vid. tit. adulterii.

III. How far the Commissars, and Inferiour Judges, are Judges competent to the improving of Writs, and declaring them false, has been variously decided; but they may be reduced to these conclusions, 1. No Inferiour Judge is competent, to try the falshood of Writs, by the indirect manner of impro∣bation, that is to say, by presumptions, for that way of try∣al being in effect, nobilis officii, is only competent to the Lords of the Session. 2. Commissars, and other Inferiour Judges, are only competent to improbations, even where the direct manner is extant, if improbation be propon'd by way of exception, or reply; for then the tryal of Falshood falls in necessarily as a part of the Process, and without this were allowed to these Inferiour Judges, they could proceed in no case; for if a pursuit were intented before them, upon a Bond, they behoved to sist, if the Bond were alledged to be false; or to stop, if the defender should offer to improve the

execution of the Summonds: but yet they are not competent by way of Action, even where the direct manner is extant: as was decided the last of November 1630. Williamson contra Cushney. 3. If the Commissar, or other Inferiour Judge, pronounce once a Decreet, he cannot thereafter reduce his own Decreet, as having proceeded upon false executions; though the executions were given by his own Officer, since they are only Judges competent to such forgeries, inciden∣ter: but after sentence, they are functi; as was found the 29. of Ianuary 1677. Cowan, contra the Commissar of Glas∣gows Phiscal, and according to these conclusions, the late instructions given to the Commissars, are to be inter∣preted.

TITLE XI. The Jurisdiction of Regalities in Criminals.

• 1. The Origine of Regalities.
• 2. They are accounted Inferiour Iudicaturs.
• 3. Why the Heritor of a Regality, is called a Lord of Rega∣lity.
• 4. Whether His Majesty may erect Regalities within the bounds of Heritable Iurisdictions.
• 5. They cannot repledge in case of Treason, nor from Iustice Airs.
• 6. The difference betwixt Ecclesiastick and Laick Regalities, and from whom they may repledge.
• 7. The form of a Repledgiation.
• 8. Regalities must have a Burgh of Regality, and to what that Burgh is tyed.
• 9. The effects of a Lord of Regalities power.

I. BY the Feudal Law (to which Regalities owe their origine) alia erant regalia, alia erant feuda regalem dignitatem habentia, which is the same difference in our Law, betwixt Regalia, and Regalities. Regalia, are such privi∣ledges as immediatly belong to the Crown, and do not ori∣ginally

belong to, nor can be communicat by any else; such as to Coin Money, to open Mines of Silver, Gold, &c. But Regalities are Fews, which are granted by the King to a Subject, they have as large a Jurisdiction, as the Sheriffs have in Civils, or the Justices in criminals; the habilis modus, of granting which Rights, is by Signator, wherupon a Char∣ter follows, which passes the great Seal.

II. Regalities are accounted inferiour Judicaturs, cap, 76. quon. attach. by which it is Statute, that no inferiour Judge shall judge the Pleys of the Crown: and Regalities are ex∣presly numbered amongst inferiour Courts, Act, 173. Parl. 13. K. Ia. 6. By which it is likewise Statute, that he who strikes any person, in presence of the Justices, shall incurr the pain of death; but he who strikes any before the She∣riffs, Lords of Regality, or other inferiour Judge, shall on∣ly pay a hundred Pounds; but though they be accounted in∣feriour Judges, when compared with the Justices, or Com∣missioners of Justiciary, yet they have greater power in the way of their procedor, and in the proportioning of their fines, then Sheriffs, or other inferiour Judges have; for they may fine in a hundreth Pounds, though Sheriffs and others cannot, as was found the 30 of Ianuary 1663. Stewart against Bogle. And generally they have the same power, and the same al∣lowance with the Justices, except when an express Law makes a difference betwixt them.

The 43. Act, 11. Parl. K. Ia. 2. appoints that no Re∣galities should be granted, without deliverance of Parliament; which nullity, of old, could not have been received, opt exceptionis, if it was clad with possession, Hadd. 1610. and they were still subject to Revocation by the King, if they were otherwise granted, as may be seen by the Revocation, 1633. and all preceeding.

III. He in whose favours the Regality is granted, is still called the Lord of Regality, though he be otherwise but a

Barron; the reason of which, I take to be, because by the Feudal Law, tria erant tantum feuda regalem dignitatem ha∣bentia, & quibus inerat jurisdictio regalis, viz, Ducatus, Marchionatus, & Comitatus, and by the same reason it is, that no Lands can be comprehended under this jurisdiction by our Law, but such as belong to him, in whose favours that jurisdiction was granted, either in Property, or Superiori∣ty; and therefore it was found, that His Majesties Palaces, (though situated in Burghs of 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 Cran∣burn.

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 Drumlan∣rigs, 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, al∣ters 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 Crea∣tion 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 Conjunct∣see, 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 Law∣yers are likewise of opinion, that these crimes which are de∣clared to be the four Points of the Crown, viz. Robbe∣ry, 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 Justici∣ar; 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 placi∣ta, from the French Word placitare, which signifies Liti∣gare, 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 De∣forcement also, in my opinion, being intented before the Iu∣stices, cannot be repledged, for the Kings Messenger being then Deforced, it is not fit that His Majesty should be ob∣lieged to seek justice from inferiour Judges, where His Offi∣cers 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 like∣wise 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, hold∣en 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 privi∣ledge 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 Ab∣bacies 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 be∣fore 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, ex∣cept they preveen the Justices; but otherwise, the Bailie of Regality may only sit with them: Which difference seems

to ••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 Re∣ligious 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 fa∣vour 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. Eliza∣beth 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 pre∣veen, 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 al∣low. 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 juris∣diction.

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 crimi∣nal Register, bearing, that it was formerly sustain'd to the same persons, May 1668. Arducaple against the Commissi∣oners 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 Cau∣tioner 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 like∣wise, who is repledged, must find Caution for his own ap∣pearance

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 par∣ty, 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 An∣nandale, Anno 1666. Nor can a person be repledged af∣ter defences are proponed for him: for this being, recusa∣tio judicis, it must be, ante omnia, propon'd, dum res est in∣tegra.

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 cumula∣tive jurisdiction with those Bailies of the Burgh of Regali∣ty, in that same way that other Superiours retain still a cu∣mulative 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 suf∣ficient 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 print∣ed; 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 cit∣ed: 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 Erecti∣on, as Had. observes, December 1624. And if the party, who is desired to be Repledged, dwelt within the Regali∣ty, the time of the committing of the Crime, the Repledgi∣ation will be sustain'd, though at the time of his being accu∣sed, 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 there∣of 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 In∣festment; 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 Supple∣ment 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 In∣habitants within their jurisdiction, albeit condemned by the Justices: from which general rule, Hope in his lesser Pra∣ctiques, 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 Re∣gality 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 with∣in 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 aemu∣lationem alterius. 3. Even in other places, there is some mo∣deramon & 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 ser∣vitudes, ubi unaquequae gleba servit; hoc accipiendum est ••i∣viliter

(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 Scot∣land.
• 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 Den∣mark, divided England, in Satrapias, centurias, & decu∣rias, 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 par∣ticular limited Countrey: It is called in our Latine stile, vice comitatus; and though most of the Shires in Scotland be ere∣cted in Sherifdomes by particular Acts of Parliament, yet by an unprinted Act in Anno 1504. It is declared that His Maje∣sty 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 cumu∣lative Jurisdiction with him; but not privative of him. She∣riffs in Scotland, are either during life, and then the office passes by a signatour, and passes the great Seal, or otherwise it is con∣ferred as an heretable right, quo casu, though it be transmit∣ted 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 dis∣charged by the 44 Act 11. Parl. K. I. 6. seing industria perso∣nae 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 injoy∣ed by Noble-men and others.

II. The Sheriffs of Scotland, have a Civil and Criminal Ju∣risdiction, 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 qui∣et,

and tranquility of that part of the Kingdom which is sub∣ject to his Jurisdiction; and therefore though no other person be allowed to ride with gatherings of the Liedges, yet the She∣riffs 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 con∣tinue 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 Crimi∣nals he may hold Courts during the time of vacance quia pericu∣lum 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 crimi∣ne, 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 parti∣cular 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 exe∣cute 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 up∣on him, and if he be found guilty of Fore-thought Fellony, he shall dye; therefore Act 89. Par. 6. Ia. 1. Ratified Act 28.3. Par. K. Ia. 4. with this addition, that if any heretable Sheriff omit his duty in prosecuting of this crime, after this manner, he shall lose his heretable office for three years, but if he have only that office for the time, he shall lose it during all that time. From which Acts, it may be concluded, that the Sheriffs is not only Judge competent to Slaughter, but to murder, and both to the one and to the other at any time, if he has either ap∣prehended the person, or has ex in continenti, done diligence for apprehending him, but the Sheriff is not Judge competent to murder, though committed within his jurisdiction, except in either of these cases.

IV. The way of procedure before the Sheriff, is by an Assize, and the Procurator-Fiskal is pursuer in place of His Majesties Advocat; Yet sometimes the Sheriff, or Barron may condemn upon the Pannels confession, without an Assize, as Dur. ob∣serves,

penult Ianuary 1622. but if the party be present, the Sheriff cannot condemn him, as holden, pro confesso, though he refuse to depon; but co casu he must put him to the know∣ledge of an Assize, as was found 24. Iuly 1633. Dickson con∣tra Halyday. And albeit a blood proven by confession, may be punished by an unlaw of fifty pounds; yet when blood is punish∣ed upon contumacious refusal to swear, the unlaw cannot ex∣ceed ten pounds, 17. February 1624.

V. The Sheriff may pursue, when any person compears and insists with him in the pursuite, but if the crime be pursued by way of inditement without the concurrence of any party, the Justice general is only Judge competent thereto: Skeen verbo Sheriff, but that rule is too general, and may admit of this distinction, viz. that either the Thief is taken with fang, and then the Sheriff may proceed to judge him, though no privat pursuer insist against him. Nor needs there three fangs for justifying that pursuit, Albeit Sheriffs now never pro∣ceed, but where three fangs are proved. Or else no fang is found, & eo casu, the Sheriff cannot judge the thief, except there be a pursuite intended at the instance of a privat party.

VI. The Sheriff should assist in all Justice Aires holden by the Justice General, or the Chamberlain, and should produce the verifications of all the Summonds which is made to the Justice Air, and should make prov••sions at the Justice Air, and his Clerks, which should be allowed in the first end of his ac∣compts to the Exchequer, and he should arrest such persons as the Crowner cannot arrest, and should those an Assize upon the last day of the Justice Air, anent the execution of his office. Ia. 3. Parl. 14. cap. 102. and if he be found culpable, the Justice General may remove him from his office till the next Parliament, and put another in his place, to officiat in the in∣terim. St. Rob. Bruce, ex lib. Sconen. related by Skeen, ibid. but much of this is antiquated by custome, for the Thesaurer sends along with the Justice Air, a person specially commissio∣nated

by them, who defrayes the charges of the Justices and Justice Clerk.

VII. If the Sheriff fail in his duty, he was punished of old by the losse of his office during his life, and imprisonment dur∣ing His Majesties pleasure, St. David Cap. 13. & 69. but now for negligence in his office, he tines the same for year and day, and is punishable in his person, and goods, at his Majesties plea∣sure, Ia. 2. Par. 14. cap. 37. And yet the Lord Yester, ha∣ving suffered two Thieves negligently to escape, and his here∣table office of Sheriffship, being upon that accompt taken from him by King Iames the fifth, that Decreet was reduced, for it was found too small to infer the loss of an heretable office, Stat. Sessionis, pag. 34. which is observed by Hop. like∣wise in his larger Practiques.

If the Sheriff absolutly refuse to do Justice, he loses like∣wise his office, and is punishable at his Majesties pleasure, but if he do injustice, he loses his office, if it be heretable, for three years; but if it be not heretable, he loses it during the time he was to enjoy it formerly, and in both cases he is punishable arbitrary in his person, and is obliedged to refound the dam∣nage and interest sustained by the parties laes'd, K. I. 3. P. 5. cap. 26. but if he bribe, or give partial counsel, he forefaults his fame, honour and dignity, and is likewise punishable in his person and goods, K. I. 5. Par. 7. cap. 104. If the case be difficult, the Lords of Session will somet••mes Advocat the cause from the Sheriff to the Justices, as in the case of Theft∣boot, pursued by Connadge, the Sheriff deput of Invernesse against Makintosh, And sometimes the Council will discharge the Sheriff to proceed without Advocating the Cause, if they find either the case to be difficult, or the Sheriff and his De∣puts to be suspected.

TITLE XIII. The Criminal Jurisdiction of Barrons.

• 1. In what cases Barrons may judge.
• 2. The Clerk of that Court needs not be a Nottar.
• 3. Whether he may punish Theft, or Fire-raising.

I. A Barron, in our Law, is generally understood to be one who is Infest in any Lands, though not erected in a Barrony; in which sense he has no Jurisdiction, but only that he can unlaw his own Tennent for Blood committed upon his own ground, as was found the penult of Ianuary 1622. Iohnstoun against the Laird of West-nisbit: but a Bar∣ron properly, is he who is Infest with power of Pit and Gal∣lows, fossa & furca.

A Barron Judges crimes in the same manner, as they are judged by the Sheriff, and may like him proceed in time of va∣cance, to judge these crimes, to which he is otherwise com∣petent. But it has been controverted whether Barrons have been Judges competent to Processes, for penal Statutes; since the penalty there was to be applyed to the Kings Fisk, and so should be judged in his own Court: but the Lords found the 3. of February 1674. that they were Judges competent

to penal Statutes, by the constant custome of this Na∣tion.

Albeit in civil cases, Barrons may appoint Bailies; yet Balfour cap. 63. observes, that in criminalibus, no person below the degree of a Barron, may sit upon Blood, nam po∣testas gladii est meri imperii quae nullo modo delegari potest, ex∣cept there be an express power given by the Soveraign for that effect, as in the case of Justices, and Sheriffs, who have pow∣er to Deput; and that power of Deputation were unnecessar, if it were otherwise competent.

II. The Clerks of all other Courts must be Notars, but the Clerk of a Barron Court needs not be a Nottar; and yet the Decreet of a Barron for an unlaw will be sustain'd, found∣ed upon a confession, though the confession be not subscrib∣ed, as is observed by Durie, the penult of Ianuary 1622. But by an Act of Sederunt, it is ordain'd, that no sentence of any Inferiour Court, for above an hundreth Pounds, shall be sustain'd, except it be otherwise warranted, then by the con∣sent 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 manife∣sto: 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 mate∣riam.

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 Bar∣rony.

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 signi∣fies in the Greek, the keeper of the peace, irenarchae erant qui ad provinciarum tutelam quietis ac pacis per singula territo∣ria 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, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉

Justices of peace, and Constables were once fully settled amongst us by K. I. 6. but their office having fallen in desue∣tude, 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 com∣missions: and to the end, their power may not prejudge any o∣ther 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 complai∣ned 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 mean∣er 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 Delin∣quent 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 committee••s be under the degree of Noblemen, Prelats Councellours, and Senators of the Colledge of Justice, who may refer the Summonds to the par∣ties oath, if he be personally Summoned, and thereupon hold him as confest, but if the Summonds be not personally exe∣cute, then the defender is to be summoned of new at his dwel∣ling 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 com∣pear 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 cau∣tion: At the end of every quarter Session, the Justices of peace, are to send to the Clerk of the Council, a Cata∣logue 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.

TITLE XV. The Jurisdiction of the Justices, and of the several imployments of the Officers of that Court.

• 1. Who were Iudges to crimes in Greece, and at Rome.
• 2. The jurisdiction of the Iustice Court with us.
• 3. The power of the Iustice-general, and Iustice-deputs.
• 4. The Office of Iustice-clerk.
• 5. What Actions are peculiar to the Iustice-court.
• 6. The Macers, and Crowners of the Iustice-court.

I. ALL Nations have committed the cognition of crimes, to the wisest of their Judges, because our lives are our greatest concern, and if the Judge erre there, his er∣rour can seldom be repair'd. The Athenians had the Areo∣page for their Criminal Court, which was the most famous Court, then in the World, of whom the Grecians us'd to say, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. And they judged Homi∣cide, in a particular place, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, it was very numerous, and the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, institute by Solon, for judging crimes, were likewise 50. At Rome, Praefectus Urbis, judged all the crimes

that were committed within the Town, & intra centesimum lapidem, and the Proconsuls, and Presidents, judged crimes in the Countrey. But the praefectus praetorio, praefectus au∣gustalis, Comes Orientis, & vicarius praefecti praetorio, had al∣so a criminal jurisdiction.

The Justice Court with us, had for its Members, the Ju∣stice-General, the Justice-Clerk, the Justice-Deputs, the Clerk-Depute, the Dempster, the Officer, and the Ma∣cers.

II. The Justice-General is constitute by a Gift under the great Seal, either ad vitam, or by a temporary Commissi∣on, but still under the great Seal; his Sallary of old, was five Pounds for every day of the Justice Air, leg. Malcol. cap. 2. num. 3.1. but now it is arbitrary, and the ordinary Sal∣lary, by his Gift, is two hundreth Pound Sterling, to be uplifted by himself, out of the Fines of Courts, and if he cannot attain to payment that way, out of the Exche∣quer.

The Justice-Court of old, was the only Soveraign Court of the Nation, and had then a great part of that Jurisdicti∣on, which the Session hath now; for they were Judges to Recognitions, Brieves of Mortancestrie, Dissasine, Purpre∣sture, and districtions for debts, Reg. Maj. lib. 1. cap 5. num. 2. & lib. 2. cap. 74. quon. att. cap. 52. & 53. lib. 3. cap. 28. And after the constitution of the Session, they re∣main'd still Judges to Perambulations, and Brieves were di∣rected in Latine, for tryal thereof, and the reason hereof seems to be, because as the Civil Law observes, ad armacurritur in sinibus regundis, and the fittest person for compeseing such tu∣mults, was the Justice-general; but now the She••••ffs, and Lords of Session cognosce such cases: and I having caused raise an Advocation from the Sheriff of Tividale, at the in∣stance of some Iedburgh men, to the Justice-general, ex hoc capite, the Lords would not sustain the Advocation; but re∣mitted

the case back to the Sheriff, whom they found also competent, so that such Brievs may yet be directed to the Justice general, though he have not a privative jurisdiction therein.

III. I find the Justice-general, call'd the chief Justice in all the Registers, Annis. 1637. and 1638. and the principal Justiciar, Anno 1503. The Justice-Deputs were not limitted to any definit number, but usually they were two, and have each a pension from His Majesty, when they were constitute, by a Gift from him, which passes the Privy Seal only, and these were still call'd His Majesties Justice-Deputs, and are not Deputs to the Justice-general; for else they could not sit in judgement with him as they do, and in effect they have an equal power, and voice with him: but when he makes a Deput, he should not sit with him, nam delegatus non simul concurrit. And I find Mr. Alexander Colvil, call'd in his Gift, General-justice-deput, which is done to denotat the uni∣versality of the Jurisdiction; and to distinguish them from Ju∣stices in that part, such as are these Noble-men and others, who have the power of Justiciary over their own Lands. And in Binnies case, the Lords having remitted him to be tryed by the Justice-general and his Deputs; the Justice-deputs de∣clar'd, that they accepted only of the remit, as meaning they were His Majesties Justice-deputs: and when His Maje∣sty directs any Letter to them, he directs it to our tru∣sty and well beloved Cozen and Councellour, to our tru∣sty and well beloved, our Justice-general, and Justice-de∣puts.

Of old, I find there were eight Justice-deputs. The Ju∣stice-deputs had formerly the priviledge of being Present at the Council, which was very fit, because many criminal cases comes in before them, and they retain still the priviledge of being Present at Parliaments: they were call'd attornati ju∣sticiarii, quon. attach. c. 61. & assis. R. David. c. nul¦lus.

By the 1. Article of the Regulation, 3. Session 2. Par. Ch. 2. the Office of Justice-deputs is supprest, and five of the Lords of Session are adjoined to the Justice-general, and Justice-clerk, four of the number being a Quorum, except at Justice Courts, because then the Justices are divided, and two may be a Quorum; their present Habit is Scarlet, adorn∣ed with white; and this I find the Kings of old, had vestem purpuream sed albi habens non nihil admixtam. Perion. de ma∣gistr. Rom. pag. 574.

IV. The Justice-Clerk has his place from His Majesty by a Gift, under the great Seal, with power to appoint Deputs, for whom he shall be answerable, and is call'd in his Gift, cle∣ricus nostrae justiciariae; but whether the Justice-clerk be a Judge, or a Clerk only, has been doubted; and that he is a Judge, appears not only from our inviolable present custome, wherein he sits and presides, when the Justice-general is not present, and takes precedency from the other Justice-deputs; but likewise by the 87. Act 11. Parl. I. 6. expences are or∣dained to be modified, to the party cleansed, by the ••ustice, Justice-clerk, and their Deputs, sed ita est, that modifica∣tion of expences, is a judicial sentence, at least, is actus jurisdicti∣onis & jurisdictio tantum explica••i potest per judicem & non perac∣tuarium vel referendarium. As to the reason of the name of ju∣stice-clerk, it is received by Tradition, that because clerici, or Church-men of old could not sit in Criminal Courts, se∣ing the Law gives them, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a bloodless jurisdi∣ction, therefore they were allow'd to nominat a Clerk, who might represent them; who was therefore called, non cleri∣cus justiciarii, the Clerk of the Justice Court, but justicia∣rius clericus, yet this seems a groundless conjecture, for in no Municipal Law, could Church-men sit upon blood, and therefore could not Deput, & qui facit per alium, facit per se, and what necessity was there, for their having an interest in the criminal jurisdiction, and to evidence that he was Clerk

of the Court: the Clerk who officiats, hath his place by De∣putation from him, and is called Deput to my Lord Justice-clerk; nor could he deput Clerks, except he were principal Clerk. But I believe this invasion, has been made by the Justice-clerk, upon that Court, after he was created an Of∣ficer of State: but to solve this doubt, my Lord Rentoun, at his admission, is found, by Act of the Secret Council, to be a Member, and one of the Judges of the Justice Court, and to have a Vote there, the 10. of December 1663. and now he sits in the Justice-generals Chair, when he is ab∣sent.

The Justice Court have a Seal, which they append to pub∣lick Acts, and is kept by the Justice-cle••k-deput. This Deput is admitted by the Justice clerk, by way of Commis∣sion, giving him power to be Clerk to all Cou••ts, holden by His Majesties Justice-general, or Deput, or any having particular Commissions, either at Edinburgh, or else where: and therefore no justice Court, either in the border, or elsewhere, is lawful; except it be served either by the Ju∣stice-clerk-deput, or any having Commission from him. It seems, that of old, the Writers to the Signet, did use to write criminal Letters, without receiving Caution; but that is discharged by the 34. Act 4. Par. Ia. 5. And now, though Writers to the Signet may subscribe the Letters, yet the Ju∣stice-clerk-deput can only write the deliverance upon the Bill, and receive caution. And therefore he writes upon the Bill, soverty is found; and subscribes the famine. H••s receiving caution is likewise warranted, by the 78. Act 6. Parl. Ia. 4.

V. The Justices are only judges competent to these crimes, which are call'd placita coronae, the Pleys of the Crown, which are four with us, wilful Fire raising, ravishing of Women, Mur∣ther, and Robbery, or Reif, l. Malcol. 2. cap. 13. and the cognition of these belongs not to Burghs leg. burg. c. 6. nor to

no other inferiour Courts, Quon. Attach. c. 76. leguntur. St. Alex. c. 14. faemina efforciata arsione rapina & murdrum. Mo∣lineus in stil. cur. paris part. 1. c. 13. observes, that in France, three crimes belong to the cognition of the High Justices, wil∣ful Fire, ravishing of Women, and Murder; nor can any other Judge proceed to judge these Crimes, except they be particu∣larly warranted by a Gift from His Majesty, to that effect, Skeen verb. murder.

VI. The Justice Court has its Macers, in which they are not stented to a particular number; and though of old amongst the Romans, a pursuer might be his privat authority and force, draw the defender before the judge, in jus rapere, in jus trahi, which they borrowed from the Grecians, as they did most of their Law, for Demosthenes, their great Lawyer, tells us, in orat, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, &c. Yet ordinarly, even the Grecians had their 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or Apparitors (as the Romans call'd them) who were the same with our Macers, qui volentes vocabant recusantes urgebant. The Mace used by these with us in the Justice Court, is an Iron Rod, which was the symbol of power, as appears by the verse 2. Ps.

The Coroner was an Officer, who took inquisition of Mur∣ders, in corona populi, the Laird of Ednam was the heretable Coroner in Scotland; but this Office is absolet now, except at Justice Airs, where the Coroner yet presents all Malefactors, and takes them to, and from Prison.

TITLE XVI. The Jurisdiction of the Justices over Souldiers, and of Mi∣litiary Crimes

• 1. When are the Iustices-Iudges to Souldiers.
• 2. A debate concerning free quarter.
• 3. Haddo's case.
• 4. Sometimes Commissions are granted for trying Souldiers.
• 5. How deserters are punished.
• 6. Who were Iudges competent to Souldiers amongst the Ro∣mans.

I. ALbeit Souldiers should be tryed by a Court martial, for crimes committed by them, in a Military capaci∣ty, as deserting their Colours, resist••ng their Officers, &c. yet when they comm••t other Crimes, they are lyable to a t••yal before the Criminal Court. For as Voet. observes, delicta mi∣litum sunt vel communia, vel propria, lib. 2. de remilit. And thus French, and two other Soul••iers under Morgan in the En∣glish Garison of Leith, were put to the knowledge of an in∣quest, for killing a Burgesse of Edinburgh, albeit Morgan, offe∣red to repledge them, Ianuary 1662. and yet in anno 1666. the Justices would not proceed against some Gentlemen, for the

slaughter, because they were both Souldiers, but it seems the Crime should have been tryed before the Justices, seing the crime, and not the persons determin the Jurisdictions, and their Crimes was only a Combat, which is no specifick crime to Souldiers: and this is conform to a decision, Novemb. 1627. Where Captain Bruce having been pursued for killing Captain Hamiltoun, did petition the Council, shewing them that this crime was committed in Flanders, and that he was asso••lzied therefra by a Council of War, upon which probation the Council commanded the Justices to desist. But Sir William Bellenden being challenged before the Council, for many Ry∣ots and Crimes committed when he was in the West, they would not remit him to a Council of War, albeit that decli∣nator was proponed. August 1667. And Militia Souldiers were judged by the Justices, for Murder committed by them in the execution of other Officers commands. the 3. of Febru∣ary, 1674.

II. The most considerable Military questions, which I remember in all the Adjournal books: are first, that which was debated, 5. Decemb. 1666. the case wherof was, some west coun∣trey men had formed themselves in an Army, and were decla∣red Traitors by the Council, and being thereafter beat at Pentland hills, Captain Arnot, Major Mackulloch, and others, were taken, by some of his Majesties inferior Officers, upon quarter, but being pannelled before the Justices, as Trai∣tors, it was alledged for them, that they could not be put to the knowledge of an inquest before the Justices, because they ha∣ving been modelled in an army, and taken in the field fighting as Souldiers, they behoved to be judged by the Military Law, and by that Law, such as get quarter in the field, are by that quarter secured therin for their lives, and cannot be hereafter qu••rrelled. To which it was replyed, that there can be no quar∣ter, but where there is a bellum justum, and it is not the num∣ber,

nor form of the Army, but the cause that makes bellum justum, and publick insurrections of subjects against their Prince, are rather Sedition, then bellum; and these insurrections, being Treason, none can remit Treason but the King, and therefore quarter could not be equivalent to a remission, but all the ef∣fect of quarter in this case, is to secure these who get the same from present death. To which it was duplyed, that all who got quarter from any who are authorized to be Souldiers, are by that quarter against that authority from whom these Soul∣diers derive their power, and these who get the quarter, are not to dispute, whether these Souldiers had a sufficient power to give quarter, or whether bellum be justum or injustum, for that were in effect to destroy quarter in all cases, and to make all such as take up Armes, to be desperat and irreclaimable; and the power of giving of quarter is naturally inherent in all Soul∣diers, as such: and as the Council, without expresse remissi∣on from the King, upon submission might have secured their lives, so might Souldiers by quarter, for they have as much power in the field, as the others at the Council Table. 2. Lawyers are very clear that quarter should be kept, though given to subjects, who are Rebels, Grotius lib. 3. Cap. 19. where after he hath fully treated that question, de fide servanda, con∣cludes, that sides data etiam persidis & rebellibus subditis est servanda. And this hath been observed in the civil Wars, in Holland and France, and by his Majesty, and his Father at home, during the late troubles. 3. Quar••er is advantagious to the King, and so should be kept, for these who were taken, might have killed his Majesties General or Officers, and by gi∣ving quarter to his enemies, he redeemed his Servants; and if the only effect of quarter, were to be reserved to a publick tryal, none would accept quarter.

Notwithstanding of which reply, the defence was repel∣led, and the Pannels condemned, and thereafter execute.

The second question was, that which was debated in Had∣do's

case, 16. March 1642. At which time that Loyal Gentleman Haddo, being pursued, for killing Mr. Iames Stal∣ker, Servitor to the Lord Frazer, he alledged that the said Mr. Iames was killed in the open field, in a conflict betwixt the Convenanters, and Ante-Covenanters: All which Acts of ostility were remitted by the pacification. To which, 〈◊〉〈◊〉 was replyed, that the Pacification did only secure against acts of hostility, which were done in furore belli; but this was a privat murder; for the said Mr. Iames having been taken a Prisoner, Haddo did come up to him, and asked whose servant he was, and hearing that he was servant to the Lord Frazer, he said, your masters man is the person that I am seek∣ing, and thereupon ordered to kill him, which was accor∣dingly done; by which it clearly appears, that this was a privat murder done in cold blood, and upon premeditat ma∣lice, and Mr. Iames Stalker, being a Prisoner, any who killed him; was liable for his murder, ex jure militari, and the paci∣fication could no more defend the committer, then if he had gone into a prison and killed a prisoner, or if he had committed a Rapt upon a woman; likeas Murderers are expresly excep∣ted from the pacification. 2. Haddo was no general person, and so could not give order for his execution; and so the kil∣ling of the defunct was not warrantable by the Law of Armes. To which, it was duplyed, that the pacification did secure against all deeds whatsoever done upon the field, by persons en∣gaged in either party, without debating, whether the deed was lawfully or unlawfully done, and the occasion, and not the manner of killing, is to be considered. And as to the man∣ner, it is answered, that Mr. Iames had never got any quarter, and so was not a Prisoner in War; and therefore might have been killed by any engaged in the quarrel, whether general person, or other. But the truth is, the said Haddo did com∣mand that party which was equivalent to his being a general person; and albeit the pacification did expresly except mur∣ders, yet that behoved only to be interpret of such murders,

as had no contingency with the troubles, nor were occasion∣ed by them: this debate was not decided, but was remitted to the Parliament; and that worthy Gentle-man executed, for rising in arms against the Estates of Parliament.

III. I find, that there was a Commission granted by the Parliament, in Anno 1644. to two Bailies of Edinburgh, to sit, and hold justice Courts, upon such Souldiers, as were runaways, and that upon this Commission, Iames French was condemned by them, for running away from his Collours, contrary to the Act of Parliament 1644. and was hanged ac∣cordingly. From which, these observations may be made, 1. That the Justices are not Judges competent to crimes, that are meerly Military. 2. That we have no standing Law for executing runaways, beside the Martial Law; nor was there any Law founded upon this inditement, except the Act of Parliament 1644. which is now abrogat. 3. It is observe∣able, that one Mr. Alexander Henderson, as Procurator Fis∣cal, and not His Majesties Advocat, was here pursuer. From all which, it seems somewhat strange, that this Process should have been insert in the Adjournal Books.

IV. But albeit deserters were here punisht with death; yet regulariter milites gregarij, or listed Souldiers, are only punish∣able in time of Peace, with degredation, and in time of War, with death, because the hazard is then greater, l. 5. §. 1. ff. de remilit. and by that Law they may be killed by any man, lib. 2. Cod. quando liciat. unic. &c. But this arbitrary killing is not now in use, as Voet de jur. militat. very well observes, if superiour Officers leave their charges, they commit Trea∣son, l. 2. ff. ad leg. jul. majest. vid. tit. Treason.

V. Constantine, having extinguisht the Office of praefectus Praetorio, who was the Supream Judge in all Military cases, The Magistri militum succeeded, and were sole Judges of all crimes committed by Souldiers, both in Civil, and in Mili∣tary

cases; and if Souldiers had offended, the Civil Magi∣strat might have secured, but he was obledged to remit them, cum elogio, to their own Officers, l. 9. ff. de custod. reor. vid. tit. C. de remilit.

TITLE XVII. Advocations of Crimi∣nal Causes.

• 1. Advocations defined.
• 2. No Advocation from the Iustices.
• 3. How Advocations are raised from inferiour Courts, and the forms thereto relating.
• 4. The ordinary Reasons of Advocations examined.
• 5. Whether the Iustices are proper Iudges to their own com∣petency.

I. ADvocation is the away calling of an intended cause, or pursuit, from an inferiour, incompetent judicatory, to a higher, and more competent; and is the same thing with

us, that recusatio judicis, was with the Romans, and is by the Doctors, call'd advocatio, or evocatio, which is by them defined to be, litis pendentis coram inferiore ad superiorem abs∣que provocatione facta translatio Gail. lib. 1. obs. 41, num. 7. and is founded upon cap. ut nostrum de appell, & l. jud. solvi∣tur ff. de jud.

II. Their is no Advocation raised of pursuits, intented be∣fore the Justices, but if ther be any design of stopping a pur∣suit depending before them, there useth to be a Petition giv∣en in to the Lords of Secret Council, who, if they find the desire of the Petition just, will ordain the Justices to stop all further procedor, or will remit the inquiry to any other Court, as they did in a pursuit, intented at the instance of the Earl of Caithness, against some Vassals of the Earl of Sutherland, which they stopt, as to the Earl himself, and ordained his Vassals to be pursued before his own Regality Court: some∣times also, they ordain Assessors to be Justices, so that there is never a cause formally Advocat, from before the Justices; albeit those courses, and Repledgiations be equivalent to Ad∣vocations.

III. Advocations may be rais'd from inferiour criminal Judges, by the Lords of Session, as in the case of Theft∣boot, before the Sheriff of Inverness, and Advocat by the Lords, because of the intricacy of the case; albeit, it was al∣ledged there, that the Lords were not Judges competent, in such Advocations, because they could not be Judges to the crimes pursued. To which it was answered, that though they could not be judges themselves, yet they might remit the pur∣suit, to these who were competent; even as Brieves raised, for serving a person Air, may be Advocat to the Lords, who may remit the case to another Inquest: But Durhie observes, the 9. of Ianuary 1629. that Kincaid of Waristoun, craving that the Process against him, for slaughter, might be Advo∣cat by the Lords, to the Justices, because of the ignorance

of the Barron Bailie, or else that they would grant Assessors; the Lords continued the Diet, till application should be made to the Council, but if the Council would not interpose, then they should do justice therein, by remitting the same to the Justices, or otherwise. But Advocations in criminal cases, are ordinarly raised by the Privy Council, who have the most natural power in such cases.

Advocations are raised upon Bills, and the Letters pass the Signet of the Session, if the Bills be past, by the Lords of Session; or of the Council, if the Bill be past by the Lords of Council.

This Advocation must be execute by a Messenger, and a full Copy must be given of the Letters, as in other Sum∣monds; for in effect, an Advocation is a Summonds, and the Diets in Advocations are peremptor, as in all other crimi∣nal pursuits: Neither is the Advocation given up to see, as in other criminal pursuits, at the day of compearance; and therefore a full Coppy should be given, to the end, the de∣fender may be ready to answer. The pursuer of the Action must be cited, and the Judge from whom the Action is to be Advocat, must be also cited, to the effect, he may defend his own jurisdiction; and if both these be not cited, the Ad∣vocation will not be sustain'd.

When the day of compearance comes, if the Advocation be raised before the Session, it is called before the Session, and if the reasons of Advocation be found relevant, the cause is re∣mitted to the Justices; but, if that Advocation be raised be∣fore the Council, it is called before the Justices, and they are Judges to the relevancy of the reasons, and both pursu∣er, and defender, must prove all that they alledge in∣stantly.

The Advocation of a criminal pursuit, doth contain the rea∣sons upon which it is founded, as in civil Advocations; but though in civilibus, the raiser of the Advocation will be

allowed to add a reason, though it be not libelled, which is called an eiked reason; yet that is not allowed, in criminali∣bus, because all must be proved, instanter, and the defender is not able to prove his answer instantly, if he know not what is the reason, which he must answer, whereas, in civilibus, he will get a term to prove his answer, to the eiked rea∣son.

IV. The ordinary reasons of Advocation, are, 1. Con∣sanguinity, or Affin••ty within degrees defendant, viz. cou∣sins german, or nearer, for whatever is a sufficient reason to cast a Witnesse, should (in my opinion) much more be suf∣ficient to decline a Judge, since there may be penury of Wit∣nesses, so that the Witness challenged may be necessary; whereas, if a Judge be suspect, he may be supplied by another Deput, or a superiour Judge; and a Judge may by himself, ruine a Cause, which one Witnesse cannot do; and though we have no exp••esse Law for this, yet the Lords encline ordi∣narly to sustain this, and particularly in the Moneth of Decem. 1676. Ross contra Collodine, where a Decreet was turned in a Libel, because, pronounced by a Nephew, albeit it was there alledged, that by the 212. Act, 14. Parl. I. 6. a Brother, Father, and Son, were only to be declined as Ju••ges: for that Statute relates only to the Lords of Session, who, be∣cause of their great Eminency, and Trust, are not to be as easi∣ly suspected as inferiour Judges.

It may be doubted, whether the Justices, or any of them, may be declined, as within degrees defendant; for though they must now be Senators of the Colledge of justice, yet they sit not there as such, nor are the Justice-general, or Ju∣stice-clerk alwayes of that number; but yet I think, that since the Justice Court is a supream Judicatory, in its own kind, and that this respect that is put upon them, is, be∣cause of their Eminency, and presum'd integrity, that there∣fore they being the same persons, ought to have the same pri∣viledges,

and the Justice-general, and Justice-clerks being superior in order to the Lords of Session, who are Justiciars, ought at least to have as great trust: but though the Admiral be a supream Judge also, yet it may be doubted, if this Sta∣tute should be extended to him; because men of meaner parts may officiat there.

It may be also doubted, whether this declinator against fa∣thers, brothers, and sons, should extend to the degrees of af∣finity, as well as those of consanguinity, so that a father, or brother in Law may be declined, and though the Lords lately would not decline one of their number, though brother in Law to the pursuer; yet it may be argued, that albeit Acts of Par∣liament must be strictly interpreted, yet where there is a pari∣ty of reason, and the words may in propriety admit of the ex∣tension, there the extention is to be allowed; but so it is, that here a brother in Law, is to be suspected, and a brother in Law, is in propriety of speech, a brother: Likeas, since wit∣nesses may be cast upon the suspition of affinity; why may not Judges? especially seing in the Statute 1621. against dispositi∣ons made by Bankrupts: and in the opinion of Lawyers, de∣grees of affinity, and consanguinity are still equiparat, and so wise are we in this point, that a pursuite, at the instance of a Procurator-fiskal, was Advocat upon this Statute, because the Procurator-fiskal, was brother to the Judge, though he was only pursuing ratione officii, and had no interest himself, and expresly renounced all interest in the pursuite, 28. Ianua∣ry, 1629.

Whether this statute is to be extended to unlawful relati∣ons; so that a Bastards brother, &c. may be declined, vide, my observations upon the Statute 1621.

Another reason of Advocation like to this, is that one of the members of the Court is pursuer; as for instance, the pursuite is at the instance of one of two Sheriff deputs, before his own colleague: habet quippe Societas jus quoddam fraterni∣tatis

in se l. verum ff. praesocio vid. c. insinuante de offic. deleg. & cap. Postr. de appel. and that none should judge where the colleagues pursue; but that the pursuit should be carryed away to another Judicature, is appointed by a Statute in France, an∣no. 1560. but we have no such Statute, and one colleague with us, may be witnesse for another, and why not then Judge.

A third reason of Advocation is, that the Judge is suspect, as if he had given partial counsel, or if he has repelled a just de∣fence, or as being severe, above what the Law allows. 4. That he is incompetent, the case pursued being only proper to be tryed by the Justices, as being one of the four Pleys of the Crown, viz. Treason, Murder, Fire-raising, and Ravishing of Women; but sometimes, though the first Libel have in∣ferred Treason, as in the case of Peddies, Ianuary, 1667. yet if the pursuer will restrict his action to damnage, and interest; but will desert the dyet as to the criminal pursuit it may be su∣stain'd. 5. That the case is very intricat, as in a pursuit of Theft∣boot, which was Advocat from the Sheriff-deput of Invernesse, eo ex capite.

Members of the Colledge of Justice also pretend, that they cannot be pursued before any other Court, because this would draw them from attending the Session, but the Act 39. Pa. 6. Q. M. whereon this is founded, seems only to hold in Re∣movings, so that no Action concerning Removings, should be Advocat, but in these cases, viz. deadly fead, where the Judge ordinary is party, or the defender a member of the Session and yet de praxi, that part of the Statute is extended to all Ad∣vocations But they cannot Advocat from the Justice Court.

If the cause be Advocated, the pursuer of the first Libel, which is Advocated, must find caution de novo, to insist in the pursuit, else the Justices will desert the dyet, which cauti∣on is necessary, because the Judicature before which the cauti∣on was found, is altered, and neither the pursuer, nor his cau∣tioner,

are bound to insist before any other court.

The defender likewise of the first cause, and who raised. the Advocation, is obliedged to renew his caution, that he will underly the Law, else the Justices will imprison him.

The taiser of the Advocation must intimat to the pursuer of the principal cause, that he has raised an Advocation, to the end, that the said pursuer may be ready to insist at the day, to which the advocation is raised, and when the Procurator-fiskal, is the pursuer before the Court from which the cause is Advo∣cated, the raiser of the Advocation should intimat to His Ma∣jesties Advocat, to the end he may be ready to insist, for His Majesties Advocat is in the Justice-Court, what the Procurator fiskal is in inferiour Courts: The office of both, being to pursue vindictam publicam.

V. The old custome was (as some alledge) that the Lords of Session judged all the Advocations, which were raised in Criminal causes, from inferiour Judges, even to the Justice Court and very judicious Lawyers do yet hold, that the Ju∣stices cannot judge, whether they be competent Judges in cau∣ses Advocated from inferiour Criminal Courts, but that the Lords of Session should cognosce, whether the cause should be Advocat; and if they sustain the reason of Advocation, that they should remit the cause to be tryed by the Justices, or re∣mit the tryal to the Court from which it was Advocated; if the reason of Advocation be not relevant: for they think it unreasonable, that the Justices should be Judges of their own competency; but since the Justices are supream and sove∣rain Judges, as well as the Lords of Session, and since the Ju∣stices are now many, and are Lords of the Session also, it seems reasonable, that they should be Judges to their own competency, especially since these reasons of Advocation do very frequently did upon Subtilties of the Criminal Law, and cannot be well judged, but by such as understand that Law ex∣actly: as for instance, I have seen an Advocation raised of a Li∣bel

in the case of Treason, from before a Lord of Regalities Court, upon this reason, viz. that the ground of the accusa∣tion was for drowning a Coal-heugh, which was Treason in our Law, to the which crime of Treason, none but the Justi∣ces were Judges competent. In which Advocation these points were necessarily debated, 1. Whether Lords of Re∣gality were Judges to Treason. 2. Whether though they were Judges competent to Treason, founded upon the com∣mon Law, yet if they were Judges to Statutory Treason. 3. Whether though burning a Coal-heugh was Treason by Statute, yet if drowning of it fell under that Statute: all which po••nts were indagationis criminalis, and these who could judge such points, might judge any criminal case: Like∣as, both by the old and new stile of Advocations, raised either by the Council, or Criminal Court, the Letters bear, that the reasons are to be seen, and considered by the Justices, and im∣mediatly upon the Advocation, caution is found in the books of adjournal, and to answer before the Justices, and the Justi∣ces have been in constant possession of judging such reasons.

And whereas it may be alledged, that though the Lords of Session are not Judges to crimes; yet the case of competency, in the matter of Jurisdiction is meerly Civil, and so it would seem proper to be judged by the Lords, especially since it is nor just, that the Justices should be Judges in their own cause. To which it may be answered, that though this case be civil, yet it has so necessary a contingency with what is criminal, as I have observed, that they ought not to be divided, since the Lords of Session are judges competent to Advocations, wherein their own ••urisdiction is controverted; why should this be denyed to the Justices, who are a part of themselves, and such supream Judges, are above suspition, especially since they can gain nothing by their Jurisdiction.

TITLE XVIII. Of Inquisition.

• 1. The nature of Inquisition, and when it is competent.
• 2. The King and Party may pursue separatly.
• 3. Citations, super inquirendis, when competent.

I. WHen a crime is committed, the Council, or the Justices, did of old, take a previous Inquisition of it, by examining Witnesses, and taking such other infor∣mation, as they thought fit: And these depositions, and ex••∣minations, are called informationes by the Doctors; but though they may examine Witnesses, before the intenting of a crimi∣nal pursuit: yet after it is once intented, the Justices found the 8. of Ianuary 1672. that they could not examine Witnesses; for the Inquisition ends by the intenting of the pursuit, & ubi incipit accusatio desinit inquisitio.

The Doctors are very profuse on this subject, but I shall only excerpt from them, what is most suitable to our forms and practice; they define Inquisition to be an information of the crime, taken by the Judges own authority, & ex officio: and they divide it in a general Inquisition, which is taken of the crime in general, without taking notice of any particular informer, or defender. And a special Inquisition which is taken against a particular person, of whose guilt they are in∣formed.

By the Civil Law, no Judge could proceed against any privat person, without an accuser; for Inquisition was by that Law, an extraordinar remedy, and no recourse could be had to an extraordinar remedy, till accusation, which was the ordinary remedy, were first tryed. But by the Ca∣non Law, Inquisition was declared to be an ordinary re∣medy: and all the Doctors conclude, that generally, a Judge may now, by the practice of Nations inquire, ex officio, in all crimes, Farin. de inquisit. quest. 1. num. 10. which is con∣sonant to our Law; by which the Council, or Justices, may inquire into all crimes, without waiting for an accuser, which is done with us, without citation of the party, or other for∣malities; but nothing can follow, till after information be ta∣ken, an Enditement, or Summonds be raised, which is fol∣lowed according to the ordinar rules. But yet, I think, that the Judge should not enquire, or take any previous tryal, even in our Law, where an accuser offers to insist, except he has just reason to fear collusion, for non recurrendum est ad extra∣ordinarium remedium dum locus est ordinario: and albeit In∣quisition be declared by the Doctors, to be an ordinary reme∣dy, yet it is only declared so, to the effect, that a Judge may inquire, without any accuser, and that the Inquisition so taken, be not ipso jure null; but naturally, every man should have liberty to pursue the privat wrong done to him∣self, which may be prejudged, either by the want of infor∣mation, or zeal of the Judge ordinar, and sometimes by col∣lusion; and thus I have seen many Decreets, of inferiour Courts, wherein the defender was by collusion, fin'd at the Procurator-fiskals instance, reduced by the Lords, and not sustain'd by the Council; when it was alledged, that the par∣ty wronged appeared, and offered to pursue, but was not ad∣mitted. And albeit, because of the wrong which is done to the publick, a Judge may likewise inquire: yet he who is

principally wrong'd, should be allowed to be chief in the pro∣secution. And therefore, albeit the Council may in pub∣lick crimes, where the peace of the Countrey is chiefly con∣cerned, take precognition of it, and stop accusations, rais∣ed before the Justices, at a privat parties instance, as they did in the pursuit, at the instance of the Stranaver men, against the Earl of Caithness. And others for Fire raising, and De∣predations, in August. 1668. yet they refuse to stop accusa∣tions, and will not grant precognitions, in privat murders, or such like crimes, where privat persons are principally wrong∣ed, except the rigour of Law require some abatement.

II. It appears also, that pursuits at His Majesties instance, are only subsidiary, Ia. 1. Par. 13. cap. 140. by which Act it is clear, that crimes may be punished at the Kings Maje∣sties instance, if no privat follower appears, and Ia. 6. Parl, 11. cap. 76. where it is Statute, that the Thesaurer, and Ad∣vocat, may pursue privat crimes, although the parties be si∣lent, or would agree. From which Acts, two things may be concluded, 1. That of old, it was doubted if the King could pur∣sue privat crimes, without an accuser. 2. That pursuits at His Majesties instance, for privat crimes, are yet only subsidi∣ary, and allowable, if parties be silent, or collude. Which distinction, doth in my oppinion, solve that great debate amongst the Doctors, utrum accusatio cessare facit inquisitio∣nem.

Nota, that albeit by the said Act, it is Statute, that the Thesaurer, and Advocat, may pursue without concourse of the party, yet de practicae, the pursuit is only raised at the Advocats instance, and so the particle (and) seems to be disjunctive, as and is very oft in the Civil Law. And it is pro∣bable, that a pursuit at the Thesaurers instance, would be su∣stain'd, without concourse of His Majesties Advocat, if the Advocat should refuse his concourse

III. The Doctors conclude, that a Judge cannot enquire summarly, & necesse est ut, vel indicia, vel delator, vel diffa∣matio àperiant viam inquisitioni, for else every Judge might diffame the best and most innocent men, at their pleasure, so that if a Judge have not some rise for his inquiry, I really believe he is punishable in our Law, for putting a person to In∣quisition for a crime, & sindicandus est ex eo capite, but the malice of the Judge must be very clearly proved in that case.

Of old, Judges did appoint Delators, whom might inform, denunciatores dicebantur; but of late, this employment doth belong to the Fisk, & ejus sindicis. And by our Law, to His Majesties Advocat, in the Justice Court, and to the Fis∣kal, in inferiour Courts; and they may pursue, or inform in Inquisitions, sine paena calumniae quia cessat in iis suspicio ca∣lumniae ex eo quod denunciant ex officio.

By the 13. Act 10. Par, Ia. 6. Charges super inquirendis, are discharged, but it is a mistake to think, that by that Act, the King, or other Judges, cannot examine men, without a formal Process: for the design of that Act, is only to discharge the denouncing men Rebels upon such charges, without pre∣vious tryal; and yet if the chief Officers of State, or at least four of them concurr. It would seem that by that Act, even such charges are yet lawful. And where the King, or Magi∣strat has previous information of crimes latent, it were against the interest of the Common-wealth, that they should not be allowed to clear themselves of these, by particular interroga∣tors.

TITLE XIX. Of Accusations, and Accusers.

• 1. The difference betwixt an accusation by way of Summonds, and an inditement.
• 2. Who may accuse, by our Law.
• 3. A minor cannot pursue without the consent of his Tutors and Curators.
• 4. In what cases a woman may pursue.
• 5. Whether a person excommunicated, or at the horn, may pur∣sue.
• 6. Infamous persons cannot pursue, and who are such.
• 7. Whether moe crimes may be pursued at once.
• 8. The pursuer must find caution and be punished, if he be ca∣lumnious.
• 9. The pursuer must aliment.

I. AFter inquisition is taken (which is not necessary, but is still arbitrary with us) the party is either imprison∣ed, and then he is proceeded against by way of inditment, or he is still at liberty, and then he is proceeded against by a formal Summonds Inditement comes from the French, enditer, de∣ferre nomen alicujus, and by the Law of England, it differs from accusation, in that an inditement must be alwayes at the

Kings instance, and is but a bill, and the preferrer of the bill is no way tyed to the proof of it, upon any penalty, except there be conspiracy, vid. Blunt. dict. Angl. verb. enditement. But an enditement with us, is a scedule containing the accusation given to the defender, so called, as Skeen sayes, from the French word dict tu, what sayest thou, for alter the inditement is read, the Judge asks the Pannel what he can answer to it; and it dif∣fers only from a Libelled Summonds in that it begins thus, A. B. Ye are indited and accused, that albeit by the Laws, &c. yet, ye, &c. or thus, forasmeikle, as by such particular Acts of Parliament, &c. Murder, &c. is prohibit, and the pain de∣clared to, &c. yet you, A. B. did upon the 27. day, at least moneth, &c. And it is writ only by the Justice Clerk, without a bill, and passes not the Signet, nor needs it be executed with the solemnities requisite in Libelled Summonds by Messengers in ordinary crimes, and Heraulds in Treason, but may be given by the Clerks servant; as was found in a pursuit of Treason, pursued by way of indictment against Mackulloch, Gordoun, and others, 5. Decemb. 1666. it needs not likewise these, in∣ducias deliberatorias, allowed to such as are at liberty, and are pursued by a Libelled Summonds, but a day or two is suffici∣ent, and sometimes they may be pursued without any time to be allowed, for this procedure is in effect the same with that inquisition specially treated of by the Civilians.

There is likewise this difference betwixt an inditement, and an accusation, that an inditement properly is a Libel raised at the Kings instance, and not at the instance of any privat person; for in accusations, or Libels raised at the instance of privat per∣sons as pursuers, there must be a formal libelled Summonds under the Signet, so cap. 1. R. M. lib. 1. num. 7. & 8. it is said, that Theft and Murder by inditement belongs to the ju∣stice, because there the King or his Advocat pursues, but where a certain accuser appears, a pursuite upon these Crimes may be intented before the Sheriff, and Skeen upon that Chap∣ter,

and likewise upon the 2. cap. num. 2. David Stat. 2. does observe, that all Criminal accusations are either by an indite∣ment, or by a certain accuser; and from this difference aris∣eth that other difference, that crimen per indictamentum, is only pursuable before the Justices, which is clear both by the forecited places, and the whole tract of the books of R. M. But this last difference is now absolet, for of late before the She∣riff, or at inferiour Courts, malefactors may be pursued either by a libelled Summonds, at the instance of any particular accu∣ser, or at the instance of the Procurator fiskal, by way of in∣dictment; which practique is most reasonable, for it were against the interest of the Common-wealth, that Sheriffs, and inferiour Judges, whose great duty, and chief imployment it is, to advert to crimes, should not have liberty to pursue, with∣out the concurse of an accuser.

It is indeed the interest of the Common-wealth, ne crimi∣na maneant impunita. And therefore in Crimes which imme∣diatly concern the welfare of the State; such as Treason, Sedi∣tion, &c. every man may be an accuser, but it is likewise the advantage of every privat person, that it shall not be lawful to every malicious enemy, upon the pretence of a publick good, to trouble and vex such against whom they carry malice, upon a pretence of a criminal pursuit, and therefore according to the the common Law, in privatis delictis non admittebatur ad accu∣s••ndum, nisi qui suam aut suorum injuriam insequebatur: and Farinac. states suorum injuriam, to extend, ad quartum gra∣dum, and it seems to be extended with us within degrees de∣fendant, and that every person may not in our Law, pursue any privat crime, appears from the former Chapter.

III. A minor may not by the Civil Law accuse, with∣out the consent of his Tutors and Curators. And where it is said, l. 4. R. M. c. 2. that a Major being of lawful age, he may accuse, it insinuats, that Minors regularly cannot ac∣cuse.

And suitable to this, the Justices refused to grant processe, at the instance of William Umphray, against Iohn Meldrum, be∣cause the said William was Minor, and had no legal concurse, 29. of Iuly 1597. which is founded upon most convincing reason, for Minors may by ill governed youth, and impru∣dence, either pursuing injustly such as are most innocent, or else by managing unwisely the Criminal pursuite, if it were compe∣tent to them, they might prejudge both themselves and the Common-wealth, in suffering the defender to be cleansed by a verdict. After which Absolvitour the defender could not be again brought to a tryal, nor would the Minor be restored against the sentence, and yet a Minor may crave at the Barr, that the Justices would allow him Curato••s, ad lites, which desire, the Justices will grant, 24. Iuly 1600. Spence contrae Bannatine.

IV. A woman according to the Civil Law, could not ac∣cuse in no case, except where she was revenging the injury done to her self, husband, or relations; and in the former Chapter it is said, that a woman can accuse none of fellony, except in some particular cases, which appears to be by the 5. chap. num. 8. the Murder of her own husband, quia una caro fuerunt vir & uxir, and N. 9. it is generally ordained, that a woman may be allowed to pursue any injury done to her own body. From which we may generally conclude, that she may pursue, suam sed non suorum injuriam, wrongs done to her self, but not wrongs done to her relations.

V. Whether a person at the horn, or excommunicat, may pursue, appears to be debateable, for the one opinion it may be alledged, that it is for the advantage of the Common∣wealth, that crimes remain not unpunished. 2. Civil Re∣bellion, or excommunication, non tollunt jura naturae, amongst the chief whereof, Lawyers esteem the liberty of pursuing the wrongs done to relations, and much more the wrongs done to ones self, in his person or good name. 3. Such as are Re∣bels

for Civil pursuites, non possunt impunae offendi, and there∣fore it appears most reasonable, that they should not be de∣barred from pursuing wrongs done them; for if a person at the Horn, could not pursue the wrongs done him, then any per∣son might injure him at pleasure, seing the fear of pursuit, and the punishment depending thereupon, is that which ordinarly overaws the pursuer; but on the other hand, it may be alled∣ged that, 1. By the 11. cap. Stat. Will. These who con∣temn the Statutes of the Church, shall not be admitted to ac∣cuse. 2. It is a Rule in Law, that frustra legem implorat qui coptra legem peccat. 3. A person at the horn, is by the En∣glish Law, alwayes and oftentimes in our Law, said to be out∣lawed, and to be outlawed, imports the losing all the privi∣ledges of Law; and in our Law, they are said, non habere per∣sonam standi in judicio. Nor puts our Law any distinction betwixt Civil and Criminal causes: for reconciling which dif∣ficulty, it may be alledged, that there is a distinction betwixt the being outlawed for a Criminal or Civil cause, and that these who are denounced Fugitives upon any Criminal ac∣compt, cannot be pursued till they be relaxt, which is in∣contravertedly true in our Law; seing if a person be denoun∣ced for not finding caution for his appearance, to underly the Law, he will not be admitted to propon any defence till he be relaxt; but though a person be at the horn for a civil cause, it appears most unreasonable, that because a person is not able to pay a great Sum, for which he is denounced, that he shall not therefore be admitted, do defend his own innocence against a crime laid to his charge. It seems likewise reasonable, that some distinction should be made, betwixt a pursuer and a defen∣der in this case; for it seems unreasonable, that he who ac∣cuses another for a crime, should debar him from self-defence, though the debarring him from pursuit, be not so unfavour∣able, and upon this accompt, in a case betwixt Ninian Spence and Hector Bannatine, the Justices found, that the pur∣suer

in a Criminal pursuite, could not by horning debar à de∣fendendo, the person whom he himself had called. It may be likewise alledged, that though the Kings Advocat may debar a Pannel from his defences, when he is at the horn, that no privat party can, seing they are not prejudged by the Rebelli∣on, as the Fisk is; but this last distinction, is rather reason∣able then legal, and therefore I mention it rather as a good overture, then a standing Law.

VI. Infamous persons cannot accuse, according to our Law, and what persons are accompted infamous, is particularly enu∣merat in the foresaid 11. cap. Stat. Willielm.

1. Infames dicimus omnes illas personas esse, qui pro aliqua culpa damnantur notabili.

2. Et omnes qui christianae legis normam abiiciunt, & ecclesi∣astica statuta contemnunt; omnes sures, sacrilegio.

3. Omnes capitalibus criminibus irretitos, Sepulchrorum vi∣olatores, Apostolorum, Successorumque eorum & Reliquorum Sanctorum Patrum, libenter, violantes Statuta.

4. Et omnes qui adversus Patres armantur, qui in omni mun∣di parte, infamia notantur.

5. Similiter incestuosos, perjuros, homicidas, receptatores malefactorum; adulteros, raptores; maleficos, de bellis publi∣cis fugientes; e•• qui injusta vel indigna sibi petunt loca teneri; aut sacrae ecclesiae auferunt facultates; & qui accusant, & non probant, et qui contra innocentes principum animos, ad iracun∣diam provocant, & omnes qui pro suis sceleribus, ab ecclesia expelluntur.

6. Et omnes quos ecclesiasticae & seculares leges infames pro∣nunciant: Item servos ante legitimam libertatem abeuntes, publice paenitentes, bigamos, omnes qui non sunt integro corpore; qui sanam mentem non habent vel intellectum, qui furiosi mani∣festantur.

7. Hi omnes supra dicti, nec ad sacros ordines promoveri de∣bent, nec ad accusationem, vel Testimonium admit••i.

VII. A person accused, was not oblidged to answer of old, but for one crime in one day, except there were several pursuers, quoniam attachiamenta, cap. 65. by which, accumu∣lation of crimes was expresly unlawful, sed hodie aliter obtinet, for now there is nothing more ordinar, nor to see five or six crimes in one Summonds, or Inditement, and to see one ac∣cuser, pursue several Summonds; and yet seing crimes are of so great consequence to the defender, and are of so great intricacy, it appears most unreasonable, that a defender should be burdened with more then one defence at once; and it ap∣pears, that accumulation of crimes is intented, either to laese the same of the defender, or to distract him from his de∣fence.

VIII. To the end that persons may not be unjustly pur∣sued, the Civil Law did appoint two remedies, 1. That the pursuer should find Caution to insist. 2. That he should be pursued as a calumniator, if his pursuit was found to be mali∣cious. As to the first, the form amongst the Romans, was, that the accuser was oblidged, de ferre nomen rei apud praeto∣rem at{que} se inscribebat libello judici porrecto vel incodice publi∣co, quaerela deposita cui inscriptioni subscribebat & ad talionis paenam se obligabat in casum calumniae. Inscriptionis for∣mula àpparet, l. 3. ff. de accus. Consulibus illis, die illo apud praetorem illum Titius professus est se Meviam legem julia de adult. ream deferre quod dicat eam, cum seio in civitate illa do∣mo illius, mense illo, consulibus illis adulterium Commisisse. Which inscription was only necessar in attrocious, but not in lighter crimes, nam illa de plano discutiebantur, l. levia ff. de accus. but in some cases, the necessity of inscription was re∣mitted, even in attrocious crimes, as when a Woman, suo∣rum injuriam prosequitur & parentes filii necem & è contra. And generally, where the pursuer could not be pursued for calumny, he needed not, in scribere, because, inscriptions were onl•• ••••••essar, to the end the pursuer might be punish∣ed,

if he were found guilty of Calumny. Nor were these inscriptions necessar in reconventions, & ante categoriis, be∣cause, in these, the pursuer intended not to calumniat, but only to defend himself, by recriminating the pur∣suit.

The inscriber was, according to the Civil Law, oblidged to find Caution, se perseveraturum in accusatione us{que} ad sen∣tentiam, l. 7. ff. de accus. the reason whereof, is by one of the Greek Scoliasts, said to be, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. ne facile quis ad accusationem per currat. Suitable to this, our Law has ordained, that the pursuer, when he raises a crimi∣nal Libel, shall find Caution to insist, in the intended pursuit; and this Caution is found, either by the Cautioner enacting himself in the Journel Books, which Act is to be subscrib∣ed by him, or else if the Cautioner be absent, he sends a Bond, bearing a clause of Registration in the Journal Books, which is accordingly therein Registrat; this Caution was first ap∣pointed by the 34. Act, Parl. 4. Ia. 5. by which, the Ju∣stice-clerk is oblidged to take sicker surety, that the pursuer shall bring back the criminal Letters indorsed, and execute: but the Cautioner is not oblidged with us (as he is by the Ci∣vil Law) that the pursuer shall insist, and the penalty appoint∣ed by that Act, is, an Earl, or Lord, two thousand Merks, a great Barron one thousand Merks, a Fermer five hundred Merks, an unlanded Gentle-man two hundred Merks, a Yeoman two hundred Merks: But of old, accusers behov∣ed to find Caution to insist, Reg. Maj. cap. 1. l. num. 6. and if he cannot find a Cautioner, it is said there, that his Oath may be taken, in all cases of fellony, and the reason given, is, lest too much severity, in exacting of Caution, deterr the prosecution of a publick crime: and it may be doubted, if Cautio juratoria, cannot properly come in under the notion of sicker security, and there can be little h••∣zard to the Common-wealth, seing the Law presumes, that

His Majesties Advocat will be still so just, as to pursue the publick revenge, where the party is unable. Whereas, by admitting this, cautio juratoria ansa praebetur perjurio, and the defender is disappointed of his damnage, and interest, if the party fail. By the 29. cap. Stat. Rob. 3. pursuers before the Sheriff, should still find Caution to insist: but with us, those ubi suam vel suarum injuriam prosequuntur & etiam in an∣ticategoriis, the accuser must still find Caution; wherein we do very reasonably differ from the Civil Law, for the defen∣der is as much prejudged, and may be as easily troubled, if these pretexts were allowed, to palliat the pursuers malice, as generally he could be in other cases: in this likewise we differ from the Civil Law, that the defender is oblidged to find Caution for his compearance, which he is commanded to do by the Letters: by which the Messenger is commanded to denounce him Rebel, if within six dayes after the Sum∣monds is execute against him, he find not Caution in the Books of Adjournal, to the effect foresaid; which Cauti∣on, though it be found, yet if it be not intimat to the Mes∣senger, the Messenger may still denounce him Rebel, for not finding of Caution. And though by the Civil Law, and ours, the Advocat may pursue without consent of the privat party: yet he is not oblidged to find Caution, nam in eo non praesu∣mitur calumnia: yet the Advocat in our practique, doth or∣dinarly oblidge his informer to find Caution, else he refuses him his concourse.

If the accuser be found to have been calumnious, or as our Law termes it, in the wrong, he is oblidged to pay to the party, an unlaw of ten Pounds, Ia. 3. Parl. 6. Act, And if there be moe deeds then one, he is liable in twenty Pounds; and likewise to pay the defenders expence, Act 78. Parl. 6. Ia. 6. Which Acts, speaks only of not prevailing, though there be no malice, and though there be no probabilis causa litigandi, but if their pursuit be found to be 〈◊〉〈◊〉

it is arbitrary to the Justices, to inflict what punishment they please, either in that same sentence, wherein the defender is absolved, or upon a separat Bill, or pursuit; as also, he is by the Justice constantly ordained to pay what damnage, and in∣terest, or expence the Justices pleases, both to the parties, and to the Assizers. And albeit, according to the Civil Law, Procurator fisci non praesumebatur calumniosus; yet si pro∣curator fiscalis calumniose instigat judicem ad inquirendum tene∣tur in damna actione injuriarum & concremari debet, l. univer∣si C. ubi causa fiscal, &c. And according to the opinion of the Doctors, hodie & judex & procurator fisci affectate conse∣quentes crimen extraordinarie sunt punendi, Q.

IX. The Justices ordain, that because many poor persons were maliciously, or ignorantly imprisoned, that the Magi∣strates of Edinburgh should imprison none, but where one should find caution, in the Books of Adjournal, to insist against them, and to aliment them; and that they should ap∣point a Procurator, dwelling within Edinburgh, to whom the Justices might intimat, when they desired the pursuer might insist, the 5. of Iuly 1661. which should be done, and ex∣ped very speedily; and for this end, the Bishop was appoint∣ed to visit the Prison every Friday and Wednesday, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, celeriter judicari. Basil. l. 21. de custod reor.

TITLE XX. Of Advocats and Procurators.

• 1. Whether a Procurator should be admitted for the pursuer in his absence.
• 2. His Majesties Advocat may deput when he is pursuer, he has also other priviledges.
• 3. In what cases Procurators are admitted in defence.
• 4. What Oath of Calumny is allowed in Criminals.

THe Doctors make a difference, inter simplicem allegato∣rem, who can only propon what is nottour, as that the party cited is known to be sick, & procurato∣rem, who must have a mandat, and may propon declinators, or dilators, & defensorem innocentiae, who not only can pro∣pon dilators, but may likewise defend, et Advocatus semper neputatur defensor, and needs no mandat, but his Gown is his warrand, and yet in Criminals he must have a Procuratory.

I. According to the Civil Law, Procurators were neither admitted to pursue, nor defend, l. ult. §. ad crimen ff. de publ. jud. but by the Law of most Nations, a Procurator is admitted to pursue; for paena talionis is now taken away, which was the reason the pursuers personal presence was requisite. Clar. fin. quest. 14. N. 22. the defender must still be present, ne judici∣um reddatur elusorium.

With us, Procurators are admitted for the pursuer, and yet

this appears not to want difficulty, for if the defender should desire, that the pursuer should swear the Libel, the dyet would desert, if this were refused by the Procurator, and though in Civilibus, a day may be taken to produce the pursu∣er, to give his Oath of Calumny, which Oath of Calumny is the same thing we call swearing the Libel in Criminals, yet seing all Criminal dyets are peremptor, so that there cannot be a day allowed to the pursuer to give his oath, it were unrea∣sonable but he should be present, for else the defender is pre∣cluded from a very great advantage, such as is the pursuers oath of Calumny, which if the pursuer himself were present, and refused, no pursuit would be sustained at his instance, likeas, if the pursuer were present, it might be referred to his oath, that he gave the witnesse good deed, or that he knew the defender to be alibi; by all which it would seem, the pur∣suer should still be present; yet this was expresly repelled, 4. August, 1652. Where Ballindalloch, was pursuing Iohn Grant, but there it was answered, that Ballindalloch was one of the pursuers himself, and the remanent were his Servants.

II. Albeit the Kings Advocat be pursuer in most cases, yet he uses ordinarily to constitute a deput, who should produce a written warrand under his own hand, else cannot be admit∣ted, and this deput can desert a dyet, though his Procurato∣ry do not instruct him with a particular power for that effect. 29. November 1638. Mr. George Norvel Procurator for Mr. Iohn Rollo, which is constantly the opinion of the Doctors.

His Majesties Advocat uses not to pursue a Summonds of Treason, without a special warrand under his Majesties hand, or a particular order from the Council, which he uses to pro∣duce ante omnia, and is still marked by the Clerk, as may be seen in all adjournal Books, but particularly in the cases of the Lords of Ochiltree, and Balmerinoch.

His Majesties Advocat, with us examines parties, and wit∣nesses, before the Process be intented, which he doth upon

pretext, that he may thereby know how to Libel exactly, and to the end he may not vex parties, if he find no ground for the pursuit; but many learned Lawyers, have alwayes thought this Procedur dangerous; for his Majesties Advo∣cat is still a party interested, and so should not be allowed to deals with the witnesses; for thereby he may strain from them what otherwise they would not depon. And if in our last reformation of the Justice Court, it was found that the Kings Advocat should not make the roll of Assizers, because he is too much interested, much lesse should he for the same reason, be allowed to examine the witnesses, since that is not allowed to the Advocats for the defenders.

Advocats with us in Criminals are called Proloquutors.

3. No person should ••lead or consult in reduction of fore∣faulter, without leave granted by the King, Act 135. Ia. 6. Parl. 8. But in other pursuits of Treason, no Advocat is ob∣liedged to crave a license, and even the foresaid act is abroga∣ted, Act 38. Parl. 11. Ia. 6. Which grants only liberty to plead in all Treasons pursued before the Parliament: but by the 90. Act. Parl. 11. Ia. 6. Advocats are allowed before all Courts to plead, without license, and power is granted to Judges, to compel them to plead in such cases, and the for∣mer restriction has been founded upon C. falicis de paenit. in 6. where to plead for Traitors is discharged, nisi concedatur licen∣tia.

When Advocats-assist Pannels, especially in Treason, they use to protest that no escape of theirs in pleading, may be mis∣constructed; since what they say, is rather ratione officii, then ex proprio motu, as we see in Balmerinochs case; and it were hard to be severe in such cases to Advocats, since they are accu∣stomed to much freedom, and are oftentimes transported by the heat of opposition, and zeal to there Client, nor would men have any to engage in their defence, against such pur∣suits, if this liberty were not allowed, and it is against reason

not to allow it, where they are forced to plead, as they ordi∣narily are in cases of Treason, and yet if any Advocat will de∣fend his own escapes against authority, he may be punished by deprivation, but his punishment extends no further, even where he speaks Treason, as was found in the Senat of Savoy, Cod. fabr. tit. de paenis defin. 19.

By the Civil Law Procurators were admitted for the defen∣der, where the pain to be inflicted was not corporal, for the reason why personal presence was requisite, viz. that the de∣fender might undergo what was inflicted, did here cease, and yet with us, the defender must still be present, even where the pain to be inflicted is pecuniary, such as in cutting of green wood, stealing of Bees, &c. because the certification of the Letters with us is still to compear to underly the Law, under the pain of Rebellion, and hath not those words adjoyned, or to show a reasonable cause, which being added in Summonds, for Ci∣vil causes, is a sufficient warrand, for the constituting a Pro∣curator.

Noblemen, likewise might by the Civil Law, and the o∣pinion of the Doctors compear by their Procurators, but this is not allowed with us. Procurators might likewise by that Law, be admitted to propon the incompetency of the Judge, even in the case where there is a Statute appointing the defen∣der to compear personally, which should much more be allow∣ed with us, where there is no such Statute, but where this ne∣cessity is imposed by the will of the letters: Boss. tit. an incri∣min. num. 13.14. Fa••in. de var. quest. 99. num 168. and yet I have seen those who killed Armstrong the customer, out∣lawed, Iuly 1668. Albeit it was alledged, they dwelt with∣in the regality of Annandale, and so they should be repledged, which was repelled, because they were not present; yet the reason might be, because the Justices were Judges competent, eo casu, and the replegiation was a priviledge, with which the Lord of Regality might have dispensed, and so was competent

only to him, and to the defender, who should have compear∣ed, in omnem eventum.

Procurators are also allowed to propone excuses for absents, &c. sine mandato, si excusationes illa sunt facti, & necessariae, as is sickness, imprisonment, &c. Sed ad allegandum cau∣sas probabiles, & necessarias absentiae, such as the want of a safe conduct, requiritur mandatum; quia absens iis renuncia∣re potest, & non constat de ipsius voluntate, nisi per mandatum, which distinction, I think unnecessar; because it is alwayes presumed, that the defender would willingly have himself de∣fended; and with us, a Mandat is not necessar, if an Advo∣cat be imployed, for his Gown is his warrand: and where an Advocat is imployed, I think, the Cautioner may be ad∣mitted, albeit he have no warrand, quia qui satisdat dicitur habere mandatum de jure farin. ibid. part. 2. num. 283. and the Cautioner defends himself, eo casu, seeing if the reason of absence, or Essoinzie (as we call it, be found relevant, he will not be unlawed, and where a Mandat is necessar with us, which is, where an Advocat is not imployed) it may be doubted, if the Mandat be sufficient, if subscribed only by one Nottar, where the party cannot write, which though it be ordinarly sustain'd, yet it would appear, that eo casu, it should be subscribed by two; for the Act of Parliament re∣quires two Nottars, and four Witnesses, in all cases of great importance; yet seing quaelibet levis probatio absentiae suf∣ficit, it would appear, that quodlibet mandatum hic suf∣ficiat.

IV. Albeit where the pursuer is a privat person, he is ob∣lidged to swear the Libel; yet where the Kings Advocat pur∣sues, he is not oblidged to swear the verity of the Dittay; because he pursues only, ratione officii, but I find, in the same Decisions, that the Advocat is not oblidged to depone, whether the party hath given partial counsel, the 10. of Au∣gust 1598. Advocatus contra the Laird of Dalgety, nor yet to

declare who is his informer, the 20. of April 1599. Advo∣catus contra Iohn Connel, and others, but this seems unrea∣sonable, seing the defender should not be prejudged, by the intenting of a pursuit, at the Advocats instance; and jure na∣turali, the pursuer, or informer, which is all one, should not be a Witnesse, nor can it be known who is pursuer, with∣out the Advocat declare: it is also a great encouragement to unjust pursuits, that any person may inform at random, without being known, and the informer is liable in damnage, and interest, if he inform without any ground, even though the pursuit be only raised in the name of His Majesties Advo∣cat, Act 78. Parl. 6. Ia. 6. but if the Advocat may conceal lawfully the informers name, then the defender is precluded from all these just advantages. This priviledge of the Advo∣cats not swearing the Libel, seems to be founded upon the opinion of the Doctors, who contend, that Procurator ex of∣ficio non tenetur prestare juramentum calumniae, Gail. obs. lib. 1. obser. 88.

TITLE XXI. Of Libels, and the forms of Proces thereto re∣lating.

• 1. A Libel is a Sylogism.
• 2. It ought to condescend upon time, and place.
• 3. Whether the qualities Libelled may be passed from.
• 4. The stile of a criminal Summonds, and Inditement.
• 5. How a criminal Summonds ought to be execute.
• 6. Whether a person who is banished, may safely appear before the day, in the citation.
• 7. How criminal Actions are to be called, and the forms there∣to relating.

I. A Libel is generally by Lawyers thought to be a Syl∣logism, wherein the proposition (as we call it) is founded upon the Law, and though the proposition be oft∣times generally conceived thus, that albeit by several Acts of Parliament, the crime of, &c. be expresly forbidden, &c. Yet it is more regular to expresse the particular Acts, where∣upon the proposition is founded. The subsumption of the Libel, is the matter of Fact, which should condescend upon

the actors names, and designations, and upon the place where the crime was committed, either expresly, as the House of such a man, or per cohaerentias, as Lawyers speak, as that it was done near such an Hill, Water, &c.

II. That the place must be designed, is expresly required, l. libellorum, ff. de accus. But whether the Day, or Mo∣neth must be exprest, is more controverted; and by the for∣mula, exprest in the former Law, the Place and Moneth, are necessar, and to that formula, is there subjoined, thir words, ne{que} diem ne{que} horem invitus comprehendet, but according to the opinion of the Doctors, if the defender compear, and crave that the pursuer should expresse the Day, because he offers to prove, alibi, then the Judge should force the ac∣cuser to expresse the Day; for else the defender would ••e precluded from proving his innocence, Bart. in l. is qui reus, ff. de pub. Iud. But though in that case the accuser is oblidged to express, yet he is not obliedged to prove the same; be∣cause the expression thereof is not necessary, for the relevan∣cy of his Libel, but only for the clearing of the others inno∣cence, Bertr. and lib. 6. Consil. 61. As also, if the pursu∣er can upon Oath depone, that he doth not remember the Day, and that he does not omit the same maliciously, eo ca∣su, he is not obliged to express the same, Clar. q. 12. num. 13. But the former difficulty in this case still remains, which is, that the defender loseth the benefite of this defence, and is prejudged by his accusers ignorance, which seems to be un∣just: and therefore Cook 7. rep. Calvins case observes, that an inditement should be most curiously, and certainly penn'd, and by the 37. Stat. Hen. 8. the Day, Year, and Place must be insert. By the 80. ch. quon. attach. these seven are to be ex∣prest, the Names of the Parties, Day, Year, and Place, Cause of the Complaint, and Damnage. According to our Law, either the crime is such, as depends upon time, as is the striking one in the Session-House, whilst the Lords sit;

or the wounding, or killing one in time of Divine Service, and in these the particular time must be both libelled, and proved; because the time is not there a meer circumstance, but it is the medium concludendi; and therefore a Libel in Deforcement, was not found relevant, because it condescended not upon the time, since it was lawful, if the Rebel had been apprehend∣ded upon the Sabbath, 1671. but I think that this might have been propon'd as a defence, and that the Libel without the Day, was relevant; but there also, the Year was not in∣sert, nor would the Justices allow the filling up the same at the Barr, as in civil cases; but in other cases, where the crime depends not upon time, we use to Libel in the Moneths of May, Iune, Iuly, &c. or one, or other of the Mo∣neths, Weeks, or Dayes of the said Moneths, but the expres∣sing of the Day, is not found necessary, as in the case of one Hay I was found the 5. of November 1612. and likewise upon the 8. of Iuly 1615. where a dittay of theft, was found rele∣vant, though neither condescending upon the Day, nor the marks of the Goods: And in my Lord Argyls case, the Parliament found it not necessary to condescend, even upon the Moneth, but the ordinary Caution allowed the defender, in that case, is, that the defender may offer to prove, that quo ad, some particular Dayes of these Moneths, he was ali∣bi, and quo ad these, the Libel will not be relevant, nor he passe thereupon, to the knowledge of an inquest, but will get a precept of exculpation: as for instance, if one should be ac∣cused of killing a man, in the Moneth of March, upon the Street of Edinburgh, he might alledge, that quo ad, the first fourth-night he was at London, quo ad, so many other dayes thereof he was at New-castle, &c. And if the Witnesses, when the Libel comes to Probation, do depone, that upon any of these dayes the crime was committed, in which alibi is proved, the defender will not be thereupon convict; for though the pursuer needs not condescend upon the Day, yet the Wit∣nesses must condescend upon it, in the case where alibi is offered

to be proved, but otherwayes it may be controverted whether a Libel be relevant, bearing in the general, the committing of the Crime, but not condescending upon the particular man∣ner: as for instance, if it should be subsumed upon the Acts against fore-stalling and regrating, that the defender did fore∣stal, but did not condescend upon the particular persons, from whom the corns were bought; or in usury, if the pursuer should not condescend upon the particular way how the usury was committed; and in my opinion, regulariter, the crimes should be particularly subsumed; because else the relevancy cannot be debated before the Justices, and the assize should be con∣stantly judge of the matter of Law, and the Pannel should be put oft to the knowledge of an inquest, upon irrelevant crimes, all which were absurd; but yet there are some crimes, such as fore-stalling, and regrating, in which it is sufficient to libel the Crime, without condescending upon the particulars, for in this crime it is declared by 148. Act, Par. 12. K. I. 6. that a Libel bearing common regrating, or fore-stalling, in the gene∣ral shall be relevant, without condescending on the time, and way of committing the same. And accordingly upon the 11. Iune 1596. A Libel against Young and others, for fore-stalling was found relevant, though it condescended not upon the particular persons against whom this crime was committed: And it may be debated, that a person being pursued for com∣mon usury, if that crime of common usury, may be sustained without any particular condescention, because both the rele∣vany, and probation is referred to his own Oath, and so he is not precluded from any defence, but since it was necessary by a particular Law in regrating, to appoint the Libel to be found relevant upon that general, it seems to follow, that re∣gularly the particular way, and manner must be condescended upon; else that particular dispensation had not been necessa∣ry. Whether a conclusion be necessary in Criminal Libels, is likewise debated amongst Lawyers; but the common opion is, that it is not, because though in Civil cases, the pursuer

may crave more, or lesse, nor what is due to him, yet in Crimi∣nal, either the penalty is determined by a Law, which the Judge must follow, though it be not craved, or otherwise the pain is Arbitrary, and there the pursuer cannot by his petiti∣on determine the same, but must leave it to the Judge, l. 1. §. quorum ff. ad S. C. turpil. l. ff. de privat delicti l. ordine ff. ad unicipalem, and in the form set down l. 3. ff. de accusatio: by Paulus, there is no conclusion exprest, but yet with us, there is alwayes a conclusion in every Libel, though it be ge∣neral, and I perceive that most of the practitioners are of opini∣on, that at least a general conclusion should be added.

III. Whether a Libel being libelled qualificate, the pursuer may passe from the quality, has been thus determined by Lawyers, that if the quality amount to another different crime, it cannot be past from, but if the quality amount only to an aggraging circumstance, it may be past from. As for instance, if the pursuer Libel upon the Act of Parliament, whereby murder under trust, is Treason, and subsume that the Pannel is guilty of murder under trust, in so far as the per∣son murdered, was father to the murderer, if when the case is to be tryed, the pursuer should declare, that he insists against him as a Murderer simply, because he is not sure to prove, that the person killed was father: I think eo casu, the pursuer could not so reform or declare his Libel, for that makes the crimes to differ, the one being Murder, the other Treason, and the defender was only obliedged to prepare him to defend against Treason, and finding that he was secure, as to the crime libelled, he needed not prepare other defences, or raise exculpations for that effect; but these qualities which a∣mount only to aggravations, may be past from, as was decided, 11. November 1672. For Aikma•• having pursued Carnegy of Newgate for oppression, conform to the 25. Act 4. Parl. K. I: 5. because he had beat him, who was a Magistrat, in the exercise of his Office, the Justices having found, that the pur∣suer

could not in the construction of Law be repute a Magi∣strat, because he had not taken the Declaration, it was thereaf∣ter alledged, that the Libel being only founded upon the fore∣said Statute conceived in favours of Magistrats, and the con∣clusion being against oppression, and not against beating the pursuer, could no more insist upon that Libel, which was re∣pelled, for the Justices found, that the beating any man, was a crime, and the pursuer might insist against the defender for beating him, since his being a Magistrat was only an aggraging circumstance: Yet this seems a hard decision, since the pro∣position of the Libel, did not bear, that beating was punishable, nor did the conclusion bear, that at least the Panel was punish∣able for beating a free Liedge: & if this were universaly allowed, alternative Libels were unnecessary, and this would occasion much looseness in Criminal Libels, whereas Lawyers trea∣ting of Criminal Libels, have laid it down as a prin∣ciple, that in criminalibus non licet vagare, and the crimes of oppression, and beating, are different. Nor can it be denyed, but that a privat person differs from a Magistrat, so that this quality made the persons, the crimes, and the medium conclu∣dendi to differ,

IV. For the better clearing of our custom in these cases, I have set down the form both of the Criminal Letters, and Criminal Indictment now in use with us.

A Criminal Summonds.

CHARLES, &c. humbly mean'd and complain'd to Us, by Our Lovits, A. the relict, B. sister, daughter, and nearest kins-woman, C. as Mr. with the remanent kin of Um∣quhile Main, Servant to the said C. and Our right trusty and well beloved Councellor, our Advocat, for our interest in the matter underwritten upon Listoun, without any just cause, offence or in∣jury done to him by the said umquhile Man, having conceived a

deadly hatred, and evil will against him, with an settled purpose, and resolution to bereave him of his life, one way, or another, late∣ly, upon the last day of 〈…〉〈…〉 where the said Main was in quiet, and sober manner for the time, expecting no harme, injury nor pursuite of any person, but to have lived under Gods peace, and ours. And the said Listoun being bodden with a great Batton, or rung in his hand, and with knives and other invasive weapons, first upbraided the said Main with words, alledging that he was a common Thief, and had stollen, &c. And thereafter, because the said Main had purged himself of that calumny, and said he was as honest a man as himself, he thereupon ran and rushed the said Main (being an aged man of 74. years of age) to the ground under his feet, struck him in the head, craig, shoulders, and side, with the said Batton, lap upon his breast and belly with his feet and knees, beat him upon the heart, and thereby broke, and brui∣sed his whole intrals, and noble parts, thereafter heased and drew him by the heels, off the saids lands, by the space of a quarter of a mile, to a low Vault in, &c. and imprisoned him therein, tan∣quam in privato carcere, he being in the dead thraw: Likeas, within three hours after his imprisoning in the said Vault, the poor aged man dyed of the saids stroaks and hurts; likeas, to suppresse the Murder, the said Listoun with his complices, buried him in an obscure place in the night time, and swa the said Main was shamefully, and cruelly murdered, and slain, and secretly buri∣ed by the said Listoun, and his complices, and he is Art and Part thereof, committed upon set purpose, and provision, and forethought Fellony, in high and manifest contempt of our Autho∣rity and Laws, in evil example of others to commit the like; if swa be, OUR WILL IS herefore, &c. and in Our name and authority, command and charge, the said Listoun, committer of the said Barbarous murder, in manner foresaid, to come and find sufficient Caution, surety to Our Iustice Clerk, and his deputs, acted in our books of Adjournal, that he shall compear before the Iustice, or his deputs, to underlye the Law for the samen in our

Tolbuith in Edinburgh, on the Day 〈…〉〈…〉 of 〈…〉〈…〉 in the hour of Cause, under the pain contained in Our Acts of Parliament, and that ye charge him personally, if that he can be apprehended, and failzing thereof, at his dwelling house, and by open proclamati∣on, at the Mercat Crosse of the head Burgh of the Shyre, Stewat∣ry, or Regality where he dwels, to come and find the said soverty acted, in manner foresaid, with in six dayes next after he bees charged be you thereto, under the pain of Rebellion, and putting of him to the Horn, the whilk six dayes being by past, and the su∣rety not being found, that ye immediatly thereafter denounce him Rebel, and put him to our Horn, and escheat and in bring all his moveable goods, to our use, for his contemption, and cause Regi∣strat thir our Letters, with the executions thereof, in the books of Adjournal, within fifteen dayes thereafter, conform to our Act of Parliament made thereanent, and if he find the said soverty, initimation being alwayes made by you, to us, of the finding thereof, that ye Summond an assize hereto, not exceeding the number of 45. persons, together with sick witnesses as best knows the verity of the premisses, whose names ye shall receive in the Rolls, subscribed by the complainers, or either of them, ilk per∣son under the pain of a 100. Merks, as ye will answer to us Ex deliberatione.

The form of an Inditement is thus.

An Inditement.

FOr sameikle as the abominable, vile, and filthy vice of In∣cest, being so odious, and detestable in the presence of Al∣mighty God, and be the same eternal God, his express word so clearly condemned; Therefore our soveraign Lord, out of his godly disposition, and zeal, by diverse his Acts of Parliament, expresly Statute, and ordained, that whatsoever person, or per∣sons,

commits the said abominable crime of Incest, shall be pu∣nished to the death, as the saids Acts of Parliament, in them∣selves proports: Notwithstanding, it is of verity, that the said A.B. being married with his lawful Spouse, Daughter to C. most shamefully, but fear of God, or respect to our Soveraign Lords Laws, has given the use of his Body to D. His Wifes ••ister, in the Moneths of 〈…〉〈…〉 in his and her journeying, betwixt the Burgh of Edinburgh, and the Town of Elgin, and within the said Town of Elgin, in the which filthy, and incestuous copula∣tion, she has procreat a Bairn, committing there-through the said filthy crime of Incest, and Adultery, to the high offence, and displeasure of Almighty God, violation of the Kings Ma∣jesti's Laws, and evil example of others, to run in the like fil∣thy and abominable vice, if the famine be suffered to remain unpunished, as at length is contained in the said Dittay, produ∣ced against him, &c.

V. The Summonds should be execute only by a Messenger at Arms, or by an Officer of the Court, except in the case of Treason; in which case, it is appointed by the 125. Act Parl. 12. K. Ia. 6. that Letters, and Summonds of Trea∣son, should be execute only by Heraulds, and Pursevants, bearing Coats of Arms, or by Macers, which must be under∣stood only of Macers of the criminal Court; for the Macers of the Council, or Exchequer, or Session, cannot execute any other Summonds, but what is pursued before these Respective Courts, to which they are Macers. The form of the Execu∣tion, is, that there be a full Coppy of the Letters delivered to the defender, if he be personally apprehended, or if he can∣not be personally apprehended, to his Wife, or Servants, or affixt upon the Gate of his dwelling House, if he any has, and Proclamation at the head Burgh of the Shire, where a Coppy is likewise to be fixed at the Mercat Cross; but if there be moe persons then two, and all be called for one deed, and

crime; in that case, two of the Copies are to be delivered, to two of the Principals, named in the said Letters, or their Wives, &c. In manner foresaid, is sufficient, Q M. 6. P. cap 33. but if the Persons live in Shires, or Countreys, ubi non patet tutus accessus, the Bill whereupon the Letters passe, use to contain a priviledge, for citing them at the head Burgh of the Shire, and to the end of the Letters, bearing thir words, and failzing thereof, by open Procamation, at the Mercat Crosses of our Burghs of, &c. because they are bro∣ken men, having no certain dwelling, and haunts, and fre∣quents with other broken men, where our Officers dare not resort, for fear of their lives, with the whilk Charge, swa to be given, We, and the Lords of Our Council, by thir Pre∣sents dispenses, and admits the famine to be as lawful, and safficient, as if ilk an of them were personally apprehended, this is by the Doctors called, citatio edictalis, but if the par∣ty be out of the Countrey, he must be cited at the Mercat Cross of Edinburgh, Peir and Shoar of Leith, as in other cases. Nota, though the Act of Parliament foresaid, bear not a full Copy, yet it is absolutely necessar, that a full Co∣py be given; for the Dyets in the Criminal Court being pe∣remptor, the Summonds is not given up to see, as in other Courts; and therefore the defender should have a full Co∣py, that he may come instructed how to defend, and that he may timeously raise exculpation, and if a full Copy be not given, the Executions have been found null, in totum, and the Acts of Parliament appoints they should be null, Anno 1665. Livingstoun contra Leith: And though some think, that in the case where a short Copy is given, the Summonds should be only given up to a short day, but the Execution should not be null: yet I think that opinion is not found 1. Because the Act of Parliament appoints the Execution to be null, where a Copy is not given. 2. The giving up to see, cannot be sufficient, for if the party had gotten a full

Coppy at home, upon the place where he lives, he had rais∣ed Exculpation, and cited the Witnesses therefore upon the place. Thir Executions should be subscribed by the Execu∣ter, and stamped, and Sealed before Witnesses, else they are null, Act 32. Parl. 5. I. 3. And Letters should not be di∣rect generally, against Complices, but the particular crimes of every defender should be expressed, Ia. 6. Parl. 6. cap. 76. and Ia. 6. Parl. 11. cap. 85. And by this last Act, all Criminal Letters, which import tinsel of Life, and Move∣able Goods, when they are execute by open Proclamation, at Mercat Crosses, should be execute betwixt eight Hours of the Morning, and twelve Hours at Noon: Though former∣ly, when a party was in Prison, his Inditement might have been given him upon twenty four Hours; yet it was found in the case of Robertson, in Iuly 1673. that a Pannel in Pri∣son, should have fifteen Dayes at least, that he might with∣in that time, either raise a Summonds of Exculpation, or might take out diligences, for proving his Objections against Witnesses, or Assizes, and that conform to the eleventh Ar∣ticle of the Regulations, concerning the Justice Court, though it was alledged then, by His Majesties Advocat, that there was no expresse Warrand for that Indulgence, in that Article, And Correctory Laws, such as the Regulations were, ought not to be extended beyond the Letter; especially in this case, where the Pannel was a Murderer, taken with reid hand, and Justice was to be done against such, by our old Law, within twenty four Houres: which replies were repelled, in respect it was duplyed for the Pannel, that though the Law did not expresse the time that is to be indulged, to such as are crimi∣nally pursued; yet it having exprest the reason, for which this indulgence is to be given, viz. that the party might ei∣ther exculpat himself, or cast the Witnesses, or Assizers, that were to be used against him, the Law could not but allow a time sufficient for doing that diligence, it being a Rule in

Law, and a Principle in Reason, that quando aliquid concedi∣tur, omnia concessa videntur sine quibus hoc fieri nequit, and though where a party is taken reid hand, and confesses, the Judge ought to do present Justice upon him; yet that is on∣ly introduced to make Judges diligent, but not at all to pre∣clude poor Pannels from their just defences, and it were a thing very inhumane, and unwarrantable, if a poor Pannel were taken reid hand, but could prove that he was forced to kill in self-defence; or if he could prove, that one of the Witnesses had been one of the Aggressors; that in either of these, or such like cases, he could not have time to cite Wit∣nesses for that effect.

VI. Whether a person who is cited to compear in a crimi∣nal Court, as defender, at a particular day exprest in the Sum∣monds, may not before that day appear in Edinburgh, though he be banisht, was doubted, in the Action pursued at His Ma∣jesties instance, against several Gentle-men, in Anno 1674. and that they might come to Edinburgh, was allowed; be∣cause being cited, they were commanded to come. 2. Their coming to Town was necessar, in order to their defence, and thus, when men are indited, they have the liberty of a free Prison, though till then they were ordered to be kept in close Prison; and yet some thought that this might be doubted, since they were once formally banisht, and so the banishment should be formally taken off, and the raising of a dittay is no discharge of the banishment, for else the Kings Advocat might discharge banishments when he pleased, and indite∣ments bear not to appear betwixt and such a day, but at such a day. 2. When men are under Caption, they may be ta∣ken, if they appear before the day of compearance, if they have not a Protection, which shews, that a meer citation doth not take off the dangers, to which the person cited is liable. 3. Protections were needless, if this were allowed, for the ci∣tation

would be a Protection, and yet Protections are ordain∣ed to be granted to defenders in such cases.

As also it was doubted there, if such as were cited upon six∣ty days, might compear with others of their complices, who were cited upon six dayes, for it was urg'd, that the appear∣ing upon sixty dayes, was introduced in the defenders favours, and so he might renounce it, and possibly he cannot compear at the long Dyet; and yet it may be urged, that the pursuer has chosen his own Dyet, and it may be his true interest some∣times to divide the defenders, and sometimes his Probation cannot be sooner ready.

When there are more pursuers, each Libelling a distinct in∣terest, as three brothers pursuing for the murther of their de∣ceast brothers, though they were all three killed at the same time, and in the same action. It has been found, that two of the pursuers being absent, the third could not insist: and so the diet was deserted, upon pretext that the Libel was com∣plext, but I conceive, that the interests there were very di∣stinct, though in the same Libel, and that though they had been all joint pursuers, yet the absence of the rest should not prejudge any one, who has a sufficient interest, per se.

VII. When the day of compearance comes, which is pe∣remptor, and not with continuation of dayes, by the Act I. 6. the Justice-clerk calls the Summonds, and if the pursuer be present, and the defender be absent, he is declared Fugi∣tive, and his Cautioner is unlawed, but if the pursuer be not present, then the Clerk calls upon the Act, for reporting the Criminal Letters, and the Cautioner is unlawed, for not re∣porting the Criminal Letters: And in either cases an Act is extracted; and if both pursuer, and defender be absent, the pursuers Cautioner is unlawed, for not reporting the Crimi∣nal Letters, and the defender is outlawed, and his Cautioner is likewise unlawed for not presenting him; but if either, or both compear, the Cautioners takes Instruments upon their

reporting the Letters. If the defenders Cautioner present him at the day, but if the Judge be absent, or the day feriat, as if it be a publick Fast, then I think the Cautioner is not free; but he should present him at a day wherein he may be pursued, for his obligation must be interpreted to be, cum ef∣fectu, especially if the Pannel would have been imprisoned, if he had not found that person Cautioner.

Upon their presenting the Pannel, then the defender enters upon Pannel, and the Clerk marks, curia affirmata die men∣sis per and marks such a man entered upon the Pan∣nel, such a day accused for the crime, &c. and marks who were pursuers, and who were Proloquutors in defence, and the Dittay is read, and the Justices ask whether the Pannel be guilty, or not; which is conform to l. 3. ff. quam aniss non possint, & l. & adulteram ff. ad leg. jul. de adult. and the Ad∣vocats for the defender, dictat both the Dilator, and pe∣remptor defences, as the Advocats for the pursuer, do his re∣pleys and triplys, which has been originally introduced amongst us, as I conjecture that the Judges might not be seduc'd, by the passionat, and well acted Eloquence of Advocats, Quin∣til. Athenis (speaking of the Areopage) affectus movere etiam per praeconem prohibebatur orator, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. By dictating also, the Advocat considers more gravely what he asserts in these cases, which are of so great concern, and the Judge has more permanently under his consideration what he is to do, and succeeding ages may better judge of the grounds whereupon he proceeded

TITLE XXII. Of Exculpation, and the other pri∣viledges competent to the defender.

• 1. The rise and progress of exculpations with us.
• 2. Whether exculpations may be admitted, though contrair to the Libel.
• 3. How alibi should exculpat.
• 4. Witnesses liable to exceptions may be admitted in exculpati∣ons.
• 5. Witnesses for exculpating may be admitted, though not cited.
• 6. Whether a man may be punished, though he has not fully pro∣ved his exculpation.
• 7. How the defender may exculpat if the pursuer insist not.
• 8. Whether the Iustices, or Assizers are judges to exculpati∣ons.
• 9. What if the pursuer cite as parties, the defenders necessary witnesses.

ALbeit after a crime is proved, the Pannel is most unfa∣vourable, yet till then, he is still presumed innocent, & praestat nocentem absolvere, quam innocentem condemnare, &

Petr. de Anach. consil. 23. observes well, that the Court de∣serves much more honour, when they absolve, then when they condemn. The reason of which is, because when an in∣nocent person is condemned, the wrong cannot be repaired, but when a guilty person is absolved, yet God will either suf∣fer him him to fall in a second snare, whereby the first crime may be also punished, or at least, his infinite Justice will pu∣nish him eternally if he repent not.

When any person was Criminally pursued, he had by the common Law the benefite of exculpation, for so they term the defences of the Pannel, as is clear by Clar. quest. 51. But I find not this term used with us, till the Year. 1661. at which time, it was used first in Argyles processe. The En∣glish call this, to traverse an Inditement, from the French word traverser (as I suppose) which signifies to oppose, or cross.

When a Pannel before that time, was pursued in Scotland, he behoved presently to propon his defences, and have wit∣nesses there present, for proving it, or else he behoved to refer it to the pursuers witnesses, for our Ancestors thought that the pursuers Witnesses being present, could not but know all the matter of fact exactly, and so were as fit to prove the exculpation, as the Libel; but this was a mistake; for witnes∣ses might have been present when the wound was given, who were not present at the beginning, when the occasion of the wound was given, whereupon the exculpation of self-defence was founded; so that other witnesses are oftimes necessary, be∣side these adduced by the pursuer, and it is not safe to presume, that these will come without a citation, or if they come with∣out a citation, they are ultroni••, and so are suspect.

In anno. 1661. the Justices did begin to grant precepts of Exculpation, which were drawn by the Clerk, and exprest, that in respect there was a pursuite of such a nature, intended against such a man, and that he had defences to propon (here the defences were exprest) therefore the Justices granted war∣rand to him, to cite witnesses for proving thereof. &c. That

This precept was subscribed only by one of the Justices, yet thereafter in anno 1666. the Justices ordained, that a formal Summonds, past under the signet of the Session should be gran∣ted for citing witnesses for Exculpation, and they are called now Letters of Exculpation, which contain the defence, as formerly the precepts did, but because the Lords of Session use to scruple, to passe such Bills; therefore the Justices first consider the defence, and if they find it probable, they use to subscribe the warrand for a Bill, which Bill is past by one of the Justices amongst the common Bills, and that Bill is the warrand of the Letters.

When the Pannel is accused, and the Libel read, his Advo∣cat doth propon the defence, or exculpation, v. g. if the Li∣bel be Murder, the defence is inculpata tutela, &c. and after the defence is debated, and either admitted, or repelled, by an expresse signator of processe, then the witnesses are accor∣dingly admitted.

If the Justices refuse to passe a warrand for Letters of excul∣pation, the defender ought not to be thereby prejudged, but the dyet will be continued, till Letters of Exculpation be rai∣sed, as was found in my Lord Rentouns case, against the Laird of Wedderburn, December, 1669. And though the summonds of Exculpation should be execute to the same dyet with the Principal Summonds, yet if the Justices find it reasonable, they may continue the dyet, and allow a competent time for raising Exculpation, as they did 13. Iuly, 1676. In a case pursued by Mackintosh, against Grant, for in remote Shires, the defender has not time to raise and execute Exculpations to the day of compearance in the principal cause.

The ordinary defences are to be seen in the respectiv Titles to which they relate, and it would swell too much, and too un∣necessarily this Title to repeat them here.

II. It is ordinarily replyed to defences of Exculpation, that

they are contrary to the pursuers Libel, and so ought not to be admitted to probation, and thus Mr. William Sumervel being pursued, for murdering of Bessy Rentown, it was alledged, that it was offered to be proved, that the wound was not mortal, as appeared clearly to many who saw the same immediatly after it was given, Likeas she went that night to her brothers house, three miles on foot, and never took bed, but wrought as a ser∣vant in her ordinary imployments, for twelve weeks, And at last having gone to attend her brother, who dyed of a spotted Fever, she was by him infected, and dyed of a Fever; which defence of Exculpation was repelled. Decemb. 1669. as con∣trary to the Libel, wherein it was expresly Libelled, that he gave her a mortal wound, that she died of the wound that he gave her, and I find it formerly repelled. 15. Iuly, 1642. Cheyn against Mowit, But this principle, viz. that exculpation directly opposit to the Libel, should not be admitted, seems not to be allowable, for all defences of Exculpation might be thereby precluded, for the pursuer might so cir∣cumstantiat his Libel, upon design, as that the only excul∣pation which he feared, behoved to be contrary to his Libel, and since in Scotland the pursuer is not precisely obliedged to prove all the qualities which he Libels, but it is sufficient that he prove the Libel it self, the poor defender might easily be cheated; for the pursuer might Libel all the circumstances ex∣clusive of the exculpation, which he feared, and after he had thereby excluded the defence, he might contend, that albeit the qualities were not proved; yet the fact it self being pro∣ved it was sufficient. 2. In Civil cases, some defences are admitted, though contrary to the Libel, as in Ryots before the Council, and in Spuilzies; and therefore they ought much more to be admitted, in Criminal cases, wherein the defender is more favourable, then he is in civil cases. 3. If this prin∣ciple did generally hold, then self-defence, and casual homicide could never be allowed as Exculpations, for both these are di∣rectly

contrary to the Libel, used in the case of Homicide; which bears still premeditation, and fore-thought-fello∣ny. But to reconcile these differences, that which I find more suitable to reason, in these indigested discourses, which the Doctors make upon this Subject, may be comprehended under these conclusions, 1. Where the defence i•• not abso∣lutely contrary to the Libel, it ought only to be admitted to probation. 2. Though it be contrary to the Libel, yet ac∣cording to the Doctors, a conjunct probation should be grant∣ed, for besides the former reasons, I find the Civilians de∣bate very learnedly, whether when the pursuers probation of the Libel, is expresly contrary to the probation led by the defender, the pursuers, or defenders probation ought to be preferred, Bossius tit. defens. reor: which question were need∣less, if a mutual probation were not allowed, eo casu, and Boss. there advises the defender, capitulare directe contrarium ejus quod libellatur, and when the probations differ, the ordi∣nary rules to be followed are, that 1. The defenders proba∣tion is to be preferred, Gloss in cap in nostris detest; because it is admitted by the presumption, that nemo presumitur dili∣quisse, Boss. ibid. But if the probation be not equal, the greater number, or these who depon what is most pro∣bable, or the worthiest persons ought to be believed, Boss. ibid.

How far this Doctrine is allowed by our practique, will ap∣pear, from a case decided in Iun 1670. In which, William Mackie, being pursued for killing Hoom, in a single Combat, did alledge, that if he did kill him, it was in his own defence; in swa far as Hoom fell upon him, with a drawn Sword. To which it was replyed, that selfe-defence could not be receaveable; because it was expresly Libelled, that there past a mutual provocation: and though he went to the Park without his Sword, yet having been thereafter provock∣ed, and fighting, and killing the Defunct, he cannot be said

to have done this, se defendendo, else the Act of Parliament against Duels, might be easily eluded; and though, if the Libells did only bear fore-thought-fellonny in general, self-defence might be receiveable to eleid the Libel; yet where the Libel was founded upon a special qualification of provoca∣tion, self-defence was never sustained, to eleid the Libel, and the reason of the defence, is, because in the first case, self-defence is not contrary, substantiae libelli; but only eleids it in a quality, which is presumed, and so needs not be prov∣ed, viz. forethought-fellony, whereas, in this case, if self-defence were receiveable, to eleid a Libel, founded upon provocation, and Duelling, it would be expresly contrary to the Libel, and to the quality of provocation, which is a qua∣lity that must be proved. In respect of which reply, the self-defence was repell'd

III. But since defences expresly contrary to the Libel, cannot be sustain'd in our Law; it may be doubted, if the exception of alibi, be relevant: for since the Libel bears, that the Pannel was actor there, it is contrary to the Libel to alledge, that the Pannel was else where, than where the crime was committed; for that is the same thing, as to alledge, and offer to prove that he kill'd not there. But I think in this case, alibi should be strongly qualified, and if it be, then both the Libel, and defence ought to be admitted to probati∣on; but so that if the Judge find alibi, not to be clearly proved, then only he should allow the pursuer to prove his Li∣bel, for to admit contrary Probations, were to open a Door to Perjury, and not to allow the pursuer to prove also, were to infer a crime without Probation; for the Pannels not prov∣ing his defence, doth not, in criminalibus, relieve the accu∣ser from the necessity of proving his Libel, as it doth in civil cases. And this seems to be our Law, and more just and Chri∣stian, then conjunct Probations are.

IV. According to the opinion of the Doctors, Exculpati∣on

is so favourable, that many who could not be received as Witnesses to prove the Libel, would be admitted to prove the defence, as a Brother, or a Domestick, Iason. in leg. ut. vim. ff. de just. & jur. & Clar.

And Bocerus, de duell. cap. 8. num. 82. g••ves it for a rule, that probantur articuli pro in culpata tutela testibus alias minus idoneis ut frater pro fratre affinis pro affine, &c. Idem asse∣runt Mascard vol. 1. conclus 490. Gail, de pac. publ. cap. 16: For though it would seem that the presumption lies still against the killer, and so he should be burthen'd with the stronger Probation, yet it may be answered, that that rule holds only against the accuser, but not against the defender; as also, it may be answered, that he who killed in his own defence, was not doing what was unlawful, but what was lawful and neces∣sar; and therefore the Law should presume in his favours, and not against him. And in Rutherfoords Process, in Ianuary 1664. it was found, that Women might be admitted to prove self-defence, if there were Women upon the place.

V. It is very ordinary for some Judges, not to admit Wit∣nesses to exculpat, except they be cited, and all the formali∣ties be observed, in their citations, that are observed in other citations; But I should rather think with the Civilians, that as testes in defensam, are admitted, though they be not ha∣biles, so Witnesses may be admitted, though not cited, for this was our ancient practice, and the benefit of Exculpation, is mainly brought in to favour the defender: And is it not strange, that if a man were Pannell'd for Murder, and saw two persons present, who knew that what he did, was done in his own defence, it should not be lawful to him, to desire them to be examined; this were to profer meer formalities, to real truth: And whereas, it is observed, that these te∣stes, are ultonei, who came without being cited, and so ought not to be received. To this it is answered, that all such as come without being cited, are not testes ultronei, but only

such as offer themselves without being required, by Judge, or Party, as if a man should step out, and desire to be exa∣mined: And whereas, it is urg'd, that they must be presum∣ed partial, who come there meerly to be examined, and this is the same thing, as if they offered themselves; it is answer∣ed, that the presumption is very groundless, for they might have come there without any such designs; and if they had such a design, they might safely have eluded the formality ob∣jected, by causing cite them. Others use a strang evasion in this case, for though they confess that Witnesses may be ex∣amined in Exculpations, though not cited; yet if a Sum∣monds be once raised, they conceive that none should be al∣lowed to depon, but such as are cited; because, say they, the defender can only in that case blame himself, who used not the remedy, that was competent to him. 2. If the con∣trary were allowed, there needed no Summonds of Exculpa∣tion be raised. 3. It is presumeable, that the defender hath, ex post facto, corrupted that Witnesse; for if he had been able truely to depon any thing, he would have cited him at the beginning. Notwithstanding of all which, I humbly conceive, that even though no Summonds of Exculpation have been raised, it is lawful to examine such as are not cited, for the same arguments urge for their examination, that were urg'd for examining such as were not cited, where there is no Summonds raised. And as to the contrary arguments, it is answered, that as to the first, there may be cases wherein the defender is not to blame; as for instance, if he knew not the names of such as were present, when he was forced to kill; so that he could not cite them, but yet he knew their Faces, and so was forc'd to call them out, to be examined when he saw them in a Justice Court. As also, knowing that citati∣ons were introduced in his own favours, and to compel them to compear; he might have omitted the citation, or possibly knew not where they were to be found, or wanted Money to

cite them; and this answers likewise the third argument. To the second, it is answered, that Summonds of Exculpation, will be likewise very necessary in other cases, as if the Wit∣nesses be unwilling to compear, or design to go abroad, &c. And whereas it is pretended, that if a citation had been given, the pursuer would have gotten the names of the Witnesses, who were to be used in the Exculpation, and so might have been ready to object against them. To this it was answered, that if this argument proves any thing, it would prove that no Witnesses could be received in Exculpations, except they were cited, which were absurd; and the reason why Wit∣nesses names were ordained to be given with the Libel, was introduced in favours of the defender, and that he might not dy upon Depositions of suspect Witnesses; and so it were unjust to detort this to the defenders prejudice: Nor is there such hazard of corruption in Exculpations, as in pursuites, for no man is to dy, no Estate to be forefeited, nor no mans Fame to be tainted by the Depositions, of exculpating Wit∣nesses.

But I find no such speciality in our Law, nor is that privi∣ledge reasonable, for men are prone, though they have no re∣lation, to depone in favours, rather of the Pannel, then of the accuser; and therefore it is, that our Law allows an As∣size of errour against such as absolve, but not against such as condemn.

VI. The Doctors also allow Exculpation to be proved, per conjecturas, & judicia, l. merito. ff. pro. socio Boss. tit. de favor. de fens. but this is likewise reprobated by our Law, and if it were allowed, punishments should be absolutely arbi∣trary. But it is questioned what punishment should be infli∣cted upon the defender, who hath proved his defence, but not fully: as if he prove by one Witness, that the murder was committed in defence, &c. For resolution of which doubt, they distinguish, whether the imperfect Probation of

the defence, be Diametrically contrary to the pursuers Proba∣tion, and in that case they think it ought not to be respect∣ed, both because it is in it self imperfect, and because it is contrary to a concluding Probation: but if it be not fully con∣trary, but tending only to prove somewhat that is different from the Libel, as if the pursuer prove wholly the murder, and the defender that it was done in self-defence, then they think that the Probation, though not full, doth obsuscat, and weaken the pursuers Probation; and consequently the defen∣der ought not to be punished with death, which punishment ought only to be inferred, per probationem omni exceptione ma∣jorem, Bart. in l. Admonendi ff. de jur Anchar. concil. 285. And I think, that albeit the Assize behov'd to file, eo casu, yet the Council ought upon a favourable representation from the Justices, to remit somewhat of the ordinary punish∣ment.

VII. If the pursuer insist not, so that the defenders Pro∣bation of self-defence may perish in the interim, or if he who may accuse, will raise no accusation, then the person to whom the Exculpation would be competent, may intend a Summonds, wherein he must cite the party injured, or his re∣lations, and His Majesties Advocat, and in it he may con∣clude, that the depositions of the Witnesses, ad defen∣sam, may be taken to ly, in retentis, ad futuram rei memo∣riam.

VIII. When Witnesses are led, they should presently depon, and the Justices should be Judges to what they de∣pon, and it ought not to be remitted to the Assizer; because, non constat, till the probation be led, whether the Exculpa∣tion be exclusive of the Libel, or eleids it; and so the Li∣bel cannot go to the knowledge of an Inquest, as was found after much debate in Barcleys case, but this (in my opinion) should only hold where the defence is exclusive of the Libel, but where both the Libel, and Defence are admitted jointly

to Probation, I think that both should be referred to the In∣quest; because the Probation must be jointly considered, and the Justices cannot be Judges competent to the Probation of the Libel, and so not to that which is joyned inseperably with it.

If the defender propon a defence, but prove it not, it is doubted, if by proponing the defence, he acknowledges the Libel? The reason of the doubt, upon the one hand is, that in all civil Processes, he who propones a defence, acknow∣ledges the Libel, and in reason it appears that this should hold in criminals; for he who alledges that he murdered a man in self-defence, doth acknowledge that he killed him: but upon the other hand it seems hard, that if the defender prove not his defence, that he should therefore dy: seing that were to condemn the Pannel, per judicia, and without Probation upon a meer formality, & ante quam constat de corpore delicti, neither is the pursuer prejudged by the Pannels not proving his defence; seing his Witnesses must still be present at the same time, whereas in civil cases that danger is not so great, and the pursuer is prejudged; for he is not obliged to have Witnesses ready for proving his Libel. To which last I in∣cline, vid. tit. Confession where I have debated, how far a qualified confession ought to operat.

IX. It is ordinary for the violent pursuers of crimes, to cite as Complices, all such as may be led as Witnesses by the Pan∣nel, for proving his Exculpation, or other Defences, upon design to decline, or set them from being Witnesses, when they are led; for one Pannel cannot be led by another, as a Witness for him. And yet upon the other hand, if this were allowed as a sufficient exception, it should still be in the pur∣suers power to cut the Pannel off from proveing even his justest defences. To reconcile which, I remember that the Lords of Session in a spoulzie, pursued before them, the 24. of Fe∣uary 1662. at the instance of Mackertney, against Irving,

ordain'd these Witnesses, against whom the exception was propon'd, to be first insisted against; to the end if they were found innocent, they might be allowed as Witnesses against the other Pannel, if not, they might be declin'd. Which Method was very just before them, but seems more difficult in Criminal Courts, where diets are peremptor, and where Courts cannot be continued: but to this difficulty it may be answered, that though Courts cannot be continued by the Ju∣stices, regulariter, as in civil cases; yet in many cases, inci∣dents may occur, whereby continuations are necessary, and all Laws must yeild to necessity.

The exception of self-defence is treated, Title Murder. And it is fit to observe that in the Areopage, if the Pannel confest he committed murder, but that he killed lawfully, he was not try'd, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, where murder was try'd, but 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Perion. de magistr. athen. cap. 25.

TITLE XXIII. Of Assizes.

• 1. The origine of Assises and Inquests.
• 2. The form of citing Assissers, and who makes the Roll.
• 3. Sometimes there needs no Assise.
• 4. What is propper to be tried by the Iudge, and what by the Inquest.
• 5. The difference betwixt an ordinary, and a great Assise, and the number of Assizers in both.
• 6. The Oath of Assisers, and the objections by which they may be declined.
• 7. Every man must be judged by his Petrs, and who these are?
• 8. Whether Assisers may judge upon proper knowledge.
• 9. All Probations should be led in presence of the Assizers.
• 10. The Assize after inclosure can speak to no man.
• 11. How the Assize ought to proceed after they are inclo∣sed.
• 12. Wilful errour in Assisers, how punished: and by whom.

I. ALL judgements were at first pronounced by neigh∣bours, and thus amongst the Romans, were cen∣tum viralia judicia, and amongst the Feudalists, pares curie,

were only Judges; in place of which last, came our Assizes in France, England, and Scotland, they are called a condign inquest; because these should be, pares ••uriae & ita condig∣ni.

The Word Assize is originally French, and signifies pro∣perly siting, or Session, les assises sont les grands jours plaids solemnels, Roy Charles, Anno. 1413. vid. judicem Regean verb. assise, where it will appear, that Assize in French, sig∣nifies a Judicator; and in our Law it is often taken for a con∣stitution, or Statute which is made by that Session, or sitting of the Judges, and thus the Statutes of King David, are cal∣led assisa regis Davidis, and assisa terrae, is called the Law of the Land; Assisa is likewise sometimes called a measour, and thus it is said, Ia. 3. Pa. 14. cap. 110. that the Barrel should contain the Assize, and measour of 14. gallons, and the assi∣sa hal••cum, or assize of Herring, signifies a certain quantity, and measure of Herring, which pertains to the King, as a part of his Customes, Ia. 6. Pa. 15. cap. 237. And in the French Law, it signifies a Tax also, Regean ibid. But the proper acceptation of the Word Assize, as it is now determined by custom, is to signifie those who are chosen by our Law to de∣termine, either in civil, or criminal cases, the matter of Pro∣bation, and are in effect neither properly Judges, nor Witnes∣ses, but both.

II. For the more exact clearing of the Office of Assizers in criminal cases, the Reader may take notice, that the Libel alwayes beats, that the pursuer shall Summond an Assize, not exceeding fourty five persons, which shall be given up in a Roll to the Messenger, and should be subscribed by the pur∣suer, which Roll shall be annexed to the end of his execution, Ia. 6. Pa. 6. cap. ••6. But albeit this Act appoints, that the Roll shall be subscribed by the pursuer; yet it is sustained as valid, though not subscribed by him, if he homologat, and ratifie the execution given in by the Messenger, albeit it may

be alledged, that the Summonding of Assizes, is, eo casu not lawful, seing it wants a warrand; this subscribed list be∣ing by the foresaid Act of Parliament, and Summonds it self, appointed to be the warrand: as also, albeit by the Act, the Messenger is prohibit to cite any more then fourty five, under the pain of five hundred Merks, yet the execution is not eo casu, declared thereby to be unlawful, and by that Act it is likewise declared that upon supplication, the Lords may al∣low more persons to be cited then fourty five,

Why the pursuer should have had the choice of the Inquest, may be doubted. And if Assizers may judge, ex propria sci∣entia; it would appear, that to allow the pursuer the choice of the Assize, were to put the defender absolutely in his will: And I find that Gail. l. 2. obs. 34. concludes, that the cu∣stom of some places allowing, domino electionem parium (pa∣res apud nos, signifies Assizers) is most unreasonable, quia dominus ita, est quodam modo judex in propria causa, nam est procul dubio eos electurus, per quos se victoria potiturum sperat Alvarot. ad cap. 1. de contrav. send. To which difficulty it may be answered, in defence of our Law, and Practique, that 1. Where the Advocat is pursuer, it is presumeable, that he will be most just, and that he will proceed without in∣terest, or malice. 2. These Assizers are in effect, either Judges, or Witnesses, and the pursuer hath still the choice, of both Judges, and Witnesses, if they be otherwise com∣petent. 3. As the defender may decline them, if there be any reason for it, so they are sworn; nor is it presumeable, that any will be so impious, to condemn a man to dy, to please others: Upon which presumption, our Law leans so much, that though Assizers condemn unjustly, they are not liable to an Assize of error, as is believed. But by the third Ar∣ticle of the Regulation, 1670. the list of the Assizers, is to be made by a Quorum of the Justices, and that list should

express, not only the names, but the designation of the Assi∣zers.

When the day of compearance is come, and the Letters are called, and the Assizers are likewise called, and each absent Assizer is for his absence fin'd in an hundred Merks, and their unlawes are to be taken up without any composition, Ia. 6. Par. 12. cap. 126. by which act it is likewise appointed, that an act is to be extracted upon their said absence, and is to be delivered to the swearer, or his Clerk, within six dayes there∣after, that Letters may be direct therupon, for taking their unlawes, but the pain of ilk absent Assizer at a Justice Air, is to be fourty Pounds, Ia. 6. Par. 11. cap. 81. If the As∣sizers Summond be not present, others may be Summoned at the Bar, or apudacta, as we call it, Ia. 4. Par. 6. cap. 94. When the Assizers are called, fifteen of them are marked, and then the dittay is read; for the debate upon the relevancy must be in presence of the Assize, Ia. 6. Par. 1. cap. 90. se∣ing albeit they be not Judges to the relevancy; yet since they are Judges to the Probation, which depends much upon the relevancy; and seing the Justices remit several defences, which are propon'd against the relevancy to the Inquest, it is most reasonable they should hear the debate.

III. The defence against the relevancy begins thus: it is alledged by A. C. as Procurator for the Pannel, that the Pan∣nel should not go to the knowledge of an Inquest; because &c. And after all the defences are discust, the words of the Interloquutor bear, that the Justices either sustain, or repel the defence, and find, or find not, that the Pannel should go, or not go to the knowledge of an Inquest; and if the Ju∣stices find the Pannel should go to the knowledge of an In∣quest, either the Pannel confesses, & quia in confessum nul∣lae sunt partes judicis, therefore he may be banished, or scour∣ged, without being put to the knowledge of an Assize, as in Rutherfoords case, the 9 of Iuly 1622, and in Iobs case, who

was scourged, and banished for Bigamy, without an Assize, 19. Ianuary 1650.

But if the crime be capital, or the Pannel do not wil∣lingly acquiesce to the punishment, it is still securer to put the Pannel to the knowledge of an Inquest; because the Justices are only competent Judges to the relevancy, and the Inquest only can find the Libel proved.

IV. Albeit it be a received principle in our Law, that the Justices are only Judges to the relevancy, and Assizers to the Probation; yet to distinguish the limits of their different cog∣nitions, becomes very oft difficult upon these two ac∣counts, 1. By express act of Parliament, Ia. 6. Par. 12. cap. 151. it is Statute, that because parties were oft-times frustrat of Justice, by alledging irrelevancy against criminal Libels; therefore when the persons complained upon, are libelled to be art and part, no exception, or objection shall take away that part of the Libel in time coming; so that al∣beit the greatest debate concerning relevancy, amongst Law∣yers in criminal cases, did arise upon these common places, cu∣jus ope, auxilio, assistentia, mandato, &c. ea crimina erant commissa, and from what circumstances these could be infer∣red, yet now the debate upon all this, falls not by that act, under the cognition of the Assise, all these being branches and qualifications of art and part. 2. The Probation requires oft-times in it, somewhat of relevancy, to be previously de∣bated, as for instance, whether an extrajudicial confession is binding, or what Witnesses in Law are receiveable, or not; all which cases, do oft-times confound the cognition of the Justices, and Assisers; but for clearing of these limits, thir following conclusions are to be observed, 1. That in Dubio, all that concerns Law, is to be judged by the Justices, and what concerns fact by the Assise. 2. Regulariter, all that is in the Libel falls under the Cognition of the Justices, and therefore I will recommend it as a caution to Advocats, that

when they are jealous of the ignorance of Assisers, and find the case intricat, that they do not simply libel, that such persons were art and part; but that they libel them to be art and part, in so far as they rescu'd the malefactors, &c. For when the qualifications, from which art and part are inferr'd, are expresly libelled; the Justices are Judges to the relevancy of the inference, but if these condescend not that they are art and part, in so far as &c. then the Assizers are only Judges competent thereto, though the same be, in apicibus juris; because of the former act, as was found in Captain Barclays case, November 1668. where they refused to force the pur∣suer to condescend, quo modo, art and part; albeit this be ve∣ry dangerous, seing Assizers are oft-times ignorant persons, and yet they forced the Pannel to condescend upon the particular qualification of self-defence, and would not refer to the As∣sise to consider the qualities of self-defence, which would arise from the Probation, as to which I could never find any reason of disparity, but that by the act of Parliament, the one case is appointed to be decided by Assisers, whereas there is no Sta∣tute as to the other; but to speak ingeniously, I find no act of Parliament more unreasonable then this; for the Statuto••y part of that act, committing the tryal of art and part to Assi∣sers, seems most unjust, seing as has been said before, in com∣mitting the greatest questions of the Law, to the most igno∣rant of the Subjects, is to put a sharp Sword in the hands of blind men, and the reason ••••nductive of this act specified in the narrative, is likewise most inept; and no ways illative of what is thereby Statuted; since debates upon the relevancy could very litle have hindred, and never have hin∣dred justice, for the relevancy is debated now, as copiously as before that act, with this only difierence, that it was then de∣bated before Judges, who could have kept Advocats at the point, whereas now it is debated before Assisers, who know not how to bound, or how to stop them. But a better rea∣son

for this Law had been this, viz. That the pursuer is not allowed to examine the witnesses, and so is not presumed to know what they can say, and therefore he cannot exactly know al the circumstances, which are necessar for founding a clear condescendency in Art and Part, untill he hear the Witnesses depon. And seing the Assizers are only Judges to the depo∣sition of the Witnesses, therefore they ought likewise to be Judges to the qualification of Art and Part, but I think that after the Witnesses have deponed, the Justices should still de∣termin, what is Art and Part, and should not leave the same to the Assizers, and as they are founded, quo ad, this upon the former principle, that they are only Judges to the matter of relevancy; so they are not excluded therefrae by the foresaid act of Parliament for it only ordains, that Art and Part being libelled, no objection shall take away that part thereof; And thus if a man be pursued as Art and Part of Murder, the Libel should doubtlesse go to the knowledge of an inquest. But when the probation is led, the Judge when he heares the Probation to run upon rescue, mandat, or ratihabition, should tell the inquest what Acts in Law do infer either of these, and then to leave it to them to judge, if these Acts which he declares to be relevant, be proved; And it is much fitter, then to leave poor ignorant Assizers, to the impression of Ad∣vocats, who may byasse them by their repute, authority, or confidence. 3. Albeit the Assize be Judges of the Probati∣on, yet what manner of probation is requisit, belongs to the cognition of the Justices, and thus the Justices determined in Balcanquels case in Anno 1665. That witnesses could not be proved to have perjured themselves, by the depositions of other witnesses, but only by writ, or reexamination. And in the Acti∣on of Usury, pursued against witherspoon, March 1666. They found, that Usurary pactions, being extrinsick to the writ, could be proved by other witnesses, then the Witnesses insert: And in the case of Wilson, November 1667. they found, that

the receiving more then the ordinary Rent, was not probable by the Oath of the payer, and yet if any of the Assizers pleases, he may desire ad informandam conscientiam judicis, any proba∣tion whatsoever to be taken; and thus often times in the cri∣minal Registers, Assizers have caused read Testificats from Chirurgians, and others, licet regulariter testibus, non testimo∣niis est credendum. The last rule is that before the Assize be sworn, all the cognition belongs to the Justice, but after they are sworn, the Justices functi sunt officio, and all thereaf∣ter falls under the cognition of the Assizers, as is clear, by the very words of the Justice Interloquutor, which runs thus, the Justices finds the Libel relevant, notwithstanding of the de∣fences, and ordains the Pannel to passe thereupon to the know∣ledge of an inquest.

But to prevent all thir difficulties, I wish that the Justices were Judges both to relevancy, and probation, which overture seems most fit, and advantagious for these subsequent reasons.

1. That there is such a contingency, betwixt relevancy, and probation that they should not be disjoyned, and sure they must best understand what probation is requisit, who have considered the relevancy, upon which it depends, and for this cause it is, that even our Law appoints all the dispute up∣on the relevancy, to be in presence of the Assize.

2. The Assize is oft stumbled at what is referred to them, and do very often mistake what is found relevant, and what not.

3. Assizers with us, are oftentimes ignorant persons, at least seldom or never are they so judicious, as to understand such in∣tricat matters, as Advocats represent to them, especially in Circuite Courts, where few have seen Assizes before, and they are oftentims but mean persons, or persons who have interest.

4. By our Law the Libel is relevant, if Art and Part be Li∣belled without condescending that they are Art and Part, in swae far as, &c. and the Assizers are only Judges to what is

Art and Part, so that in effect they are Judges to the relevan∣cy of almost all cases, and are put to decide what has troubled the ablest Doctors and Authors, and so often times they re∣turn unformal verdicts.

5. Assizers are troubled in their commerce, and abstracted from their affaires unnecessarily, being obliedged frequently upon continuation of dyets, to wait whole years and are oftimes absent, whereby dyets are deserted, and they oftimes syned.

6. By this means, Assizes of Error would be supprest, with which Assizers are still threatned by the pursuer, before they be inclosed; and it seems Barbarous, that persons who absolve should be punished, whereas there is no punishment for con∣condemning, which inconveniency would also be taken off by this overture.

7. Assizers may in our Law judge according to their privat knowledge, without Lawful probation, which seems dange∣rous in Criminal cases.

8. Though of old when Judges, and Assizers were equally ignorant, Assizers were appointed, yet now when Law is formed to a Science, and that judges are presumed to be lear∣ned, and Assizers not, it seems reasonable they should be supprest, as well in Criminal cases, as they are already in Civil, and since we have receeded from the present custom of England, and our own old customs, by not allowing Assizes in Civil cases, why not rather in Criminal cases, these being both of more intricacy and weight; especially seing in England the probation is before neighbours in the Countrey, who know best the matter of fact, but with us Assizers are seldom or never choosed from the place where the crime was commit∣ted, but are Burgesses of Edimburgh who are as great strangers to what past, as the Judges themselves; and if Assizers were to be brought from the Countrey, it would be very expensive.

9, The most learned and polisht Kingdoms, and Common wealths, who have formed their Laws in calm and learned ages make there Judges discusse both relevancy, and probation;

and it is thought that either assisers have been introduced by us, when we and England were both barbarous, or else the Justices have invented this Act at first, to relieve themselves of a burden.

V. The Assize is either an ordinary, or great Assize, the great Assize is that, whereby an ordinar is tryed, if they do wrong, and I find some foundations for thir terms, par la custum d. langumois, Act 4. & de la Rochal art. 1. la grand assise est du seneshal la petit du juge prevostal. An ordinary Assize uses to consist of fifteen persons, but they may consist of more, or fewer if the number be unequal, and thus the pe∣nult of Iune, 1614. Ronald was tried, and convict, for dismembering Donaldson, by an Assize of thirteen per∣sons. The reason why the Assize must be unequal in number, is, least by equality of Vots, affairs be not terminat, and brought to a speedy issue; for which cause likewise, lib. 2. Reg. Maj. cap. 5. and by the 87. Act 6. Parl. K. Ia. 1. it is appointed, that arbiters should be appointed in an unequal number, and yet I find, that in the civil brief of right, an As∣sise should consist of twelve sworn men.

Albeit according to the Law of England, the Assizers must all agree in one voice; yet with us the major part may con∣demn, or absolve; but if six, of fifteen be only positive, and eight, non liquets; it may be doubted, if this verdict should condemn; for else if one did condemn, and fourteen were not clear, that one would condemn, which were most absurd; and in Iuly 1675. a verdict in a Perambulation, betwixt, Walstoun, and Sr. Iohn Cheesly, being quarrelled in an Advocation, as unjust; because the greater number, were non liquets, the Lords did Advocat the cause to them∣selves, which implyed that they did not sustain the verdict as valid.

VI. The Assizers are ordinarly called by sives, and the Oath administrat to them, is That you shall all the truth tell,

and nae truth conceal, in so far as you are to passe upon this pre∣sent Assise; swa help you God. Which I find likewise to have been the form of old, Reg. Maj. lib. 1. vers. 12. And albeit by the 138. Act 13. Parl. Ia. 1. it is ordained, that all Judges shall cause Assisers swear, when they take their Oath, that they have not taken any Buds from the Par∣ty, yet they do never tender to them this Oath; ex∣cept either the Judge, or Party be jealous of the Assi∣sers.

Assisers are party Judges, partly Witnesses, as has been said before, they are Judges in so far as they consider the Pro∣bation led by others, and judge whether proved, or not prov∣ed: They are Witnesses in so far as they may condemn, u∣pon proper knowledge, without any other Probation; And therefore whatever exceptions may be propon'd, either against Judge, or Witnesse, are admitted against Assisers; and thus an Assiser was set (for that is the term of declining used in this case) because he was not twenty five Years of age, which is the age required in a Judge, Act 132. Parl. 12. Ia. 6. vid. 7. Iune 1616.

But because the exceptions against Assisers, are ordinarly coincident with these, that are against Witnesses; therefore we shall remit them to the Title of Witnesses. Only it is fit to take notice that the Cherurgians of Edinburgh are exeem∣ed, by Q. Mary, from being cited upon Assises; because of the peremptoriness of the employment, which was sustain∣ed by the Justices, Iuly 1671. both as to Assises within the Town, and without the Town, though our learned Craig being a Justice-Deput, had formerly sustained it as to Assises, with∣out the Town only.

VII. It was a principle in the feudal Law, that all men should be judged per pares curiae, the meaning whereof was, that a Vassal should be judged per convassallo; because it was presumed that these understood best the person to be tryed,

and the knowledge of the Pannels former life and conversation is a great help towards a sound judgement of the case; and from this feudal custom rises our maxime, that every man should be judged by his Peers quon. attach. cap. 67. The words are, It is Statute, that no man shall be judged by a lower person then his Peer, an Erle by an Erle, a Barron by a Barron, a subvas∣sal by a subvassal, and a Burges by a Burges, but a lower per∣son may be judged by a higher, and by the chap. 2. Stat. Alex. 2. A Knight should be judged by Knights, or free holders, but by an Act of Sederunt. 1. Iune 1591. The Lords of Ses∣sion declared all such as were landed men, sufficient to passe upon Assizes of Error, though the old Laws required noble men, and Gentlemen only in such cases: And albeit of old it was uncontravertedly received, that none should passe upon the Assize of Noblemen except Noblemen, Nor upon the Assize of Barrons, except Barrons, yet of late it hath been much de∣bated, and especially in the case of Douglasse of Spot, 9. May, 1667. at which time he being accused for killing Home of Ecles it was alledged, that Spot was a Barron, and so could not be judged but by Barrons, holding of the King conform to the citations above duced.

It was replyed by His Majesties Advocat. 1. Neither the books of quon. attach. or the Statutes of King Alexander, are binding Laws, but only books of Apocripha. 2. Though they were Laws, yet they are not in viridi observantia, seing Burgesses and others are daily admitted by the late practique, to passe upon Barrons Assizes, and at the time of the making of these Laws, Assizers were Judges both to the relevancy, and probation, whereas now in effect, they are but witnesses; and therefore since the Law reposes much lesse confidence in them now, then formerly, it should not now be so scrupulous in their election. 3. Burgesses are in Parliament allowed to sit upon the Assize of, and forefault Noblemen, and it were against reason that they should be admitted to the more solemn

Judicators, and be rejected in Judicators where cases of less im∣portance, are ordinarily judged, and in which the Sentence pro∣nounced may be easier repealed. 4. Dyets before the Justice-Courts being alwayes peremptor, it is probable that dyets be∣hoved very frequently to be deserted, if only Noblemen were to be Judged by Noblemen, Barrons by Barrons. 5. By the state of King Alexander, above cited, it is only requisit that Knights be judged by Knights, but it is not added there, that Barrons should be judged by Barrons, which shews that that priviledge, was not allowed to them, even in those dayes, and lastly, seing all mens lives are of extraordinary concernment, it is not reasonable to think that he who can be judge of any mans life, may not be Judge of the lives of all men.

To which it was duplyed as to the first. That debate is opponed, whereby it is evinced in the Title, by what Laws Crimes are judged in Scotland, and the Books of quon. attach. and Reg. Majes. are our Law, and the Act of Sederunt above∣cited, dispencing with that priviledge in some cases, doth demonstrat, that regularly this priviledge taketh place with us: Likeas Skeen in his Treatise concerning the procedure before the Justice General. cap. 4. sect. 3. cites these Laws as bind∣ing, and gives for a rule that no man can be judged in that Court but by his peers.

To the second it was duplyed, that this being a declinatur, and being arbitrary for parties, to plead the benefite thereof, it cannot be said to be antiquated, unlesse it had been alledged that it had been pleaded, and repelled: But as this citation out of Skeen, who is but a late Author, did show the same to be in viridi observantia, so Noblemen have lately had the same indulged to them, as in the cases of the Earl of Traquair, and Lord Ochiltree, which was allowed to them upon the Laws here cited. To the third founded upon Burgesses sitting upon forefaulters in Parliament; the same doth not meet the case,

seing the Parliament may abrogat Laws and so are not in their procedure tyed to them: and though Burgesses singlie, be not Peers to Noblemen, yet the collective body of the Parlia∣ment, by which they are condemned are much more their Peers.

To the fourth, it was duplyed, that inconveniences are on∣ly to be looked to in the making of Laws, but not after, and the inconveniences of the other side are much more pressing, it being very inconvenient, that an Assize of 15. mean Trads∣men, should be admitted to try a Duke, or Marquesse; and it was a vast mistake to think that Assizes are only wit∣nesses, and not Judges; seing they vote, and their verdict is called a Sentence, and if Art and Part be Libelled, the rele∣vancy is in these cases, (which uses to be of all cases most intricat) Simply referred to them without any debate. To the fifth it was duplyed, that the inference is meerly conjectu∣ral, but if the Text be considered, it will appear that by Knight, there is meaned Vassal, or free holder, for the Latine translation renders the word Knight, not eques but miles, and it is said there, that a Knight shal be judged by Knights, or free holders; So that the particle (or) is in that place exegetick, and not disjun∣ctive. And to the Last it is duplyed, that all mens lives are not equally precious in the eyes of the Law, for even by the Roman Law, mean people were judged to dye for many crimes, which were not capitally to Noble Romans, and though with us the punishment may be the same, yet the way of procedure against Noblemen is justly allowed to be more solemn. Upon which debate, the Justices ordained a new Assize to be sum∣monded, whereof the most part should be Barrons, and the remanent landed Gentleman.

It was thereafter doubted, whether an apparent Heir of a Barron, has the same priviledge, so that none can passe upon his Assize, who are not Barrons or Landed men; and it was

alledged, that the apparent Heir, had this priviledge, and was a Barron in the construction of Law, for his marriage, or es∣cheat would fall, though not entered, and as a Barron though denuded, remained still a Barron, or a Prelat, though for age demitting, would be still a prelat; so the apparent. Heir of a Barron, though not entered, should be still a Barron, as was found, 23. December 1674. To which it was answered, that an appearent Heir, was not nomen juris, and priviledges ought to be strictly interpreted, and the appearing Air of a Barron, would not have an Heir, as was lately found in Sir Al∣lexander Seatons case, quē sequitur in comodum, &c. Whereas in Law, all Barrons may have Heirs, nor did the instances addu∣ced from the Casualities of marriage, or escheat militat in this; seing these proceeded, ex natura feudi, non ex vi privilegii and was introduced in favours of the superiour, and not of the ap∣pearent Heir. Upon which debate the Justices, 19. of Iuly, 1675. repelled the objection against the Assizers, and found the priviledged extended not to the appearent Heirs of Barrons; Mackintosh contra Frazer of Culbokie. Not is this priviledge extended to Landed men, though infest, if their Lands be not erected in a Barrony.

VIII. Albeit it be ordinarly received, that Assisers may Judge upon their proper knowledge, yet the truth of that principle may be doubted, upon these reasons, 1. Because by the foresaid Act of Parliament, par. 11. K. Ia. 6. All Probation should be led in presence of an Assise, and Pannel; but so it is, that the privat knowledge of Assisers, cannot be laid to be led before them. 2. If Probation were led publict∣ly, defenders might propon interrogators, whereby the mat∣ter of Fact might be more fully cleared, and even the Wit∣nesses own mistakes might be removed; of all which just ad∣vantages, he is precludit by that principle. 3. The great reason why by the act, Probation should be led in presence of

the Pannel, is, because in Law its presum'd, a Witness will stand more in aw to depon falsly, in presence of the Pannel, then otherwise: for which cause, confronting of Parties, and Witnesses amongst themselves, when they are contrary, is much used, and treated of by the Doctors, 4. If assisers may give their verdict upon privat knowledge, then they could ne∣ver be pursued for error; because if privat knowledge be the rule, I can hardly understand, how men can be convict, as having transgressed against that rule, seing albeit it be easier to judge what a man should know, yet it is impossible to judge what a man doth know. 5. By the Civil Law, and the opinion of almost all Divines, and Nations, judices de∣bent judicare secundum allegata & probata.

IX. From the foresaid Act Parl. 11. ordaining all Probation to be received, and used in the presence of the Assisers, and Pannel, it may be deduced by a necessary consequence, that no Witness should be examined in criminals, ad futuram rei memoriam, and that no witnesses should be examined by Commission: and albe∣it, it may be objected, that in crimine falsi, the Probation led before the Lords, is not repeated before the Justice, and Assis∣ers, before whom nothing is used to instruct the falshood, but the Decreet of improbation pronounced by the Lords, for in that case, the Lords being by Act of Parliament, declared Judges competent to the cognition of Falshood, their sen∣tence, habetur pro veritate, and is probatio probata; so tha•• the producing of it, is the leading of Probation before the As∣sise. This priviledge, that no Probation should be led, but in presence of the Pannel, and Assise, may be past from by the Pannel, seing it is introduced in his favours: and there∣fore it was found, the 9. of March 1671. that the diet could not be continued against Charles Robertson, because of the absence of the Witnesses, seing he was content to stand to the Depositions formerly taken; but they caused him subscribe his consent.

After the Probation is closed, the Pannels Advocats makes a speech to the Assise, wherein the termes they use to them is, good men of inquest, and after they have ended, His Majesties Advocat speaks, but there are no Duplys, or Tri∣plys used; and it was the priviledge of His Majesties Advo∣cat to be the last speaker; which priviledge was assumed like∣wise by all other Advocats for the pursuer: but by the tenth article of the Regulations, 1670. the defenders Advocat is now the last speaker, except in the case of Treason, and Re∣bellion; so that this priviledge holds only in Perduellion, but not in ordinary Treason.

X. When both these discourses are ended, then the As∣size are inclosed; but before they be inclosed, they should en∣deavour to be satisfied of any doubt; for if after inclosing any person speak to them, or if any of them come out of the place where they are inclosed, until the verdict be pronounced, the Pannel is eo ipso, clean and innocent, Act 91. Parl▪ 11. Ia. 6. the reason inductive of which act, seems to be, fear of im∣pressing, or suborning the Assize, and therefore, the pra∣ctice allows Assizers sometimes to send out some of their num∣ber to the Justices, to receive informations, in matters of fact, and finds that in so doing they transgress not this act, as in Kennedies case, August 1662.

And after a full debate, upon the 24. of December 1672. It was found, that any of the Assizers disclosing, and coming out of the house, after they had past a vott, though the ver∣dict was not subscribed be the Chancellour, was not sufficient to annul the verdict, albeit it was here alledged, that there might be great debate upon the wording of the verdict, and so the Assize should not have disclosed, until the verdict was subscribed. By this act likewise the Assizers, and not the Justices are Judges competent to this exception against the verdict, as was found in the foresaid decision, 1672. where∣in the Justices found, that themselves were Judges compe∣tent

to the relevancy of any such alledgeance; but that it be∣longed to the Assize to judge the Probation of that excepti∣on, though it was alledged, that the Assizers could not at all be Judges thereto, seing they were the delinquents in that case, and if most part of the Assize had disclosed, it were ab∣surd, that they should be Judges to their own Delinquen∣cy. At that time the Lords did likewise declare, that if any Assizer should disclose before the vots were compleat, so that the vrdict might be thereupon anulled, they were punishable by the Justices, and should be obliged to repair the loss, which either the King, or Party incurred.

So that Assizers are allowed to speak to Judges, or Advo∣cats, but are not allowed to make any address to them after in∣closure, as said is. It is likewise observable from this act, that albeit the Clerk be discharged to enter in where the Assize sits, after they have chosen their Chancellour, yet defacto, the Clerk sits still with them, and it was thought fit he should do so; because they being oft ignorant, and unaquanted with the forms, and procedure of that Court, they should have some person to regulat them, and none so fit to do it, as the Clerk; yet by the late Regulation, 1670. it is appointed, that the Clerk shall not be present, and sure the Clerk was worth ten, and did influence too much.

XI. After the Assize are inclosed, they choose a Presi∣dent, who is called Chancellour of the Assize, and proceed to read, and thereafter to reason upon what is debate, and their determination is called the verdict of the Assize, which is subscribed by the Chancellour, it is called verdict, quasi vere dictum, and sometimes it is called, warda curiae quon. Attach. cap. ubi aliqua. thereafter the Assizers enter again in∣to the Court, and there the verdict is read, and the Chan∣cellour stands up and owns the same, after the verdict is read, it should, and is by the 9. Act of Regulations, 1670. closed, and sealed with the Seals of the Court, of the Chancellour of

the Assize, and of so many of their number as the Chancel∣our shall think fit, never to be opened, but by orders from the Judge; of which verdict, the Clerk is to have the keep∣ing, and if he open the same, he is to be deposed, and fur∣ther punished as the Judges shall think fit.

It was thought of old, that Assizers behoved presently to determine, after Probation was led, and that it was not law∣ful to dismisse them until they did enter, and return their ver∣dict, and the reason of that opinion is, because after the Pro∣bation is led, there may be hazard of suborning the Assizers, if the matter were continued to a new day, and it were to be feared likewise, that the pursuer finding that the Witnesses which he had led, did not prove, he might be tempted to suborn others, and I think this opinion strongly founded; but yet in Anno 1665. &c. a Baxter being pursued for Se∣dition, the Justices did, at my Lord Advocats earnest soli∣citation, dissolve the Court after Probation was led, and con∣tinued the matter to a new dyet, but the accusation was never further prosecute, and that procedure was thought, mali exempli; yet thereafter His Majesties Advocat continued an Assize, who sat upon Macknab for theft, for not being clear to condemn upon an extrajudicial confession, they proposed the case after they were inclosed, whereupon the Justices con∣tinued the dyet till the next day, and having consulted the Council, they thereafter found the confession sufficient, and inclosed the Assize, notwithstanding of this objection, No∣vember 1669.

XII. When the Advocat closes his discourse for the pur∣suer, he protests for an Assise of errour against the Inquest, if they assoilzie, which Protestation he causes to be marked by the Clerk, and it may be doubted, if the pursuer, or His Majesties Advocat can pursue the Inquest for errour, if this Protestation be not used, even as a qualified Oath is not al∣lowed,

except it be protested for. And it was debated in the case betwixt the Lady, and Laird of Milntoun, if a reproba∣tor could be raised, where the party laesed protested not for it, seing Protestations were such solemn Acts as the Law requir∣ed in such cases, and they were unnecessary, and superfluous, if what were protested for, could be allowed, without being protested for, and the party to whom such Protestations were competent, doth, eo ipso, passe from his right, and seems to acquiesce in what is to be done, if he use them not, vid. Durand specul. tit. reprobat in initio, but this case was not de∣cided; yet the Lords inclined to allow a reprobature if there was reason for it, though no Protestation was used; and I believe that action of errour may be raised, though it be not protested for, if the verdict be quarrellable, though a Prote∣station be both more secure, and formal, and really there is good reason why it should be used, seing the Inquest is by that solemn denunciation, and intimation warned of their ha∣zard, and their errour, because it becomes thereby more wilful then otherwayes it would be.

A Summonds of errour is alwayes raised in Latine, and upon Parchment, and is direct out of the Chancery.

Wilful errour is that crime which Assizers commit, in pro∣nouncing an unjust verdict, and by our Law, an Assize con∣demning, cannot be pursued, tanquam temere jurantes, supra asisa, as is commonly believed, by the 63. Act 8. Par. Ia. 3. the reasons of which opinion may be three. 1. It is not presumeable, that indifferent persons would condemn an inno∣cent out of feid or favour, though there be some reasons to be jealous, that they might be induced, out of either pitty, or clemency to assoilzie from a crime fully proved. 2. No per∣son would be found to go upon an Assize, if they might be punished for condemning. 3. The penalty of such as temere jurarunt super asisam, is only confiscation of the moveable

goods, cap. 14. lib. Regiam. Maje. whereas death would be oft-times the punishment, if such as condemned might be pu∣nished; yet I am of the opinion, that if the Assizers did condemn an innocent, without any Probation, or by palpable iniquity, that eo casu, they might be punished: And my reasons for this opinion, are 1. That else the people would be stated in a very unfortunat condition, if not only they lay open to the hazard of being condemned, upon the deposition of any two men, but likewise to the arbitrarinesse of an Assize, who might condemn without any clear probation. 2. Assi∣zers are Judges, and Witnesses, and therefore must be liable to all the errors, for which these are accountable; but so it is, that if a Judge condemn unjustly, or if a person be con∣demned upon the deposition of any Witnesse, who depones falsly, that Judge, or Witnesse so deponing, are liable to a capital punishment, why then should an Assizer be exempted, seing there is no expresse Law, upon which he can found that exemption: And in answer to the contrary arguments, it may be contended: That as to the first, it is not conclu∣ding, seing, else it might by the same argument be conclu∣ded, that no Judge, or Witnesse could be pursued, when they condemned unjustly, seing omnis homo praesumitur bonus, at least Perjury should never be punished in a Witnesse, nor injustice in a Judge, deciding unjustly, and by that unjust de∣cision, murdering the person pannelled before them; be∣cause forsooth it is not presumeable, that a Witness, or Judge would murder an innocent by their sentence, or depositi∣on. To the second, it is answered, that all men may be forc∣ed to passe upon Assizes, upon their perril, and thus Assi∣zers are forced, though there is hazard also in assoilzing, and Witnesses are forced, though there be great hazard in Perjury, if they depon falsly. To the third, it is answered, that there needs no Law to punish Assi••ers, condemning un∣justly,

seing they are punishable by the Common Law. But that it was necessary there should be a particular Statute, to punish such as assoilzied unjustly, both because the Com∣mon Law was not so express as to this, and because men might be induced to think, that there was no great hazard in it.

This errour in Assizers, is to be tried by a great Assize, of twenty five Noble Persons, Act 63. Parl. 8. Ia. 3. but the person assoilzied is to be free, ibid. And by an act of Se∣derunt, of the Session, Anno 1591. it is declared, that all landed Gentlemen shall be in a capacity to pass upon an Assise of errour, though they be of Quality, and Estate inferiour to the Pannel, and wilful errour is only punishable in this case, quaelibet probabilis causa ignorantiae excusat, Spot. tit. Retours, Ker against Hartwood-mires, and by the 47. Act Par. 6. Ia. 3. It appears, that no Probation can be adduced, to infer this action of errour, but what was at first produced the time of their verdict; whereas any Probation may be adduced in fortification of the verdict quarrelled, (tantus est favor inno∣centiae) the punishment of such as are found guilty by an As∣ssize of errour, is the escheating of the Moveables, and a Years imprisonment, cap. 14. l. 1. Reg. Maj. which is ra∣tified by the 47. Act 6. Parl. Ia. 3. where it is Statuted, that wilful, or ignorant Assizers, shall be punished after the form of the Kings Law, in the first Book of the Majestie, Skeen observes upon that place, Reg. Maj. that amittere legem terrae, is the same, with non habere personam standi injudicio, and they can never be admitted thereafter as Witnesses, nei∣ther in Writs, nor in Judgement, vid. tit. perjurie. But to the end it may be known which of the Assize assoilzied, it is by the 9. Article regul. 1670. appointed, that the Chan∣cellor of the Assize mark upon the same Papper, upon which the verdict is write, who condemned, and who assoilz••ed,

which Paper is to be sealed, and kept till a Summonds of er∣rour be raised.

The Council sometimes rescinds verdicts, without any action of errour, in criminalibus, as in George Ghrahams case, where they ordain'd the verdict of the inquest, whereby he was found to be Art and Part of recept of stoln Bonds, to be unjust, and restored him against the same; but it may be doubted, whether these who are unjustly condemned, may be restored against that verdict, though it be found unjust; seing these who are unjustly assoilzied cannot be thereafter pur∣sued, though the absolvitur be found unjust, per argumen∣tum à contrario, vid. titl. of the Council, where this que∣stion is fully debated, and determined.

TITLE XXIV. Of Probation by confession.

• 1. Probation defined.
• 2. Probation by confession if judicial, is the strongest of all Pro∣bations.
• 3. In what case is an extrajudicial confession allowable.
• 4. What are the effects of a qualified confession.
• 5. The effects of a confession emitted before an incompetent Iudge.
• 6. How far a minors confession obliedges.

PRobation is so fully treated of by the Civilians, and Canne∣nists, and we differ so little from them, that I shall only treat of it here in relation to our own Law.

I. Probation is defined to be, that whereby the Judge is convinced of what is asse••ted; and it may be divided in proba∣tion, by confession, by Oath, by Writ, by Witnesses, and by Presumptions.

II. Probation by confession is the most secure of all others, and therefore it is said in Law, that in confitentem nullae sunt partes judicis, suitable to which, such as confesse are oftimes codemned without the knowledge of an Inquest, as I have more fully treated in the Title of Assizes, but because men

will sometimes confess a Crime, rather out of wearinesse of their life, then a consciousness of guilt, therefore the Law hath required, that if there appear any aversion for life taedium vitae, or any signs of distraction, or madnesse, that these confessions should not be rested upon, except they be adminiculat with other probation: as also because confessions are oftimes emit∣ted negligently, the confessors thinking that their privat con∣fessions cannot prejudge them, therefore the Law doth only give credit to judicial confessions, and not to these that are ex∣trajudicial, & extra bancum, which maxime is stronger with us then elsewhere, because by a Particular Act of Parliament, Ia. 6. Parl. 11. cap. 90. All probation should be led in pre∣sence of the Assize.

III. This Maxime doth admit in Farin icius opinion, ma∣ny limitations, as 1. That if the extrajudicial confession be adminiculat by other presumptions, it is sufficient, but ex∣cept the presumptions be very violent, I cannot allow this li∣mitation, seing confessio extrajudicialis in se nulla est, & quod nullum est non potest adminiculari, and therefore some approve, Bossius who admits this confession, though adminiculat only to infer, paenam extraordinariam Sed non ordinariam, for cer∣tainly such prevarication, and abusing of truth, and Judges de∣serves some punishment. The second limitation, is, that if the confession be admitted in presence of the accuser, and accepted by him, then it is valid, though extrajudicial; but this I allow not, because it is still extrajudicial, and the con∣fessor knew that he should not die upon such a confession; for which reason likewise, I approve not the third and fourth li∣mitations, which are, that if the extrajudicial confession be geminata, and reiterated, or emitted in presence of a multi∣tude, or ad exonerationem conscientiae, that then it should be valid; and I remember, that though Major Weir confest Sodomy, and Incest to Ministers, and Magistrats joyntly, for exoneration of his Conscience, in presence of many persons,

that His Majesties Advocat took great pains to bring him to a judicial confession, as thinking the former not sufficient: and yet Frazer was condemned upon a confession, emited before the Assembly at Aberdene, and other Noble men, though re∣tracted, 1641. where this limitation is alledged upon, out of Farinacius, and this being represented to the Parliament, they refused to give their opinion, and referred all back to the Justices, who sustained the confession adminiculated, as said is.

The sixth limitation is, that an extrajudicial confession is valid, if upon Oath; but I allow not this, seing Oaths are not allowed in criminal cases, nor can the Pannel be forced thereto; and if he swear ultroniously, and undesired, the confession would appear to me, to be suspect, as emited, ei∣ther per surorem, vel ex taedio vitae.

The seventh limitation, is, that an extrajudicial confessi∣on is sufficient, when the crime confest consists, in animo, as for instance, if it were doubted upon what reason a person accused fled, or shot a Pistol, &c. But I neither allow this limitation, for else it should be as large as the rule, seing all crimes require, animum delinquendi; and yet I think that some circumstances of a crime, may be proved by an extraju∣dicial confession, and so this limitation may be true in that sense. All these limitations are largely, rather then ex∣actly set down, by Farin. de reo confesso, quest. 81. Reg. 10.

Confession though extrajudicial, may be sufficient (if ad∣miniculat) to subject the confessor to the torture; but this is rarely practized with us: But I remember to have seen Mitchel lately tortured, upon his retracting a confession emit∣ted by him, in presence of His Majesties Privy Council, and a confession extorted by torture, is in no Law sufficient, so that except it be adhered to, after the person tortured is re∣moved

from the Rack, for two or three dayes, it makes no Faith, Farin. de reo. confesso. cap. 3.

The custome with us, is, that the Advocat doth in pre∣sence of the Justices, examine the party to be accused, and if he confesse, either he subscribes his confession, if he can write, or else the Justices subscribes for him, or which is securer, makes two Nottars, and four Witnesses subscribe; and al∣beit a confession thus subscribed by two Nottars, before four Witnesses, was found sufficient, upon the 7. of December 1669. in the case of Finla Macknob, who was pursued for Theft, yet it was then alledged, that the confession was not sufficient, and that for these reasons. 1. Because all Proba∣tion should by the Act of Parliament foresaid, be led in pre∣sence of the Assize; and therefore when the Probation was founded upon confession, the confession should have been ori∣ginally emitted in presence of the Assize, or at least adhered to before them, and the testimony of two Nottars, and four Witnesses, was not equivalent to a verbal confession; se∣ing they could not thereby know all the circumstances which are necessary to be known, such as whether the confession was voluntar, or extorted, or if it proceeded upon a mistake, or if it was founded upon promise of life, &c. 2. The party who confessed might have emitted that Declaration, upon a confidence that the same could not operat against him, being extrajudicial, as said is. 3. That must be accounted an ex∣trajudicial confession, quae non emanavit in judicio, and this is such; because there was no Court fenced here, nor yet an Assize sworn, whereas that is only called a judicial confession, which is emitted before those who are Judges, and whilst they are sitting in Judgement, Boss. tit. de confessis. 4. The con∣fessor here was an ignorant person, and did not understand the Scottish Language, and so might be very subject to mistake; upon which reasons, the Assize having demured; the Ju∣stices made application to the Council, but the case being by

the Council remitted intirely back to themselves, they did find the foresaid confession sufficient, and Macknab was there∣upon convict accordingly, and hang'd; but if the confessi∣on had only been subscribed by a Judge, I think it could not have been valid, for that were to confound the Office of a Judge, Witness, and Clerk, and would tend to make all Judges arbitrary; so that the life of the Leidges should de∣pend upon one single Testimony, which were very dange∣rous, especially in inferiour Courts, where it is very well known that persons of very little integ••ity sit as Judges, and which Judges are oftentimes interested, to get the Pannel condem∣ned, because thereby the Escheat, at least a part of it falls to themselves.

So far doth our Law require judicial confessions, that it hath been debated, that even a confession taken by all the Justices sitting in Judgement, was not a sufficient warrand, for the Assize to proceed in condemning the party, except the confession had been renewed before them, though the confession it self was subscribed, and the subsc••iption acknow∣ledged, for the foresaid Act of Parliament requires, that the hail Probation should be used before the Assize, in presence of the party accused; but so it is that the emiting of the con∣fession is a chief part of the Probation, since Law has laid great weight upon the way and manner, how a confession is eli••ite, measuring exactly the degrees of constancy, or fear, appear∣ing in the Pannel, as well as considering the motives by which he was induced to confess, and what difference is there, quo ad the Assize, Whether the confession be emitted before the Justices, or an inferiour Judge, or why should not the deposition of Witnesses, or confessions of Parties, taken by way of precognition proved? and yet thir confessions taken be∣fore the Justices prove. But to this it is answered, that con∣fessions emitted in presence of a Judge competent, prove in all Nations, from which the foresaid Act should not be made

to derogat, except it designed the same clearly: but so it is, that it is clear by the foresaid Act, that it was not intended, that any Probation that was formerly good, and Probative, should be discharged; but only that the way of using the same should be regulat, and so subscribed Papers are not reje∣cted, for we daily see that Papers prove Treason, and Usury, though they be not subscribed before the Assize; but that Act only discharges a former wicked custom, of carrying in Papers claudistinely to the Inquest, which had not been open∣ly used before the Pannel. Likeas, Assizers do frequently condemn with us upon such confessions.

The second question which may be here debated, is, whe∣ther when a person confesses a crime with a quality, and not simply, if his confession may be devided, so that he may be convict upon the confession, notwithstanding of the quality, except he can prove the quality, this was debated the 13. of March 1668. At which time, one Dumbar, being pursu∣ed for wounding Collonel Innes, confest that he wounded him, but he did it in defence of his own life, being assaulted by the said Collonel; upon which confession it was alledged, he could not have been found guilty; since a confession can no more be divided, then an Oath, and it is a brocard in Law, that quod approbas non reprobas: As also, seing the crime could never be proved, but by the confession, the confessi∣on being qualified, was no confession without the qualificati∣on, and therefore there was no Probation beyond the quali∣ty; I know that the Doctors do in this case, distinguish be∣twixt such qualified confessions, as are omitted, sub unico structu verborum, as if the confession did bear, I did kill in my own defence, vel sub duplici, as I did kill, but I kill'd in my own defence; in the first, they think the quality cannot be disjoyned from the confession, but in the second it may; yet I think this but a subtilty, for poor persons especially, when they are tryed for their lives, take not such pains to or∣der

their expressions, and their design in both is the same, but I approve more that other opinion of these, who think, that such qualified confessions may infer an arbitrary, though less punishment, paenam non ordinariam, sed extraordinariam, as is asserted by Decius in cap. cum venerabilis extra. de except vid. Far. de reo confesso quest. 87. cap. 4. And albeit I think, that if there were strong presumptions against the confessor, as there was in the above related case, he behoved, cocasu, to prove that quality of self-defence, otherwise then by adject∣ing a quality; because Presumptions transfer the necessity of Probation, upon him against whom the presumption is brought, Cod. fab. de sicar. def. 6. non scinditur confessio in criminalibus nisi adsint contraria indicia. Yet I think, that such qualified confessions as this is, which imply a defence, should either prove the defence, or else they should not prove the Libel, and either should be altogether believed, or alto∣gether reprobated, for as it was not the design of the confes∣sor, to bind a guilt upon himself by the confession; So it is to be presumed, that he who is so ingenuous as to confess a guilt against himself, would be likewise so ingenuous as to confess the Truth really, and sincerely, or if he omited this confession by a secret impulse, of a Superiour Power forcing him to confess the Truth, we may rationally conclude, that the same impulse would likewise have inforced him to confess the Truth in its fulness, and simplicity, & homicidium indu∣bio non dolose sed ad defensionem factum praesumitur & sic qua∣litas adjecta habet pro se presumptionem, Mascard. deprobat, l. 2. concluss. 867.

I do likewise think, if the quality, was not annexed to the first Deposition, that it should not afterwards be received, since it is presumeable, that it would have been adjected at the beginning, if it had been true; every man being more mindful to defend himself, then to confess a crime; and that notwithstanding of such a quality adjected, ex intervalo, the

confessor may be punished, pena ordinaria, which is also the opinion of Clarus Quest. 55.

V. The third Question is, whether a confession emitted before a Judge, who was not competent to punish corporally, be sufficient for a Judge to proceed who is competent, and this is oft contraverted with us, if a Confession, or Probation le•• before a Kirk-Session, be sufficient, if it be repeated before the Justices, and the Council being consulted lately by the Sheriff of the Merse, concerning a man who had confest witch∣craft, before the Presbytrie, they would not decide it, al∣beit Lawyers who were Members of the Council: And others were of opinion, that he should dy, except he could alledge a sufficient reason for varrying in his confession, but this is against a received position amongst Lawyers; quod confessio emanata coram judice incompitente non sufficit ad con∣demnandum Farin. de reo. confess. cap. 6. licet sufficiat ad tor∣turam & habent vim extrajudicialis confessionis, the reason of the foresaid Rule is, that the confessor knows that he could not dy upon that confession, and men will confesse many times to free themselves from trouble, or evite excommunication, who would not acknowledge a crime, if they were capitally accused; Some also have confest to Kirk-Sessions, crimes, of which they have been innocent, as Adulteries, for obtain∣ing a devorce, and Fornication, to obtain a consent of the Fa∣ther, and whatever may be alledged against extrajudicial, may be alledged against confessions, before an incompetent Judge: By this also it may easily appear, what should be answered to another Question, which differs little from this, viz. If a confession of a crime taken incidently, in another Proces, and not taken in Proces, wherein the confessor is pursued for life, be sufficient to infer death.

The Lords of Session would not sustain a confession omit∣ted by a man before the Kirk-Session, ad exonerationem con∣scientiae,

to operat against him in any other Court; because they thought that this would continue men in impeni∣tency, and retard their repenting; which Decision was much applauded, licet, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

VI. By the Civil Law, l. clarum C. de authoritate pre∣stunda, minors accused, could not prejudge themselves by their own confessions; but this is innovat by the custom of all Nations, Boer. decis. 63. and Boss. tit. de confessis: and with us, Minors confessing crimes, are thereupon execute; and I find in the Jou••nal Books, instances thereof, in very young persons, but I think there is much left in this case to the Arbitrariness of the Judge, who should distinguish be∣twixt such crimes as fall under sence, as Murder, and such as principally require Judgement, as Blasphemy, Witch∣craft, &c. In which last, hardly should Minors be punish∣ed, paena ordinaria, upon their own confession, and scarce af∣ter they confess, for a Minor is presumed to have no solid judgement.

Though a Minor may bind a crime upon himself by his own confession, and may be thereupon condemned, and execut∣ed: yet whether he may revoke this confession, and be re∣poned against the same, because of his minority, was debat∣ed the 28. of February 1676. in the case of a young boy cal∣led Kennedy; and that he might be reponed, was urged from these reasons, 1. A Minors lubricity of judgement might prejudge him as much in criminals, as in civil cases, and therefore he ought to be reponed against the one, as well as against the other; and it were absurd, that a Minor should not be able to bind himself in the value of ten Pounds Scots, and that yet he should by his confession make himself liable to death. 2. Lawyers are very clear, that a Minor may revoke a criminal confession, l. 4. C. de authoritat. prestand. Clar. quest. 53. and Gomez. gives an instance of a Minors being re∣poned

against the confession of Incest. 3. In this confession, a Minor might have much more easily lapsed into a fatal error, then in any other cases; the subject matter of this con∣fession being a contrivance to poyson by Droggs, and Medi∣caments, in which, non constat de corpore delicti, since the Defunct might have dyed of another disease, and as to which, a Minor might easily have been mistaken, since to give a solid judgement, in such cases, or to confesse what relates thereto, requi••es not only more reason, but more skill and art, then can be expected from so young a boy. To which it was an∣swered, that since Minors may be punishable crimes, they may consequently b••nd a guilt upon themselves, by their con∣fessions, for if the Law did not consider them as so far, do∣li capaces, that they understood the hazard of a crime, it would not punish them, and if they understood the nature, and hazard of a crime, it is unreasonable to think that they may not understand their hazard in confessing it, since in com∣mitting crimes, the judgement of the wisest is ordinarly blind∣ed with passion, and errour; but in confessing, men have time and leasure to be judicious, and serious; and if Minors confessions could not ty them, they might still in absence of Witnesses commit crimes at their pleasure. 2. Lawyers as well as reason are very clear, that a Minor cannot be restor∣ed, except he shew that he was circumveened, or lees'd by his confession, as for instance, if he should confess simply that he killed a man, but should forget to add that he killed him in self-defence, or should confesse that he committed In∣cest; but should forget to add that he was ignorant, that the person with whom he committed the same, was within the degrees that inferred Incest: which opinion is to be seen, in Oddo. 5. Fortia. quest. 23. num. 9. Or if he had con∣fest upon the promise of indemnity, or by the fear of threat∣nings, and were able to prove either, and by this just tempre∣ment,

the interest of the Common-wealth, and the imbici∣lity of Minors are both salved: and therefore when Law, or Lawyers say that a Minor may be restored against his confessi∣on, their meaning only is, that he may be restored if he can prove his error and mistake. 3. This being a confessi∣on twice emitted, and adhered to, and adminiculated by the confession of other dying persons, who could not clear themselves by fyling him, there can no doubt of its truth re∣main with any disinterested person. This case was not decid∣ed, but I conceive that a Minor cannot be restored against his own confession, except he shew, wherein he was either cir∣cumveen'd, or mistaken. And if a person past 21. years of age, can prove, that he has confest what was not true, he ought to be restor'd: as for instance, if he can prove that the man whom he confest he did kill, is still alive. In which sence I take l. 1. §. D. severus. ff. de p••nis, D. severus rescripsit, confessiones reorum pro exploratis criminibus haberi non aporteri. And when the Eclog. sayes, cap. 4. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. suitable to l. 4. ff. de confessis. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, qui servum occisum intermisse se fatctur, licet non occiderit; ex confesso tenetur. This is to be so interpreted, that a man past 21. may be executed upon his own confession, without enquiring whether what he confest be true. But it doth not follow, that if the confessor can prove he confest what was false, he ought not to be repon'd.

TITLE XXV. Probation by Oath, by Write, and by Pre∣sumptions.

• 1. In what cases is a Pannel obliged to give his Oath.
• 2. Whether a Pannel is obliged to depon••, when the Iudge de∣clares that his deponing shall not infer•• a corporal punish∣ment.
• 3. In what cases can crimes be proved by Write, and Whether a Write that is null can prove a crime.
• 4. How far can a crime be proved by presumptions.

I. PRobation by Oath, is not regularly admitted in criminal cases, for the pursuers Oath is never proba∣tive, even in civil cases, except it be adduced in supplement; but the Oath of supplement by the pursuer, is used upon no occasion in criminals: Neither is the defender forced to give his Oath in criminals, as he is in civil cases, both be∣cause it is unjust, to force a man to condemn himself, and be∣cause it is most probable, that he who is accused for a crime, would hazard his Soul by Pe••jury, to redeem his Blood, by an Oath. But because the excessive love which we bear to life, is the occasion of this exemption; therefore where the

punishment is not corporal, & corporis afflictiva, the defen∣der will be forced sometimes to give his Oath, as in the case of Riots, and Blood-wyts. Sometimes likewise the Law, because of the scantness of the Probation, obliges him who is accused to give his Oath, as in the case of Usury, which is a crime odious in it self, and cladestinely carried on, Ia. 6. cap. 247. Par. 15. And in the case of Simony, Ia. 6. Parl. 21. yet neither of these crimes are corporally punished, and therefore these rules may still hold. 1. That Probation by Oath of the defender, is never allowed by Law, neither ubi paena est corporis afflictiva, nec ubi infamia irrogatur, quia nemo tenetur probare suam turpitu d••nem, & fama & vita quo∣ad hoc aquiparantur. 2. That a person accused may be ob∣liged by an express Law to depon, though the crime for which he is accused, may infer Infamy. 3. That no Law should force the defender in a criminal Process to swear, where the crime may infer death, nor have we any such Law in our King∣dom.

II. It is oft contraverted, both in the Council, and Crimi∣nal Court, whether though the crime be in it self, such as de∣serves a corporal punishment, yet if the pursuer, and His Ma∣jesties Advocat likewise declare, that they will not pursue the same criminally, & ad paenam corporalem infligendam, if eo casu, the defender may not be forced to depon, which que∣stion may be resolved, by these conclusions, 1. That though the pursuer declare that he will not insist criminally, yet that declaration is not sufficient, because His Majesties ••dvocat may pursue. 2. Though His Majesties Advocat concur with the pursue••, in the declaration; yet it is not sufficient, seing His Majesties Officers cannot prejudge His Majesty by any Declaration of others, for else they might by such Decla∣rations as these, in effect remit crimes. 3. The Declarati∣on of the Council is not sufficient, because they may not pre∣judge a criminal action, which may be intented before the Ju∣stice

Court, as was found in the case of some Gentle∣men, and others, who being pursued before the Council, as Plagiaries, for taking away Anna Gibson, it was found by the Council, that they were not obliged to swear, though both the pursuer, and Advocat declared they should never be criminally pursued. 4. I conceive that neither the Decla∣ration of the pursuer, nor defender, even in a criminal pur∣suit before the Justices, though agreed to by the Justices, would not be sufficient to force the defender to swear; for I think, that though the defender should, co casu, upon Oath deny his guilt, that he might be of new pursued, and con∣vict upon clear Probation; for His Majesty, and the Pub∣licks interest can never be prejudged by any Declaration of His Officers, nor can any remit crimes, as I said former∣ly.

III. Crimes do not ordinarly use to be proved by Write, and when they may be so proved, there is little difficulty as to the Probation; only it may be observed, that it was found in the crime of Falshood, pursued against Captain Barclay, that a Write may be proved false, without p••oduction of it; and in Purdies case, that a discharge was sufficient, to prove Usury, though it wanted both Writers name, and Witnes∣ses, seing the pursuer offered to prove the subscription by his Oath; but it is observable that Pannels are in Usury obliged to swear, and therefore it may be doubted, whether a Write not subscribed before witnesses, doth prove a crime, since all writes of importance, are by Act of Parliament decla••ed null, if they want the Writers name, and Witnesses, and if they be not believed, quo ad, a civil effect, much lesse in a criminal; nor is the Pannel here oblidged to make up the same by his Oath, as in civil cases: And yet the Marquess of Argile was convict of Treason, upon Letters writen by him to General Monck; these Letters being only subscrib∣ed by him, and not Holograph, and the subscription having

been proved, per comparationem literarum, which were ve∣ry hard in other cases; seing compara••io literarum, is but a presumption, and mens hands are oft-times, and easily imi∣tated, and one mans write will differ from it self at several oc∣casions.

IV. Presumptions are divided, in Presumptions that are violent (for strong Presumptions are so called) and these that are not violent, they are likewise divided, in praesump∣tiones juris, & presumptiones juris & de jure.

Whether crimes may be proved by p••esumptions, is much contraverted, both in Law, and Practique, and that they cannot be proved by presumptions, is inferred from these rea∣sons, 1. Presumptions are only founded upon verisimili∣tude, and what may be, may not be; whereas all Proba∣tions, especially in criminals, should be infallible, and cer∣tain, & conclusio semper debet sequi debiliorem partem. 2. If crimes could be proved by presumptions, Judges would be arbitrary in all cases, seing the Law cannot determine the num∣ber, and weight of Presumptions, as it doth in other Proba∣tions. 3. The Doctors universally conclude, that Presump∣tions do not prove crimes, as is clear by Mascard. Farin. &c. Upon the other hand it may be argued, that a crime may be inferred from Presumptions, and that for these reasons, 1. l. ult. Cod. de probationibus ubi asserit p••sse crimina vel ido∣niis testibus vel apertissimis documentis vel judiciis judubi∣tatis probari & l. 2. ff. quon. apell. non recip. ubi jubetur cu∣rialis observare ne quis homicidarum Adulterorum, &c. Ar∣gumentis convictus, testibus superatus, vel voce propria confes∣sus audiatur apellare. 2. Since Witnesses are only believed, because it is presumed they will not damn themselves; why may not other Presumptions be likewise received? 3. Pre∣sumptions are in many cases allowed as a sufficient Probation, as the presumption of Cohabitation, after the parties are dis∣charged, is sufficient be Act of Parliament, to infer Adulte∣ry.

4. The depositions of Witnesses are oft-times founded upon Presumptions, as when they depon upon dolus malus, ebriety, or any other thing which depends upon acts of the mind. 5. Many have been condemned upon Presumptions, as Ianet Brown, who was convict for Murder of her own Child, upon presumptions, and hang'd accordingly, the 25. of Iune 1614. And Scot was convict, and hanged for kil∣ling of Drumlanrigs Sheep, the 20. of February 1616. And after a solemn debate, how far Presumptions could prove in criminals: in Alexander Kennedies case, he was convict, and hanged for falshood, upon Presumptions in Anno 1662.

This difficulty hath forced some of the Doctors to conclude, that this case is arbitrary; and others to conclude, that Pre∣sumptions may infer, paenam extraordinariam, sed non ordi∣nariam, Cod. fab. tit. de paen. which last opinion, is upon the matter coincident with the first; for in arbitrary cases, the Judges can never proceed to death, and it seems that both these opinions are well founded, because not only the commit∣ting of crimes, but even the giving of scandal, and the doing that which is like a crime, deserves to be some way punished; but this arbitrariness should only in my opinion, be allowed to the Council, who are a supream Judicatory, and are in such extraordinary cases, tyed to no express Law.

TITLE XXVI. Probation by Witnesses.

• 1. How witnesses are cited with us.
• 2. Who are testes ultronei.
• 3. What witnesses are not worth the Kings unlaw.
• 4. When women may be admitted to be witnesses, and when not.
• 5. How minors are to be admitted witnesses.
• 6. Persons guilty of crimes cannot be admitted.
• 7. Persons within degrees defendant, are not admitted, and who these are.
• 8. Domestick servants, when admitted.
• 9. Moveable Tennents.
• 10. Socius criminis.
• 11. Defenders cited as parties.
• 12. What time is considered in the hability of a Witness.
• 13. Whether Witnesses inhabile, may be received at His Ma∣jesties instance.
• 14. Who are testes singulares.
• 15. The contrariety in depositions considered.
• 16. Causa scientiae.
• 17. Witnesses, ad futuram rei memoriam.
• 18. It is now necessary to give in a list to the defender, of the

• ... witnesses names who are to be led against him.
• 19. Absent witnesses how punished and compelled.
• 20. What number may be cited for proving each crime.

IF the crime be pursued by raising of a Summonds, that Sum∣monds contains a warrand to cite witnesses; but if the pur∣suite be by way of inditement, the Justices grant warrand by precept for citing of Witnesses.

At the day of compearance, the pursuer gives in with his execute Summonds, executions likewise against the Witnesses, and if the executions against the Witnesses, be not legal, the dyet is deserted; But if the witnesses be lawfully cited, and compear not, of old, there was a warrand given to apprehend them, and the dyet was continued, but now there are formal Letters of Caption, given under the Signet of the Session, and not of the Justice-Court, and the Letters are still raised by the Justice-Clerks deput•• who is the ordinary Clerk of Court; And if the Sheriff refuse to apprehend the Witnesses by vertue of the Caption, the Letters will be direct against himself, as in civil cases, and this was first observed in the cases of Mac∣kalla against Lindsay.

After the Justices have found that the Pannel should go to the knowledge of an Inquest, he asks the pursuer what way he will prove his Libel: and if the probation by witnesses be chosen as the manner of Probation to be used.

II. The Justices desire the Clerk to call the Witnesses, and if any be given in, in the list, against whom there is no formal execution; it is alledged they cannot be received, and this is the first objection against the witnesses, and is founded upon this reason viz. that he who offers himself to depon, without being lawfully cited, is presumed to be too desirous to depon, and so to have malice. These the Civil Law calls testes ultron••i, yet I find

that the Justices sometimes receives witnesses cited, apud acta, as Alexander Forrester against a Witch, the 3. of August 1661. So though they will not receive a witnesse, who appears upon an unlawful citation, and which he knows to be unlawfull, yet they will receive some, though not at all cited; for the first show a complyance, but not the last, all the objections against the Wittesses are discust before they be sworn, for it is below the Majesty of an oath, to administrat the same unnecessarily, before it be known whether the person to whom the oath is to be administrat will be received.

To object against a witness in our Law, is called to cast a witness, or to set him; and by the Doctors it is called to re∣pel a witnesse, but because objections against the witnesses, or oppositiones contra testes, as Farinacius calls them, are so large∣ly treated of by him, and others, I shall therefore only take notice of some particular objections, which are mentioned, and made use of frequently in our Law, and practique. And in Law these objections are divided into such as are used contra personas testium, and these which are used contra dicta testium, I shall therefore first treat of these objections which are used contra personas testium.

III. Witnesses are not admitted with us, if they be not worth the Kings unlaw, which we interpret to be ten pounds; and because no man can know the value of anothers estate, this objection is found therefore only probable by the oath of the witnesse himself, as was found in the case of Ruchead against Muire, the 9. of December 1668. But this seems strange; for since the Law is jealous that he will depon unjustly, why it should believe him as to his own quality; and there∣fore I think that in Criminal cases, when the hazard is so great, the being known to be an actual beggar, should be sufficient, per se, to cast a witnesse, without referring the same to the witnesses oath.

This objection is founded upon the presumption, that such

as are poor, are liable to impression. And such as are poor are expresly repelled from being witnesses, by the 34. cap. stat. 2. Rob. And they were likewise repelled by the Civil Law.

IV. Women regulariter are not witnesses, neither in Ci∣vil nor Criminal cases with us, nor should they make as much faith with us in criminalibus, as is allowed by the Civil Law, and Doctors; seing with us they are excluded from being wit∣nesses even in Civil cases, ergo à fortiori, they ought to be re∣jected in Criminal cases; for albeit the Doctors allow them sometimes to prove in Civil cases, yet they reject them in the same causes, when they are Criminally pursued, as in Furto, &c. Farin. quest. 56. num. 31. and by an expresse Act 1. Agust 1661. The Justices ordained, that no women should be examined as witnesses in Theft, for the future, ex∣cept ex officio, & cum nota: and that same day they rece••ved Elisabeth Watson, as witness in Theft against Bruntfield. 2. Women are sometimes received witnesses in some cases, ob atrocitatem criminis, as in Treason, by an expresse act of Sederunt 1591. And in Witch-craft, most ordinarily, as is to be seen by the Books of Adjurnal, and particularly in the Process of Margaret Wallace, the 20. of March 1662. where Margaret Grahame, and Marion Wear, are received witnesses. 3. They are admitted in criminibus domesticis, because of scantness of probation; and thus they were received against George Swintoun, who was accused for murdering his own wife, within his own house, 21. Agust 1664. 4. Women are re∣ceived witnesses, where women use only to be present, as in the being brought to bed, murdering of Children, & in partu supposititio, &c. very many instances whereof are to be seen in the Adjurnal Books. And yet Farin. quest. 59. sayes mu∣lier non potest esse testis, & quo ad suppositionem partus si inde agitur criminaliter, ad suppositionem corporaliter puniendam: And by these we may conclude that women are not regu∣lariter admitted witnesses in Scotland. Likeas by the 34. cap.

Rob. 1. These are expresly excluded from witnesse bearing; yet Matheus concludes they may be received witnesses, ex hoc, quod mulier adubterii condemnata non admittatur, ergo in aliis mulieres admitti debent; But this opinion is contrary to all the Doctors, vid. Farin. quest. 59. casu, 1. where he gives it for a rule, that mulier in criminalibus testis esse nequit, which rule extends so far that according to his judgement, three or moe women cannot prove a crime, num. 29.

The reason why women are excluded from witnessing, must be either that they are subject to too much compassion, and so ought not to be more received in Criminal cases, then in any Civil cases; or else the Law was unwilling to trouble them, and thought it might learn them too much confidence, and make them subject to too much familiarity with men, and strangers, if they were necessitated to vague up and down at all Courts, upon all occasions.

V. Minors if they be past fourteen years of age, and no otherwise, may be admitted to be witnesses, by the foresaid Act of K. Robert, and it being alledged in the Proces of Mar∣garet Wallace, 1622. That Margaret Graham could not be received a witness, because she was not past eighteen years of age, this was repelled, because a Testificat bore, that she was past fourteen years of age, and might be man'd. The reason of this objection, is, because Minors understand not to answer all circumstances, which must be necessarily considered by the Judge; nor yet the nature of that Oath, which should over∣aw them, and they are very subject in their youth to corrup∣tion; a clear instance whereof, I saw my self, in a little boy, against Towie, who after he was received, did first depon m••∣ny improbabilities, and s••emed terrified with every questi∣on, and thereafter confest that he was bribed, with a very small and childish bribe. In many cases likewise, witnesses are to depon upon that which requ••res judgement, as in prov∣ing self-defence, ratihabition, &c. And in these cases, it

is repuisit that the deponer be of a more advanced age then fourteen.

VI. By that Act likewise of K. Rob. such as are Furious, Adulterers, Robbers, Thieves, Perjured, Scourged, and Servants cannot be received witnesses; not yet Laiks against Church-men, nor yet Church-men against Laiks: whereas according to the Cannon Law, cap. de cetero decret. de testib. Laiks are forbidden to be received against Church-men, sed non contra. The reasons of which constitution, are given to be partly the reverence due to Church-men, and partly the hatred whereby Laiks do persecute them; but this objecti∣on is justly reprobat by our custome: by which likewise Ser∣vants are received to be witnesses, notwithstanding of the for∣mer Law against it; but not for their Masters: but whe∣ther he who hath redeemed himself from Justice by a Remissi∣on, should be received a witness, may be contraverted? and that he should not be received, may be argued, 1. Because of this Law of K. Rob. which doth expresly repel him. 2. A Remission takes not away the guilt, but is only a defence against the punishment, l. Fin. C. de gener. abolit.: And se∣mel malus semper praesumitur malus, which wicked dispositi∣on cannot be altered by a Remission; and since the King can∣not make a man good, it follows, that he cannot make him a sufficient witness. 3. It hath been found by several Decisi∣ons, that a person convict, and brought off by a Remission, redemptus à justitia, as this Law calls him, hath been there∣fore set, from being a witness, as in the case of Tossoch, who was condemned as a false Nottar, and was thereupon set from being a witness, in the Proces, for burning the House of Frendraught; and yet I my self have objected this against an English Captain, in Argiles case it was repelled. But to re∣concile these two opinions, I think we should distinguish be∣twixt such as make use of the Remission, before they be con∣vict, and these who are convict, and thereafter make use of

the Remission; for those who propon upon the Remission, do eo ipso, acknowledge the guilt; yet that it is only fictione juris: And therefore the foresaid Law sayes, copulative that convicti, & redempti à justitia non possunt esses te∣stes.

Guiltiness which casts a man from being witness, must be proved by a sentence, and it was not found relevant, that the Theft was offered instantly to be proved, the 10. of February 1673. in Ashintillies case; but it would appear, that some∣times the Theft is so recently committed, that there could be no time for convicting him; and yet it were hard that a person so guilty, should be received. The dependence also of a cri∣minal pursuit against a witnesse, should cast him, if it was in∣tented before his citation, to be a witness, else every wit∣ness might be cast, by intenting a criminal pursuit against him.

VII. These within degrees defendant, by blood, or affi∣nity, are likewise repelled by the foresaid Act. Degrees de∣fendant, are by our Law the fourth degree, or Cousen Ger∣mans, as is expressed in the foresaid Chapter, and this term comes, in my opinion, from the French word, defendre, to forbid, so that degree defendu, is the true expression, though we say defendent, by corruption of the word. Excommuni∣cat persons cannot by that Law be witnesses, nor such as are in∣carcerat: yet de practica, such as are incarcerat, are receiv∣ed, except they can be cast by some other objection. Nor such as are accused for a criminal Cause, during the dependence of the Proces: nor such as are of the pursuers Counsel: which objection is, de practica, called the giving of partial counsel, and this is only proved by the defenders own Oath, properly, yet the being present at a consultation with the pursuer, or the solisting for him, are likewise branches of partial Counsel, and are probable by witnesses.

VIII. Domestick servants cannot be received witnesses for their Masters, albeit they may against them, but if they be not servants the time of the deposition, they may; ex∣cept their Master hath put them away dolose, that he might use them as witnesses; but it may be contended, that if he put them away since the Citation, to depon, they cannot be witnesses. Nor removeable Tennents, but Tennents hav∣ing taks, or Cottars of their Tennents, de practica, are still received; because the Law presumes they are not so liable to the Masters impressions; and yet it is generally said in the for∣mer Law, of K. Robert, nec aliquis tenens terram de eo adfir∣mam, vel ad annuum reditum, and Farin. doth, regulariter, conclude, that Colonus non ••dmittitur ad testificandum pro do∣mino suo; and yet Glossa ad ca••. in literis extra de testibus ad∣heres to the distinction allowed in our practice, and con∣cludes, that aut coloni sunt tales quibus imperare potest domi∣nus, & tunc repelluntur, alias non, sed its tantum cre∣ditur Farin. is likewise of opinion, that though Vassals who are not subject to the Jurisdiction of their Superiour, may be received witnesses for him; yet that where his Superior, ha∣bet merum, et mixtum imperium, in vassallos, the Vassal there cannot be received witness for him, but with us, Vas∣sals of Regalities, are received witnesses for the Lord of Rega∣lity, which seems very unjust; seing as Farin. there observes, Dominus intales vassalos minacem terrorem, et timorem incu∣tere potest.

IX. Though moveable Tennents cannot be witnesses, yet Cotta••s may, as the custom now runs, whether they be Cot∣tars to Tennents, who are not receiveable, or not, 11. De∣cember 1632. For our custom thinks Cottars independent; yet I conceive if this were well debated, it would be found, that where the Tennent is not receiveable, neither can his Cottars, especially in criminal cases, where exact probation

is requisite; for it is not imaginable, but that the Cottar will stand in aw of him, whom his Master fears.

X. He who was sharer in the committing of the crime, with the person accused, or socius criminis, cannot be received a witness, nor yet he, qui fovet consimilem causam, or who may win, or gain by the event of the pursuit; but in Falshood, socii criminis, are received witnesses; because without these, that crime could not be proved; and thus Barclay being accus∣ed for forging a Bond, and Disposition, the witnesses who subscribed the same at his desire, without seing the principal party to whom they are witnesses, subscribe, were received to prove the Falshood, and the forger of the Bond was also ad∣mitted.

In the pursuit of Charles Robertson, it was alledged, that so∣cii criminis might be witnesses, where the punishment was pe∣cuniary, et sententia non irrogabat infamiam; for the reason why socii criminis were not admitted, was, because they were infamous, et intestabiles; to which it was answered, that the reason was, because they were under fear of the pursuer, and there was greater reason to repel them in small crimes, then in atrocioribus; seing in these lesser crimes, the Com∣mon-wealth was not so much concerned, which was the rea∣son why the strictness of probation was relaxed in Treason, &c. And in these the Pannel might be forced to depon; but could not in greater crimes. In respect of which answer, the Justices the 9. of March 1671. would not admit socios cri∣minis, though in a Delict, which was only punishable by a pecuniary mulct, and though they were not found to be socii, by a sentence, seing there being socii, was offered to be pro∣ved by their own Oaths, and by the foresaid Statute, socius criminis, and infamis are two different objections, which had been unnecessar, if socius criminis had been only repelled, be∣cause he was infamis.

XI. It is ordinary for any person who is pursued for a crime, to raise a reconvention, and to call therein all such as defen∣ders, whom they think may be led as witnesses against them; and it is ordinarly controverted, whether in such mutual pur∣suits, seu ante categoriis, may be received as witnesses? To which the solid answer is, that though it seem that they may; because else it should be in the power of the person accused, to set all such witnesses as may be led against him; seing he may raise a reconvention, or it may be intent the first criminal pursuit, upon design, and call all these as defenders; yet it is thought they cannot be received witnesses, until that Process depending against themselves be first discussed; by the event whereof, it may appear, whether that pursuit be just, or unjust: And by the former Law of K. Robert, none can be received witnesses, against whom there is a criminal pursuit intented. Notwithstanding of all which, I have seen the Lords receive witnesses in this case, but cum nota.

Witnesses who may be received, are called testes habiles, and they are distinguished, in idoneos, or sufficient witnesses, or testes omni exceptione majores, who deserve yet a further degree of Faith, and against whom there is not only no obje∣ction, but even no suspition, et testes optimae opinionis, who deserves the highest degree of Trust; Sometimes likewise, witnesses are received, though they be not altogether habiles, and these are called with us, testes cum nota, who in our Law prove not fully, either the Libel, or defence; albeit by the Civil Law, testes inhabiles, were admitted to exculpat, or prove a defence propon'd for the Pannel, if there did not ly pre∣sumptions of guilt against them.

XII. If a witness was not habilis, to be a witnesse, when the crime was committed, he will not be admitted to be a wit∣nesse, though he be habilis, & major, at the same time of his deposition; because a witnesse must be such as did then know

what was done: thus Wilson was repelled, in the Process against Cask, the 10. of September 1661.

XIII. It is oft-times controverted with us, if such wit∣nesses as could not be received at the instance of the accuser, may be received at the instance of His Majesties Advocat, which question may be answered by these conclusions, 1. If the objections against the witnesses be such, as make the wit∣nesses inhabiles, as that he is Minor, or infamous, then these witnesses cannot be received at the instance of the Fisk. 2. If the objections be such as tend to cast the witnesses, meerly be∣cause of his relation to the party wrong'd, as that he is Ser∣vant, or within degrees defendant to the party wrong'd, then though the party wrong'd insist not; yet these witnesses can∣not be received, if any advantage may accress to the party wrong'd, by their deposition; and except he declare that he shall thereby reap no advantage, and except the crime be such as did no affront to the party injured, for eo casu, it is still pre∣sum'd, that his relations will retain a privat grudge, or ma∣lice, whereupon they may prejudge in their depositions, both the truth, and the defender; and yet ordinarly with us the relations of the persons injured, are received at the instance of the Kings Advocat. Thus Neilson was received against Mar∣garet Wallace, for Witchcraft, though he was brother in law to Nicol, who gave information in the dittay, because the Summonds was not raised at his instance, the 20. of March 1622. and yet in that same Process, Stirling was not admit∣ted to be an Assizer, because he was brother in law to Muir, who was one of these who was alledged to be malificiat by her, al∣beit the Libel was not raised at the instance of Muir, nor none of his relations, which I think both irregular, and dange∣rous.

Albeit these be relevant objections against witnesses, yet if the proponer of the objection, cite them also at his own in∣stance, eo ipso, he acknowledge the witnesses to be, habiles

testes, but sometimes he may notwithstanding, propon ob∣jections, even against those himself cites, v. g. though I cite a man to be witness for me, yet I may set him from being witness for my adversary; because he is brother, or ser∣vant.

IV. The objections, contradicta testium, are singulari∣ty, and contrariety, and the not giving a sufficient causa scien∣tiae.

Singularity is, when the witnesse who depons, hath no con∣curring witness, and this singularity is divided, in obstativam, adminiculativam, & diversificativam.

Singularitas obstativa, is, in acta non reiterabili, an in∣stance whereof they give in Susanna, and the two Elders, who deponed upon the same Adultery, but differed in the place, and therefore did not prove. And it is a general rule, that where the crime is not reiterable, or reiterated, that two witnesses varying upon the time, or place, as if one should say, a man were murdered at Edimburgh, and the other at Haddingtoun, these depositions could not be conjoyned, for proving the mur∣der.

Singularitas adminiculativa, is, where the witnesses do not concur in their depositions, yet they are not contrary, and the one assists the other, as in the proving that a Horse was stoln, one should depon that he saw the Thief go in without a Horse, another saw him take the Horse, but no more, which singularity in depositions, doth not hinder the witnesses to prove, neither by our practiques, nor in the opinion of the Doctors.

Singularitas diversificativa, is, when witnesses depon diffe∣rent Acts, as in a crime which is reiterable, and thus the Adul∣tery against Iohn Maxwel, was found by the Lords to be suf∣ficiently proved, though one of the witnesses deponed only upon an Adultery committed at one time, and another, of an Adultery committed at another time, February 1666. for

the Lords thought, that if one witness should peep in through a hole, and see Adultery committed, and thereafter another witness should peep in, and see the Adultery likewise com∣mitted, yet they were contestes, and did prove sufficiently, etiam ad paenam mortis infligendam, as was found in the proba∣tion of Adultery, led against George Swintoun; (but in my opinion) this case differs from the former, for in George Swintouns case, both the witnesses concurred in one Act, but they did not so in the case of Iohn Maxwel, and therefore, though the depositions were conjoyned against him, by the Lords, for sustaining a Decreet of Divorce; yet it were hard that these different Probations could have been conjoyn∣ed, if the case had been criminally pursued, as is clear by Farin. quest. 64. de oposition. contra exam. testium. num. 55.

XV. Witnesses who depon things that are contrary, do not prove, if that contrariety be in things that are substanti∣al, but though they differ in some extrinsick circumstances, yet they prove, & verba sunt improprianda, nut testes con∣cordentur, & etiam concordari debent aliquando à judice per in∣terpretationem supletivam, but though contrariety be a great defect in depositions; yet too formal an agreement amongst the witnesses, who depon all in the very same words, & per praemeditatum sermonem, is suspect, v. g. If two, or more wit∣nesses should tell over a long story, in the very same words, as Farin. well observes, quest. 64. num. 24.

XVI. Lawyers have taken so great pains, to secure the lives of poor Pannels, that they will not believe witnesses, though concurring, except they can render a sufficient causa scientiae, if the thing deponed fall under sense, as the seing a man killed; if it fall not under a sense absolutely, as that a person was drunk, mad, or repute a thief, &c. Betwixt which two, there is likewise this difference, that in these things that fall not under sense, the ratio scientiae must be giv∣en,

whether it be asked or not, because in effect, it is the ratio scientiae, and not the deposition, which proves in that case.

Witnesses must in our Law be received in presence of the Pannel, and Assize, that the Pannels presence may over∣aw the deponer, and that the Assize may judge by the de∣poners countenance, gestures, and assurance, how far he should be believed, and Advocats are to be present, that they may interrogat upon emergents, and this is much ju∣ster, than the Laws of other Nations are, who allow nei∣ther Advocat; nor party to be present, whilst the witnes∣ses depons, Gomes. de delict. cap. 1. num. 65. And in this al∣so we agree with the Civil Law, l. Custodias ff. de publ. ju∣diciis.

XVII. Witnesses are sometimes received, in crimina∣libus, ad futuram rei memoriam, for the defender, but ne∣ver for the accuser; and that because the accuser may blame himself, for not pursuing sooner, which is not in the defen∣ders power, and testibus non testimoniis creditur, whereas depositions, ad futuram rei memoriam, are only testimonia; And yet with us, the Justices sometimes declare in Court, when they continue dyets, that they will receive the deposi∣tions of witnesses, to lie in retentis; but this form is not al∣lowable in my opinion, except both parties consent; because by Act of Parliament, all probation should be led in presence of the Assize.

XVIII. It was a defect in our Law, that albeit it allowed the Pannel to object against witnesses; yet it did not allow him to cite witnesses to prove his objections: as for instance, if the pursuer adduced a witnesse, who was convict of Theft by a sentence at Aberdene, this would be relevant, but the Pannel could not prove his exception, both because the dyet was peremptor, and because he was not allowed to have a dili∣gence

for proving thereof; for remedy whereof, by the 11. Article of the Regulations of the Justice-Court, it was ap∣pointed, that when the Libel, or Summonds of Exculpation is execute, the names of the inquest, and witnesse should likewise be given to the defender, to the effect he might know what to object against them, and diligences are thereby allowed him for proving his objections. Against this Article it was mur∣mured, that first this would be very difficult; for the pursu∣er could not know what witnesses were to be adduced, and much lesse what Assizers might be present, for they could not assure their attendance. 2. This might prove a mean of cor∣rupting witnesses, and Assizers, who if known, might be pra∣ctised.

But to these it may be answered, that no man should raise a Criminal pursuite to vex men in their fame and fortune, till he were secure that he could prove hi•• Libel, which infers necessarly that he knew the witnesses who were to be adduced: And seing the pursuer might cite 45. he might be confident fifteen of them would obey, and be so wise as to evite the pe∣nalty: And this objection would tend much more against all continuation of Assizers for a whole year, which is very ordi∣nary. To the second it may be answered, that either the wit∣nesses to be adduced, are honest, and then there is no fear of pra∣ctising, or they are false and obnoxious to corruption, and then they should not be received at all: And it were inhu∣mane that a mans life and fortune should be laid open to the de∣positions of these, whom the Law durst not allow to be known, for fear of being brib'd, and corrupted. And this inconve∣enience could hardly have been evited before thir regulations, for ordinarily the defender knows who were present, and need∣ed suspect that none will be adduced, who were not present. As likewise when dyets are continued (as frequently they were) the witnesses were still known, but these jealousies

are by very much lesse dangerous, than the inconveniencies which attend the not allowing the Pannel to know what wit∣nesses are suspitious, and should be declined. And our Law should either not have allowed objections against witnesses, or else should have allowed a dyet, and means for proving them: nam quando aliquid conceditur omnia concedi debent sine quibus ad hoc perveniri nequimus.

XIX. If witnesses compeared not of old, the dyet was im∣mediatly deserted, but now Caption will be direct against them, and the dyet will be continued, for it is unreasonable that the pursuer or Fisk, should be prejudged by the contumacy of the witnesses; but if two compear, it may be doubted if eo casu, if the dyet should be continued, for two are sufficient for proving the Libel, but because moe witnesses than two are oftimes requisite, there being many circumstances to be pro∣ved, therefore it seems hard, that the dyet should not be even eo casu, continued: And at other times there may be obje∣ctions which may cast such as are present, and therefore the Justices continued the dyet against Braco Gordoun, the 11. of November 1671. Because the defender would not declare that he would use no objections against such as were present.

Though regulariter the Justices will grant warrand to appre∣hend and secure parties who are suspect of crimes, till they find surety; yet they refused to secure or attach, such as were cited to be witnesses, lest thereby they should discourage men from compearing to bear witness, December 1672. In answer to a petition given in by the Marquess of Montrose Tenents.

XX. By the custom both of the Council, and Criminal Court, ten witnesses are allowed to be cited upon every sepa∣rat matter of fact; and Article of the Libel, and no moe, to evite confusion; nor wants there precedents for the number of ten in this case, since cap. 5. Legis Mamimiliae, inque eam rem is qui hac lege judicium dederit testibus publice duntaxat in

res singulas decem. denunciandi potentatem facito: and I find in Valerius probus, this to be an Article, edicti praetorii testi∣bus{que} publice dumtaxat decem denunciandi potestatem faciam, to which number witnesses are stinted, by a Statute of Lewis the 12. of France, Langlaus. semestr. lib. 3. cap. 5. from which Statute, our custom seems to have flow'd:

TITLE XXVII. Of Tortour.

• 1. By whom can Torture be inflicted in our Law.
• 2. Torture purges all Presumptions.
• 3. Whether may persons who are condemned, be thereafter Tor∣tured.
• 4. Who are exeemed from Torture.
• 5. How should such be punished, who Torture unjustly?

I. TOrture is seldom used with us; because some ob∣stinat persons do oft-times deny truth, whilst others who are frail, and timorous, confess for fear, what is not true: and it is competent to none, but to the Council, or Justices, to use Tortour, in any case; and therefore they found, that Sir William Ball••ndene, as a Captain, could not Torture, though it was alledg'd, that this was necessar some∣times,

for knowing the motions of the enemy, and might be necessar, and allowed in some cases to Souldiers, for the good of the Common-wealth. And the Council are so tender in Torture, that though many presumptions were adduced against Giles Thyre, English man, suspected of Murder, and Adultery, they refused to Torture him; albeit it was prest zealously by His Majesties Advocat.

II. It is a brocard amongst the Doctors, that he who of∣fers to abide the Torture, purges all other presumptions, whi••h can be adduc'd against him; and yet Alexander Ken∣nedy being pursued for forging some Bonds, and nothing be∣ing adduced for proving the crimes, save presumptions, offered to abide the Torture, but th••s was refused.

Torture likewise being adduced, purges all former presump∣tions, which preceeded the Torture, if the person Torture∣ed, deny what was objected against him; but yet he may be put to the knowledge of an inquest, upon new presumptions, as was found after a learned debate, in the case of Toshoch, who was Tortured, for the alledg'd burning the house of Fren∣draught, August 1632. for it was alledg'd, that Torture is intended for bringing the verity to light, and as he had been condemned, if he had confest, so he should be assoilzied when he denies, else no man would endure the Torture, if they were not perswaded, that upon denyal, they should be clear∣ed, but would confess, and not endure so much torment un∣necessarly; so that the inquisition would be the occasion of much sin, and make men die with a lie in their mouth; and therefore To••ture is called, probatio ultima vid. Clar•• quest. 64. Yet Spot Maxwel of Garrery, and others were condem∣ned after Torture, upon other probation then was deduc'd be∣fore the Torture.

III. I remember it was debated in Council, Anno 1666. If the West-countrey-men who were condemned for Treason,

might after sentence be Tortured, for clearing who were their complices, and it was found that they could not, nam post condemnationem, judices functi sunt officio; yet all Law∣yers are of opinion, that even after sentence, criminals may be Tortured, for knowing who were the complices.

IV. One of the priviledges of Minors, is, that they can∣not be subjected to Torture, lest the tenderness both of their age, and judgement, make them fail, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Eclog. de quest. cap. 9. ad, yet l. 15. ff. de quest. Judges are discharged only to Torture such as are under fourteen; persons very old were not to be Tortured, for the same reason, l. 3. ff. ad S. C. sillan. which was by some extended to women, sick persons, and such as had been eminent in any Nation, for Learning, or other Arts, but all this is arbitrary with us.

V. These who Torture, if the person Tortured die, are punishable as murderers, but though they die not, yet by the Civil Law they were punisht, deportatione in insulam, or by banishment; and with us they are punisht according to the quality of the crime.

TITLE XXVIII. Of Remissions.

• 1. Whether he who uses a Remission acknowledges the crime.
• 2. How Remissions are granted.
• 3. For what should no Remissions be granted.
• 4. Letters of Slames, and Assithments, when necessary.
• 5. Persons condemned, are sometimes restored by way of ju∣stice.

WHen the Judges has pronounced his Sentence, he is fu∣nctus officio, and the punishment irrogat by him, can only be remitted by the Prince, though the Council may mo∣derat, or delay it.

The party condemned is restored either by way of grace, or of Justice, restitution per modum gratiae, is with us called a remission.

I. Remission then is the pardon of the crime, graciously al∣lowed by the Soveraign, and it may be given, either before, or after the Pannel is convict.

If it be given before conviction, the Pannel by making use of it, doth per fictionem acknowledge the guilt, and it he do not acknowledge the same, the Remission is null, and will not stop the execution, as was found in Alexander Kennedies

case, and this is a received maxime with us, yet ex sententia Doctorum, non videtur fateri crimen, qui gratia utitur, Alexander. consil. 70. Bossius de remed. ex clem. num. 29. nec potest judex dicere ei, qui vult ea uti oportet fatearis deli∣ctum, alias non uteris; yet Bossius tells us, that by the custom of Milan, he who uses a Remission, must acknowledge the crime, ibid. but our Law in its foresaid maxim may be recon∣ciled with these Doctors, for even with us, the taking a remis∣sion doth not prove the crime, since that may be done some∣time, rather upon the accompt of security, then guilt, & li∣cet se redimere à lite▪ and therefore Braids escheat, as an a∣dulterer, was not declared, Ianuary 1662. by the Lords of Session, there being no probation of the Adultery, but the Adulterers taking a remission; but the using a remission doth certainly prove, as was formerly observed from these Sta∣tutes.

This Remission is granted by a signatur under his Majesties hand, and is presented in Exchequer, which is equivalent with us, to that iterinatio mentioned by Perez. ad tit. de sent. Passis num. 16. Clarus. ••. fin. quest. 59. Num. 10. quae est ap∣probatio senatus, quae in causa cognitione versatur ne impetrentur gratiae per obreptionem, vel subreptionem; and therefore if the Remission be granted upon a misrepresentation, the Council will upon a Bill stop the same, till his Majestis further pleasure be known, as they did in Murray of Burghtouns case: and though by the 13. Act. 10. Par. I. 6. The writer of such signator••, should subscribe his name upon the back of the signator, to the end, that he may be answerable, if it contain any thing that is unallowable; yet the said remission granted to Burgh••oun, was sustained, though it had not been so subscribed, when it past his Majesties hand, yet being aledged to be in desuetud, but rather because the writer did thereafter subscribe. Ian. 1666. and these remissions are ordained to pass the great Seal, of de∣sign that the Seal should be a check upon them, but if they

passe the Seal, they cannot be recalled, tanquam surreptitia. Boss. ibid. num. 36. for, sayes he, they are ordained to be pre∣sented, in senatu, ne sint surreptitia, & ut inquiratur: And therefore it is appointed by the fourth I. 4. Par. 6. c. 62. that the Remission should contain the greatest crime for which the Remission is craved, and if the greatest crime be not exprest, the general clause remitting all crimes, will not defend against a pursuit for any crime that is greater then the crimes specified in the Remission suitable to which Lawyers assert, that qui petit gratiam, debet non solum delictum exprimere, sed & qua∣litates ejus, aliter uti subreptitia, nihil valet, sed non debet exprimere omnia delicta separa••a Boss. ibid. num. 33.

III. Remissions should not be granted for Slaughter com∣mitted premeditatly, or by Fore-thought-fellony, Stat. Dav. 2. cap. 50. where it is ordained, that no Remission shall be granted for homicide, till inquisition be first made, whether the Slaughter was committed by fore-thought-fellony, and if it was so committed, the Remission shall be null, & hoc con∣cessit rex, as the Text sayes, This is confirmed by K. Ia. 4. P. 6. c. 63. which Act is declared to endure, till his Majesty recal the same, and yet it is repute a temporary Act, and not∣withstanding thereof, remissions are ordinarily past for murder, as in the Erle of Caithness remission 1668. Against which, this was objected; but repelled. Yet in Flanders, and other places, this Law is still in force.

No Remissions should be granted for burning of corns in stacks, or barns, Act. 18. P. 7. I. 5. Which Act is not temporary, and yet is not observed, as was found in the foresaid remission.

All Remissions should be componed, and subscribed by the Thesaurer, Reg••strat in his Books, I. 6. P. 13. c. 169. Al∣be••t his Majesty may remit what injury is comitted against him, yet he cannot prejudge thereby the interest of third Parties. This satisfaction is by the Civilians called reparatio damnorum, by us an Assithment, and the obtainer of the re∣mission,

must find caution to refound the party injured, of all his damnage and interest, within fourty dayes after he produ∣ces his Remission, else his Remission is null, Act 75. P. 14. I. 2. Act. 136. P. 8. I. 6. & Act. 154. P. 12. I. 6. but these Acts are only temporary. But by the Act 174. P. 13. I. 6. Remissions granted to any persons, passing to the horn, for Theft, Rief, Slaughter, Burning, or Heirship, are decla∣red null; if the party laesed, be not first satisfied: and albeit it would seem by this Act, that Assithment subsequent to the remission, is not sufficient; yet the meaning of the Act is, that the Remission shall be of no avail, till the party laesed be satisfied.

Notwithstanding of these Acts, it is de practica very dange∣rous to challenge a Remission, and I am informed, that one of the learnedest Lawyers of his time, was sent to the Castle for quarrelling the Kings power, in granting a remission for fire-rais∣ing; yet I find a Remission produced by Iohn Bell, quarelled as null, because 1. It was given for murdering Cristopher Irving, and so is null by the foresaid Act. 2. The remissi∣on should contain the greatest crime, and Slaughter is not so great a crime as murder, Nor was the quality of fore-thought-fellony exprest. 3. It was not subscribed by the Thesaurer. The Justices delayed to give answer, but I find not the person was punished, 1643. As also Mackie being convict for falsit, and having enacted himself never to return under pain of death; thereafter he returned, and being pursued for his life, alledg∣ed upon a Remission. To which it was answered, that the remission was null; because he returned before it was obtain∣ed, and past the Seals, nor was it yet past. Upon which the dyet was continued, the 23. of Febr. 1622. But it is observe∣able, that the pursuit was here at the Advocats instance only, who could not quarrel his Majesties remission upon no ac∣count.

IV. If the party doth willingly grant a discharge of all

grudge, or revenge, in the crime of murder, this discharge is called a letter of Slants, and is called by the Doctors, litera pacis, and thus, Plot. consil. 78. sayes, that gratiafacta parti nocenti à principe non valet, nisi fiat reparatio damnorum, & in∣teresse, vel nisi pax sit prius habita, ab haeredibus offensi.

This rule hath some exceptions, both by the Common Law, and by ours, for by ours, exception is made of remissions granted for pacifying the Highlands, and Borders, which are valid, though the party laesed be not satisfied. Act 174. P. 13. I. 6. Which is introduced in favours of the publick quiet, and is founded upon the same reason, from which acts of in∣demnity are granted, without gratifying, or repairing these who were ruined by the persons indemnified. And for that reason also, rex potest gratiari nocentem, sine pace privati in∣teresse habenti, quando damnandus laborasset pro bono reipubli∣cae & fecisset illud, per quod multorum salus causata esset. l. non omnes. §. fin. ff. de re militari. By thir Remissions, the par∣ty is not restored to his good fame, l. 3. C. de gen. abolit in∣dulgentia patres conscripti quos liberat, notat, nec infamiam cri∣minis tollit, sed paenae gratiam facit. And though I think this should hold in such as are remitted, after they are condemned, because they are known to have diffamed themselves, by contracting that Criminal guilt; yet it should not hold in such, as secure only their own innocence by a remission, and redeem themselves rather from hazards, then from guilt.

V. The Kings Majesty sometimes restores the person con∣demned, by way of Justice, per modum justitiae, which he doth by rescinding the sentence, that stands against him as in∣just; and this is done, either in Parliament, if the person was condemned by them, or by a review, in the Justice Court, if he was condemned there; and in this case the party is re∣stored, not only to his Fame, but likewise to all his Estate,

even though it was bestowed upon a third party, as was afte much debate, found by the Parliament, 1661. in the case betwixt the Marquiss of Montrose, and the Marquiss of Ar∣gile.

TITLE XXIX. Of Prescription in Crimes.

• 1. How crimes did prescrive by the Civil Law.
• 2. Whether do crimes prescrive by our Law.

I. ACcording to the Civil Law, crimes did prescrive in twenty years, L. querela. C. defals. And Clarius doth assert, that generally all the Doctors are of opinion, that all criminal pursuits prescribe in that time, but this prescription did not run in some atrocious crimes, such as Sodomy, Pa∣ricide, Apostacy, &c. Wherein they erre, for where the Law sayes, that either semper paricidii accusatio permittitur, as l. ult. ff. de leg. Pompei. ad paricid or that nullus tempori∣bus arcetur apostotarum accusatio, that must be interpret, de prescriptione vigniti annorum, which is in Law, called longis∣sum

tempus, but the crimes of Adultery, and peculatus, pre∣scribe in five years.

II. It may be doubted with us, if prescription has place at all; and that it has not, may be urged from these grounds, 1. That prescription has no place with us, except where it is warranted by a particular Statute, and there is no Statute war∣ranting prescription in criminals. And if prescriptions found∣ed upon the Civil Law, had been sufficient in Scotland, there needed not any particular Acts to have been made in civil cas∣es; but since our Law thought necessary to make Laws as to presc••iption•• in civil causes, they had much more determin∣ed this po••nt, by Law in criminal cases, if they had thought it fit to extinguish crimes by prescription: but on the contrair, our Act of prescription in heritage, 1617. hath excepted the crime of Falshood from prescription. 2. There being jus quae∣situm to the King, by the committing of the crime, both quo∣ad vindictam, et bonafisco applicanda, that Right cannot be taken away from him, but by a publick Law, or His own pri∣vat Remission. 3. It seems unreasonable, that because a pri∣vat party will not inform, being either affraid, or negligent, that the publick should therefore suffer. 4. There is no in∣stance in all our Practiques, where prescription hath been su∣stained; but one the contrair, crimes of an old date, even af∣ter fourty years, have been punished. 5. ••emel malus, sem∣per praesumitur esse malus in eodem genere malitiae; and there∣fore it is unjust, to suffer a person to live in the Common-wealth, who will be both doing wrong himself, and inciting others to do so, by his example. Yet for the other part, it may be urg'd, 1. That the only end of punishment, is, that the crime committed, may be punished, to preveen the errour of others; but so it is, that after a long time, both the pub∣lick is presumed to have forgot, that any such crime was com∣mitted, and the parties injured, or presumed to have forgot, and remitted their privat revenge, for satisfying whereof, pu∣nishments

are inflicted. 2. After so long a time, any proba∣tion that could be led, against the Malefactor, either fails, or the witnesses after so long a time, may have forgot the exact circumstances; and it were very hard upon testimonies, that have so unclear a causa scientiae, as these witnesses can give, to take away a mans life. Likeas, the witnesses, and other probation will probably perish, whereby the defender might have exculpat himself, and mantained his innocenc; so that the Fisk, or any privat party, may by their negligence, or upon design, prejudge the Pannel of his defences, against the common rules of the Law, whereby mens negligence can on∣ly wrong themselves, and they have only themselves to blame, that did not make use sooner of the remedy appointed by the Law, for satisfying either publick, or privat revenge. 3. Since our Law doth punish Perjury, and poinding of Oxen, Usu∣ry, Stellionatus, and others; according to the Civil Law, it seems to be most agreeable to reason, that as these crimes are punished, according to the Civil Law, so they should be extinguished by the Civil Law, nam nihil est tam natura∣le, quam unumquod{que} eo modo dissolvi, quo colligatum est, & quem sequitur incommodum enim sequt debent commoda: And the Act 1617. did introduce prescription with us, as the Act it self bears, because it was allowed by the Civil Law, and the Laws of other Nations. 4. It were absurd, that in the case of Treason, which may be inquired into after the defen∣ders death, there should be no period of time, whereby Fa∣milies might be secure; and that it should be lawful, after two, or three hundred yeares, to vex Families, of great Ho∣nour, and Interest upon pretext of crimes committed by their Predecesso••s. 5 This prescription is very justly introdu∣ced, to punish the negligence of such, as will not pu••sue crimes; and it is most presumeable, that if they pursue, af∣ter they have delayed for so long a time, that any pursuit thereafter intented, is rather intented upon some superveni∣ent

quarrel, and picque, then upon the account of the crime. 6. The fear of punishment, and conscience of the guilt, for so long a time, is in it self a sufficient punishment; And so GOD Almighty himself thought in the case of Cain; and therefore to punish after so long a time, were to punish twice. By our Law, recent crimes are more severely punisht then others, as murder with red hand, and the thief taken with the fang, and by how much the crime grows older, by so much it should be the less punished. 7 The necessity of example, which is the reason inductive of punishment, fails in old crimes, so the punishment should then also be remitted, as unneces∣sary.

To the contrary arguments, it may be answered, to the first, that our criminal law, being much more founded upon the Civil Law, then any other part of our Law is (as shall be clearly proved) there needed no particular statute in this case with us, especially seing this prescription of twenty years in crimes, has in effect become the Law of Nations, and se∣veral other Nations, who have many Statutes in other cases, have yet allowed of this prescription without any particular Sta∣tute. 2. There seems to be greater reason, that an Act should have been necessary for prescription, in civiltbus, then in crimes, because in civil cases, the Roman Law was very various, and quoad, the particular periods of time was alter∣ed by all Nations, according to the particular state of their affairs; but in criminals, their prescription was exactly ob∣served, by all Nations, and was very reasonable; and there being exp••esly, jus quaesitum incivilibus, to every privat per∣son, it was necessary that should have been taken away by an expresse Statute; but it is not so in crimes, where in ef∣fect. At first there was no express, jus quaesitum, either to the King, or any privat party, but only à ••otestas acquirendi; for the jus qu situm, is only by the sentence, for before sen∣tence, the Fisk could not dispon upon; and so had no right to

the Malefactors goods, and this answers likewise the second reason.

To the second, third, fourth, and fifth, it is answered, that doubtless, the wise Romans, and other Nations, could not but have these inconveniencies under consideration, when they introduced the foresaid prescription in crimes; and to the third, it is particularly answered, that if privat parties will not pursue their revenge, they justly lose the capacity by their negligence, and His Majesty having so many sworn Officers, in every corner of the Land, it is not presumeable, that any inconvenience will arise through want of information, but if there do, it is much more reasonable, that these negligent Judges should be punished, especially seing there are express Laws, appointing negligent Officers, in such cases, to be punished. To the fourth, it is answered, that negative Ar∣guments, brought from the not being of a Law, or a custome, is not concluding, for as in many other cases, so this might have been argued, as strongly as here against His Majesties Advocat, when he of old crav'd, that the Heirs of Traito••s might be forefaulted, for their Predecessors guilt. And when he of late crav'd, that probation might be led against Trai∣tors in absence; in either of which cases, there was neither Act, nor Practique; nor could any thing have been alledg∣ed, but the Authority of the Civil Law, and the consent of other Nations. To the fifth, the crime being taken away by so long a time, it were unjust to take away a mans life, upon the former prescriptions; and the fear of punishment, is a sufficient punishment, for all the malice arising from that prescription: neither is it presumed, but that if a Malefactor continue to be ill, he will be pursued within twenty years; and if he did for twenty years live so soberly, and discreetly, as that the Law thought not fit to take notice of his former crime, there is little hazard of any future malice.

And to this opinion I rather encline, because Carpzov. re∣lates,

that albeit by the Statutes of Saxonie, prescription is only introduced by expresse Statute, in moveables, and he∣ritage, and that there is no express Statute, as to prescription in criminals, yet these prescribe also in twenty years; be∣cause that prescription introduced by the Civil Law, is not expresly abrogated amongst them, nam non praesumendum est totam praescriptionum observationem tantis vigiliis excogita∣tam, Saxoniae legislatorem evertere voluisse, ut in simili casu dicit Imperator. l. 34. C. de in offic. test. & Petr. Heig. part. 1. quest. 26. num. 47. vid Carpzov. part. 3. quest. 141.

TITLE XXX. Of Punishments, de paenis.

• 1. The design of punishment.
• 2. Whether crucifying, or banishment, be lawful punish∣ments.
• 3. Whether a man can bind himself under the pain of death.
• 4. Whether arbitrary punishment can extend to death.
• 5. The loss of life is still followed by loss of moveables.
• ...

• 6. How far can ignorance, anger, drunkenness, or com∣mand, either excuse from punishments, or lessen them.
• 7. How far doth Nobility, or great Merit, excuse, or mi∣tigat punishment.
• 8. How far doth the inconsiderableness of the transgression mi∣tigat, or lessen the punishment.

I. PUnishments are inflicted, not only to satisfy, either the publick revenge of the Law, or the privat re∣venge of the party, but rather to deter others for the future; and yet they are rather inflicted upon either of these designs, then to punish the offender, and make him insensible, for what is done can no more be helped.

Some crimes are so horrid, and so unknown to the world, that it is not fit the Malefactor should be punisht publickly: thus some crimes have been tryed in Scotland, at midnight, and the Malefactor immediatly drowned in the North-loch, without inserting any part of the Process in the Journal Books, wherein also I found, that Malefactors were ordain'd to be ex∣ecute very early in the morning, for bestiality, which was oc∣casioned by the confession of one, who asserted, that the reason of his committing that crime, was a curiosity he con∣tracted at his seeing one execute for it. And in such crimes no man needs to be deter'd, nor w••ll terror restrain him, whom nature cannot. Since then executions for some crimes, incite some to curiosity, and vex others with horror, and are ne∣cessary to none, some may be more properly punished privat∣ly, then publictly, and thus such persons as are popular, and are execute only for crimes, for which the people have a kind∣ness, will be more happily execute privatly, then publickly, because the persons executed, are by publick executions ob∣leidged to die rebelliously, and the people are confirm∣ed

in their good opinion of them, by their courage at death.

II. Constantine did forbid, that any Malefactor should be cru∣cified, and this he did, because of his respect to the Cross; he likewise did forbid, to stigmatize the face, l. 17. C. de paenis, because the face is Gods Image.

Martyrus was of opinion, that banishment was not lawful, lest the person so punished, should be forced to live amongst Turks, and others, by whom he might become more flagitious, then for∣merly; and I have oft thought it inhumane, to send our Ma∣lefactors to our neighbours, and imprudent, because it will occasion the sending of theirs from home, whereby we may be likewise troubled with such as they have banished: and it is probable, that Correction-houses would be both safer, and more advantagious, for in these they may serve the pub∣lick, whom they have offended; but with us, no Judge can confine a man, whom he banisheth to any place without his Jurisdiction, because he hath no Jurisdiction over other Coun∣treys, and so cannot make any Acts, nor pronounce any sen∣tences relative to them.

Torturing punishments at death, are also very inexcuse∣able, for they oft-times occasion blasphemies in the dying Malefactor, and so damn both soul and body, whereas the soul should be allowed to leave quietly this Earth, and go in peace to the Region of Peace; nor doth these terrifie others from the like offences, for these who fear not death, will fear nothing.

III. It was a rule amongst the Civilians, that no man could obliedge himself to any thing under a corporal pain, quia nemo est dominus suorum membrorum. But with us, it is most ordinary for a man who is guilty of a crime, to obliedge him∣self never to return to Scotland, under the pain of death; thus Hamiltoun was hang'd, Anno 1649. for returning to Scot∣land after she ha•• enacted her self, never to return under pain

of death, and her dittay was only founded upon that contra∣vention; and certainly, contempt being added to the former guilt, may make a crime that was not capital, become so: and this contravention implies in effect, paenam effracti carceris, which is oft-times capital; so that though a person cannot bind himself, when he is guilty of no crime, to perform any thing under pain of life, or limb; yet if he be guilty of a crime, he may consent, and enact himself, as said is.

IV. Whether when Law allows a Judge an arbitrary power in punishing, that Judge may inflict death, in that case is much contraverted. Chassan. and Socin. think that he cannot, and this seems clear, 1.4. qui vexant annonam debent puniri extra ordinem non tamen animae amissione Inst. de publ. ind. And Pappon. relates, a Decision of the Parlia∣ment of Paris, finding that it could not. 2. This would make Judges very arbitrary, and render the Lives, and Fortouns of the Leidges very unsecure. 3. Seeing Lawyers are of opini∣on, that no mans life can be taken away without an expresse Law, it seems very consequential to this, that no mans life can be taken away upon so general a Law. 4. By the 20. Act Parl. 1. Sess. 1. Ch. 2. death, and arbitrary punishment are opposed: For these who haveing past sixteen years of age, beat, or curse parents, are ordained to die, but if they be within sixteen, and past pupilarity, they are ordained to be arbitrar∣ly punished. Whereas, if arbitrary punishment might be ex∣tended to death, this difference would be ineffectual, and the Law thereby evacuat. And by the 5. Act 1. Parl. Ia. 6. the punishment of saying, and hearing Messe, is escheating of their goods, and an arbitrary punishment of their persons, for the first fault, banishment for the second, and death for the third; so that arbitrary punishments is lookt upon, as lesse then death, else the first fault should be as seveerly punished as the third, against both the principals of reason, and the de∣sign of the Law-giver. 5. Arbitrary punishment is appoint∣ed

ordinarly for so mean, and inconsiderable faults, that it were inhumane to think, that these could be extended to death: Skeen also, de verb. sig. verb. iter. sayes, that if the Pannel come in will, it is lawful for the Justice to fine him, according to his offence, but he speakes not there of his pow∣er to infl••ct death, eo casu; and yet Skeen ad cap. 6. l. Mal∣colimbi. vers. 2. Wherein it is statute, that the Marischal, and Constable shall punish offenders, according to the quality of the offence, observes, that paena extraordinaria, may be sometimes extended to death; because of the aggradging circumstances, and cites for this, l. ult. ff. de priv. delict. & 16. de paenis, but these Laws are ill cited, as will appear by reading them. When the pain is by Law, or custome arbi∣trary, and the defender comes in will, he must presently find caution to satisfie the Kings will, betwixt and such a day, this is the constant custome, and was practized the 22. of Novem∣ber 1600. Advocatus contra Patrick Mc. creif, and others, but where the crime is punishable by an expresse, and determinat punishment there, though a defender come in will, it ought not to be received, and thus the Marquise of Argile being pur∣sued before the Parliament for Treason, offered to come in will, but his submission was not accepted.

V. It is uncontraverted with us, if when any crime is punish∣able by death, the Moveables falls to the King, though the Act bear not, that the crime shall be punishable by death, and confiscation of Moveables; and according to the Civil Law, proscriptus eratis cujus bona expressim confiscabantur, damna∣tus vero cujus bona tacite, publicatio enim bonorum sequebatur ta∣cite paenam capitalem, Matheus cap. 2. de Sicartis, num. 2. And albeit the Judge should omit in his Sentence, the punish∣ment due by Law; yet ipso jure, there is by the damnation, jus quaesitum fisco, as was found after a large debate, in the case of Wauch, who being a landed man, found guilty of Theft, though he was only fined by the Sheriff in a thousand Pounds;

yet the Donator to the Escheat was found to have right to all the Estate, and that without any new sentence, which is con∣form to l. 1. & 2. ff. de bon. damnat. & l. 2. C. de bon. pro∣scrip. But it seems hard, that confiscation of Moveables, should still follow upon all crimes, though the Law expresse not that way of punishment, seeing this is to punish the Chil∣dren, and not the committers only, and since this having been only invented by Iulius Caesar, as Suet. observes, Iustini∣an did hereafter by his Novel. 117. cap. 5. appoint that the offenders Goods should only be confiscated in Treason, for that crime taints the Blood; nor have we any Law with us, appointing confiscation in all capital cases: Liv. tells us, that this seem'd barbarous in the Roman decemviri. lib. 3. and He∣rodot. assures us, that even the Persians would not confiscat the offenders Estate, in the Crime of Treason, lib. 3. Nor would the Emperor Aurelian, allow it, lest it should be thought, that he pursued rich Malefactors, meerly for their Estates, and really some Judges are to be jealous'd upon that account. But though mens escheat should not fall without ex∣press Law, yet custom hath supplied Law with us in this.

Since a person who is interdited cannot, dispon upon his Moveables, the question is, if they can fall under his Escheat, or if he can prejudge himself by his confession, for tantum fa∣cit quis de linquendo quantum facere potest contrahendo; And therefore since he cannot alienat them by contracting, so nei∣ther should he be able to alienat them by delinquency, espe∣cially if the interdiction be judicial, by the authority of a Judge, and founded upon the persons being prodigus, or of a weak judgement: the like may also be doubted, in the case of one who is Proprietor of Lands by a Tailzie, bearing a Clause, de non alienando, irritanter, & resolutive concep∣ta, who may evacuat the Tailzie, if it may be forefeited upon his delinquency; As to the first of which cases, Lawyers are of opinion, that since Prodigals are esteemed as Pupils,

that therefore their Goods cannot be confiscated upon any con∣fession emited by them, without the consent of these to whom they are interdited. Cabal. Cas. 48. Bald. ad l. 1. C. de con∣fess. But they think that if the crime be proved against them, then their Goods may be confiscated, for this priviledge of in∣terdiction being introduced in their favours, ought not to be advantagious to them, in defending them against guilt, Ca∣strens. ad l. etiam. ff. Solut. matr. And with us, since inter∣diction cannot defend against Captions, much less ought it to defend against crimes. As to the second question, it is clear, that such Tailzies, how ever conceived, cannot defend against forefeiture, for it is not in any Subjects power to secure his own Estate against crimes; and if this could hold, then no mans Estate should ever forefeit, for all men would adject such conditions, and this would invite them to commit crimes, whereas the Law endeavous by all means to deter them.

Because many of our Laws appoint crimes to be punished, according to the prescript of the Civil, and Common Law, as Falshood, Perjury, &c. And that many punishments there used, are now in desuetude: therefore it is fit to know, that in place of damnatio ad bestias, succeeds heading, or de∣collation, in place of damnatio ad metallum, Succeeded the Gallies in Erance, and the Correction-house with us. De∣portatio with them, is ban••shment with us; and relegatio with them, is confinement with us.

When two Laws inflict different punishments, upon the same crime, how far the one innovats the other, I have de∣bated fully, Tit. Deforcement.

Paenae sunt temperandae (pun••shments are moderated) in the opinion of Lawyers in these cases.

VI. Ignorance, which excuses none, if it be of the Law of Nature, but ignorance of the meer positive Law, excuses in some cases, Women, Pesants, or Bours, rustici quando

agitur de dolo praesumpto secus vero ubi agitur de dolo vero, nec excusantur ubi clam deli querunt. Ignorance also, in matter of fact, excuses persons, though judicious, if they followed the faith of such as understood, si crediderunt viro fide digno, as Counsellers, Lawyers, &c.

2. Just anger, and grief lessens the punishment, sive pro∣veniat exfacto adversarii, sive tertii, licet hoc non sit sine scru∣pulo Farin. quest. 91. But I think that it should only lessen the punishment in arbitrary cases, but not in statutory punish∣men••s.

3. Youth, and great age, sometimes excuse, but of these formerly, Part. 1. Tit. 1.

4, A man who is drunk, if he used not to be so, is some∣what excused, and is not punished for having committed the crime (seeing it is presumed, he understood not what he was doing, because he was drunk) but if the defender fell drunk upon design, or gloried in having committed the crime, he is not thereby excused. Love also excuses in what is done, ex subito & improviso amoris impetu, secus si praemeditate, but even in the fi••ft case it only mitigats the punishment.

5. The custome of the place excuses, or at least lessens the punishment, when the crime is not committed against the Law of God, or Nature, for Laws abeundo in desuetudinem fiunt non leges, & non est in mala fide, qui facit, quod omnes faci∣unt. But this was repelled in the Marquiss of Argiles case; who alledged, that he complyed only with the usurpers, in the same manner, tha•• all the Nation complyed, and yet the Council ordinarly admit this, to defend Highlanders, when they are cited for travelling with Guns, and other Arms, be∣cause it is the custome of their Countrey. And I think this may be alledged, to defend such as are accused for Witch∣craft, in consulting such as can tell where they may find what they lost, or was stollen from them, but not from all punish∣ments.

6. The command of a Superiour or such as a master excuses, his servant, as has been said in the Tittle of Theft, and of a Magistrat excuses Burgesses in Insurrections, hath been obser∣ved in the Title Sedition, and Messengers in executing De∣creets, as hath been observed in the Title Deforcement, a son also is to be excused if he obey his father, & in atrociori∣bus à paena ordinaria & omnino in laevioribus, as is obser∣ved in the Title Art and part.

7. Noblemen should get some allowance during the de∣pendance of the process, and are never to be sent to correction houses, Pillories, &c. and as in no crime they were punish∣ed by the Civil Law, till the prince was first consulted (which we observe not) so if they commit a delict, or lesser Crime, in∣necessary defence of their honour they are to be excused à pae∣na ordinaria, and generally, the Doctors think, that where others should only be banished, except when by their crime, they have foresaulted the Title of Nobility, as in betraying the Countrey, in stealing, &c. For in these cases, they are to be more severly punished then others.

8. Great merit, and skilfulness, excuses some crimes, and good successe is also an ordinary defence, as if a Souldier who disobeyed order, should beat the enemy by that disobe∣dience.

9. These who are pursued at the Kings instance, for crimes committed in another Countrey are to be more gentle∣ly punished, because the scandal was not given there, and so the offence was lesse in that countrey, and some Lawyers are of opinion, that the punishment should be still lesse, where the privat party injured insists not, Cod. fab. tit. de paenis def. 22. and because the scandal grows weaker, as it grows old, there∣fore after long silence, the punishment is to be moderated, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. l. 25. ff. h. t.

For where the Law States a definit punishment, the Justices

can neither augment, nor lessen it, else to what purpose should the Law specifie punishments in some Statutes, and allow the Justices an arbitrarinesse in others. l. 244. ff. de verb. sig. mul∣ctae potestas judicis est quantum dicat, sed hoc ita verum, si non lege sit constitutum, quantam dicat, and since men are punished because they transgresse the Law, therefore they should only be pun••shed according to the Law, and the due observance of this, will keep Judges from being arbitrary, and the Liedges from being oppressed,

VIII. Whether the meannesse of the transgression, should defend against punishment, or should only mitigat the punish∣ment, seems to be dubious; because of the undigested dis∣courses, of such as treate that subject; yet I think they may be solidly reduced to these three conclusions, 1. That where there appears to have been dole, or contrivance in the committer, there the smalnesse of the transgression, doth on∣ly lessen the punishment, if it be arbitrary by the Law, as for instance, if a man should paction for sex Shilling, and two pence per cent, where the Law allows only five Shilling, per cent though the Sum lent, were very inconsiderable, and the excess be there very Small; yet it should infer Usury; because a clear design of offending the Law, did there appear, by the expresse paction: and in such cases our Judges find the Libel relevant, but reserve to themselves the consideration of the Smalnesse of the excesse, when they shall come to tax the punishment. 2. If the punishment be severe, and that it cannot be remit∣ted by the Judge, As if the Law appoint Theft to be punish∣able by death, it were unjust that an inditement of Theft, should be found relevant for stealing two pence. 3. If it appear by the meanness that there was no design of transgression, and that the Cōmitter designed not for so small a matter to cōmit a crime, in that case, the meannesse of the transgression ought to defend against the relevancy; For as Lawy••rs have well observed, minimum non attenditur in delictis dolosis Cravet.

Consil. 46. nec praesumitur. Cardinalis Simoniam com∣misisse pro re minima. siquestio est de simonia. And to these cases only, doth that Law extend, de minimis non curat praetor. l. scio ff. de in integrum restit. And therefore if a person should be endited for committing Usury, in so far as he took Annualrent before the Term, if the excesse were small, be∣cause the Annualrent was very inconside••able and was taken, but a Moneth or so, before the Term of payment, the Libel should not be sustained against him; for it is not presumeable, that he took that Annualrent out of avarice, but negligently, looking upon it as no breach of the Law; or upon some other innocent accompt, as because the Debitor and he were to fit other accompts, or the Debitor was to go out of the Coun∣trey, and thus the Council decided in the case of Purves Anno. 1666.

Where the punishment is arbitrary of its own nature, the Council may moderat the punishment determined by the Ju∣stices. 2. Where the punishment is statutory, and determi∣ned by a special Law, as in Treason, &c. it may be argued, that there the Council can no more mitigat, then they can re∣mit. 3. Though custom be equivalent to statute in other cases, yet in cases where the punishment depends upon custom, as theft, I have often seen the Council alter the punishment from death to banishment: But it were surer, that even in this last, the mitigation were procur'd betwixt the reading of the verdict, and the pronouncing of doom; for after doom, jus est quaesitum Regi, as to all the Moveables, and life.

TITLE XXXI. Of Criminal Sentences, and their Executions.

• 1. The form of a criminal sentence with us, and how it is pro∣nunced.
• 2. The debate is not insert in the Sentence.
• 3. Whether the Sentence be null, in totum, if the Iudge pu∣nish in lesse, then the Law allowes.
• 4. Whether Criminal Sentences may be pronunced in the night time.
• 5. Whether the verdict of an Assise, be necessar in all cases with us.
• 6. Within what time should a Criminal Sentence be put to exe∣cution
• 7. Whether Magistrats may force men to be executioners.
• 8. How absents are to be proceeded against, and when Letters of Intercommuning, and Commissions of fire and Sword are granted.
• 9. Whether doth all punishment cease, by the death of the party.
• 10 If a criminal Iudge may retract his own sentence.

I. AFter Probation is led, the Assize is inclosed, who return their opinion, which may be called their sen∣tence, and this sentence is called a verdict, or verdictum, nam

sententia pro veritate habetur, but that which is properly the sentence in a criminal Cause, is that deliverance of the Judge, whereby the Pannel is condemned, and punish'd, or absolv∣ed from all punishment: and this Sentence is in criminals, by our stile, call'd an Act of conviction, or an Act of absolvi∣ture: But acta, in the stile of Lawyers, expresses only the middle Acts of the Process, acta judicilia, but not the Sen∣tence. Sometimes likewise the criminal sentence is in our Law called a doom, especially in forfeiture; yet to speak strictly, these two differ, for that part of the sentence, which finds the Pannel guilty, or innocent, is called the Act of con∣viction, or absolviture; but that part of it, which irro∣gats the punishment, is called the doom; and these two are sometimes separate, which falls out when a long time inter∣veens, betwixt the finding a person guilty, and the pronun∣cing of his punishment: but ordinarly they are conjoyn∣ed. All which will appear more clearly, by the several forms here exprest.

An Act of Conviction, and Doom, Curia, &c.

THe which 〈◊〉〈◊〉 day being entered upon Pannel, dilated, ac∣cused, and pursued, be vertue of Our Soveraign Lords Letters, raised at the instance of A and B. Advocat to Our So∣veraign Lord, for His Highness interest, who compeared per∣sonally, to pursue them for the crimes following; that is to say, for so much, as be divers Acts of Parliament 〈◊〉〈◊〉 as in the said di••••ay at more length is contained, after reading of the whilk ditta••, and divers alledgeances proponed be the Pannel, 〈◊〉〈◊〉 and their Procurators, and writes produced for instructing there∣of,

that the said matter should not passe to the knowledge of an Assize, and answers made thereto, be Our Soveraign Lords Ad∣vocat, and writes produced be him, for veryfying there∣of. The Iustice fand the dittay relevant, and did put the sa∣men to the knowledge of an Assize, of persons follow∣ing they are to say, 〈◊〉〈◊〉 whilks persons of Assize being chosen, sworn, and admitted, and the said 〈◊〉〈◊〉 being accused of the dit∣tay of the crimes above-writen, which were verrified be their own depositions, and confession in Iudgement, they removed al••ogether furth of Court, to the Assize house, where they be plurality of vots, elected, and chosed the said C. reasoned, and voted upon the points of the said dittay, and being ripely, and at length advised therewith, togither with the depositions 〈◊〉〈◊〉 and other writes produced be His Majesties Advocat, for the verifi∣cation thereof, entered again in Court, where they all with one vot, be the report of the said Chancellour, fand, pronunced, and declared the said D. to be filed, culpable, and convict of the crimes respective, above-writen, contained in their said dit∣tay, for the whilks cause, the Iustice be the mouth of 〈◊〉〈◊〉 demp∣ster of Court, decern'd, ordain'd, and adjudg'd the said 〈◊〉〈◊〉 to be taken to the Castle-hill of Edimburgh, or Mercat Crosse, and there to be hanged till he be dead, and his hail moveable goods to be escheat to His Majesti's use, or their heads to be stricken from their bodies, and the said 〈◊〉〈◊〉 to be taken to the Mercat Crosse of Edimburgh, and there his Tongue to be pierced with an hot bot∣kin, and thereafter banisht this Realm, not to be found therein∣til under the pain of death: Or to be scourged, and all their moveable-goods to be escheat, which was pronunced for doom, ex∣tracted.

Act of Conviction.

THe whilk day 〈◊〉〈◊〉 entered upon Pannel, dilated, accused, and pursued be 〈◊〉〈◊〉 be vertue of Crimes purchast be him, against them, of Art, and Part of demembring of 〈◊〉〈◊〉 of the midle finger of his left hand, nearest his little finger, committed the 〈◊〉〈◊〉 day of 〈◊〉〈◊〉 upon the Street of 〈◊〉〈◊〉 which was put to the know∣ledge of an Assize, of the persons following, they are to say 〈◊〉〈◊〉 whilks-persons of Assize, being chosen, sworn, and admitted, after accusation of the A. of the crimes foresaid; removed altogi∣ther furth of Court, to the Assize house, where they be plurali∣ty of vots, elected and choosed the said in Chancellour, rea∣soned, and votted upon the points of the said dittay, above-specified, and being advised, re-entered again in Court, where they all in voice, be the mouth of the said Chancellour, fand, pronunced, and declared the said 〈◊〉〈◊〉 to be filed, culpable, and convict of Art, and Part of demembring the said 〈◊〉〈◊〉 of his midle finger, nearest his little finger, of his left hand, committed the time foresaid, whereupon the said 〈◊〉〈◊〉 asked Instruments, Extractum, &c.

Doom for Demembring.

THe whilk day, &c. being entered on Pannel, to hear doom pronunced against them, as they that were convict be an Assize, in a Court of Iusticiar, holden within the Tolbooth of Edimburgh, the 〈◊〉〈◊〉 day of 〈◊〉〈◊〉 instant, for Art, and Part of he demembration of 〈◊〉〈◊〉 ut supra, the Iustices be mouth of 〈◊〉〈◊〉 dempster, decerned, and ordained the said 〈◊〉〈◊〉 to content, and

pay to 〈◊〉〈◊〉 the sum of three hundred Merks, in full satisfaction, and assithment, of the demembration of him of the said finger, and to find caution for payment of the said sum, to the said 〈◊〉〈◊〉 upon condition that the said 〈◊〉〈◊〉 should deliver to the said 〈◊〉〈◊〉 suffi∣cient Letters of slaynes, for demembring him of his little fing¦er, who fand 〈◊〉〈◊〉 with themselves, conjunctly and severally, so∣verty, and cautioner fore-payed of the said three hundred Merks, to the said 〈◊〉〈◊〉 in full satisfaction, and assithment, of demem∣bering him, of his midle finger, he grant and, and giving a sufficient Letter of slaynes, as said is, and als decern'd all the saids 〈◊〉〈◊〉 their moveable goods, and geir to be escheat, and in∣brought to Our Soveraign Lords use, as being convict of the said crime, whilk was pronunced for doom, and ordains Letters of Horning, upon a simple charge of ten dayes, and poynding to be direct hereupon.

Dempster our countrey-man, hist. eclest. pag. 235. relates this solemnity, which is now in desuetude, lapidem tollit ma∣gistratus signatum{que} quaerenti tradit, ille adversarium & testes citat, si quid ambiguum, & majoris momenti, ad 12. (quos cla∣ves appellant) refertur, at{que} ita sine scriptis aut impensis lites di∣rimi sunt solitae.

II. By the former stiles it will appear, that the debate is not insert in the Criminal Sentence, as it is in Civil Process, with us, but it contains oft-times the whole Summonds, which Decreets for Civil Causes do not. These Criminal Sentenc∣es likewise, express still the manner of the Probation, which is the because of the Decreet, as we speak in civil causes, and this the Doctors confess to be the custome in other Kingdoms, inferitur enim causa in sententia, ut quod talis accusatus est de tali malificio, & quod constat per tefles vel per ejus confessio∣nem, quod illud, maleficium commisit & ideo condemnatus est, &c. Clar. 93. num. 21. After the Sentence is pronunced by the

Judge, it is writen by the Clerk, who reads to the demp¦ster, the manner of punishment, and it is by him repeated, and the manner of punishment is called the doom, because it is pronunced by the dempster, who adds after he has pronun∣ced the pun••shment, and this I give for Doom. And I find, that by the custome of Italy, the Clerk reads the Sen∣tence, and the Judges adds, ita absolvo vel ita condemno Clar. ibid.

III. Albeit the Sentence bear a punishment, less then what the Statute irrogats, eo casu, the Sentence is not by our Law null, but the Fisk hath, by vertue of the conv••ction, con∣tain'd in the Sentence, ••ight to put in execution, or to ex∣act what the Law appoints, though the Sentence doth not. And thus Iohn Wauch in Selkirk, being found guilty of theft, by the Sheriff of that Shire, he was ordained to pay two thou∣sand Merks, or to go to Barbodoes, in obedience to which Decreet, he payed the two thousand Merks. Notwith∣standing whereof, the Exchequer gifted his liferent-escheat to Mr. Andrew Hedderweik, who pu••sued a declarature; in which the Lords found, that Wauch being once found guilty of Theft, there was jus quesitum Regi, which the Sheriff could not prejudge, by any Sentence, no more then he could remit the punishment altogether, for in so far as he did mitigat the punishment, in so far he remitted it. To which it was an∣swered, that Theft was arbitrarly punished by our custome, sometimes by death, sometimes by fyning, according to the several degrees of the guilt, which was punishable; and cu∣stome had in this prorogat the power of inferiour Judges. 2. If the Sheriff had done wrong, he was lyable, ex sindi catu, and might be punisht for exceeding his power, but the party was free by his Sentence; and if the Sheriff had absolved him, though injustly, he could not have been pursu••d again; so much more should the Sentence of the Sheriff, absolve from a

greater punishment, then that which the Law appoints; nam qui potest majus potest & minus.

IV. Some Lawyers declare all Criminal Sentences, pro∣nunced in the night time, to be null, but others declare, that custome hath allowed them; and though some allow inferiour Judges to proceed in the night time; but not Supream Judges, Alber. ad l. non minorem, C. de transact. And some allow delegat Judges to pronunce their Sentences in the night, but not ordinary Judges; becaus•• the dyets of an ordinary Judge are fixt, by the custome of his Predeces∣sors: whereas a deleg••t Judge, is tyed to no time, nor place, except he be tyed to it by his Commission, Castren. ad D. l. minorem. num 4. Yet I would rather choose to de∣fine, that albeit regularly, a Judge ought to proceed in open day, to sentence criminals, yet he may pronunce Sen∣tences lawfully in the night time, in these cases. 1. If the case require hast, as in mutinies, and conspiracies falls oft out. 2. If the crime be so abominable, that the Prince, or Judge is unwilling that the people should know that there was such a crime committed, as was done twice by the Ju∣stices, in the reign of King Iames the 6. by his own special recommendation, and then all the Process, Sentences, and Executions, was at midnight. 3. If there be just ground to suspect, that force will be used, for rescuing the Pan∣nel 4. Some add, that if the Judge be so busy, that he cannot proceed in the day time, he may proceed in the night time; but this seems hard, vid. Cab. res. crimin. cas. 218.

V. Though a formal tryal, by a Process, and Assize, be the regular form of tryals, yet in cases of lesser consequences, the Justices, and other crim••nal Judges, punish Malefa∣ctors, in lesser Crimes, sine strepitu, & forma judicii su∣marly, by ordaining them to be scourged, or banisht; in∣stances

whereof, are given in the Titles of Murder, and Witchcraft; and the Justices allowed this custome in the pro∣cedure of the Magistrates of Edinburgh, which as it is conform to reason, so is warranted, per. l. 2. §. 51. publico ff. de adulter. l. 2. C. de abol. l. levia ff. de accusat. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. And though Durhie observes, that the Lords found, that Sheriffs, and other inferiour Judges, could not fine in Bloodwites, for above ten Pounds, with∣out an Inquest; yet now Sheriffs fine, and imprison for all Bloodwites, and lesser delicts upon probation, led before them∣selves without an Inquest.

VI. Within what time a Criminal Sentence should be put to Execution, is not generally determined; and the learned Matheus has shewed much reading in this point, yet I might begg leave to use some liberty, being now so near the end of this Treatise; to shew what may be added, to his learned Observations, from which I have hitherto abstain∣ed, because my designe was rather to inform others, then to raise in them any esteem for me. By l. 5. C. de custod. reor. It is ordained, that convictos velox paena subducat; But l. 20. C. de paenis, it is said, nollumus statim eos aut subire paenam, aut excipere sententiam, sed per triginta dies super statu eorum, sors & fortuna suspensa sit. In reconci∣ling which Laws, Cujac. thinks, that generally the punish∣ment should be presently inflicted, and that thirty dayes are only to be allowed where the Prince himself has imposed a se∣vere sentence, which seems to be allowed by that learned Greek Scoliast Thalalaeus si princeps statucrit paenam in aliquens non statim punitur, sed dierum triginta dilatio datur, forte enim princeps interim paenam revocabit, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

And though l. 19. Basil. de custod. reor. & cum fuerit con∣v••ctus, non statim paenam pendere; sed rursus conjici in cu∣stodiam,

iterum{que} eductum audiri, nam haec dilatio iram judicum moderatiorem reddit. Yet by the word Con∣victus, there is not meant, the last Sentence, but the being so convict, that he may be put in Irons, which was not allowed, till the prisoner be thought guilty, was by the Judge, as Thalalaeus excellently ob∣serves, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. It may be likewise observed, that the former, l. 5. doth not ordain that the Sentence shall be presently put to ex∣ecution, but that prisoners shall be presently tryed, for the words are, de his quos tenet carcer inclusos, sanci∣mus ut aut convictos velox paena subducat, aut liberan∣dos custodia diuturna non maceret; And therefore that Law proceeds, to ordain the names of the Delinquents, to be given up to the Ju••ge, within thirty dayes. And the Basilicks translate this Law thus, ne diu is qui com∣prehensus est, mancat in custodia opportet enim eum cito ab∣solvi, vel puniri.

The reason of allowing thir thirty dayes, was, be∣cause Theodosius having executed many Inhabitants of Thessalonica, whilst he was in passion, and for raising of a slight tumult, he was so sensible of this frailty, that at St. Ambroses desire, he did endeavour to bridle that rage, in succeeding Princes, which he did then so abo∣minat in himself, Euseb. Eccles. hist. lib. 11. cap. 18. And yet I find, that this same Law indulging thirty dayes, has been much older, as appears by Quintilian declamatione de falso caedis damnato, the words are, & mihi videtur ideo constituta esse lex, quae damnatum post tricesimum diem puniri voluit, quia modo videbat legumla∣tor possi fieri; ut deciperetur accusator, modo ut calum∣niaretur. And though it may be urged, that a present Execution is convenient; because that prevents the pri∣soners escape, by tumult, or killing himself; and that

the more speedy the Execution be, the Justice is the more remarkable, and can be the less interrupted by appeals, and intercessions; Yet certainly a Christi∣an Magistrat, should allow sometime to the Malefa∣ctor, for setting his Soul, and House in order; lest he else by his precipitancy, destroy the Soul, with the Body, and punish the innocent Posterity, with the guil∣ty Pannel, who gets not this time to settle his affairs: and it hath been oft found, that persons thus too ha∣stily Execute, have been thereafter found innocent; great examples whereof, are set down by Valer. Max. lib. 9. de temeritate: And Seneca de jra lib. 1. It is likewise the interest of the Prince, that he may have time to interpose; and for this cause, Tiberius being offended, at the Senats too speedy Executing Caius Lu∣torius, ordered, that no man should be Execute with∣in ten dayes after the Sentence, Dion. in Tiber. lib. 57. vid. Sidon. Epist. 7. lib. 1. By this delay like∣wise, the persons convict, have oft-times been indu∣ced to discover their Complices, and to confess the Crimes, which others have denyed in a rage, or confusion, occasioned by the shortnesse of their respite.

With us, a Sentence may be presently put to Ex∣ecution, and the Judge is confined by nothing, but by his own discretion; yet where pecuniary Mulcts are inflicted, either the Pannel is returned to Prison, till he pay his fine, or the Act of Adjournal, bears ordinarly, that payment should be made within six dayes, and though Barrons cannot poynd in Civil Cases, upon lesse then fifteen dayes; yet it was found that they might presently poynd, sine ullisindiciis legalibus, upon Criminal Sentences.

VII. Sentences were execute of old, amongst the Romans, either by the Common Executioner, or by

Souldiers, l. 7. C. de Cohort. an instance whereof, is clearly to be seen in Our Saviours Passion; and these Souldiers were called, optiones & speculatores, l. 6. ff. de bon. damnat. And yet I rather think, that the Souldiers were only Guards, and never Executioners, and were called Speculatores, because they were ap∣pointed to oversee the Execution, and to restrain Tu∣mults. Especially seing common Executioners were so infamous, that they could not be advanced ever there∣after to any sacred orders, C. clericum distinct. 50. And I remember to have seen the Executioner of St. Iohnstoun, repelled by the Lords of Session, from being a witnesse.

That the Justice may force any of the Magistrats of a Town, to supplie the place of an Executioner, if they want one, is I think, without all warrand; seing officium nemini debet esse damnosum: And no man would be a Magistrat, if that were allowed; but I think that the Magistrats may be fined for ne∣gligence, if they omit to appoint one; and for the same reason, I think that the Magistrat cannot force any mean person, who leads an honest life, to be an Executioner: albeit Clar. §. Fin. quest. 99. num. 4. And Gomes. lib. 3. cap. ult. num. 5. do assert, that the Judge may force any, ex infima plebe, to offi∣ciat in that employment; and yet their opinion agrees with our custome. The Executioner hath right to the Cloathes (pannicularia) of the person executed, by our custome. And per. l. D. Hadrianus ff. de bon. dam. But by the Civil Law, the Bodies of the per∣sons executed, could not of old be buried, without the permission of the Prince, ff. de cadav. punitor, which is antiquated, per. l. obnoxius C. de relig. & sumpt. fun. And by our custome, wherein the persons execute, may be buried, in all cases, though the

friends of the person condemned for Treason, can∣not assist on the Scaffold, or wear mourning, by our customes, except the Council give expresse consent.

VIII. If the defender be absent, then upon an Act of Adjournal, he is to be denounced rebel, or outlawed, (as the English, and our old Statutes call it) and though if the punishment be capital, or the fine be for His Majesties use; the Clerk of the Ju∣stice Court, can only write the Letters; yet if the fine be to be payed to any privat person, any Wri∣ter to the Signet may write the Letters; and though the 126. Act, 1. Parl. Ia. 6. appoints that all Cri∣minal Letters should not be registrat, as other Let∣ters, but returned to the Adjournal; yet de praxi, such Hornings are sometimes Registrat, in the ordi∣nary Register of Horning; likeas, albeit the Escheat of him who is denunced, cannot fall upon a denoun∣ciation, at the Mercat Crosse of Edinburgh, though Caption may be raised upon such an Execution, yet Criminal Letters may be execute at Edinburgh, or any Mercat Crosse where the Justice Court did sit, in which the Sentence was pronounced, Act 140. Parl. 8. K. Ia. 6. upon production of the Reg••strat Ho••ning, Letters of intercommuning are granted, upon a com∣mon Bill, past by the Lords of Session, by which all the Leidges are discharged to intercommune with the Re∣bel, which must be execute at the Mercat Crosse of the respective Shires, and Registrat there, or in the ge∣neral Register.

Upon the denunciation immediatly the single escheat fals, and after remaining at the Horn for year and day, the life-rent escheat falls; which custom we have borrowed from Saxonie (with most of our other forms) for with them, si reus fugitivus in primum sive simplex bannum sit declaratus

nec intra annum & diem se purgaverit sed annum & diem prorogare passus sit, in bannum superuis incidit vid. Carpz. pract. crim. part. 3. quest. 140. num. 80. From whom al∣so we have our stile of declaring escheats.

Upon the registrat Horning Caption is raised, and if the Messe••ger be deforced in the execution thereof; then the Council grants commission of fire and sword. which is But a Caption for inbringing the Malefactor, who resists the or∣dinary course of Law. And in my opinion, Letters of fire and sword may be granted, though the Malefactor hath not deforced, if it be not our that the Malefactor be not to be reduced in the ordinar way: for it is unreasonable to expose His Majesties Laws to contempt, and His Offi∣cers to certain hazard, as in the case where a person is de∣nounced fugitive for deforcing Messengers, or hath con∣vocat loose men, and lives in open rapine: it were against sense, that a new deforcement were necessar. But thir commissions are never granted but in criminal cases; and yet I remember, that one was granted to Mackintosh, against Lochiel, after that Mackintosh had obtained De∣creets of removeing, and had raised Letters of ejection, but the Sheriff had declared that he durst not eject, for the Council thought ti not just to expose the Sheriff to certain hazard. And yet the ordinar course is, that the Sheriff should offer to eject, and if he be deforced, then the case becomes criminal; and some think that the exe∣cution of deforcement is not sufficient in that case, with∣out a sentence ensuing on it, and that the deforcers be re∣gistrat at the Horn thereupon. But others think, that as in civil cases, Letters of second Caption are granted, where the first Caption cannot take effect; so in cases of extraordinar opposition to authority, Letters of fire and sword are granted, upon a meer execution, that the or∣dinar course of Law cannot take effect.

IX. It may be doubted what a Judge ought to do, if after sentence, the innocence of the person condemned, should be convincingly cleared; in which case, the answer is, that the Judge cannot rescind his own sentence, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, l. 56. Basil. de paen. but he ought to ac∣quaint the Council, and they may interceed for his Remissi∣on, l. 27. de paen. l. 1. §. ult. ff. de quest. the Council may prorogat also the dyets appointed for execution; but I think the Justices, and much less inferiour Judges cannot prorogat dyets appointed for execution, even by themselves, since they are functi, by the pronouncing of the doom, though some ignorant Judges, de facto, prorogat executions, and as they cannot even before sentence remit, so neither can they prorogat for any long time, for else prorogations may be lengthened, so as to become Remissions upon the the matter. The other side of the doubt, viz. whether a per∣son once absolved, may be thereafter pursued for the same crime, is more intricat, but may be somewhat cleared by these positions, 1. The same party cannot upon new pro∣bation, much less upon the old probation, accuse a person once assoilzied by an Assize, though he may accuse the As∣size who assoilzied him of wilful errour, and that even though he should thereafter willingly confess the crime, for which he was formerly accused, though Farin. quest. 4. num. 43. thinks that he may be again pursued, and I should think that confession savoured too much of madness, to be the foundation of a criminal sentence. 2. Though the pursuit was at the instance of the party injured, yet His Majesties Advocat cannot again pursue upon the pretence of, res inter alias acta, for that were to keep people in a constant sus∣pense. 3. If the pursuer did collude with the defender, so that the defender was assoilzied by a white Assize, in ab∣stracting the necessary probation; I think in that case, his own fraud should not secure him, Reg. Maj. lib. 4. cap. 28.

si per calumniam procedat vid. cap. 2. de collus. de teg. but though the defender was assoilzied by collusion, betwixt the defenders friends and the pursuer; yet I think the defender cannot again be reconveened for the same crime, since he was innocent, though the collusion was advantagious to him.

X. By the death of the offender, all punishment ceased, except in Treason, & crimine repetundarum, or, missimployment of publick Money, in ceteris vero cri∣minibus, ita demum pro delictis paena ab haerede incipere potest si vivo reo accusatio mota est, l. ex judiciorum, ff. de accus: so that by that Law, if the pursuit was intent∣ed against the Father, it might have continued against the Son, to infer a pecunial Mulct; but this last holds not with us, amongst whom no Probation can be led in absence, except in Treason; but yet I think that a Ci∣vil pursuit, may be sustained for damnage, and interest, and expences of a Crimin••l pursuit, even against the Ma∣lefactors Heir, as was also decided by the Senat of Savoy, Cod. Fab. tit. de accusat. def. 15.

FINIS.