The laws and customes of Scotland, in matters criminal wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours / by Sir George Mackenzie ...
         Mackenzie, George, Sir, 1636-1691.
      
       
         
           1678
        
      
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             The laws and customes of Scotland, in matters criminal wherein is to be seen how the civil law, and the laws and customs of other nations do agree with, and supply ours / by Sir George Mackenzie ...
             Mackenzie, George, Sir, 1636-1691.
          
           [14], 581 p.
           
             Printed by James Glen,
             Edinburgh :
             1678.
          
           
             Reproduction of original in Bodleian Library.
             Table of contents: [12]-[14]
          
        
      
    
     
       
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         eng
      
       
         
           Criminal law -- Scotland -- Early works to 1800.
           Criminal procedure -- Scotland.
        
      
    
     
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           EDINBURGH
           ,
           The
           seventh
           of
           April
           ,
           1677.
           
        
         
           IT
           is
           ordered
           by
           the
           Lords
           of
           His
           Majesties
           most
           Honourable
           Privy
           Council
           ,
           that
           none
           shall
           Re-print
           ,
           or
           Import
           into
           this
           Kingdom
           ,
           this
           Book
           ,
           Entituled
           ,
           
             The
             Laws
             and
             Customs
             of
          
           Scotland
           ,
           
             in
             Matters
             Criminal
          
           ;
           By
           Sir
           
             George
             Mackenzie
          
           of
           Rose-haugh
           ,
           for
           the
           space
           of
           Nineteen
           years
           after
           the
           Date
           hereof
           ,
           under
           the
           pain
           of
           Confiscation
           of
           the
           same
           to
           
             Thomas
             Brown
             ,
             George
             Swintoun
          
           ,
           and
           
             Iames
             Glen
          
           ,
           Printers
           hereof
           ,
           and
           further
           punishment
           ,
           as
           the
           Council
           shall
           think
           fit
           to
           inflict
           upon
           them
           .
           Extracted
           be
           me
        
         
           
             Thomas
             Hay
             .
          
        
      
       
         
         
           THE
           LAWS
           AND
           CUSTOMES
           OF
           SCOTLAND
           ,
           In
           Matters
           CRIMINAL
           .
           Wherein
           is
           to
           be
           seen
           how
           the
           Civil
           Law
           ,
           and
           the
           Laws
           and
           Customs
           of
           other
           Nations
           do
           agree
           with
           ,
           and
           supply
           ours
           .
           By
           Sir
           
             GEORGE
             MACKENZIE
          
           of
           Rose-haugh
           .
        
         
           EDINBVRGH
           ,
           Printed
           by
           
             Iames
             Glen
             ,
             Anno
             Domini
          
           ,
           MDCLXXVIII
           .
        
      
       
         
         
         
           TO
           HIS
           GRACE
           JOHN
           Duke
           of
           LAUDERDALE
           ,
           Marquess
           of
           March
           ,
           Earl
           of
           Lauderdail
           ,
           and
           Guildford
           ,
           Viscount
           Maitland
           ,
           Lord
           
             Thirlestane
             ,
             Musselburgh
             ,
             Boltoun
          
           ,
           and
           Petersham
           :
           President
           of
           His
           MAJESTIE'
           's
           most
           Honourable
           Privy
           Council
           of
           SCOTLAND
           ,
           Sole
           Secretary
           of
           State
           for
           the
           said
           Kingdom
           ;
           Gentleman
           of
           His
           MAJESTIE'
           's
           Bed-Chamber
           :
           and
           Knight
           of
           the
           most
           Noble
           Order
           of
           the
           Garter
           .
        
         
           
             May
             it
             please
             Your
             Grace
             ,
          
        
         
           THough
           the
           number
           ,
           and
           wit
           of
           such
           as
           use
           to
           write
           Dedications
           ,
           may
           seem
           to
           have
           exhausted
           all
           that
           can
           be
           said
           upon
           such
           occasions
           :
           yet
           I
           have
           a
           new
           way
           of
           address
           left
           me
           ,
           which
           is
           ,
           to
           write
           nothing
           of
           you
           ,
           but
           
           what
           is
           true
           ,
           by
           the
           confession
           of
           your
           enemies
           ,
           who
           admire
           more
           the
           greatness
           of
           your
           Parts
           ,
           than
           of
           either
           your
           Interest
           ,
           or
           Success
           :
           And
           how
           you
           have
           made
           so
           great
           a
           turn
           in
           this
           Kingdom
           ,
           without
           either
           Blood
           or
           Forfeiture
           ,
           shewing
           neither
           revenge
           ,
           as
           to
           what
           is
           past
           ,
           nor
           fear
           as
           to
           what
           is
           to
           come
           ;
           continuing
           no
           longer
           your
           unkindness
           to
           any
           man
           ,
           than
           you
           think
           he
           continues
           his
           opposition
           to
           his
           Prince
           .
        
         
           All
           have
           at
           sometime
           confest
           ,
           that
           you
           have
           been
           the
           Ornament
           ,
           as
           well
           as
           Defence
           of
           your
           Native
           Countrey
           ,
           to
           whom
           every
           Scottish-man
           is
           almost
           as
           dear
           ,
           as
           every
           man
           is
           to
           his
           own
           Relations
           .
           And
           I
           am
           sure
           that
           your
           enemies
           will
           find
           it
           easier
           to
           put
           you
           from
           your
           Office
           ,
           then
           to
           fill
           it
           ;
           and
           none
           of
           them
           can
           wish
           you
           to
           be
           removed
           ,
           without
           being
           himself
           a
           loser
           by
           it
           .
           Nor
           can
           I
           be
           so
           unjust
           ,
           even
           to
           such
           as
           oppos'd
           you
           ,
           as
           not
           to
           acknowledge
           that
           I
           have
           heard
           them
           talk
           of
           you
           so
           advantagiously
           (
           when
           design
           and
           interest
           oblidged
           them
           to
           dissemble
           )
           as
           almost
           convinced
           me
           ,
           
           that
           the
           most
           of
           them
           opposed
           you
           only
           in
           publick
           ,
           rather
           from
           the
           glory
           of
           having
           so
           great
           an
           Adversary
           ,
           than
           from
           the
           justice
           of
           the
           undertaking
           .
           And
           your
           Countrey
           has
           in
           their
           late
           Confluences
           ,
           (
           where
           they
           crouded
           in
           mighty
           numbers
           ,
           and
           with
           a
           remarkable
           joy
           to
           meet
           you
           ,
           when
           a
           privat
           man
           )
           shew'd
           greater
           respect
           to
           your
           naked
           merit
           ,
           then
           to
           the
           highest
           Characters
           by
           which
           others
           were
           marked
           out
           for
           publict
           honour
           .
        
         
           Having
           writ
           this
           Book
           to
           inform
           my
           Countrey-men
           ,
           and
           to
           illuminat
           our
           Law
           ,
           I
           could
           not
           present
           it
           more
           justly
           to
           any
           ,
           than
           to
           your
           Grace
           ,
           who
           has
           derived
           your
           Blood
           from
           a
           Noble
           Family
           ,
           which
           has
           been
           still
           eminent
           in
           our
           Courts
           of
           Justice
           ,
           since
           we
           had
           any
           ;
           and
           who
           are
           your self
           ,
           the
           greatest
           States-man
           in
           Europe
           ,
           who
           is
           a
           Schollar
           ;
           and
           the
           greatest
           Schollar
           ,
           who
           is
           a
           States-man
           :
           For
           to
           hear
           you
           talk
           of
           Books
           ,
           one
           would
           think
           you
           had
           bestowed
           no
           time
           in
           studying
           men
           ;
           and
           yet
           to
           observe
           your
           wise
           conduct
           in
           affairs
           ,
           one
           might
           
           be
           induced
           to
           believe
           ,
           that
           you
           had
           no
           time
           to
           study
           Books
           .
           You
           are
           the
           chief
           man
           who
           does
           nobly
           raise
           the
           study
           of
           the
           Civil
           Law
           ,
           to
           a
           happy
           usefulness
           ,
           in
           the
           greater
           and
           general
           Affairs
           of
           Europe
           ,
           and
           who
           spends
           the
           one
           half
           of
           the
           day
           in
           studying
           what
           is
           just
           ,
           and
           the
           other
           half
           in
           practising
           what
           is
           so
           :
           All
           which
           may
           be
           easily
           believed
           ,
           from
           me
           who
           am
           as
           great
           an
           instance
           of
           your
           generosity
           ,
           as
           an
           admirer
           of
           it
           .
           Especially
           since
           you
           have
           left
           me
           nothing
           to
           wish
           ,
           so
           that
           what
           I
           say
           ,
           needs
           not
           flow
           from
           flattery
           ,
           and
           so
           must
           be
           presumed
           to
           flow
           from
           conviction
           and
           gratitude
           in
           ,
        
         
           
             
               Your
               Graces
               most
               faithful
               ,
               and
               most
               humble
               Servant
               ,
            
             George
             Mackenzie
             .
          
        
      
       
         
         
           THE
           DESIGN
           .
        
         
           THe
           great
           concerns
           of
           men
           ,
           are
           their
           Lives
           ,
           Fortunes
           ,
           and
           Reputation
           ,
           and
           these
           three
           suffering
           at
           once
           in
           Crimes
           ,
           it
           is
           the
           great
           interest
           of
           mankind
           ,
           to
           know
           how
           to
           evite
           such
           accusations
           ,
           and
           how
           to
           defend
           themselves
           ,
           when
           accused
           :
           And
           yet
           none
           of
           our
           Lawyers
           have
           been
           so
           kind
           to
           their
           Countrey
           ,
           as
           to
           write
           one
           Sheet
           upon
           this
           pleasant
           and
           advantagious
           Subject
           ,
           which
           made
           it
           a
           task
           both
           necessary
           and
           difficult
           to
           me
           .
        
         
           In
           prosecuting
           this
           design
           ,
           I
           was
           forced
           to
           revise
           and
           abreviat
           those
           many
           and
           great
           Volums
           which
           make
           up
           our
           Criminal
           Registers
           ,
           and
           having
           added
           to
           them
           these
           Observations
           I
           have
           my self
           made
           ,
           during
           my
           twenty
           years
           attendance
           upon
           that
           Court
           ,
           either
           as
           Iudge
           ,
           or
           Advocat
           ;
           I
           collationed
           
           all
           with
           our
           Statutory
           Law
           ,
           the
           Civil
           Law
           ,
           and
           the
           Customs
           of
           other
           Countreys
           ,
           and
           the
           opinions
           of
           the
           Doctors
           :
           And
           ,
           as
           I
           may
           without
           vanity
           say
           ,
           that
           few
           valuable
           Authors
           treat
           of
           Crimes
           ,
           whom
           I
           have
           not
           read
           ;
           So
           there
           is
           nothing
           here
           which
           is
           not
           warranted
           by
           Law
           ,
           or
           Decisions
           ,
           or
           in
           which
           ,
           when
           I
           doubted
           ,
           I
           did
           not
           confer
           seriously
           with
           the
           learned'st
           Lawyers
           of
           this
           Age
           ;
           and
           yet
           I
           doubt
           not
           but
           in
           some
           things
           ,
           others
           may
           differ
           from
           me
           ,
           as
           the
           best
           Writers
           do
           amongst
           themselves
           :
           And
           having
           only
           designed
           to
           establish
           solidly
           the
           Principles
           of
           the
           Criminal
           Law
           ,
           I
           wanted
           room
           for
           treating
           learnedly
           each
           particular
           case
           ,
           or
           even
           for
           hinting
           at
           all
           such
           cases
           as
           may
           be
           necessary
           ;
           And
           without
           wearying
           my
           Readers
           with
           Citations
           ,
           (
           which
           was
           very
           easie
           )
           I
           have
           furnished
           the
           Book
           with
           as
           much
           reason
           as
           is
           ordinarly
           to
           be
           found
           in
           Legal
           Treatises
           .
        
         
           The
           reason
           why
           I
           have
           so
           oft
           cited
           the
           
             Basilicks
             ,
             Theophil
          
           .
           and
           the
           
             Greek
             Scholiasts
          
           ,
           was
           not
           only
           because
           none
           before
           me
           have
           used
           them
           in
           Criminal
           Treatises
           ,
           but
           because
           I
           conclude
           them
           the
           
           best
           Interpreters
           of
           Justinians
           Text
           :
           For
           these
           Books
           having
           been
           Writ
           in
           the
           same
           Age
           ,
           and
           place
           ,
           and
           some
           of
           them
           by
           those
           who
           compiled
           the
           Latine
           Text
           ,
           they
           must
           understand
           it
           best
           of
           all
           others
           ,
           of
           which
           I
           have
           given
           many
           instances
           in
           this
           Book
           ,
           and
           shall
           here
           adde
           one
           ,
           there
           forgot
           ,
           which
           is
           ,
           that
           the
           Latine
           Interpreters
           doubt
           much
           what
           is
           meant
           by
           remittendum
           in
           the
           constitution
           ,
           
             Si
             quis
             Imperatori
             male
             dixerit
          
           ,
           some
           interpreting
           it
           pardoned
           ,
           some
           
             to
             be
             sent
             back
          
           to
           the
           Emperour
           :
           But
           the
           Basilicks
           render
           it
           
             〈◊〉
             〈◊〉
             〈◊〉
             〈◊〉
             〈◊〉
          
           ,
           which
           signifies
           only
           ignoscendum
           .
        
         
           I
           cannot
           but
           admire
           much
           the
           wisdom
           of
           God
           ,
           who
           gives
           not
           only
           inclination
           ,
           but
           pleasure
           to
           such
           as
           toyl
           for
           the
           good
           of
           others
           ;
           for
           I
           am
           sure
           few
           men
           would
           have
           from
           any
           weaker
           impulse
           bestowed
           so
           much
           time
           ,
           and
           so
           many
           thoughts
           upon
           an
           imployment
           ,
           which
           without
           bringing
           gain
           ,
           will
           certainly
           bring
           envy
           and
           censure
           :
           For
           I
           find
           it
           is
           the
           genius
           of
           this
           Age
           to
           admire
           such
           as
           make
           the
           publick
           good
           bend
           to
           their
           designs
           ,
           and
           to
           hate
           such
           as
           design
           to
           inform
           them
           ,
           as
           if
           he
           were
           
           more
           my
           friend
           who
           would
           set
           my
           Family
           by
           the
           ears
           ,
           than
           he
           who
           instructed
           my
           Children
           and
           Servants
           in
           necessary
           duties
           .
        
         
           There
           are
           but
           too
           many
           who
           endeavour
           now
           to
           make
           all
           whom
           they
           hate
           ,
           pass
           for
           such
           as
           love
           Arbitrary
           Government
           ;
           but
           as
           in
           many
           passages
           of
           my
           former
           life
           ,
           I
           have
           preferred
           my
           Countreys
           interest
           to
           my
           own
           ,
           so
           in
           this
           Book
           I
           endeavour
           to
           oppose
           Arbitrariness
           ,
           where
           it
           is
           most
           dreadful
           ,
           and
           that
           is
           ,
           in
           matters
           Criminal
           ,
           in
           which
           Life
           and
           Fortune
           are
           equally
           expos'd
           ;
           for
           he
           who
           disinterestedly
           declares
           his
           own
           opinion
           ,
           before
           private
           cases
           occurr
           ,
           (
           wherein
           interest
           or
           inclination
           may
           byass
           him
           )
           doth
           in
           so
           much
           praeclude
           himself
           ,
           and
           others
           too
           (
           as
           far
           as
           his
           authority
           can
           reach
           )
           from
           the
           power
           of
           being
           Arbitrary
           ;
           and
           let
           others
           say
           what
           they
           please
           ,
           I
           will
           stand
           more
           in
           awe
           of
           my
           conscience
           then
           of
           my
           enemies
           ,
           and
           govern
           my self
           more
           by
           my
           own
           reason
           ,
           then
           by
           the
           giddie
           multitude
           .
           I
           hope
           I
           need
           not
           be
           jealous
           that
           our
           publict
           differences
           will
           make
           any
           unkind
           to
           this
           
           Book
           ,
           which
           is
           published
           for
           their
           service
           ,
           and
           which
           is
           now
           more
           accurate
           ,
           than
           when
           it
           at
           first
           pleased
           them
           in
           Sheets
           .
           I
           did
           Print
           it
           ,
           not
           only
           to
           correct
           the
           many
           false
           Copies
           which
           were
           abroad
           ,
           but
           to
           divert
           me
           from
           refining
           too
           much
           upon
           our
           publict
           debates
           ;
           and
           I
           wish
           the
           reading
           it
           may
           have
           the
           same
           effect
           upon
           others
           .
           And
           that
           all
           of
           us
           would
           turn
           things
           to
           their
           true
           light
           ,
           and
           consider
           without
           passion
           how
           happy
           we
           are
           ,
           who
           live
           under
           a
           Prince
           of
           our
           own
           Religion
           and
           Blood
           ,
           whose
           clemency
           is
           as
           extraordinary
           as
           his
           restitution
           ,
           who
           governs
           us
           by
           our
           own
           Laws
           ,
           and
           countrey
           men
           ;
           and
           distribute
           ,
           all
           his
           own
           revenue
           amongst
           us
           :
           That
           we
           enjoy
           by
           his
           prudence
           a
           profound
           Peace
           ,
           whilst
           others
           bleed
           or
           starve
           in
           lasting
           Wars
           .
           That
           all
           the
           Commerce
           of
           Europe
           is
           gathered
           in
           amongst
           us
           ;
           that
           we
           are
           free
           from
           those
           sucking
           Taxes
           under
           which
           they
           groan
           ;
           and
           are
           but
           lately
           rescued
           from
           a
           Rebellion
           ,
           in
           which
           ,
           after
           we
           had
           emptied
           our
           Veins
           and
           Purses
           for
           Religion
           and
           Liberty
           ,
           we
           became
           Atheists
           and
           Slaves
           .
        
      
       
         
         
           THE
           INDEX
           .
        
         
           
             PART
             I.
             
          
           
             1.
             
             OF
             Crimes
             in
             general
             ,
             and
             by
             what
             Law
             they
             are
             judged
             in
             Scotland
             .
          
           
             21.
             
             The
             division
             of
             Crimes
             .
          
           
             25.
             
             Blasphemy
             .
          
           
             29.
             
             Heresie
             .
          
           
             34.
             
             Simony
             ,
             Baratry
             .
          
           
             37.
             
             Treason
             :
             
               Laesae
               Majestas
            
             .
          
           
             64.
             
             Sedition
             .
          
           
             67.
             
             Poyson
             .
          
           
             72.
             
             
               De
               Incendiariis
            
             ,
             or
             ,
             Fire-raisers
             .
          
           
             80.
             
             Witch-craft
             .
          
           
             109.
             
             Murder
             .
          
           
             139.
             
             Of
             Duels
             .
          
           
             148.
             
             Self-murder
             .
          
           
             152.
             
             Paricide
             .
          
           
             159.
             
             Incest
             ,
             Sodomy
             ,
             Bestiality
             .
          
           
             163.
             
             Rapes
             ,
             or
             Ravishing
             .
          
           
             169.
             
             Adultery
             .
          
           
             185.
             
             Bigamie
             .
          
           
             190.
             
             Theft
             .
          
           
             211.
             
             Theft-boot
             and
             Receipt
             .
          
           
             218.
             
             Hame-sucken
             .
          
           
             223.
             
             Breaking
             of
             Prison
             .
          
           
             
             230.
             
             
               De
               Dardanatiis
            
             ,
             or
             ,
             Fore-stallers
             .
          
           
             236.
             
             Usury
             .
          
           
             248.
             
             The
             Bribing
             ,
             Partiality
             ,
             and
             Negligence
             of
             Iudges
             .
          
           
             255.
             
             Deforcement
             .
          
           
             268.
             
             Falshood
             .
          
           
             286.
             
             Stellionatus
             .
          
           
             290.
             
             Perjury
             .
          
           
             303.
             
             Of
             injuries
             personal
             and
             real
             ,
             and
             of
             infamous
             Libels
             .
          
           
             309.
             
             Poynding
             of
             Oxen
             in
             time
             of
             Labouring
             .
          
           
             314.
             
             Bearing
             of
             unlawful
             Weapons
             .
          
           
             317.
             
             Beggars
             and
             Vagabonds
             .
          
           
             319.
             
             Robbery
             ,
             Oppression
             ,
             
               vis
               publica
               &
               privata
            
             .
          
           
             331.
             
             Art
             and
             Part
             ,
             
               Ope
               &
               Consilio
            
             .
          
           
             347.
             
             Some
             Crimes
             punished
             amongst
             the
             Romans
             ,
             which
             are
             not
             directly
             in
             use
             with
             us
             .
          
        
         
           
             PART
             II.
             
          
           
             351.
             
             OF
             Iurisdiction
             in
             general
             .
          
           
             355.
             
             Of
             the
             Iudge
             competent
             ,
             
               de
               foro
               competenti
            
             .
          
           
             364.
             
             Iurisdiction
             of
             the
             Parliament
             in
             Crimes
             .
          
           
             367.
             
             Iurisdiction
             of
             the
             High
             Constable
             in
             Criminals
             .
          
           
             372.
             
             The
             Iurisdiction
             competent
             to
             the
             High
             Chamberlain
             ,
             and
             Magistrats
             of
             Burghs
             Royal.
             
          
           
             374.
             
             The
             Iurisdiction
             of
             His
             Majesties
             Privy
             Council
             in
             Criminals
             .
          
           
             385.
             
             Of
             the
             Exchequers
             Iurisdiction
             in
             Criminals
             .
          
           
             386.
             
             The
             Iurisdiction
             of
             the
             Lords
             of
             Session
             in
             Criminals
             .
          
           
             393.
             
             The
             Admirals
             Iurisdiction
             in
             Criminals
             .
          
           
             397.
             
             The
             Iurisdiction
             of
             the
             Commissars
             in
             Criminals
             .
          
           
             401.
             
             The
             Iurisdiction
             of
             Regalitis
             in
             Criminals
             .
          
           
             411.
             
             The
             Iurisdiction
             of
             Sheriffs
             in
             Criminals
             .
          
           
             417.
             
             The
             Criminal
             Iurisdiction
             of
             Barrons
             .
          
           
             420.
             
             Of
             Iustices
             of
             Peace
             .
          
           
             
             423.
             
             The
             Iurisdiction
             of
             the
             Iustices
             ,
             and
             of
             the
             several
             Imployments
             and
             Officers
             of
             that
             Court.
             
          
           
             429.
             
             The
             Iurisdiction
             of
             the
             Iustices
             over
             Souldiers
             ,
             and
             of
             Military
             Crimes
             .
          
           
             434.
             
             Advocations
             of
             Criminal
             Causes
             .
          
           
             442.
             
             Of
             Inquisition
             .
          
           
             446.
             
             Of
             Accusations
             ,
             and
             Accusers
             .
          
           
             456.
             
             Of
             Advocats
             and
             Procurators
             .
          
           
             462.
             
             Of
             Libells
             ,
             and
             the
             forms
             of
             Process
             thereto
             relating
             .
          
           
             476.
             
             Of
             Exculpation
             ,
             and
             the
             other
             priviledges
             competent
             to
             the
             Defender
             .
          
           
             488.
             
             Of
             Assizes
             .
          
           
             511.
             
             Of
             Probation
             by
             Confession
             .
          
           
             522.
             
             Probation
             by
             Oath
             ,
             by
             Writ
             ,
             and
             by
             Presumptions
             .
          
           
             527.
             
             Probation
             by
             Witnesses
             .
          
           
             543.
             
             Of
             Torture
             .
          
           
             546.
             
             Of
             Remissions
             .
          
           
             551.
             
             Of
             Prescription
             in
             Crimes
             .
          
           
             556.
             
             Of
             Punishments
             ,
             
               de
               poenis
            
             .
          
           
             567.
             
             Of
             Criminal
             Sentences
             ,
             and
             their
             Executions
             .
          
        
      
    
     
       
         
         
           PART
           I.
           
        
         
           
             TITLE
             I.
             Of
             Crymes
             in
             general
             ,
             And
             by
             what
             Law
             they
             are
             judged
             in
             Scotland
             .
          
           
             
               1
               
                 How
                 Crymes
                 differ
                 from
                 Delicts
                 and
                 Malefices
                 .
              
            
             
               2
               
                 In
                 what
                 consists
                 the
                 nature
                 and
                 essence
                 of
                 a
                 Cryme
                 .
              
            
             
               3
               
                 By
                 what
                 Lawes
                 Crimes
                 are
                 punish'd
                 in
              
               Scotland
               .
            
             
               4
               
                 How
                 far
              
               dole
               
                 or
                 design
                 is
                 necessar
                 to
                 the
                 committing
                 Crimes
                 ,
                 and
                 how
                 tendencies
                 and
                 insinuations
                 are
                 punisht
                 .
              
            
             
               5
               
                 Whether
                 Minors
                 can
                 commit
                 Crymes
              
               .
            
             
               6
               
                 Whether
                 such
                 as
                 sleep
                 can
                 commit
                 Crymes
                 .
              
            
             
               7
               
                 Whether
                 such
                 as
                 are
                 drunk
                 are
                 punishable
                 for
                 Crymes
                 .
              
            
             
               8
               
                 Whether
                 furious
                 persons
                 are
                 punishable
              
               .
            
             
               9
               
                 Whether
                 an
                 university
                 or
                 collective
                 body
                 be
                 punishable
                 .
              
            
          
           
             GOD
             Almighty
             having
             created
             this
             Lower
             World
             to
             be
             equally
             an
             instance
             of
             his
             power
             ,
             and
             of
             his
             goodness
             ,
             did
             furnish
             it
             with
             great
             variety
             of
             excellent
             ,
             and
             wonderful
             productions
             :
             but
             lest
             these
             should
             be
             defac'd
             at
             pleasure
             by
             man
             ,
             who
             having
             ruin'd
             himself
             ,
             doth
             little
             value
             ,
             and
             is
             much
             inclined
             to
             ruine
             every
             thing
             besides
             ;
             therefore
             God
             did
             not
             only
             imprint
             upon
             his
             soul
             some
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             common
             principles
             whereby
             he
             is
             led
             to
             love
             order
             ,
             but
             
             did
             likewise
             fence
             the
             aeconomy
             and
             government
             he
             had
             placed
             in
             the
             world
             with
             rewards
             and
             punishments
             ,
             And
             it
             was
             just
             ,
             that
             as
             these
             who
             did
             vertuously
             ,
             were
             to
             be
             rewarded
             ,
             so
             these
             who
             were
             vitious
             should
             be
             punisht
             ,
             which
             punishments
             are
             the
             subject-matter
             of
             the
             Criminal
             Law
             ,
             and
             of
             this
             Treatise
             .
          
           
             I.
             Transgression
             ,
             or
             peccatum
             ,
             is
             by
             
               Modestinus
               l.
               obligamur
               ,
               ff
               .
               de
               .
               obl
               .
               &
               Act.
            
             made
             the
             root
             of
             all
             enormities
             ,
             and
             is
             divided
             delicta
             into
             
               quasi
               delicta
               ,
               &
               crimina
               .
               Quasi
               delicta
               ,
            
             are
             such
             faults
             and
             transgressions
             as
             are
             not
             so
             hainous
             that
             they
             deserve
             to
             be
             punisht
             criminally
             ;
             such
             as
             small
             ryots
             ,
             delicta
             ,
             are
             such
             as
             deserve
             a
             more
             severe
             punishment
             ,
             but
             yet
             because
             they
             tend
             not
             to
             wrong
             the
             Common-wealth
             ,
             and
             publict
             security
             immediately
             ,
             therefore
             do
             not
             deserve
             to
             be
             punisht
             by
             any
             express
             Law
             as
             Crymes
             .
             Crymes
             are
             these
             injuries
             done
             to
             the
             Common-wealth
             which
             are
             so
             immediat
             and
             heinous
             ,
             as
             that
             they
             are
             punished
             by
             express
             Law.
             This
             distinction
             is
             used
             by
             Matheus
             :
             but
             Farinacius
             makes
             delictam
             the
             genus
             ,
             and
             divides
             it
             ,
             
               in
               crimen
               ,
               &
               maleficium
            
             ,
             with
             us
             this
             subtilty
             is
             not
             observed
             ,
             for
             the
             word
             Crime
             ,
             comprehends
             both
             Crymes
             ,
             and
             Delicts
             .
             The
             Summonds
             raised
             for
             accusing
             in
             both
             ,
             are
             called
             Criminal
             Letters
             ,
             and
             the
             Court
             in
             which
             both
             are
             judged
             ,
             the
             Criminal
             Court.
             Neither
             use
             we
             the
             word
             malefice
             in
             any
             Cryme
             ,
             but
             in
             witch-craft
             ,
             in
             which
             it
             signifies
             that
             prejudice
             ,
             and
             damnage
             ,
             which
             arises
             from
             the
             unlawful
             means
             used
             by
             Sorcerers
             .
          
           
             II.
             In
             what
             consists
             the
             nature
             of
             a
             Cryme
             may
             be
             doubted
             ,
             and
             l.
             1.
             
             
               Reg.
               Maj.
               c.
               i.
            
             A
             civil
             Action
             is
             defyned
             to
             be
             that
             which
             concerns
             Lands
             or
             Goods
             ;
             And
             a
             Criminal
             Action
             that
             which
             concerns
             Life
             or
             Limb.
             But
             Skeen
             in
             his
             observations
             upon
             that
             place
             ,
             do's
             confess
             all
             that
             to
             be
             a
             Cryme
             which
             concerns
             the
             publick
             good
             ,
             whether
             a
             corporal
             punishment
             ,
             or
             pecuniary
             mulct
             be
             craved
             :
             but
             this
             is
             also
             too
             general
             ,
             especially
             since
             the
             Law
             divides
             Crymes
             in
             publick
             and
             privat
             Crymes
             :
             and
             therefore
             I
             offer
             these
             considerations
             ,
             1.
             
             All
             transgressions
             of
             Law
             are
             not
             Criminal
             ,
             
               v
               g.
            
             to
             make
             a
             disposition
             in
             defraud
             of
             Creditors
             ,
             is
             not
             criminal
             ,
             though
             it
             be
             prohibited
             .
             2.
             
             That
             is
             
             not
             only
             to
             be
             accounted
             a
             Cryme
             which
             bears
             expresly
             to
             be
             punishable
             by
             corporal
             punishment
             ,
             or
             pecunial
             mulcts
             :
             for
             in
             my
             Lord
             Renton's
             case
             against
             Hoom
             ,
             it
             was
             found
             ,
             that
             poynding
             of
             Oxen
             in
             time
             of
             labouring
             was
             Criminal
             ,
             though
             it
             be
             not
             appoynted
             by
             the
             Act
             whereby
             it
             is
             prohibited
             ,
             to
             be
             punished
             by
             a
             definit
             punishment
             .
             Nor
             is
             it
             exprest
             to
             be
             a
             Cryme
             ,
             likeas
             ,
             single
             Adultery
             ,
             is
             punishable
             ,
             albeit
             it
             be
             not
             declared
             to
             be
             a
             Cryme
             by
             any
             expresse
             Law
             with
             us
             .
             3.
             
             That
             cannot
             only
             be
             thought
             a
             Cryme
             ,
             which
             is
             committed
             against
             the
             Law
             of
             Nature
             ,
             for
             poynding
             of
             Oxen
             is
             no
             more
             such
             ,
             than
             making
             fraudulent
             dispositions
             .
          
           
             III.
             The
             true
             nature
             then
             of
             a
             Cryme
             may
             be
             comprehended
             ,
             under
             these
             general
             conclusions
             ,
             First
             ,
             that
             is
             a
             Cryme
             ,
             which
             is
             declared
             such
             by
             an
             express
             Statute
             ,
             as
             Murder
             ,
             Treason
             ;
             and
             it
             were
             to
             be
             wisht
             ,
             that
             nothing
             were
             a
             Cryme
             which
             is
             not
             declared
             to
             be
             so
             ,
             by
             a
             Statute
             ;
             for
             this
             would
             make
             Subjects
             inexcuseable
             ,
             and
             prevent
             the
             arbitrariness
             of
             Judges
             .
             And
             I
             find
             by
             the
             general
             consent
             of
             Criminalists
             ,
             nothing
             is
             to
             be
             accounted
             a
             Cryme
             or
             punisht
             criminally
             ;
             but
             what
             is
             forbid
             by
             the
             Law
             ,
             under
             an
             express
             pain
             or
             punishment
             ;
             for
             they
             observe
             ,
             that
             as
             there
             can
             be
             no
             punishment
             inflicted
             ,
             but
             where
             a
             delict
             is
             committed
             :
             so
             there
             can
             be
             no
             delict
             but
             where
             the
             Law
             hath
             appoynted
             a
             punishment
             ,
             
               Cabal
               Cas.
            
             1.
             
             And
             this
             is
             clear
             ,
             l.
             at
             
               si
               quis
               §
               .
               divus
               ff
               .
               de
               Religios
               .
               &
               sumpt
               .
               fun
               .
               l.
               haeres
               ff
               .
               de
               usufr.
               leg
               .
               Surd.
               consil
               .
            
             301.
             
             And
             yet
             Lawyers
             assert
             that
             such
             as
             disobey
             ,
             and
             transgress
             any
             prohibiting
             Law
             ,
             may
             be
             punisht
             arbitrarly
             ,
             as
             contemners
             of
             the
             Law
             ,
             sutably
             to
             the
             degree
             of
             their
             contempt
             ,
             though
             they
             cannot
             be
             punisht
             Criminally
             as
             guilty
             of
             a
             Cryme
             ,
             
               Cabal
               ibid.
            
             2.
             
             The
             transgressing
             any
             Municipal
             Law
             ,
             which
             prohibits
             that
             which
             either
             the
             Law
             of
             God
             ,
             or
             the
             Civil
             Law
             ,
             punishes
             criminally
             ,
             by
             corporal
             punishment
             ,
             or
             a
             pecuniary
             mulct
             ,
             is
             a
             Cryme
             ,
             and
             thus
             the
             poynding
             Oxen
             ,
             in
             time
             of
             labouring
             was
             declared
             a
             Cryme
             in
             the
             former
             decision
             ,
             because
             though
             it
             was
             prohibited
             by
             an
             express
             Statute
             ,
             which
             did
             bear
             no
             punishment
             ;
             yet
             it
             ought
             to
             have
             been
             punisht
             
             according
             to
             the
             Civil
             Law
             ,
             whereby
             it
             is
             declared
             to
             be
             a
             Cryme
             .
             3.
             
             That
             is
             a
             Crime
             whereby
             the
             publict
             peace
             is
             immediatly
             disquieted
             .
             Or
             whereby
             the
             Law
             of
             Nature
             is
             violated
             ;
             Thus
             Incests
             ,
             and
             Rapts
             ,
             were
             accounted
             Crymes
             with
             us
             ,
             before
             they
             were
             declared
             to
             be
             such
             by
             an
             express
             Law.
             And
             Bestiality
             ,
             and
             Sodomy
             ,
             are
             Crymes
             ;
             though
             yet
             we
             have
             no
             Statute
             against
             them
             .
             4.
             
             That
             is
             a
             Crime
             ,
             which
             long
             custome
             hath
             punisht
             ,
             by
             corporal
             punishment
             ,
             or
             by
             a
             pecuniary
             mulct
             ,
             in
             the
             Justice
             Court
             ,
             as
             single
             and
             not
             manifest
             Adultery
             .
          
           
             From
             all
             which
             ,
             it
             appears
             that
             the
             Law
             of
             God
             is
             the
             first
             fountain
             of
             our
             Criminal
             Law
             ;
             And
             thus
             the
             lybel
             in
             single
             Adultery
             is
             only
             founded
             upon
             the
             Law
             of
             God.
             And
             in
             usury
             we
             lybel
             upon
             the
             Municipal
             Law
             ,
             and
             the
             Law
             of
             God
             joyntly
             .
             2.
             
             Our
             Statutes
             ,
             or
             Acts
             of
             Parliament
             ,
             are
             our
             proper
             Law
             ;
             but
             even
             these
             may
             run
             in
             desuetude
             ,
             so
             far
             that
             they
             cannot
             be
             the
             foundation
             of
             a
             criminal
             pursuit
             ,
             for
             former
             transgressions
             ,
             since
             the
             people
             who
             know
             not
             Law
             ,
             so
             much
             by
             reading
             the
             Books
             of
             Statutes
             ,
             as
             by
             seeing
             the
             daily
             practice
             of
             the
             Countrey
             ,
             should
             not
             be
             ensnar'd
             by
             pursuits
             ;
             upon
             old
             buried
             Laws
             ;
             which
             scarce
             Lawyers
             study
             or
             know
             .
             Nor
             can
             the
             people
             be
             thought
             to
             have
             contemn'd
             ,
             what
             they
             cannot
             be
             presum'd
             to
             have
             known
             .
             And
             our
             Judicators
             ▪
             by
             ordaining
             such
             ancient
             Laws
             to
             be
             renewed
             by
             proclamations
             ,
             do
             confess
             ,
             that
             before
             these
             proclamations
             ;
             these
             Laws
             were
             not
             binding
             :
             for
             else
             the
             renewing
             them
             had
             been
             unnecessar
             ,
             and
             if
             it
             were
             otherwise
             ,
             we
             have
             so
             many
             paenal
             Statutes
             now
             in
             desuetude
             ,
             that
             the
             Leidges
             would
             be
             certainly
             ruined
             by
             them
             .
             And
             thus
             Collonel
             Borthwick
             having
             pursued
             the
             Maltmen
             Criminally
             for
             contraveening
             the
             92.
             
             Act.
             6.
             
             Parliament
             ;
             Ia.
             4.
             
             The
             Councel
             upon
             a
             supplication
             representing
             thir
             grounds
             ,
             sisted
             that
             pursuit
             .
             But
             desuetude
             must
             be
             universal
             ,
             ancient
             ,
             and
             notorious
             ,
             else
             the
             want
             of
             any
             of
             these
             three
             qualifications
             ,
             will
             alter
             this
             conclusion
             .
             And
             yet
             I
             think
             that
             desuetude
             cannot
             
               in
               futurum
            
             abrogate
             a
             Cryme
             ,
             and
             enervate
             the
             Law
             altogether
             ,
             since
             the
             Parliament
             only
             ,
             can
             rescind
             their
             own
             
             Laws
             :
             nor
             should
             the
             people
             ,
             nay
             nor
             our
             Judges
             ;
             be
             made
             legislators
             ,
             
               consuetudinis
               ususque
               longavi
               non
               vilis
               est
               auctoritas
               verum
               non
               usque
               adeo
               sui
               valitura
               momento
               ut
               aut
               rationem
               vincat
               aut
               legem
               .
               l.
            
             2.
             
             
               C.
               quae
               sit
               long
               .
               Consuet
               .
            
             which
             should
             rather
             hold
             in
             Crimes
             ,
             then
             in
             any
             other
             subject
             ,
             because
             it
             seems
             absurd
             ,
             that
             it
             should
             be
             lawful
             to
             the
             people
             ,
             to
             loose
             themselves
             from
             the
             Laws
             made
             against
             themselves
             ;
             and
             to
             gain
             impunity
             by
             frequent
             repetition
             of
             their
             faults
             :
             or
             to
             be
             able
             to
             free
             themselves
             from
             punishment
             ,
             by
             contemning
             these
             Laws
             by
             which
             they
             are
             inflicted
             .
          
           
             The
             decisions
             of
             our
             Criminal
             Court
             ,
             as
             of
             all
             our
             other
             ,
             do
             bind
             the
             same
             or
             succeeding
             Judges
             ,
             rather
             out
             of
             decency
             ,
             then
             necessity
             ;
             for
             nothing
             tyes
             Judges
             but
             Laws
             ,
             and
             none
             can
             make
             Laws
             ,
             but
             the
             Parliament
             ,
             which
             is
             very
             suitable
             to
             
               l.
               Nemo
               C.
               de
               sent
               .
               &
               inter
               .
            
             where
             Iustinian
             doth
             expresly
             command
             
               ne
               ullorum
               judicum
               sententiae
               pro
               jure
               reputentur
               .
            
             The
             reason
             whereof
             given
             in
             that
             Law
             ,
             is
             
               quod
               non
               exemplis
               ,
               sed
               legibus
               est
               judicandum
               ,
            
             and
             the
             other
             reason
             
               L.
               ult
               .
               C.
               de
               legibus
               quia
               imperator
               est
               solus
               legum
               conditor
               .
            
             And
             if
             we
             consider
             how
             much
             circumstances
             influence
             particular
             cases
             ,
             how
             Judges
             may
             fail
             where
             parties
             are
             nam'd
             ,
             and
             that
             decisions
             pass
             necessarily
             upon
             less
             premeditation
             then
             is
             necessary
             to
             Laws
             ;
             it
             will
             be
             found
             reasonable
             ,
             not
             to
             trust
             decisions
             too
             much
             .
             Likeas
             our
             Judges
             ,
             do
             make
             express
             Acts
             of
             Sederunt
             ,
             as
             we
             call
             them
             ,
             when
             they
             resolve
             to
             regulat
             future
             cases
             ;
             which
             were
             unnecessar
             if
             all
             decisions
             did
             of
             themselves
             bind
             .
             Nor
             doth
             the
             decisions
             of
             the
             very
             Parliament
             of
             Paris
             ,
             bind
             even
             the
             pronounters
             themselves
             for
             the
             future
             ,
             as
             Conan
             observes
             ,
             lib.
             1.
             c.
             15.
             
             And
             so
             frail
             ,
             and
             fallible
             a
             thing
             ,
             are
             mens
             judgements
             ;
             especially
             where
             votes
             are
             numbered
             ,
             and
             not
             weigh'd
             :
             or
             where
             experience
             may
             discover
             the
             errors
             ,
             which
             the
             sharpest
             reason
             could
             not
             foresee
             ;
             that
             therefore
             Judges
             should
             no
             more
             be
             tyed
             from
             altering
             their
             decisions
             ,
             then
             Philosophers
             to
             continue
             in
             the
             errors
             of
             their
             Youth
             .
             But
             yet
             when
             the
             arguments
             pro
             and
             contra
             weigh
             equally
             ,
             and
             reason
             seems
             puzled
             where
             to
             encline
             ,
             
             the
             authority
             even
             of
             our
             former
             decisions
             ,
             should
             cast
             the
             ballance
             ,
             especially
             where
             the
             same
             reason
             then
             urg'd
             ,
             was
             there
             pressed
             ;
             and
             in
             the
             interpretation
             of
             Laws
             (
             of
             which
             decisions
             are
             the
             best
             interpreters
             )
             if
             a
             whole
             tract
             of
             decisions
             can
             be
             produced
             ,
             it
             would
             infallibly
             bind
             ,
             wherein
             
               Craig
               diag
               .
               de
               jure
               quo
               utimur
            
             agrees
             with
             
               Callistrotus
               ,
               l.
            
             38.
             
               de
               .
               leg
               .
               in
               ambiguitatibus
               quae
               ex
               legibus
               profisciscuntur
               consuetudinem
               ,
               aut
               rerum
               perpetuo
               judicatarum
               auctoritatem
               vim
               legis
               obtinere
               .
            
             Where
             these
             decisions
             have
             proceeded
             upon
             a
             debate
             ;
             by
             which
             the
             reason
             of
             Judges
             is
             much
             ripened
             ,
             and
             the
             future
             inconveniences
             fully
             considered
             :
             for
             as
             Pomponius
             well
             observes
             ,
             l.
             2.
             
             §
             .
             
               his
               legibus
               ff
               .
               de
               origine
               juris
               ,
               his
               legibus
               latis
               caepit
               ut
               naturaliter
               evenire
               solet
               ,
               ut
               interpretatio
               desideraret
               prudentium
               authoritate
               necessariam
               esse
               disputationem
               fori
               .
            
             And
             Durie
             in
             the
             case
             of
             Hoom
             of
             Cowdoun-knowes
             ,
             shewes
             us
             how
             the
             L.
             of
             Session
             thought
             it
             not
             derogatory
             from
             their
             honour
             ,
             to
             retreat
             a
             sentence
             after
             debate
             ,
             which
             they
             had
             pronounced
             ,
             when
             no
             Advocats
             were
             compearing
             .
          
           
             We
             follow
             the
             Civil
             Law
             in
             judging
             Crimes
             ,
             as
             is
             clear
             by
             several
             Acts
             of
             Parliament
             ,
             wherein
             the
             Civil
             Law
             is
             called
             the
             common
             Law.
             And
             
               Robert
               Leslies
            
             Heirs
             are
             by
             the
             69.
             
             
               Act.
               Par.
            
             6.
             
             Ia.
             5.
             ordained
             to
             be
             forefaulted
             for
             the
             Crime
             of
             Treason
             ,
             committed
             by
             the
             father
             according
             to
             the
             Civil
             Law.
             And
             forefaultor
             in
             absence
             was
             allowed
             by
             the
             Lords
             of
             Session
             ,
             in
             Anno
             1669.
             because
             that
             was
             conform
             to
             the
             Civil
             Law
             ;
             and
             falshood
             is
             ordain'd
             to
             be
             punisht
             ,
             according
             to
             the
             Civil
             and
             Canon
             Law
             ,
             Act
             22.
             
             Par.
             5.
             
             
               Q.
               M.
            
             And
             that
             the
             Civil
             Law
             is
             our
             rule
             ,
             where
             our
             own
             Statutes
             and
             customs
             are
             silent
             ,
             or
             deficient
             ,
             is
             clear
             from
             our
             own
             Lawyers
             ,
             as
             
               Skeen
               Annot.
               ad
               .
               l.
            
             1.
             
             
               R.
               M.
               c.
            
             7.
             ver
             .
             2.
             
             And
             by
             
               Craig
               l.
            
             1.
             diog
             .
             2.
             
             As
             also
             from
             our
             own
             Historians
             ,
             
               Lesly
               .
               l.
            
             1.
             
               cap.
               leg
               .
               Scotor
               .
               Boet.
               l.
            
             5.
             
               hist
               :
               Camer
               .
               de
               Scot.
               Doctr.
               l.
            
             2.
             cap.
             4.
             
             And
             the
             same
             is
             recorded
             of
             us
             ,
             by
             the
             Historians
             ,
             and
             Lawyers
             of
             other
             Nations
             ,
             as
             
               Forcat
               lib.
            
             1.
             
               hist.
               Angl.
               Petr.
               diamitis
               Geograph
               .
               Europ
               .
               tit
               .
               D.
               Escosse
            
             and
             
               Duck
               de
               auth
               .
               jur
               .
               civ
               .
               lib.
            
             2.
             cap.
             10.
             and
             though
             the
             Romans
             had
             some
             customs
             ,
             or
             forms
             ,
             peculiar
             to
             the
             genious
             of
             their
             own
             Nation
             :
             Yet
             their
             Laws
             ,
             in
             
             Criminal
             cases
             ,
             are
             of
             universal
             use
             ,
             for
             Crymes
             are
             the
             same
             almost
             every
             where
             ,
             as
             Boet.
             well
             observes
             ,
             
               leges
               Romanas
               à
               Iustiniano
               collectas
               tanta
               ratione
               &
               sermonis
               venustate
               esse
               ,
               ut
               nulla
               sit
               natio
               tam
               fera
               vel
               ab
               humanitate
               abhorrens
               ;
               quae
               eas
               non
               fuerit
               admirata
               .
            
             And
             
               K.
               Ia.
            
             5.
             was
             so
             fond
             of
             the
             Civil
             Law
             ,
             as
             Boet.
             observes
             ,
             lib.
             17.
             that
             he
             made
             an
             Act
             ,
             ordaining
             ,
             that
             no
             man
             should
             succeed
             to
             a
             great
             Estate
             ,
             in
             Scotland
             ,
             who
             did
             not
             understand
             the
             Civil
             Law
             ,
             and
             erected
             two
             professions
             of
             it
             ,
             one
             at
             
               Saint
               Andrews
            
             ,
             and
             another
             at
             Aberdeen
             .
             And
             when
             Iames
             the
             2.
             did
             by
             the
             48
             act
             of
             his
             3.
             
             Parliament
             ordain
             that
             his
             Subjects
             should
             be
             governed
             by
             no
             forraign
             Lawes
             ,
             he
             designed
             not
             to
             debar
             the
             respect
             due
             to
             the
             Roman
             Lawes
             ;
             but
             to
             obviat
             the
             vain
             pretences
             of
             the
             Pope
             ,
             whose
             canons
             and
             concessions
             were
             obt●uded
             upon
             the
             people
             as
             Laws
             by
             the
             Church
             men
             of
             these
             times
             .
          
           
             The
             4th
             branch
             of
             our
             Criminal
             Law
             are
             the
             Books
             of
             
               Reg.
               Maj
            
             :
             which
             are
             in
             criminalibus
             lookt
             upon
             as
             authentick
             .
             Thus
             the
             Thief
             must
             be
             punisht
             before
             the
             recepter
             ,
             and
             assysers
             must
             be
             
               pares
               curiae
            
             ,
             &c.
             
             For
             which
             ,
             and
             many
             other
             maximes
             ,
             there
             is
             no
             warrand
             besides
             what
             is
             contained
             in
             these
             Books
             of
             
               Reg
               :
               Majest
            
             :
             But
             why
             should
             this
             be
             doubted
             ,
             seing
             they
             are
             cited
             as
             such
             ,
             Act
             47.
             
             Parl.
             6.
             
             Ia.
             3.
             where
             it
             is
             said
             ,
             that
             wilful
             and
             ignorant
             Assysers
             shall
             be
             punisht
             after
             the
             form
             of
             the
             Kings
             Law
             ,
             in
             the
             first
             Book
             of
             the
             Majesty
             ,
             and
             by
             the
             98.
             act
             .
             14.
             
               p.
               l.
            
             3.
             transgressions
             of
             that
             act
             are
             to
             be
             punisht
             conform
             to
             the
             Kings
             Laws
             ,
             and
             of
             
               Regiam
               Majestatem
            
             ,
             likeas
             by
             the
             54.
             
             P.
             3.
             
             I.
             1.
             a
             Comittee
             of
             Parliament
             is
             ordained
             to
             meet
             and
             examine
             the
             Book
             of
             the
             Law
             ,
             that
             is
             to
             say
             ,
             
               Regiam
               Majestatem
            
             ,
             and
             
               Quoniam
               atta
               chiamenta
            
             ,
             which
             is
             repeated
             ,
             115.
             
             Act.
             14.
             
             
               P.
               I.
            
             3.
             
             And
             albeit
             they
             contain
             many
             things
             which
             are
             not
             in
             use
             with
             us
             ;
             yet
             they
             have
             been
             in
             use
             ,
             and
             this
             objection
             would
             conclude
             ,
             the
             Acts
             of
             Parliament
             not
             to
             be
             our
             Law.
             It
             is
             then
             my
             opinion
             ,
             that
             
               K.
               Ia.
            
             the
             1.
             hath
             brought
             down
             some
             of
             these
             collections
             from
             England
             with
             him
             .
             Nor
             find
             I
             these
             books
             cited
             before
             this
             time
             .
          
           
             It
             is
             doubted
             whether
             the
             Secret
             Council
             can
             by
             any
             Act
             ,
             or
             Proclamation
             ,
             either
             introduce
             a
             cryme
             ,
             which
             can
             infer
             tinsel
             of
             
             life
             ,
             or
             escheat
             ;
             for
             the
             Parliament
             can
             only
             dispose
             upon
             our
             lives
             ,
             and
             fortunes
             .
             And
             it
             being
             the
             representative
             of
             the
             Nation
             ,
             every
             man
             is
             in
             Law
             ,
             said
             to
             have
             consented
             ,
             to
             what
             the
             Parliament
             doth
             ;
             I
             find
             Craig
             to
             have
             been
             of
             opinion
             that
             no
             Act
             of
             Secret
             Council
             can
             infer
             a
             Crime
             ,
             pag.
             38.
             
             Nor
             can
             the
             Council
             ,
             by
             their
             Acts
             ,
             warrand
             any
             to
             do
             what
             would
             be
             otherwise
             a
             Crime
             :
             for
             
               ejus
               est
               nolle
               ,
               cujus
               est
               velle
               .
            
             And
             none
             can
             take
             away
             a
             cryme
             ,
             but
             such
             as
             can
             introduce
             a
             cryme
             ,
             and
             therefore
             M
             
             r.
             
               Archb
               :
               Beath
            
             ,
             being
             pursued
             ,
             for
             killing
             some
             men
             ,
             he
             alledged
             ,
             that
             these
             men
             ,
             were
             bringing
             Meal
             from
             Ireland
             ,
             And
             that
             by
             Act
             of
             Council
             ,
             it
             was
             lawful
             to
             sink
             or
             kill
             such
             as
             contraveened
             the
             Act.
             To
             which
             his
             Majesties
             Advocat
             did
             reply
             ,
             that
             the
             Acts
             of
             Secret
             Council
             ,
             could
             not
             warrand
             the
             killing
             of
             a
             free
             Leidge
             ,
             and
             the
             committing
             of
             murder
             :
             which
             reply
             was
             found
             relevant
             .
             But
             since
             the
             Council
             are
             to
             secure
             the
             peace
             ,
             and
             that
             many
             accidents
             may
             emerge
             wherein
             the
             publick
             peace
             cannot
             be
             preserved
             without
             this
             power
             ,
             it
             were
             hard
             to
             limit
             them
             too
             much
             .
          
           
             IV.
             Whether
             dolus
             or
             a
             wicked
             designe
             ,
             be
             requisite
             in
             all
             crymes
             ;
             is
             largely
             treated
             of
             ,
             by
             the
             Doctors
             ,
             and
             is
             most
             fully
             debated
             ,
             in
             the
             process
             of
             
               Ochiltrie
               ,
               Balmerino
            
             ,
             and
             the
             Marquiss
             of
             Argyle
             .
             And
             by
             the
             texts
             ,
             §
             
               placuit
               just
               .
               de
               furt
               .
               l.
            
             3.
             
               ff
               .
               De
               injur
               .
               l.
               pen.
               ff
               .
               ad
               .
               Leg.
               jul
               .
               de
               Adult
               .
            
             It
             seems
             ,
             that
             the
             wickedness
             of
             the
             designe
             ,
             makes
             only
             an
             action
             criminal
             ;
             but
             in
             my
             judgement
             ,
             this
             inquiry
             may
             be
             resolved
             ,
             in
             these
             conclusions
             ,
             1.
             
             That
             seeing
             man
             can
             only
             offend
             in
             what
             is
             voluntar
             to
             him
             ,
             it
             must
             follow
             ,
             that
             the
             will
             is
             the
             only
             fountain
             of
             wickedness
             .
             And
             consequently
             ,
             it
             was
             at
             first
             the
             designe
             of
             Law-givers
             ,
             only
             to
             punish
             such
             Acts
             as
             were
             designedly
             malicious
             .
             2.
             
             Because
             design
             is
             a
             private
             ,
             and
             conceal'd
             act
             of
             the
             mind
             ,
             which
             escapes
             the
             severest
             probation
             .
             Therefore
             in
             some
             cases
             ,
             this
             dolus
             is
             allowed
             by
             Law
             ,
             to
             be
             inferred
             from
             conjectures
             ,
             and
             presumptions
             ,
             where
             the
             act
             is
             such
             ,
             as
             of
             its
             own
             nature
             ,
             may
             be
             good
             or
             evil
             ,
             accordingly
             as
             it
             is
             circumstantiat
             :
             as
             in
             poyson
             ,
             the
             giving
             whereof
             may
             be
             occasioned
             by
             ignorance
             ,
             mistake
             ,
             or
             malice
             ,
             3.
             
             Some
             acts
             are
             so
             irregular
             ,
             
             of
             their
             own
             nature
             ,
             that
             the
             Law
             requires
             only
             that
             the
             act
             be
             proved
             ,
             without
             proving
             the
             dole
             ,
             or
             wicked
             designe
             ,
             as
             in
             Sodomy
             ,
             Adultery
             ,
             &c.
             4.
             
             Some
             acts
             ,
             though
             they
             be
             not
             wicked
             of
             their
             own
             nature
             ,
             yet
             because
             the
             design
             cannot
             still
             be
             proved
             ,
             therefore
             the
             contraveening
             the
             Law
             is
             equivalent
             to
             design
             ,
             
               &
               dolus
               presumitur
               contra
               versantem
               in
               illicito
               ,
            
             as
             the
             conversing
             with
             a
             woman
             after
             the
             Church
             hath
             forbid
             the
             same
             ,
             and
             therefore
             the
             Doctors
             divide
             
               dolum
               in
               verum
               ,
               &
               presumtivum
               .
            
             5.
             
             Where
             the
             Law
             hath
             expresly
             required
             ,
             dole
             ,
             and
             defigne
             there
             ,
             it
             must
             be
             expresly
             libelled
             and
             proved
             ,
             as
             in
             the
             Act
             37.
             
             Par.
             2.
             
             
               K.
               Ia.
            
             2.
             where
             it
             is
             statuted
             ,
             that
             if
             any
             man
             wilfully
             recept
             rebels
             ,
             he
             shall
             be
             forefaulted
             ;
             but
             albeit
             
               lata
               culpa
            
             ,
             be
             equivalent
             ,
             to
             dolus
             ,
             in
             lesser
             Crymes
             ,
             yet
             the
             Doctors
             conclude
             ,
             that
             where
             the
             cryme
             may
             infer
             death
             ,
             or
             mutilation
             (
             losse
             of
             life
             ,
             or
             limb
             ,
             as
             we
             speak
             )
             there
             the
             grossest
             negligence
             ,
             or
             
               lata
               culpa
            
             ,
             is
             not
             equivalent
             to
             
               dolus
               .
               Clar.
               Quest.
            
             84
             ,
             Num.
             7.
             
             It
             is
             likewise
             much
             debated
             ,
             whether
             an
             endeavour
             ,
             to
             commit
             a
             crime
             ,
             be
             a
             crime
             ,
             albeit
             the
             efffect
             follow
             not
             .
             And
             albeit
             ,
             it
             be
             a
             rule
             ,
             in
             the
             Civil
             Law
             ,
             that
             
               in
               maleficiis
               ,
               voluntas
               Spectatur
               ,
               non
               exitus
               ,
               l.
            
             1.
             
             §
             .
             
               divus
               ff
               .
               ad
               leg
               .
               Corn.
               de
               sicar
               ,
            
             yet
             is
             generally
             concluded
             by
             the
             practicians
             of
             all
             Nations
             ,
             that
             
               simplex
               conatus
            
             ,
             or
             endeavor
             ,
             is
             not
             now
             punishable
             by
             death
             :
             
               Clar.
               Quest.
            
             91.
             
             
               Gothofr
               .
               §
               .
               Conatus
            
             .
             But
             for
             clearing
             this
             ,
             accorcording
             to
             the
             principles
             of
             reason
             ,
             I
             shall
             form
             these
             conclusions
             ,
             first
             ,
             That
             all
             indeavour
             ,
             is
             an
             offence
             against
             the
             Common-wealth
             :
             though
             nothing
             follow
             thereupon
             :
             albeit
             sometimes
             the
             punishment
             be
             conniv'd
             at
             ,
             or
             mitigated
             ,
             according
             to
             the
             several
             degrees
             of
             malice
             ,
             but
             that
             it
             is
             in
             it self
             criminal
             ,
             appears
             from
             this
             ,
             that
             simple
             designe
             is
             punishable
             in
             treason
             ,
             and
             some
             other
             atrocious
             crimes
             ;
             because
             in
             these
             ,
             especially
             in
             treason
             ,
             it
             would
             be
             too
             late
             ,
             to
             provide
             a
             remedy
             ,
             when
             the
             Cryme
             is
             committed
             .
             2.
             
             In
             lesse
             atrocious
             crymes
             ,
             the
             designe
             is
             punisht
             ,
             if
             the
             comitter
             proceeded
             to
             act
             that
             which
             approached
             nearly
             to
             the
             cryme
             it self
             ,
             
               Si
               diventum
               sit
               ad
               actum
               ,
               maleficio
               proximum
               .
            
             But
             this
             is
             not
             
               simplex
               conatus
            
             ,
             but
             in
             effect
             is
             a
             lesser
             degree
             of
             the
             crime
             ,
             to
             which
             it
             approaches
             ;
             as
             if
             a
             thief
             ,
             have
             put
             ladders
             to
             the
             house
             ,
             which
             he
             resolves
             to
             rob
             ;
             
             or
             if
             he
             mix
             poyson
             ,
             but
             the
             potion
             be
             spilt
             upon
             the
             ground
             by
             an
             accident
             :
             And
             albet
             it
             be
             commonly
             received
             ,
             that
             even
             in
             these
             cases
             ,
             
               affectus
               non
               est
               puniendus
               ,
               sine
               effectu
               ,
            
             by
             the
             same
             punishment
             ,
             with
             the
             cryme
             designed
             :
             yet
             I
             would
             distinguish
             in
             this
             ,
             betwixt
             an
             effect
             disappointed
             ,
             by
             an
             interveening
             accident
             ;
             and
             that
             which
             is
             stopt
             ,
             by
             the
             repentance
             of
             the
             committer
             ,
             for
             ,
             where
             the
             designe
             was
             only
             disappointed
             ,
             I
             think
             the
             ordinar
             punishment
             ,
             should
             not
             be
             remitted
             ,
             in
             cases
             
               ubi
               deventum
               est
               ad
               actum
               proximum
               
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
              
               .
               Basil
               :
               de
               extraord
               :
               crim
               :
               l.
            
             1.
             
             And
             therefore
             the
             court
             of
             Savoy
             ,
             did
             very
             justly
             condemn
             a
             thief
             ,
             to
             be
             hanged
             ,
             who
             had
             entered
             the
             house
             of
             one
             Girard
             to
             steal
             and
             murder
             ,
             but
             was
             deprehended
             before
             the
             theft
             was
             committed
             
               Goth.
               §
               .
               Conatus
               num
            
             :
             16.
             
             For
             since
             the
             punishment
             is
             only
             remitted
             
               in
               conatu
            
             ,
             or
             indeavor
             ,
             because
             of
             the
             favourable
             circumstance
             ,
             that
             nothing
             followed
             thereupon
             .
             So
             I
             think
             this
             may
             be
             counter-ballanced
             by
             the
             depravity
             of
             the
             designe
             ,
             in
             many
             cases
             .
             As
             if
             one
             should
             design
             to
             kill
             a
             whole
             family
             ,
             or
             burn
             a
             whole
             town
             ,
             and
             seing
             men
             are
             punisht
             ,
             not
             meerly
             for
             what
             is
             done
             ,
             because
             that
             cannot
             be
             helped
             ,
             as
             lawyers
             affirm
             ,
             but
             because
             ,
             the
             committer
             of
             a
             cryme
             ,
             may
             commit
             the
             like
             ;
             Therefore
             I
             conclude
             that
             he
             who
             designed
             to
             commit
             a
             crime
             ,
             should
             be
             punished
             as
             if
             he
             had
             committed
             it
             ;
             if
             he
             was
             only
             letted
             by
             accident
             ,
             because
             the
             Common-wealth
             cannot
             be
             otherwise
             secure
             .
             And
             therefore
             it
             was
             admired
             ,
             why
             in
             Iuly
             .
             1670.
             
             M
             
             r.
             Stanfields
             servant
             ,
             was
             not
             punisht
             with
             death
             for
             indeavouring
             to
             burn
             her
             Masters
             house
             ,
             albeit
             she
             was
             apprehended
             before
             any
             prejudice
             was
             done
             :
             But
             I
             would
             here
             add
             ,
             as
             a
             caution
             ,
             that
             great
             praemeditation
             ,
             should
             be
             proved
             before
             Conatus
             be
             punished
             capitally
             ;
             for
             that
             showes
             the
             confirmed
             malice
             of
             the
             designer
             ,
             and
             is
             aequivalent
             ,
             as
             to
             him
             ,
             to
             successe
             .
             3.
             
             In
             mean
             crymes
             ,
             where
             the
             effect
             followed
             not
             ,
             upon
             the
             designe
             ,
             but
             was
             hindred
             by
             repentance
             :
             I
             think
             little
             or
             no
             punishment
             should
             follow
             ,
             for
             ,
             
               nihil
               tam
               naturale
               ,
               quam
               unum
               quodque
               eodem
               modo
               dissolvi
               ,
               quo
               colligatum
               est
               .
            
             The
             like
             should
             also
             hold
             ,
             where
             the
             design
             was
             taken
             up
             in
             passion
             or
             without
             premeditation
             ,
             because
             there
             the
             committer
             ,
             is
             not
             for
             the
             future
             ,
             so
             much
             to
             be
             fear'd
             :
             but
             this
             
             subject
             will
             be
             more
             fully
             cleared
             in
             the
             particular
             subsequent
             titles
             ;
             for
             in
             some
             crimes
             ,
             Conatus
             or
             indeavour
             ,
             is
             more
             punishable
             then
             in
             others
             .
          
           
             Whether
             what
             tends
             to
             a
             crime
             ,
             though
             it
             be
             not
             arrived
             at
             the
             full
             guilt
             requisite
             ,
             to
             make
             it
             fall
             expresly
             under
             the
             statute
             ,
             or
             Law
             ,
             by
             which
             that
             crime
             is
             punished
             ,
             to
             which
             it
             approaches
             :
             has
             been
             oftentimes
             doubted
             .
             As
             for
             instance
             ,
             to
             misconstruct
             His
             
               Majesties
               Government
               ,
               and
               proceedings
               ;
               or
               to
               deprave
               His
               Laws
               ,
            
             is
             expresly
             declared
             punishable
             by
             death
             ,
             by
             the
             10.
             
             Act.
             10.
             
             
               P.
               I.
            
             6.
             
             Whether
             then
             may
             not
             papers
             ,
             as
             tending
             to
             misconstruct
             His
             Majesties
             proceedings
             ,
             and
             Government
             ,
             or
             bearing
             insinuations
             ,
             which
             may
             raise
             in
             the
             people
             jealousie
             against
             the
             Government
             be
             punisht
             by
             that
             Law
             ?
             And
             that
             such
             insinuations
             and
             tendencies
             are
             not
             punishable
             criminally
             ,
             may
             be
             argued
             thus
             .
             1.
             
             It
             is
             the
             interest
             of
             mankind
             to
             know
             expresly
             what
             they
             are
             to
             obey
             ;
             especially
             where
             such
             great
             certifications
             are
             annext
             ,
             as
             in
             Crymes
             .
             2.
             
             The
             Law
             having
             taken
             under
             its
             consideration
             this
             guilt
             ,
             has
             punisht
             the
             actual
             misconstructing
             ,
             or
             depraving
             ,
             but
             has
             not
             declared
             such
             insinuations
             or
             tendencies
             punishable
             ,
             
               &
               in
               statutis
               ,
               casus
               omissus
               habetur
               pro
               omisso
               .
            
             1.
             
             This
             would
             infallibly
             tend
             to
             render
             all
             Judges
             arbitrary
             ,
             for
             tendencies
             ,
             and
             insinuations
             ,
             are
             in
             effect
             the
             product
             of
             conjectur
             :
             and
             papers
             may
             seem
             innocent
             ,
             or
             criminal
             ,
             according
             to
             the
             zeal
             ,
             or
             humour
             ,
             as
             well
             as
             malice
             of
             the
             judger
             .
             Men
             being
             naturally
             prone
             to
             differ
             in
             such
             consequential
             inferences
             ,
             and
             too
             apt
             to
             make
             constructions
             in
             such
             ,
             according
             to
             the
             favour
             ,
             or
             malice
             ,
             they
             bear
             to
             the
             person
             ,
             or
             cause
             .
             Are
             not
             some
             men
             apt
             to
             construct
             that
             to
             tend
             to
             their
             dishonour
             ,
             which
             was
             design'd
             for
             their
             honour
             ,
             and
             to
             think
             every
             thing
             an
             innovation
             of
             Law
             ,
             or
             priviledge
             ,
             which
             checks
             their
             inclination
             and
             design
             ?
             Whereas
             some
             Judges
             are
             so
             violent
             in
             their
             loyalty
             ,
             as
             to
             imagine
             the
             meanest
             mistakes
             do
             tend
             to
             an
             opposition
             against
             Authority
             .
             And
             thus
             zeal
             ,
             jealousie
             ,
             malice
             ,
             or
             interest
             ,
             would
             become
             Judges
             ,
             if
             tendencies
             and
             insinuations
             were
             allowed
             to
             be
             Crimes
             .
             4.
             
             Men
             are
             so
             silly
             ,
             or
             may
             be
             in
             such
             haste
             ,
             or
             so
             confounded
             ;
             and
             the
             best
             are
             subject
             to
             such
             mistakes
             ,
             as
             that
             
             no
             man
             should
             know
             when
             he
             were
             innocent
             .
             Simplicity
             might
             oftimes
             become
             a
             Cryme
             :
             and
             the
             fear
             of
             offending
             ,
             might
             occasion
             offence
             .
             And
             how
             uncomfortably
             would
             the
             people
             live
             ,
             if
             they
             knew
             not
             how
             to
             be
             innocent
             ?
             Whereas
             on
             the
             other
             part
             ,
             it
             may
             be
             represented
             ,
             that
             there
             are
             some
             Crymes
             which
             cannot
             be
             determined
             as
             to
             all
             degrees
             of
             guilt
             .
             Such
             as
             is
             the
             misrepresenting
             the
             Government
             ,
             which
             may
             be
             done
             so
             cautiously
             ,
             and
             in
             such
             various
             ,
             and
             different
             wayes
             ,
             as
             cannot
             be
             specified
             in
             any
             Statute
             .
             2.
             
             If
             the
             misconstructing
             the
             Government
             be
             a
             great
             guilt
             ,
             certainly
             ,
             what
             tends
             to
             it
             must
             be
             punishable
             to
             some
             proportion
             .
             3.
             
             It
             is
             the
             interest
             of
             the
             Common-wealth
             ,
             that
             all
             disorders
             should
             be
             punish'd
             ;
             and
             surely
             it
             is
             a
             great
             prejudice
             to
             the
             Government
             ,
             that
             such
             insinuations
             ,
             or
             tendencies
             ,
             should
             escape
             unpunished
             .
             And
             as
             in
             the
             Civil
             Law
             ,
             there
             are
             many
             Actions
             which
             have
             no
             definit
             and
             distant
             names
             ,
             but
             are
             comprehended
             under
             the
             general
             names
             of
             
               actiones
               in
               factum
            
             ;
             And
             that
             there
             are
             
               actiones
               utiles
            
             ,
             arising
             from
             the
             reason
             of
             the
             Statute
             ,
             as
             well
             as
             directae
             ,
             which
             arise
             from
             the
             words
             of
             the
             Law
             :
             So
             in
             criminal
             ,
             there
             are
             Actions
             arising
             from
             the
             parity
             of
             reason
             ,
             or
             at
             least
             ,
             which
             inferring
             guilt
             in
             some
             degree
             ,
             are
             sustain'd
             with
             us
             ,
             
               tanquam
               crimina
               in
               suo
               genere
            
             .
             4.
             
             The
             doing
             what
             may
             tend
             to
             misconstruct
             ,
             or
             raise
             jealousies
             ,
             is
             expresly
             declared
             punishable
             by
             the
             60.
             
             Act
             6.
             
             
               Par.
               Q.
               M.
            
             whereby
             it
             is
             declared
             ,
             that
             such
             
               as
               sow
               evil
               reports
               ,
               tending
               thorow
               raising
               such
               rumors
               ,
               to
               stirr
               the
               hearts
               of
               the
               people
               to
               sedition
               .
            
             And
             by
             the
             9.
             
             Act
             20.
             
             
               Par.
               I.
            
             6.
             
             It
             is
             declared
             ,
             that
             by
             the
             former
             Laws
             ,
             every
             thing
             was
             declared
             punishable
             ,
             which
             
               tends
               to
               sedition
               ,
               and
               dissention
               amongst
               the
               people
               .
            
             And
             if
             endeavours
             be
             punishable
             ,
             much
             more
             ought
             tendencies
             :
             since
             tendencies
             are
             express
             deeds
             .
             Nor
             hath
             the
             Judge
             more
             latitude
             ,
             nor
             is
             he
             more
             arbitrary
             here
             ,
             then
             he
             ,
             and
             the
             inquest
             both
             are
             ,
             in
             judging
             what
             is
             arte
             and
             part
             ,
             for
             that
             is
             determined
             by
             no
             Law
             :
             and
             because
             it
             could
             not
             be
             determined
             ,
             therefore
             a
             lybel
             founded
             upon
             arte
             and
             part
             in
             general
             ,
             was
             ordained
             to
             be
             sustained
             as
             relevant
             by
             our
             Statutes
             .
          
           
           
             V.
             What
             persons
             may
             be
             punished
             ,
             or
             are
             capable
             to
             commit
             Crymes
             ;
             will
             be
             clear
             by
             determining
             what
             persons
             are
             not
             capable
             ,
             and
             whether
             a
             minor
             may
             be
             punished
             for
             a
             Crime
             ,
             is
             contraverted
             amongst
             the
             Doctors
             ;
             and
             for
             clearing
             of
             the
             difficulty
             ,
             we
             must
             distinguish
             betwixt
             such
             Crimes
             as
             are
             committed
             by
             contrivance
             ,
             
               &
               dolo
               malo
            
             .
             And
             in
             these
             a
             minor
             is
             to
             be
             punished
             ,
             if
             the
             dole
             can
             be
             proved
             ,
             
               l.
               un
               .
               God.
               si
               adversus
               dotem
               .
            
             The
             sum
             of
             which
             Law
             is
             ,
             that
             
               ubi
               Minor
               deliquit
               .
               per
               dolum
               restitutio
               non
               procedit
               ,
               sed
               ubi
               per
               culpam
               ibi
               subvenitur
               ei
               per
               restitutionem
               .
            
             2.
             
             In
             Crymes
             against
             the
             Law
             of
             Nature
             ,
             such
             as
             Murder
             ,
             
               A
               minor
            
             ,
             is
             lyable
             though
             not
             to
             the
             ordinar
             punishment
             ,
             but
             in
             meerly
             statutory
             Crymes
             ,
             such
             as
             usury
             ,
             forestalling
             of
             Mercats
             ,
             &c.
             
             He
             is
             not
             at
             all
             to
             be
             punished
             ,
             except
             
               ubi
               malitia
               supplet
               aetatem
            
             ,
             which
             ,
             because
             it
             is
             not
             presumable
             ,
             should
             not
             therefore
             be
             inferred
             ,
             but
             from
             very
             pregnant
             ,
             and
             convincing
             probation
             .
             And
             seeing
             arte
             in
             all
             Crimes
             ,
             seems
             to
             require
             judgement
             and
             contrivance
             ;
             it
             would
             appear
             ,
             that
             though
             the
             Crime
             it self
             were
             punishable
             in
             minors
             :
             Yet
             art
             and
             part
             should
             not
             ,
             seeing
             that
             ,
             in
             effect
             ,
             depends
             upon
             Acts
             of
             the
             judgement
             ;
             wherein
             minors
             may
             be
             mistaken
             ,
             because
             of
             their
             fragility
             ,
             and
             less
             age
             :
             and
             thus
             
               Iohn
               Rae
            
             was
             not
             put
             to
             the
             knowledge
             of
             an
             inquest
             ,
             for
             being
             arte
             ,
             and
             part
             ,
             of
             theft
             ,
             because
             he
             was
             not
             the
             principal
             committer
             ,
             but
             went
             alongst
             with
             his
             father
             ,
             and
             was
             not
             past
             twelve
             years
             of
             age
             ,
             1.
             
             Ianuary
             1662.
             3.
             
             Though
             a
             minor
             be
             punishable
             where
             he
             is
             
               pubertati
               proximus
            
             ,
             yet
             he
             is
             to
             be
             punisht
             more
             meekly
             ;
             and
             thus
             the
             Viscount
             of
             Frendraught
             ,
             was
             put
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             for
             being
             accessory
             to
             the
             away-taking
             and
             privat
             imprisonment
             of
             Gregory
             ,
             though
             this
             was
             a
             statutory
             Cryme
             .
             And
             thus
             Midlton
             ,
             and
             Machan
             were
             put
             to
             the
             knowledge
             of
             an
             Inquest
             .
             26.
             of
             August
             1612.
             and
             the
             9.
             of
             March
             ,
             1671.
             
             It
             was
             found
             after
             a
             most
             contentious
             debate
             ,
             that
             two
             boyes
             ,
             the
             youngest
             whereof
             was
             not
             twelve
             years
             of
             age
             ,
             should
             go
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             for
             casting
             down
             of
             a
             house
             at
             their
             fathers
             command
             :
             albeit
             it
             was
             alledged
             ,
             that
             this
             act
             was
             not
             of
             its
             own
             nature
             criminal
             ,
             as
             
             murther
             ,
             or
             bestiality
             ,
             but
             its
             guilt
             depended
             upon
             circumstances
             ,
             which
             minors
             were
             not
             oblieged
             to
             know
             ,
             as
             if
             the
             house
             belonged
             to
             their
             father
             ,
             of
             which
             they
             were
             informed
             ,
             and
             so
             were
             not
             guilty
             .
             There
             are
             some
             Crymes
             also
             ,
             wherein
             minors
             may
             be
             punisht
             ,
             and
             are
             repute
             majors
             ,
             
               per
               fictionem
               juris
            
             (
             according
             to
             the
             opinion
             of
             some
             Lawyers
             )
             such
             as
             fornication
             ,
             adultery
             ,
             sodomy
             ,
             
               &
               omnia
               delicta
               carnis
            
             ;
             because
             the
             guilt
             there
             consists
             in
             the
             commission
             of
             the
             fact
             ,
             and
             not
             in
             a
             contrivance
             ,
             and
             so
             minors
             may
             be
             equally
             guilty
             of
             these
             Crimes
             with
             majors
             .
             Yet
             I
             differ
             from
             these
             Doctors
             in
             this
             ;
             for
             since
             the
             committing
             these
             Crimes
             ,
             may
             be
             occasioned
             ,
             by
             levity
             ,
             and
             vacillancy
             of
             judgement
             in
             minors
             :
             and
             seing
             furious
             persons
             would
             not
             at
             all
             be
             punished
             for
             such
             Crimes
             ,
             I
             do
             think
             the
             age
             is
             somewhat
             to
             be
             considered
             ,
             even
             in
             these
             cases
             ;
             and
             that
             minors
             are
             not
             to
             be
             as
             severely
             punisht
             ,
             as
             majors
             ;
             seing
             they
             are
             not
             of
             so
             solid
             a
             judgement
             as
             these
             are
             .
             I
             find
             ,
             lib.
             3.
             
             
               Reg.
               Maj.
               c.
            
             32.
             
             §
             .
             15.
             
             And
             in
             annot
             .
             100.
             vers
             .
             3.
             c.
             41.
             lib.
             2.
             that
             a
             minor
             is
             not
             oblieged
             to
             answer
             for
             any
             Cryme
             by
             which
             he
             may
             loss
             life
             or
             limb
             .
             And
             a
             case
             is
             there
             cited
             betwixt
             His
             Majesty
             and
             the
             Abbot
             of
             
               Parbroth
               ,
               annot
               .
               c.
            
             13.
             v.
             12.
             
             And
             Skeen
             cites
             for
             this
             
               l.
               pen.
               C.
               de
               autorit
               .
               tut
               .
               &
               l.
            
             1.
             
             §
             .
             
               occisorum
               ff
               .
               ad
               §
               .
               C.
               Sillan
               .
               &
               Cap.
            
             2.
             
               de
               delict
               .
               puer
               .
               extrav
               .
            
             The
             reason
             seems
             to
             be
             ,
             because
             a
             minor
             may
             (
             being
             pursued
             whilst
             he
             is
             minor
             )
             omit
             some
             defence
             competent
             to
             him
             .
             And
             since
             a
             minor
             is
             not
             oblieged
             to
             debate
             
               de
               haereditate
               paterna
            
             ,
             whilst
             he
             is
             minor
             ;
             much
             less
             should
             he
             be
             oblieged
             to
             defend
             in
             a
             criminal
             pursuit
             ,
             
               ubi
               calore
               juvenili
               potest
               dicere
               vel
               tacere
               quod
               ei
               nocere
               potest
               .
            
             So
             that
             it
             seems
             ,
             that
             albeit
             a
             minor
             may
             be
             punisht
             for
             several
             Crymes
             committed
             by
             him
             when
             he
             was
             minor
             ,
             yet
             is
             he
             not
             oblieged
             to
             answer
             for
             any
             till
             he
             be
             major
             .
             But
             yet
             in
             the
             Viscount
             of
             Frendrauchts
             case
             ,
             it
             was
             found
             that
             a
             minor
             was
             oblieged
             to
             answer
             to
             an
             inditement
             even
             during
             his
             minority
             :
             But
             whether
             a
             minor
             confessing
             will
             be
             restored
             against
             his
             confession
             ,
             is
             fully
             debated
             in
             the
             title
             confession
             .
          
           
             VI.
             Such
             as
             commit
             any
             Cryme
             whilst
             they
             sleep
             ,
             are
             compared
             
             to
             Infants
             ,
             
               l.
               si
               .
               servus
               §
               .
               si
               fornicarius
               ff
               :
               ad
               l.
               aquiliam
               ,
            
             and
             therefore
             they
             are
             not
             punisht
             ,
             except
             they
             be
             known
             to
             have
             enmity
             against
             the
             person
             killed
             ;
             or
             that
             fraud
             be
             other
             wayes
             presumable
             :
             
               quo
               casu
            
             ,
             they
             may
             be
             punisht
             
               extra
               ordinem
               ,
               Farin
               :
               quest
               .
            
             82.
             
          
           
             VII
             .
             Such
             as
             are
             drunk
             ,
             are
             sometimes
             for
             want
             of
             dole
             ,
             and
             malice
             ,
             more
             meekly
             punisht
             than
             others
             ;
             especially
             if
             they
             were
             cheated
             upon
             designe
             ,
             into
             that
             condition
             by
             others
             .
             And
             in
             this
             case
             the
             Law
             distinguisheth
             
               inter
               ebrios
            
             ,
             who
             are
             rarely
             drunk
             ,
             
               &
               ●briosos
            
             ,
             who
             are
             habitually
             drunk
             :
             for
             these
             last
             should
             be
             most
             severely
             punisht
             ,
             both
             for
             their
             drunkennesse
             ,
             and
             for
             the
             crimes
             occasioned
             by
             it
             .
             But
             such
             as
             make
             themselves
             drunk
             upon
             design
             to
             excuse
             or
             lessen
             thereby
             the
             guilt
             they
             are
             to
             commit
             ,
             merit
             no
             favour
             ,
             and
             such
             as
             knew
             they
             were
             subject
             to
             extravagancy
             in
             their
             dri●k
             ,
             merit
             as
             little
             ,
             
               Cabal
               .
               cas
            
             .
             297
             I
             have
             not
             in
             our
             Law
             found
             drunkenness
             to
             defend
             in
             either
             cases
             ;
             And
             it
             was
             repelled
             in
             the
             pursuite
             of
             murder
             pursued
             against
             the
             Laird
             of
             Spot
             and
             Douglas
             ;
             for
             killing
             Hoom
             of
             
               Eccles.
               Anno.
            
             1667.
             
             Yet
             I
             think
             that
             in
             some
             circumstantiat
             cases
             ,
             the
             Council
             may
             mitigat
             the
             Sentence
             upon
             this
             accompt
             .
             But
             it
             is
             never
             a
             defence
             against
             the
             relevancie
             :
             Such
             as
             are
             furious
             ,
             are
             not
             in
             the
             construction
             of
             Law
             ,
             capable
             to
             commit
             a
             crime
             .
             Stat.
             2.
             
             Rob.
             2.
             for
             the
             Law
             compares
             them
             to
             infants
             ,
             or
             to
             dead
             men
             ,
             
               lege
               si
               quis
               ff
               .
               de
               acquirend
               .
               haered
               .
            
             to
             such
             as
             are
             absent
             ,
             
               l.
               sed
               .
               si
               .
               ff
               .
               de
               injuriis
               ,
            
             and
             makes
             them
             to
             be
             no
             more
             guilty
             because
             of
             the
             crime
             they
             commit
             ,
             then
             a
             stone
             from
             a
             house
             ,
             or
             a
             beast
             is
             to
             be
             repute
             guilty
             and
             punishable
             for
             the
             wrong
             they
             do
             .
             
               Quam
               si
               pauperiem
               pecus
               dederit
               aut
               tegula
               ceciderit
               ,
               l.
            
             5.
             
               ff
               .
               ad
               .
               l.
               aquil
            
             :
             and
             the
             Law
             commiserats
             so
             far
             their
             condition
             ,
             That
             it
             expostulats
             with
             such
             as
             would
             pursue
             them
             for
             a
             cryme
             ,
             
               &
               non
               exigas
               poenas
               ab
               eo
               ,
               quem
               fati
               in
               felicitas
               excusat
               ,
               quiabque
               ;
               furore
               ipso
               satis
               punitur
               .
               l.
               Infans
               ff
               .
               ad
               .
               l.
               Corn.
               de
               sicar
            
             :
             they
             are
             excused
             by
             their
             own
             misfortune
             ,
             and
             abundantly
             punished
             by
             their
             own
             fury
             :
             but
             since
             the
             Law
             protects
             furious
             persons
             from
             punishment
             ,
             because
             they
             want
             all
             judgement
             .
             l.
             14.
             
               ff
               .
               de
               officio
               praesid
            
             .
             It
             follows
             naturally
             ,
             that
             this
             priviledge
             
             should
             be
             only
             extended
             to
             such
             as
             are
             absolutly
             furious
             .
             2.
             
             It
             may
             be
             argued
             ,
             that
             since
             the
             Law
             grants
             a
             total
             impunity
             to
             such
             as
             are
             absolutely
             furious
             ,
             that
             therefore
             it
             should
             by
             the
             rule
             of
             proportions
             ,
             lessen
             and
             moderat
             the
             Punishments
             of
             such
             ,
             as
             though
             they
             are
             not
             absolutely
             mad
             ,
             yet
             are
             hypocondrick
             and
             melancholy
             to
             such
             a
             degree
             ,
             that
             it
             clouds
             their
             reason
             ,
             
               qui
               sensum
               aliquem
               habent
               sed
               diminutum
               ,
            
             which
             Lawyers
             call
             insania
             ,
             and
             the
             Greek
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             3.
             
             That
             such
             as
             shew
             any
             acts
             of
             resentment
             ,
             or
             revenge
             ,
             in
             the
             wrong
             they
             do
             ,
             may
             be
             punished
             with
             some
             degree
             of
             severity
             ;
             since
             they
             show
             some
             degree
             of
             judgement
             :
             But
             yet
             the
             Parliament
             of
             Paris
             is
             justly
             condemned
             by
             all
             Lawyers
             ,
             for
             having
             caused
             execute
             a
             mad
             man
             ,
             who
             had
             killed
             one
             that
             had
             struck
             him
             two
             dayes
             before
             ,
             but
             since
             he
             did
             show
             memory
             and
             revenge
             in
             that
             act
             ,
             he
             might
             have
             been
             punished
             justly
             to
             some
             moderate
             degree
             .
             4.
             
             Since
             there
             are
             some
             mad
             men
             who
             have
             lucid
             intervals
             ,
             whose
             fury
             has
             its
             tides
             ,
             and
             waxes
             and
             wanes
             ,
             like
             the
             moon
             upon
             which
             it
             depends
             ;
             
               quos
               furor
               ,
               stimulis
               suis
               variatis
               vicibus
               accendit
               .
               l.
            
             14.
             
               ff
               .
               de
               officio
               praesidis
            
             ,
             that
             therefore
             they
             should
             be
             thought
             capable
             to
             commit
             crymes
             when
             they
             are
             in
             their
             lucid
             interval
             ;
             but
             not
             when
             they
             are
             agitated
             by
             their
             fury
             .
             But
             here
             it
             may
             be
             doubted
             ,
             whether
             the
             crymes
             committed
             by
             a
             mad
             man
             who
             has
             lucid
             intervals
             ,
             should
             be
             persumed
             to
             have
             been
             committed
             by
             him
             when
             he
             was
             in
             his
             fury
             ,
             or
             in
             his
             lucid
             intervals
             ,
             and
             the
             general
             conclusion
             is
             ,
             that
             though
             every
             man
             be
             presum'd
             to
             be
             sound
             in
             his
             judgement
             ,
             till
             the
             contrary
             be
             proved
             ,
             
               quia
               qualitas
               quae
               inesse
               debet
               ,
               inesse
               praesumitur
               :
               Alciat
               praesump
               .
            
             1.
             
             Yet
             ,
             when
             a
             man
             is
             once
             proved
             to
             have
             been
             furious
             ,
             the
             Law
             presumes
             that
             he
             still
             continues
             furious
             ,
             till
             the
             contrair
             be
             proved
             ,
             for
             madness
             is
             but
             too
             sticking
             a
             disease
             ;
             and
             is
             seldom
             or
             ever
             cured
             .
             And
             this
             presumption
             should
             rather
             hold
             in
             the
             committing
             of
             crymes
             ,
             then
             in
             any
             thing
             else
             ;
             for
             the
             committing
             of
             a
             cryme
             ,
             looks
             liker
             the
             madnesse
             ,
             then
             the
             lucid
             intervals
             .
             And
             yet
             if
             my
             opinion
             were
             of
             authority
             enough
             ,
             I
             would
             limit
             this
             rule
             in
             two
             cases
             ,
             1.
             
             If
             the
             madnesse
             had
             fixt
             to
             an
             ordinary
             interval
             ,
             as
             the
             hight
             of
             the
             moon
             in
             lunaticks
             ,
             I
             would
             presume
             that
             if
             the
             
             Cryme
             were
             not
             committed
             at
             that
             time
             ,
             it
             behov'd
             to
             be
             presum'd
             it
             was
             committed
             in
             the
             lucid
             interval
             .
             2.
             
             If
             the
             person
             offended
             was
             one
             against
             whom
             the
             offender
             had
             prejudice
             in
             his
             lucid
             intervals
             ,
             or
             before
             his
             madnesse
             ,
             or
             if
             he
             shew
             any
             wit
             or
             contrivance
             in
             the
             execution
             of
             the
             wrong
             he
             did
             ,
             I
             would
             presume
             ,
             that
             the
             offence
             was
             committed
             in
             the
             lucid
             interval
             :
             But
             because
             the
             Cryme
             in
             these
             cases
             would
             be
             founded
             upon
             presumptions
             ,
             I
             think
             the
             punishment
             should
             be
             lessened
             upon
             that
             accompt
             ;
             and
             possibly
             that
             Judge
             would
             not
             be
             much
             mistaken
             who
             would
             remit
             something
             of
             the
             ordinary
             punishment
             in
             all
             Crymes
             committed
             ,
             even
             where
             the
             lucid
             intervals
             are
             clearly
             proved
             :
             for
             where
             madnesse
             has
             once
             disordered
             the
             judgement
             ,
             and
             much
             more
             where
             it
             recurts
             often
             ,
             it
             cannot
             but
             leave
             some
             weakness
             ,
             and
             make
             a
             man
             an
             unfit
             Judge
             of
             what
             he
             ought
             to
             do
             ,
             
               est
               tantum
               adumbrata
               quies
               ,
               intermissio
               ,
               sed
               non
               resipiscentia
               integra
            
             :
             And
             as
             our
             proverb
             well
             observes
             ,
             
               once
               Wood
               ,
               ●ay
               the
               worse
               .
            
          
           
             It
             is
             statute
             by
             the
             24.
             
             
               Chap.
               Stat.
            
             2.
             
             Rob.
             2.
             
             That
             a
             mad
             person
             shall
             be
             kept
             by
             his
             friends
             ,
             and
             if
             he
             commit
             any
             wrong
             ,
             it
             shall
             be
             imputed
             to
             his
             friends
             ,
             and
             keepers
             ;
             but
             though
             these
             may
             be
             made
             lyable
             civily
             for
             any
             damnage
             the
             furious
             man
             doth
             ,
             as
             a
             Master
             is
             in
             Law
             liable
             for
             the
             prejudice
             done
             by
             a
             wild
             beast
             ,
             which
             he
             keeps
             ;
             yet
             it
             were
             too
             severe
             to
             punish
             them
             corporally
             for
             the
             murders
             ,
             and
             other
             Crymes
             which
             he
             commits
             ,
             except
             where
             they
             are
             commanded
             by
             the
             Judge
             to
             keep
             him
             exactly
             ,
             which
             ought
             not
             to
             be
             extended
             against
             such
             as
             are
             only
             his
             Curators
             ,
             or
             nearest
             of
             kin
             .
             
               Bartol
               .
               ad
               l.
               divus
               ,
               ff
               .
               de
               off
               .
               praesid
               .
            
          
           
             It
             is
             generally
             agreed
             to
             by
             Lawyers
             ,
             that
             furious
             persons
             committing
             a
             Cryme
             in
             their
             fury
             ,
             cannot
             be
             punisht
             for
             it
             ,
             though
             thereafter
             they
             return
             to
             themselves
             :
             for
             in
             punishing
             Crymes
             ,
             the
             time
             of
             the
             commission
             is
             to
             be
             considered
             ;
             though
             
               Iason
               ,
               Tiraquel
            
             .
             and
             some
             others
             are
             of
             opinion
             ,
             that
             if
             the
             Cryme
             was
             very
             atrocious
             ,
             the
             mad
             man
             recovering
             ,
             may
             be
             punished
             .
             And
             for
             this
             they
             instance
             the
             Queen
             
             of
             Castile
             ,
             who
             punished
             with
             death
             ,
             a
             man
             who
             had
             in
             his
             fury
             wounded
             her
             Husband
             King
             Ferdinand
             ;
             and
             they
             cite
             l.
             14.
             
               ff
               .
               de
               officio
               praesidis
            
             .
             But
             the
             instance
             is
             founded
             upon
             the
             passion
             of
             a
             woman
             ;
             and
             that
             Law
             speaks
             only
             of
             Crymes
             committed
             in
             a
             lucid
             interval
             .
             And
             whereas
             Caballus
             thinks
             such
             a
             punishment
             necessar●
             ,
             for
             satisfying
             the
             discipline
             of
             the
             Church
             ;
             I
             should
             rather
             think
             ,
             that
             the
             Chu●ch
             should
             of
             all
             other
             ,
             least
             punish
             that
             misfortune
             ,
             it
             being
             against
             Christian
             charity
             ,
             to
             add
             affliction
             to
             the
             afflicted
             .
             And
             it
             were
             brutish
             for
             Church
             men
             to
             be
             more
             severe
             ,
             then
             the
             madness
             it self
             was
             ,
             which
             was
             so
             charitable
             as
             to
             take
             its
             leave
             .
             As
             a
             man
             should
             not
             be
             punished
             in
             his
             health
             ,
             for
             what
             he
             did
             when
             he
             was
             mad
             :
             so
             upon
             the
             other
             hand
             ,
             a
             man
             who
             committed
             a
             Cryme
             in
             his
             health
             ,
             ought
             not
             to
             be
             punished
             bodily
             ,
             if
             he
             thereafter
             turn
             mad
             :
             for
             then
             he
             is
             not
             sensible
             of
             correction
             ,
             which
             is
             one
             of
             the
             great
             designes
             of
             punishment
             .
             And
             to
             punish
             him
             then
             ,
             were
             to
             endanger
             his
             soul
             :
             nor
             would
             the
             people
             be
             deterred
             from
             vice
             ,
             but
             would
             rather
             be
             troubled
             with
             passion
             at
             such
             a
             spectacle
             :
             but
             yet
             he
             may
             be
             punished
             in
             his
             goods
             ,
             
               Clarus
               quest
            
             .
             6.
             tells
             us
             of
             one
             who
             was
             scourged
             for
             perjury
             ,
             though
             it
             was
             alledged
             he
             was
             mad
             ,
             but
             this
             last
             seems
             too
             severe
             ,
             for
             the
             reasons
             foresaid
             ;
             and
             since
             a
             mad
             man
             is
             lookt
             upon
             as
             absent
             ,
             it
             may
             be
             justly
             doubted
             ,
             whether
             he
             may
             be
             process'd
             during
             his
             madness
             ,
             for
             a
             Cryme
             committed
             by
             him
             while
             he
             was
             in
             health
             ,
             even
             in
             order
             to
             the
             inflicting
             a
             pecuniary
             punishment
             :
             and
             that
             because
             absents
             cannot
             by
             our
             Law
             be
             try'd
             criminally
             :
             and
             because
             ,
             mad
             men
             cannot
             inform
             their
             Friends
             or
             Lawyers
             ,
             so
             as
             they
             may
             propon
             their
             just
             defences
             .
             But
             since
             absents
             may
             be
             tryed
             for
             Treason
             ,
             by
             the
             late
             Act
             ,
             it
             would
             therefore
             appear
             ,
             that
             mad
             men
             may
             be
             likewise
             accused
             for
             Treason
             during
             their
             madness
             ;
             It
             may
             be
             likewise
             doubted
             if
             he
             who
             used
             any
             means
             to
             make
             himself
             mad
             after
             his
             sentence
             ,
             may
             not
             be
             put
             to
             death
             ,
             notwithstanding
             of
             his
             madness
             ,
             since
             that
             madness
             was
             occasioned
             by
             himself
             ,
             and
             so
             should
             not
             disappoint
             the
             Law.
             
             But
             
               Clarus
               quest
            
             .
             6.
             is
             of
             opinion
             ,
             that
             it
             ought
             to
             defend
             him
             from
             all
             corporal
             punishment
             ,
             and
             
               Caballus
               Casu
            
             298.
             num
             .
             27.
             is
             also
             of
             opinion
             ,
             that
             even
             he
             who
             commits
             a
             Cryme
             whilst
             he
             is
             mad
             ,
             though
             he
             himself
             occasioned
             the
             madness
             ,
             yet
             he
             is
             not
             to
             be
             punished
             by
             the
             ordinar
             punishment
             ,
             for
             the
             Law
             doth
             not
             presume
             that
             they
             made
             themselves
             furious
             upon
             design
             .
          
           
             IX
             .
             Whether
             a
             collective
             body
             of
             people
             ,
             or
             university
             ,
             such
             as
             a
             Burgh
             ,
             or
             Incorporation
             ,
             may
             commit
             a
             Crime
             ,
             seems
             debateable
             :
             And
             Ulpian
             .
             seems
             to
             deny
             it
             
               l.
               sed
               &
               ex
               dolo
               ff
               .
               de
               Dol.
               Mal.
            
             whose
             words
             are
             ,
             
               sed
               an
               in
               municipes
               de
               dolo
               detur
               actio
               ,
               dubitatur
               ,
               ego
               puto
               ,
               ex
               suo
               quidem
               non
               posse
               dare
               ,
               quid
               enim
               municipes
               facere
               possunt
               .
            
             But
             I
             conceive
             that
             we
             may
             clear
             this
             point
             by
             these
             positions
             ,
             1.
             
             That
             properly
             Incorporations
             cannot
             commit
             a
             Crime
             ;
             for
             they
             are
             
               jus
               ,
               non
               persona
            
             .
             2.
             
             Crimes
             which
             consist
             in
             omission
             ,
             may
             be
             fixed
             upon
             Incorporations
             ,
             as
             if
             their
             Magistrates
             omit
             what
             the
             Law
             commands
             .
             
               L.
               Iubenius
               C.
               de
               Sacro-Sanct
               :
               Ecclesia
               &
               l.
               si
               procuratorem
               ff
               .
               mandati
               .
            
             3.
             
             In
             these
             things
             which
             are
             proper
             only
             to
             be
             done
             by
             Incorporations
             ,
             such
             as
             in
             making
             Acts
             ,
             raising
             ,
             and
             using
             unlawful
             Judicators
             :
             Incorporations
             may
             be
             said
             to
             be
             guilty
             of
             what
             their
             Rulers
             commit
             :
             
               Constit.
               freder
               .
               de
               stat
               .
               &
               consuct
               .
            
             4.
             
             Even
             these
             Crymes
             which
             are
             ordinarly
             committed
             by
             privat
             men
             ,
             such
             as
             
               Murder
               ,
               Oppression
            
             ,
             &c.
             are
             in
             Law
             sometimes
             charged
             upon
             the
             Incorporations
             ;
             if
             these
             things
             be
             done
             by
             command
             of
             the
             Rulers
             ,
             
               l.
               Metum
               .
               ff
               .
               quod
               metus
               causa
               .
            
             5.
             
             No
             deeds
             of
             the
             Magistrats
             can
             infer
             a
             Cryme
             against
             the
             Incorporation
             ,
             except
             the
             body
             of
             the
             people
             concur
             :
             for
             they
             represent
             not
             the
             people
             in
             their
             Crymes
             ,
             but
             in
             their
             Government
             :
             and
             they
             were
             not
             impower'd
             in
             their
             election
             to
             commit
             Crymes
             ,
             
               l.
               si
               procurator
               §
               .
               Celsus
               ait
               .
               ff
               .
               de
               condit
               .
               indebit
               .
            
             6.
             
             If
             one
             man
             oppose
             what
             may
             be
             a
             Cryme
             ,
             then
             the
             Incorporation
             cannot
             be
             guilty
             ;
             for
             the
             university
             there
             cannot
             be
             said
             to
             offend
             :
             since
             all
             
             concur'd
             not
             ,
             
               &
               in
               damno
               vitando
               ,
               potior
               est
               conditio
               negantis
               .
            
          
           
             How
             far
             Incorporations
             may
             be
             punished
             ,
             may
             be
             likewise
             clear
             by
             these
             positions
             ,
             1.
             
             The
             Incorporation
             offending
             ,
             may
             be
             ordained
             to
             restore
             ,
             in
             so
             far
             as
             they
             got
             advantage
             .
             
               l.
               Metum
               autem
               .
               ff
               .
               quod
               met
               .
               caus
               .
               &
               l.
               sed
               &
               ex
               dolo
               ff
               .
               de
               dol
               .
               mal
               .
            
             2.
             
             In
             these
             Crymes
             wherein
             the
             fathers
             may
             be
             punished
             with
             the
             children
             ,
             such
             as
             Treason
             ,
             Incorporations
             may
             be
             likewise
             punished
             ,
             for
             their
             innocence
             is
             not
             more
             favourable
             ,
             then
             that
             of
             Children
             .
             Bartol
             .
             gives
             several
             instances
             ,
             where
             Towns
             have
             been
             for
             Treason
             condemned
             to
             be
             plow'd
             .
             3.
             
             If
             an
             Incorporation
             offend
             in
             doing
             things
             that
             are
             only
             proper
             to
             be
             done
             by
             Universities
             ,
             then
             the
             University
             may
             be
             punished
             ,
             by
             confiscation
             of
             a
             part
             of
             their
             common-good
             :
             but
             if
             an
             University
             should
             proceed
             to
             commit
             a
             Cryme
             ,
             which
             is
             usually
             committed
             by
             private
             persons
             ,
             such
             as
             the
             going
             with
             displayed
             Banners
             to
             oppress
             their
             neighbours
             ,
             then
             ,
             as
             the
             deeds
             of
             privat
             citizens
             cannot
             wrong
             the
             Incorporation
             ;
             so
             neither
             can
             the
             deeds
             of
             their
             Rulers
             .
             And
             Bart.
             is
             of
             opinion
             ,
             that
             if
             the
             Incorporation
             be
             fin'd
             ,
             such
             as
             are
             innocent
             should
             not
             be
             liable
             to
             pay
             any
             part
             of
             it
             ,
             but
             it
             should
             all
             fall
             upon
             the
             actors
             ;
             
               Arg.
               l.
            
             1.
             
               ff
               .
               de
               Magistrat
               .
               conveniend
               .
            
             for
             they
             were
             not
             impowered
             in
             their
             election
             to
             commit
             Crymes
             ,
             as
             said
             is
             .
          
        
         
           
           
             TITLE
             II.
             The
             division
             of
             Crymes
             .
          
           
             
               1
               
                 Crymes
                 are
                 publick
                 or
                 privat
              
               .
            
             
               2
               
                 Ordinary
                 or
                 extraordinary
              
               .
            
             
               3
               
                 Capital
                 or
                 not
                 capital
              
               .
            
             
               4
               
                 Occult
                 or
                 manifest
              
               .
            
             
               5
               
                 Atrocius
                 or
                 not
                 atrocius
              
               .
            
             
               6
               
                 Statutory
                 and
                 such
                 as
                 are
                 not
                 punish'd
                 by
                 express
                 Statute
                 .
              
            
          
           
             CRymes
             are
             divided
             by
             the
             Civil
             Law
             ,
             into
             publick
             Crymes
             ,
             and
             privat
             Crymes
             ,
             publick
             Crymes
             are
             defined
             to
             be
             these
             ,
             which
             any
             privat
             person
             may
             pursue
             ,
             for
             publick
             revenge
             ,
             and
             whereof
             the
             punishment
             is
             stated
             by
             an
             express
             Law
             ,
             §
             .
             1.
             
               institut
               .
               de
               publ
               .
               jud
               .
            
             And
             a
             privat
             Cryme
             which
             none
             can
             pursue
             ,
             but
             the
             party
             injured
             ,
             and
             which
             is
             not
             declared
             to
             be
             a
             publick
             Cryme
             by
             an
             express
             Law.
             But
             many
             of
             the
             Doctors
             ,
             do
             of
             late
             conclude
             ,
             that
             all
             Crymes
             which
             are
             punishable
             by
             the
             Statute
             of
             any
             particular
             Countrey
             ,
             are
             
               eo
               ipso
            
             ,
             to
             be
             accounted
             privat
             Crymes
             ,
             
               statuta
               enim
               sunt
               loges
               judiciorum
               privatorum
               Bal.
               ad
               leg
               .
               ult
               Cod.
               qui
               testa
               fac
               .
               poss
               .
            
             Yet
             this
             appears
             to
             be
             a
             mistake
             ,
             for
             if
             a
             Statute
             should
             allow
             any
             person
             whatsoever
             to
             pursue
             the
             Cryme
             ,
             therein
             forbidden
             ;
             that
             Cryme
             would
             be
             doubtless
             a
             publick
             Cryme
             ;
             for
             the
             true
             notion
             of
             a
             publick
             Cryme
             ,
             seemes
             to
             be
             that
             ,
             wherein
             the
             Common-wealth
             is
             immediatly
             concerned
             either
             by
             Interest
             ,
             or
             Example
             ;
             by
             Interest
             ,
             as
             in
             Treason
             ,
             or
             coining
             of
             false
             Money
             ;
             by
             Example
             ,
             as
             in
             Murder
             ,
             Witchcraft
             ,
             &c.
             
             In
             which
             ,
             
             though
             the
             Common-wealth
             be
             not
             immediately
             concerned
             ,
             as
             a
             body
             ,
             yet
             every
             particular
             person
             of
             that
             body
             is
             concerned
             ;
             because
             he
             who
             committed
             that
             Cryme
             ,
             may
             commit
             the
             same
             again
             ,
             
               &
               semel
               malus
               ,
               semper
               praesumitur
               malus
               ,
               in
               eodem
               genere
               malitiae
               .
            
             So
             that
             every
             ones
             having
             power
             to
             pursue
             a
             Cryme
             ,
             or
             a
             Crime
             being
             declared
             publick
             ,
             by
             an
             express
             Law
             ,
             are
             not
             the
             true
             constitutive
             differences
             ,
             betwixt
             a
             publick
             Cryme
             ,
             and
             a
             private
             ;
             but
             are
             only
             the
             effects
             thereof
             :
             for
             when
             the
             Kingdom
             ,
             or
             State
             ,
             doth
             find
             that
             any
             Cryme
             ,
             is
             of
             dangerous
             ,
             and
             universal
             consequence
             ,
             then
             they
             allow
             ,
             very
             justly
             ,
             that
             every
             privat
             man
             may
             accuse
             .
             With
             us
             in
             Scotland
             ,
             the
             vestiges
             of
             this
             distinction
             ,
             are
             yet
             to
             be
             seen
             for
             ,
             albeit
             his
             Majesties
             Advocat
             may
             pursue
             without
             the
             concurse
             of
             the
             party
             injured
             :
             Yet
             no
             other
             person
             will
             be
             allowed
             to
             pursue
             any
             Cryme
             ,
             
               nisi
               suam
               vel
               suorum
               injuriam
               prosequatur
               ,
            
             and
             that
             every
             privat
             person
             ,
             may
             not
             pursue
             in
             all
             Crimes
             ;
             is
             clear
             ,
             from
             c.
             2.
             lib.
             4.
             
             
               Reg.
               Maj.
            
             where
             in
             Treason
             ,
             it
             is
             said
             ,
             that
             every
             man
             may
             pursue
             ,
             which
             had
             been
             unnecessar
             ,
             if
             every
             person
             might
             pursue
             in
             every
             Crime
             ,
             and
             thus
             
               M
               c
               cal
            
             having
             raised
             Letters
             in
             his
             own
             name
             ,
             against
             
               Charles
               Lindsay
            
             ,
             for
             killing
             his
             Father
             ,
             in
             Iuly
             1668.
             the
             Justices
             would
             not
             sustain
             the
             pursuit
             at
             his
             instance
             ,
             because
             he
             could
             not
             prove
             that
             he
             was
             son
             to
             the
             defunct
             ,
             and
             since
             his
             Majesties
             Advocat
             ,
             represents
             in
             all
             criminal
             pursuits
             ,
             the
             publick
             :
             and
             as
             it
             is
             presumeable
             ,
             that
             he
             will
             not
             refuse
             his
             concurse
             ,
             so
             he
             will
             be
             punished
             ,
             if
             he
             refuse
             the
             same
             .
             It
             were
             therefore
             inconvenient
             ,
             and
             unnecessary
             ,
             that
             every
             privat
             man
             should
             be
             allowed
             the
             liberty
             ,
             of
             pursuing
             Crimes
             ,
             in
             which
             he
             were
             not
             interested
             :
             this
             distinction
             is
             much
             abused
             in
             the
             Books
             of
             
               Reg.
               Maj.
            
             For
             in
             them
             publick
             Murder
             is
             defined
             to
             be
             that
             ,
             which
             is
             committed
             by
             forethought
             fellony
             :
             and
             private
             Murder
             ,
             which
             is
             committed
             without
             being
             known
             to
             any
             ,
             but
             the
             persons
             who
             were
             complices
             ,
             
               stat
               .
               Malcom
            
             .
             2.
             c.
             15.
             
          
           
             II
             The
             Civil
             Law
             ,
             likewise
             divides
             Crimes
             in
             ordinary
             ,
             and
             
             extraordinary
             ;
             extraordinary
             were
             these
             wherein
             the
             Law
             had
             appointed
             no
             particular
             punishment
             ;
             ordinary
             crimes
             were
             such
             as
             were
             punishable
             by
             a
             liquid
             pain
             ,
             determined
             by
             the
             Law
             ,
             and
             was
             therefore
             called
             
               crimen
               legittimum
            
             .
          
           
             III.
             Crimes
             are
             likewise
             divided
             ,
             into
             such
             as
             were
             capital
             ,
             or
             not
             capital
             .
             Capital
             crimes
             are
             such
             ,
             as
             are
             punishable
             by
             death
             ,
             banishment
             ,
             or
             loss
             of
             liberty
             :
             so
             called
             
               à
               capitis
               diminutione
            
             ;
             but
             with
             us
             these
             crimes
             are
             only
             called
             capital
             ,
             which
             are
             punishable
             by
             loss
             of
             life
             or
             limb
             .
          
           
             IV.
             Crimes
             are
             either
             occult
             ,
             or
             manifest
             :
             occult
             crimes
             are
             these
             ,
             which
             either
             are
             occult
             of
             their
             own
             nature
             ,
             as
             Hamesucken
             ,
             Conspiracy
             ,
             Adultery
             ,
             or
             such
             as
             are
             occult
             by
             accident
             ,
             such
             as
             Murders
             committed
             by
             Inn-keepers
             upon
             their
             Guests
             .
             Though
             murder
             of
             its
             own
             nature
             be
             not
             occult
             ,
             since
             it
             is
             oft-times
             openly
             committed
             .
             This
             division
             is
             considered
             by
             Lawyers
             ,
             either
             in
             order
             to
             probation
             ;
             because
             in
             occult
             crimes
             less
             exact
             probation
             is
             accepted
             :
             And
             thus
             with
             us
             the
             being
             rob'd
             at
             Sea
             was
             found
             probable
             by
             these
             in
             the
             Ship
             ,
             because
             no
             other
             probation
             could
             be
             had
             there
             .
             And
             it
             is
             against
             the
             interest
             of
             the
             Common-wealth
             that
             Crimes
             should
             pass
             unpunish'd
             :
             Or
             they
             consider
             this
             division
             with
             respect
             to
             prescriptions
             ,
             because
             it
             is
             debated
             whether
             when
             a
             Statute
             appoints
             a
             Crime
             to
             be
             pursu'd
             betwixt
             and
             such
             a
             day
             ,
             that
             time
             should
             run
             in
             occult
             crimes
             ,
             from
             the
             time
             the
             crime
             was
             committed
             ,
             or
             from
             the
             time
             it
             was
             known
             .
             In
             occult
             crimes
             also
             ,
             torture
             is
             admitted
             more
             easily
             then
             in
             other
             crimes
             .
          
           
             V.
             Crimes
             are
             divided
             in
             such
             as
             are
             atrocious
             ,
             and
             such
             as
             are
             not
             .
             Atrocious
             crimes
             are
             these
             wherein
             the
             guilt
             is
             very
             great
             .
          
           
             VI.
             In
             Scotland
             ,
             crimes
             are
             divided
             in
             statutory
             ,
             and
             such
             as
             are
             not
             punished
             by
             an
             express
             Statute
             ,
             as
             common
             Adultery
             ,
             Bestiality
             ,
             &c.
             
             And
             albeit
             it
             was
             controverted
             in
             the
             Lord
             Rentouns
             case
             ,
             Ian.
             1666.
             that
             the
             poynding
             of
             Oxen
             in
             the
             time
             of
             labouring
             ,
             could
             not
             be
             accounted
             a
             crime
             ,
             because
             it
             was
             not
             declared
             punishable
             by
             an
             express
             Statute
             ;
             yet
             the
             Justices
             found
             ,
             that
             
               eo
               ipso
            
             it
             was
             forbidden
             by
             a
             Statute
             :
             It
             was
             in
             so
             far
             a
             crime
             ,
             
             because
             Authority
             was
             thereby
             contemned
             ,
             especially
             having
             been
             formerly
             declared
             a
             crime
             by
             the
             Civil
             Law.
             And
             it
             were
             unreasonable
             to
             think
             that
             Adultery
             ,
             albeit
             it
             be
             not
             notour
             ,
             should
             be
             a
             crime
             ,
             albeit
             its
             penalty
             is
             not
             exprest
             by
             a
             Statute
             .
             And
             with
             us
             especially
             of
             old
             it
             was
             most
             ordinary
             to
             forbid
             crimes
             without
             express
             sanctions
             ,
             as
             may
             be
             seen
             in
             several
             Acts
             of
             Parliament
             :
             Likeas
             by
             the
             Civil
             Law
             ,
             extraordinary
             crimes
             were
             declared
             to
             be
             such
             ,
             as
             were
             forbidden
             by
             Law
             ,
             but
             where
             the
             penalty
             of
             the
             Law
             was
             not
             determined
             ,
             from
             all
             which
             it
             appears
             ,
             that
             the
             essence
             of
             a
             crime
             consists
             in
             its
             being
             forbidden
             ,
             and
             not
             in
             having
             its
             punishment
             stated
             by
             an
             express
             Statute
             ,
             though
             I
             wish
             it
             were
             otherwise
             .
          
           
             What
             Crimes
             are
             called
             Crimes
             of
             the
             Crown
             ,
             or
             Pledges
             of
             the
             Crown
             ,
             is
             treated
             largely
             
               Title
               Regalities
            
             :
             What
             Crimes
             are
             called
             
               Crimina
               excepta
            
             ,
             is
             declared
             in
             the
             
               Title
               Treason
            
             .
          
        
         
           
           
             TITLE
             III.
             Blasphemy
             .
          
           
             
               1
               
                 What
                 is
                 Blasphemy
              
               ?
            
             
               2
               
                 The
                 several
                 kinds
                 of
                 Blasphemy
              
               .
            
             
               3
               
                 Whether
                 Ignorance
                 ,
                 Repentance
                 ,
                 or
                 Railery
                 be
                 good
                 defences
                 against
                 the
                 punishment
                 .
              
            
             
               4
               
                 What
                 is
                 the
                 punishment
                 of
                 Blasphemy
                 ,
                 by
                 the
                 common-Law
                 .
              
            
             
               5
               
                 What
                 by
                 our
                 Statutes
              
               ?
            
             
               6
               
                 Cursing
                 of
                 Parents
                 ,
                 and
                 swearing
                 ,
                 how
                 punished
                 ?
              
            
          
           
             BLasphemy
             is
             called
             in
             Law
             ,
             
               divine
               laese
               Majesty
            
             ,
             or
             Treason
             ;
             and
             it
             is
             committed
             either
             by
             denying
             that
             of
             God
             which
             belongs
             to
             him
             ,
             as
             one
             of
             His
             Attributes
             :
             or
             by
             attributing
             to
             him
             that
             which
             is
             absurd
             ,
             and
             inconsistent
             with
             his
             Divine
             Nature
             .
          
           
             II.
             These
             who
             swear
             by
             the
             Head
             ,
             or
             Feet
             of
             God
             ,
             are
             guilty
             of
             this
             Crime
             by
             the
             common
             Law
             ,
             c.
             51.
             
               si
               quis
               per
               dei
               capillum
            
             22.
             quest
             .
             1.
             
               videntur
               enim
               amplecti
               anthropomorphitarum
               haeresin
               quae
               membra
               deo
               tribuebat
            
             :
             By
             that
             Cannon
             they
             are
             also
             punishable
             ,
             who
             delate
             not
             Blasphemers
             .
             Albeit
             regularly
             what
             is
             spoken
             in
             passion
             be
             more
             moderately
             punished
             ,
             yet
             it
             lessens
             not
             a
             Blasphemers
             Crime
             ,
             
               Hostien
               .
               tit
               .
               de
               maled
            
             except
             he
             speak
             at
             such
             a
             rate
             ,
             as
             clearly
             indicats
             that
             he
             is
             furious
             ,
             or
             somewhat
             distracted
             :
             or
             if
             he
             recover
             himself
             ,
             and
             testifie
             immediatly
             his
             contrition
             ;
             thus
             Socin
             .
             relates
             consilio
             102.
             that
             a
             Jew
             who
             had
             denied
             the
             Omnipotence
             of
             God
             ,
             was
             absolved
             from
             a
             pursuit
             of
             Blasphemy
             ,
             because
             he
             immediatly
             threw
             himself
             upon
             the
             ground
             ,
             and
             kist
             
             it
             ,
             and
             testified
             an
             extraordinar
             horrour
             ,
             which
             Lawyers
             say
             ,
             is
             an
             extraordinar
             punishment
             ,
             and
             oftentimes
             exceeds
             the
             fear
             of
             Death
             .
             And
             there
             are
             some
             Lawyers
             ,
             as
             
               Abbas
               &
               felin
               ad
               cap.
            
             13.
             
               de
               jure
               jur
            
             .
             who
             conclude
             ,
             that
             either
             he
             who
             blasphems
             passionatly
             ,
             is
             unlawfully
             imployed
             when
             he
             falls
             into
             that
             passion
             ,
             as
             in
             playing
             at
             Cards
             ,
             Drinking
             ,
             &c.
             and
             then
             his
             passion
             doth
             not
             lessen
             his
             Crime
             :
             But
             if
             he
             be
             honestly
             employed
             ,
             as
             doing
             business
             ,
             treating
             for
             his
             Friend
             ,
             and
             then
             if
             he
             blaspheme
             only
             in
             passion
             ,
             it
             lessens
             his
             guilt
             ,
             and
             should
             mitigat
             his
             punishment
             :
             but
             why
             should
             passion
             excuse
             Blasphemy
             more
             then
             Murder
             ;
             if
             it
             be
             not
             because
             the
             fall
             cannot
             be
             repaired
             by
             Repentance
             ,
             a
             man
             being
             killed
             ,
             but
             the
             fault
             in
             Blasphemy
             may
             be
             extinguished
             by
             Repentance
             .
          
           
             III.
             Clarus
             thinks
             that
             these
             who
             Blaspheme
             in
             jest
             are
             to
             be
             less
             severly
             punished
             ;
             and
             that
             Rusticity
             mitigats
             the
             ordinary
             punishment
             in
             this
             case
             ;
             but
             Gothofredus
             is
             ,
             as
             to
             the
             last
             ,
             of
             a
             contrary
             opinion
             ,
             because
             Rusticity
             excuses
             not
             from
             the
             knowledge
             of
             the
             Law
             of
             Nature
             ,
             much
             less
             of
             God
             ,
             but
             they
             may
             be
             reconciled
             thus
             ,
             that
             open
             gross
             Blasphemy
             ,
             is
             equally
             punishable
             in
             both
             ;
             but
             not
             consequential
             and
             indirect
             Blasphemy
             ,
             as
             if
             a
             Countrey-man
             should
             erre
             in
             the
             Persons
             of
             the
             Trinity
             ,
             which
             some
             remot
             High-landers
             are
             so
             ignorant
             of
             ,
             as
             not
             to
             know
             ,
             those
             should
             rather
             be
             pitied
             then
             punished
             ,
             except
             they
             add
             obstinacy
             to
             Blasphemy
             ,
             
               vid.
               Cabal
               cas
            
             .
             296.
             
          
           
             IV.
             The
             punishment
             of
             Blasphemy
             ,
             is
             Death
             by
             the
             Law
             ,
             Nov.
             77.
             by
             the
             Canon
             Law
             :
             Publick
             repentance
             for
             the
             first
             fault
             ,
             and
             the
             standing
             at
             the
             Church
             Door
             ,
             with
             an
             infamous
             Mitre
             ,
             or
             Paper
             Hat
             for
             a
             relapse
             .
          
           
             V.
             By
             our
             Act
             21.
             
             Sess.
             1.
             
             Par.
             1.
             
             C.
             2.
             
             Blasphemy
             ,
             Railers
             against
             God
             ,
             or
             any
             of
             the
             Persons
             of
             the
             blessed
             Trinity
             ,
             shall
             be
             likewise
             punishable
             by
             death
             ,
             if
             they
             obstinatly
             continue
             therein
             .
             From
             which
             Act
             it
             is
             observable
             ,
             1.
             
             That
             this
             Crime
             can
             only
             be
             tryed
             before
             the
             Justices
             ;
             
             and
             therefore
             not
             before
             the
             Lord
             of
             a
             Regality
             ,
             though
             they
             have
             equal
             power
             ,
             as
             hath
             been
             formerly
             observed
             .
             2.
             
             Distraction
             is
             only
             excepted
             here
             ,
             so
             Ignorance
             ,
             Passion
             ,
             Rusticity
             ,
             or
             Railery
             excuses
             not
             ;
             
               nam
               exceptio
               firmat
               regulam
               in
               non
               exceptis
               ,
            
             and
             yet
             these
             may
             excuse
             from
             the
             ordinar
             punishment
             ,
             in
             some
             circumstances
             ;
             but
             are
             never
             defences
             against
             the
             relevancy
             .
             3.
             
             It
             may
             be
             doubted
             ,
             why
             the
             denying
             God
             ,
             or
             any
             of
             the
             Persons
             of
             the
             Holy
             Trinity
             ,
             is
             only
             punishable
             by
             death
             ,
             if
             they
             continue
             obstinat
             therein
             .
             And
             yet
             the
             railing
             upon
             ,
             or
             cursing
             God
             ,
             or
             the
             Trinity
             ,
             is
             simply
             punishable
             ,
             without
             obstinacy
             :
             and
             the
             difference
             seems
             to
             be
             ,
             that
             cursing
             ,
             or
             railing
             against
             God
             ,
             cannot
             proceed
             from
             Ignorance
             ,
             but
             argues
             Malice
             :
             whereas
             the
             denying
             Gods
             Attributes
             ,
             or
             the
             Trinity
             ,
             may
             proceed
             from
             Ignorance
             .
          
           
             It
             may
             be
             doubted
             ,
             if
             with
             us
             a
             person
             who
             should
             call
             himself
             the
             Son
             of
             God
             ,
             or
             the
             Messias
             ,
             could
             be
             punished
             as
             a
             blasphemer
             ;
             and
             it
             is
             said
             that
             the
             Parliament
             of
             England
             thought
             he
             could
             not
             :
             and
             therefore
             
               Iames
               Nailor
            
             was
             only
             scourged
             for
             this
             Crime
             .
             Yet
             I
             think
             he
             could
             be
             reached
             by
             our
             foresaid
             Act
             ,
             as
             a
             person
             who
             rail'd
             upon
             God
             ,
             and
             the
             Trinity
             .
             For
             to
             make
             our selves
             equal
             with
             them
             ,
             is
             to
             rail
             against
             ,
             and
             vilifie
             them
             .
          
           
             VI.
             Cursing
             of
             Parents
             ,
             viz.
             Father
             ,
             or
             Mother
             (
             but
             no
             others
             )
             is
             punishable
             by
             death
             ,
             if
             they
             be
             past
             sixteen
             ,
             or
             arbitrarly
             if
             they
             be
             below
             sixteen
             ,
             and
             above
             punishable
             ,
             (
             
               vid
               tit
               .
               parricid
               )
               Act
            
             20.
             
             Par.
             1.
             
             Sess.
             1.
             
             Ch.
             2.
             
          
           
             Justices
             of
             Peace
             are
             by
             the
             38.
             
             Act
             1.
             
             
               Par.
               Ch.
            
             2.
             to
             punish
             such
             as
             curse
             and
             swear
             profanely
             ,
             and
             exact
             from
             a
             Noble
             man
             twenty
             merks
             ,
             a
             Barron
             twenty
             merks
             ,
             a
             Gentle
             man
             ,
             Heretor
             ,
             or
             Burges
             ten
             merks
             ,
             a
             Yeoman
             fourty
             shilling
             ,
             a
             Servant
             twenty
             shilling
             ,
             a
             Minister
             the
             fifth
             part
             of
             his
             Steipend
             ,
             and
             the
             Husband
             must
             pay
             his
             Wifes
             fine
             ,
             
               ergo
               regulariter
            
             ,
             the
             Husband
             is
             not
             liable
             for
             the
             Wifes
             fine
             ,
             if
             there
             be
             no
             warrant
             therefore
             by
             Statute
             .
             By
             the
             16.
             
             Act
             5.
             
             
               Par.
               
               Q.
               M.
            
             the
             swearing
             abominable
             Oaths
             are
             to
             be
             fin'd
             ,
             but
             that
             Act
             is
             only
             temporary
             .
             By
             the
             103.
             
             
               Act
               Par.
            
             7.
             
             I.
             swearers
             and
             blasphemers
             ar
             to
             be
             punished
             by
             the
             Magistrats
             ,
             and
             if
             they
             fail
             ,
             by
             the
             Privie
             Council
             .
             Notà
             by
             this
             Act
             ,
             that
             Women
             are
             to
             be
             punished
             in
             penal
             Statutes
             ,
             conform
             to
             their
             Blood
             ,
             and
             their
             Husbands
             quality
             ;
             that
             is
             to
             say
             ,
             conform
             to
             their
             Blood
             if
             unmaried
             ,
             or
             to
             their
             Husbands
             quality
             if
             maried
             :
             and
             therefore
             may
             be
             doubted
             ,
             whether
             these
             Women
             who
             have
             precedency
             according
             to
             their
             Birth
             ,
             though
             maried
             ,
             as
             an
             Earles
             Daughter
             ,
             when
             maried
             to
             a
             Gentle
             man
             ,
             or
             those
             who
             have
             precedency
             by
             a
             Patent
             ,
             above
             their
             Husbands
             quality
             ,
             should
             not
             be
             punished
             according
             to
             their
             precedency
             ,
             though
             maried
             .
          
           
             The
             Justices
             did
             in
             May
             1671.
             fine
             a
             Woman
             in
             Dumfreis
             ,
             in
             500
             merks
             for
             drinking
             the
             Devils
             health
             ,
             but
             did
             not
             find
             it
             Blasphemy
             .
          
        
         
           
           
             TITLE
             .
             IV.
             Haeresy
             .
          
           
             
               1
               
                 The
                 definition
                 of
                 Heresy
              
               .
            
             
               2
               
                 Whether
                 Invocation
                 of
                 Spirits
                 be
                 heresy
                 .
              
            
             
               3
               
                 The
                 punishment
                 of
                 Heresy
              
               .
            
             
               4
               
                 Iesuits
                 and
                 trafficquing
                 Priests
                 how
                 punished
                 .
              
            
             
               5
               
                 The
                 specialities
                 ontroduced
                 in
                 punishing
                 this
                 Crime
                 .
              
            
          
           
             HEresy
             is
             committed
             ,
             when
             a
             Christian
             owns
             pertinatiously
             errors
             condemned
             by
             the
             Church
             .
             I
             said
             when
             
               a
               christian
            
             own'd
             them
             ,
             because
             Pagans
             and
             Mahumetans
             are
             not
             punish'd
             as
             Hereticks
             .
             
               Simancas
               de
               haereti
               .
               cap.
            
             31.
             num
             .
             3.
             for
             these
             are
             enemies
             to
             our
             faith
             in
             general
             ,
             and
             erre
             not
             in
             particular
             points
             of
             it
             .
             I
             said
             who
             err'd
             pertinatiously
             ,
             because
             such
             as
             erre
             ignorantly
             ,
             or
             as
             having
             err'd
             perversly
             ,
             do
             not
             pertinatiously
             adhere
             to
             their
             error
             ;
             are
             not
             to
             be
             esteem'd
             haereticks
             .
             And
             this
             repentance
             is
             to
             be
             receiv'd
             any
             time
             ,
             even
             after
             sentence
             to
             stop
             the
             execution
             .
             
               Carer
               .
               fol.
            
             642.
             except
             they
             have
             relaps'd
             in
             their
             Heresy
             ,
             for
             their
             second
             fall
             is
             not
             to
             be
             taken
             off
             by
             repentance
             ,
             but
             though
             their
             repentance
             secures
             them
             against
             death
             in
             the
             first
             fall
             ,
             yet
             the
             are
             to
             be
             punished
             by
             perpetual
             Imprisonment
             .
             
               Igneus
               :
               in
               :
               l.
               ff
               .
               ad
               Sillan
               :
               Cook.
               hoc
               .
               tit
               .
            
          
           
             II.
             Though
             some
             make
             the
             adoration
             ,
             and
             invocation
             of
             Spirits
             to
             be
             Heresy
             ,
             yet
             others
             do
             more
             judiciously
             determine
             that
             if
             these
             devils
             be
             invocked
             to
             reveal
             things
             to
             come
             ,
             then
             that
             invocation
             is
             of
             the
             nature
             of
             Heresy
             ,
             for
             that
             is
             to
             attribute
             omniscience
             to
             the
             Devil
             ,
             which
             is
             one
             of
             Gods
             attributes
             ,
             but
             if
             the
             
             Devil
             be
             invocked
             for
             a
             particular
             end
             ,
             or
             interest
             ,
             such
             as
             that
             he
             may
             learn
             the
             invocker
             how
             to
             prevail
             with
             a
             mistriss
             ,
             or
             how
             to
             gain
             a
             Princes
             favour
             ,
             in
             these
             cases
             the
             invocker
             is
             not
             to
             be
             call'd
             a
             Heretick
             .
             
               Clarus
               .
               §
               .
               Haeresis
               .
               num
               .
            
             25.
             but
             neither
             do's
             that
             distinction
             please
             me
             ,
             for
             such
             as
             invock
             the
             Devil
             are
             not
             properly
             Hereticks
             ,
             especially
             if
             they
             have
             renounced
             their
             Baptism
             ,
             for
             there
             is
             no
             reason
             to
             call
             them
             Hereticks
             who
             not
             only
             erre
             in
             the
             faith
             ,
             but
             have
             renounced
             the
             faith
             intirely
             ,
             and
             as
             Pagans
             are
             not
             Hereticks
             because
             they
             worship
             false
             Gods
             ,
             so
             neither
             should
             they
             who
             worship
             the
             Devil
             ,
             and
             these
             who
             have
             renounced
             their
             Baptism
             ,
             for
             they
             are
             in
             the
             same
             condition
             with
             these
             who
             were
             never
             baptized
             .
          
           
             III.
             The
             punishment
             of
             Heresie
             ,
             in
             the
             opinion
             of
             the
             Doctors
             ,
             is
             to
             be
             burnt
             ,
             and
             confiscation
             of
             the
             Delinquents
             Moveables
             ,
             
               Clar.
               num
            
             .
             13.
             
             But
             by
             the
             Law
             of
             England
             ,
             Hereticks
             are
             only
             to
             be
             burnt
             if
             they
             will
             not
             abjure
             .
          
           
             By
             our
             Law
             Heresie
             was
             in
             the
             first
             instance
             try'd
             by
             the
             Church
             ,
             and
             the
             Secular
             power
             did
             not
             meddle
             to
             condemn
             Hereticks
             ,
             till
             they
             were
             first
             condemned
             by
             the
             Church
             ,
             Ia.
             1.
             
             Par.
             2.
             
             Act.
             28.
             
             In
             which
             it
             is
             ordain'd
             that
             the
             Bishops
             shall
             inquire
             into
             Heresie
             ,
             and
             if
             they
             be
             found
             ,
             that
             they
             be
             punished
             
               as
               the
               Law
               of
               the
               Holy
               Kirk
               requires
               :
               and
               if
               it
               misters
               ,
               that
               Secular
               power
               be
               called
               in
               support
               ,
               and
               helping
               of
               holy
               Kirk
               .
            
          
           
             From
             which
             Act
             it
             is
             observable
             ,
             first
             ,
             that
             the
             Kirk
             was
             Judge
             to
             Heresie
             ,
             
               in
               prima
               instantia
            
             ,
             during
             Popery
             :
             and
             this
             is
             conform
             to
             the
             opinion
             of
             almost
             all
             the
             Doctors
             ,
             who
             think
             heresie
             
               crimen
               mere
               Ecclesiasticum
               ,
               Alcia
               .
               in
               c.
            
             1.
             num
             .
             37.
             
               de
               offic
               .
               ord
            
             .
             but
             they
             justly
             conclude
             ,
             as
             in
             this
             Statute
             ,
             that
             the
             cognition
             belongs
             to
             the
             Church
             ,
             and
             the
             punishment
             to
             the
             Secular
             Judge
             ;
             and
             this
             Canonists
             calls
             
               tradere
               h●reticum
               brachio
               Seculari
            
             :
             and
             Clarus
             do's
             so
             far
             appropiat
             this
             tryal
             to
             the
             Ecclesiastical
             Judge
             ,
             that
             he
             allows
             not
             so
             much
             the
             Secular
             Judge
             as
             the
             power
             of
             mitigating
             the
             punishment
             :
             and
             yet
             now
             the
             Justices
             are
             Judges
             competent
             ,
             
               in
               prima
               instantia
            
             ,
             
             to
             such
             as
             hear
             or
             say
             Mass
             ,
             but
             the
             reason
             is
             ,
             because
             such
             are
             in
             general
             condemn'd
             by
             the
             Church
             ,
             as
             guilty
             of
             Heresie
             ,
             and
             yet
             the
             Popish
             Church
             are
             still
             Judges
             to
             the
             Protestants
             ,
             thogh
             they
             be
             condemn'd
             in
             general
             as
             Hereticks
             ;
             for
             the
             Hereticks
             are
             try'd
             and
             condemn'd
             first
             by
             the
             Ecclesiastick
             Judge
             among
             them
             .
          
           
             The
             second
             thing
             remarkable
             in
             this
             Act
             ,
             is
             ,
             that
             amongst
             Ecclesiasticks
             ,
             the
             Bishop
             is
             the
             first
             Judge
             in
             Heresie
             ,
             which
             is
             also
             conform
             to
             the
             opinion
             of
             the
             Canonists
             ,
             
               Clar.
               h.
               t.
               num
            
             .
             5.
             
          
           
             After
             the
             Reformation
             ,
             there
             was
             a
             Confession
             of
             Faith
             made
             ,
             and
             is
             set
             down
             by
             King
             Iames
             in
             his
             first
             Parliament
             ,
             and
             Ratified
             Act
             4.
             
             And
             they
             who
             profess
             not
             the
             true
             Religion
             may
             not
             be
             a
             Judge
             (
             but
             this
             is
             not
             extended
             to
             Heretable
             Offices
             )
             Procurator
             ,
             nor
             Member
             in
             any
             Court
             ,
             Ia.
             6.
             pa.
             1.
             c.
             9.
             and
             such
             Church-men
             as
             will
             not
             subscribe
             that
             Confession
             ,
             are
             deprived
             ,
             Ia.
             6.
             
             Pa.
             3.
             
             Act
             46.
             and
             all
             such
             as
             refuse
             to
             subscribe
             ,
             are
             to
             be
             repute
             Rebels
             and
             enemies
             to
             the
             King
             and
             his
             Government
             ,
             Act
             47.
             
          
           
             IV.
             Our
             Law
             fearing
             the
             pains
             taken
             by
             the
             Romish
             Church
             ,
             more
             then
             the
             hazard
             arising
             from
             any
             else
             ,
             have
             been
             more
             severe
             to
             these
             ,
             than
             to
             others
             :
             And
             therefore
             the
             sayers
             or
             hearers
             of
             Mass
             ,
             or
             such
             as
             are
             present
             thereat
             ,
             are
             punished
             ,
             5.
             
             Act
             1.
             
             
               P.
               I.
            
             6.
             by
             confiscation
             of
             all
             their
             goods
             ,
             moveable
             ,
             and
             immoveable
             ,
             and
             an
             arbitrary
             punishment
             of
             their
             persons
             for
             the
             first
             fault
             ,
             banishment
             for
             the
             second
             fault
             ,
             and
             death
             for
             the
             third
             fault
             .
             It
             may
             be
             doubted
             ,
             if
             such
             as
             hear
             Mass
             for
             curiosity
             ,
             may
             be
             thus
             punished
             ,
             which
             is
             very
             ordinary
             abroad
             ;
             and
             it
             seems
             that
             Heresie
             must
             be
             an
             act
             upon
             design
             ,
             and
             yet
             this
             Law
             makes
             no
             distinction
             here
             .
             2.
             
             It
             may
             be
             doubted
             ,
             if
             by
             confiscation
             of
             Goods
             immoveable
             ,
             be
             meant
             Land
             and
             Heritages
             ,
             for
             they
             are
             call'd
             
               bona
               immobilia
            
             :
             and
             yet
             I
             rather
             incline
             to
             think
             that
             this
             should
             only
             extend
             to
             Heritable
             Bonds
             ,
             and
             such
             like
             ,
             but
             not
             to
             Lands
             :
             for
             Heritage
             uses
             alwayes
             to
             be
             exprest
             distinctly
             ,
             when
             the
             confiscation
             
             of
             it
             is
             design'd
             :
             And
             if
             Heritage
             were
             forefaulted
             by
             the
             first
             fault
             ,
             the
             punishment
             of
             the
             first
             would
             be
             greater
             then
             the
             punishment
             of
             the
             second
             fault
             ,
             which
             is
             only
             banishment
             :
             Nor
             do's
             Heritage
             use
             to
             be
             exprest
             under
             the
             word
             Goods
             .
             But
             thereafter
             the
             sayers
             of
             Mass
             ,
             and
             trafficking
             Papists
             ,
             and
             the
             receivers
             of
             them
             against
             the
             King's
             Majesty
             ,
             and
             Religion
             presently
             profess'd
             ,
             are
             declared
             guilty
             of
             treason
             ,
             Act
             120.
             
             Pa.
             12.
             
             Ia.
             6.
             
             But
             from
             these
             words
             ,
             
               Against
               the
               King's
               Majesty
               ,
               and
               Religion
               presently
               professed
               ,
            
             it
             may
             be
             argu'd
             ,
             that
             only
             such
             Jesuits
             ,
             and
             others
             ,
             as
             traffick
             to
             the
             prejudice
             of
             the
             King's
             Person
             ,
             and
             Government
             ;
             such
             as
             these
             who
             attempted
             the
             Gun-powder-treason
             ,
             or
             to
             kill
             the
             King
             ,
             or
             raise
             Rebellion
             ,
             are
             only
             guilty
             of
             Treason
             ,
             which
             seems
             the
             rather
             ,
             because
             it
             were
             hard
             to
             make
             simple
             endeavouring
             to
             perswade
             others
             in
             meer
             matters
             of
             Religion
             to
             be
             treason
             .
             It
             is
             also
             observable
             from
             this
             Act
             ,
             that
             such
             Jesuits
             ,
             or
             trafficking
             Papists
             ,
             or
             receipters
             of
             either
             ,
             as
             satisfies
             the
             King
             and
             Kirk
             ,
             are
             not
             to
             be
             guilty
             of
             treason
             ;
             so
             that
             here
             treason
             is
             taken
             away
             by
             repentance
             :
             but
             it
             may
             be
             doubted
             ,
             if
             though
             they
             be
             not
             guilty
             of
             treason
             ,
             they
             may
             not
             be
             punish'd
             as
             Hereticks
             ,
             conform
             to
             the
             above-cited
             5.
             
             Act.
             1.
             
             
               Pa.
               Ia.
            
             6.
             for
             the
             Act
             only
             declares
             that
             the
             penalty
             foresaid
             shall
             not
             strike
             against
             them
             .
             And
             though
             (
             as
             I
             observed
             formerly
             )
             such
             as
             are
             guilty
             of
             Heresie
             ,
             may
             by
             repentance
             save
             themselves
             from
             the
             punishment
             of
             death
             ,
             yet
             are
             they
             still
             declar'd
             lyable
             to
             other
             punishments
             ,
             such
             as
             perpetual
             imprisonment
             .
             But
             yet
             since
             our
             Law
             appoints
             no
             other
             punishments
             against
             Traffickers
             ,
             and
             receipters
             of
             Jesuits
             ,
             but
             what
             is
             exprest
             here
             ,
             and
             that
             the
             punishment
             here
             exprest
             is
             taken
             off
             in
             case
             of
             repentance
             ;
             I
             rather
             believe
             that
             no
             punishment
             can
             be
             inflicted
             ,
             in
             case
             of
             repentance
             ,
             against
             these
             .
             And
             it
             is
             very
             reasonable
             ,
             that
             meer
             errors
             in
             faith
             should
             be
             pardon'd
             by
             meer
             repentance
             ;
             but
             as
             to
             the
             sayers
             and
             hearers
             of
             Mass
             ,
             the
             former
             Act
             seems
             to
             stand
             .
          
           
           
             The
             Sellers
             also
             ,
             and
             dispersers
             of
             erronious
             and
             Popish
             Books
             ,
             are
             to
             be
             punish'd
             arbitrarily
             ,
             by
             the
             Rubrick
             of
             the
             25.
             
             Act
             11.
             
             
               Pa.
               Ia.
            
             6.
             but
             the
             statutory
             words
             run
             only
             against
             the
             home-bringers
             of
             such
             Books
             ,
             the
             Books
             also
             are
             to
             be
             destroyed
             ,
             and
             warrand
             is
             given
             to
             Magistrats
             of
             Burghs
             with
             a
             Minister
             ,
             to
             intromet
             with
             them
             without
             hazard
             of
             spuilzie
             :
             But
             yet
             
               de
               practica
            
             ,
             other
             Officers
             ,
             such
             as
             Sheriffs
             ,
             and
             Lords
             of
             Regality
             do
             intromet
             with
             such
             Books
             ,
             though
             they
             be
             not
             warranted
             .
             And
             though
             
               inclusio
               unius
               est
               exclusio
               alterius
            
             ,
             and
             though
             the
             Act
             ordains
             a
             Minister
             to
             be
             present
             (
             which
             was
             certainly
             apointed
             that
             it
             might
             be
             known
             whether
             the
             Books
             were
             Popish
             )
             yet
             
               de
               praxi
            
             ,
             Magistrats
             use
             to
             intromet
             without
             having
             a
             Minister
             present
             .
          
           
             I
             find
             no
             express
             punishment
             against
             other
             Hereticks
             in
             our
             Law
             ,
             nor
             
               de
               praxi
            
             ,
             are
             other
             Hereticks
             punish'd
             corporally
             ;
             but
             whether
             they
             may
             not
             be
             punish'd
             conform
             to
             the
             common
             Law
             ,
             and
             upon
             that
             general
             Act
             of
             
               K.
               Iames
            
             the
             First
             ,
             I
             will
             not
             determine
             .
             As
             also
             ,
             it
             is
             ordinary
             to
             banish
             only
             Jesuits
             ,
             and
             sayers
             of
             Mass
             ,
             as
             was
             done
             December
             9.
             1573.
             
             Mr
             
               Iohn
               Robertson
            
             was
             banished
             by
             order
             from
             the
             Council
             ,
             he
             enacted
             himself
             under
             the
             pain
             of
             death
             never
             to
             return
             to
             Scotland
             .
          
           
             V.
             The
             common
             Law
             ,
             or
             Doctors
             have
             introduced
             many
             specialities
             in
             the
             tryal
             of
             this
             Crime
             ,
             as
             first
             ,
             that
             less
             clear
             probation
             is
             admitted
             in
             proving
             Heresie
             ,
             then
             other
             Crimes
             ,
             
               Clar.
               §
               .
               Haeresis
               ,
               num
               .
            
             20.
             
             And
             by
             an
             old
             Act
             of
             
               Sederunt
               ,
               socii
               criminis
            
             ,
             Women
             ,
             and
             Pupills
             ,
             are
             to
             be
             admitted
             with
             us
             ,
             to
             prove
             hearing
             ,
             and
             saying
             of
             Mass
             ,
             else
             that
             Crime
             could
             not
             be
             proved
             .
             2.
             
             A
             Heretick
             may
             be
             try'd
             after
             death
             ,
             
               Alber.
               in
               rubr
               .
               h.
               t.
            
             which
             they
             say
             holds
             not
             only
             in
             a
             Heretick
             found
             guilty
             by
             probation
             (
             
               Haereticus
               verus
            
             )
             but
             in
             these
             who
             were
             cited
             to
             compear
             for
             Heresie
             ,
             but
             compeared
             not
             ,
             whom
             they
             call
             
               Haereticum
               praesumptum
            
             ,
             but
             this
             holds
             not
             with
             us
             ,
             no
             not
             in
             these
             who
             are
             guilty
             of
             Treason
             ,
             as
             being
             Traffiquing
             Jesuits
             or
             Papists
             ,
             for
             only
             Perduellion
             is
             by
             our
             Law
             to
             by
             try'd
             after
             death
             :
             But
             though
             the
             Heretick
             cannot
             be
             punish'd
             after
             death
             ,
             yet
             his
             opinions
             may
             be
             condemn'd
             ,
             as
             Heretical
             ,
             even
             after
             his
             death
             .
          
        
         
           
           
             TITLE
             V.
             Simony
             ,
             Baratry
             .
          
           
             
               1
               
                 What
                 is
                 Simony
              
               ?
            
             
               2
               
                 How
                 it
                 is
                 probable
              
               .
            
             
               3
               
                 The
                 nature
                 and
                 punishment
                 of
                 it
                 in
              
               Scotland
               .
            
             
               4
               
                 Baratry
                 Ecclesiastick
              
               .
            
             
               5
               
                 Baratry
                 Civil
              
               .
            
          
           
             SImony
             is
             the
             selling
             or
             buying
             any
             Church
             Office
             ,
             
               cupiditas
               emendi
               aut
               vendendi
               aliquid
               spirituale
               aut
               spirituali
               annexum
               .
            
             So
             called
             from
             
               Simon
               Magus
            
             ,
             who
             offered
             to
             buy
             the
             Grace
             of
             God.
             And
             the
             Canonists
             teach
             ,
             that
             it
             is
             Simony
             to
             paction
             for
             any
             advantage
             in
             administrating
             the
             Sacraments
             ,
             but
             not
             to
             take
             reward
             after
             they
             have
             administrate
             them
             .
          
           
             II.
             In
             this
             Crime
             ,
             infamous
             persons
             ,
             whoors
             ,
             and
             other
             witnesses
             ,
             who
             are
             not
             habiles
             ,
             or
             at
             least
             ,
             who
             are
             not
             
               omni
               exceptione
               majores
            
             ,
             are
             here
             receivable
             
               cap.
               sicut
               .
               de
               Simon
            
             .
             because
             it
             is
             ordinarly
             carried
             on
             with
             much
             privacy
             ,
             and
             clandestine
             dealing
             ,
             for
             which
             reason
             likewise
             ,
             Lawyers
             conclude
             ,
             that
             it
             may
             be
             proved
             by
             presumptions
             .
             It
             is
             
               crimen
               mere
               ecclesiasticum
            
             ,
             and
             cannot
             be
             punished
             by
             Laicks
             ,
             the
             punishment
             is
             depravation
             .
          
           
             III.
             With
             us
             ,
             Simony
             is
             once
             mentioned
             ,
             and
             that
             is
             ,
             Act
             1.
             
             Par.
             21.
             
             Ia.
             6.
             
             Wherein
             it
             is
             Statute
             ,
             that
             if
             the
             Arch-Bishop
             ,
             or
             Bishop
             deprehend
             that
             the
             person
             who
             is
             presented
             ,
             hath
             made
             any
             Simonaical
             paction
             with
             the
             Patron
             ;
             whereby
             he
             hath
             so
             hurt
             the
             Benefice
             ,
             as
             that
             he
             hath
             not
             reserved
             a
             sufficient
             maintenance
             for
             himself
             ,
             and
             his
             successors
             ,
             suitable
             to
             the
             value
             of
             the
             Benefice
             ,
             that
             the
             Bishop
             may
             refuse
             the
             presentation
             ,
             and
             the
             Lords
             of
             Session
             are
             declared
             to
             
             be
             Judges
             to
             any
             debates
             arising
             betwixt
             the
             Bishop
             ,
             Patron
             ,
             and
             Person
             upon
             that
             account
             .
             From
             which
             Act
             it
             is
             observable
             ,
             1.
             
             That
             it
             is
             implyed
             ,
             and
             tacitly
             acknowledged
             ,
             that
             Simony
             is
             a
             Crime
             by
             our
             Law
             ,
             seing
             this
             is
             punished
             as
             a
             Branch
             thereof
             :
             and
             therefore
             I
             conceive
             ,
             that
             what
             ever
             is
             punisht
             as
             Simony
             by
             the
             Canon
             Law
             ,
             is
             punishable
             with
             us
             ;
             and
             that
             a
             Minister
             ,
             or
             other
             Benefic'd
             Person
             who
             bargains
             ,
             or
             transacts
             with
             any
             to
             get
             them
             a
             Church
             ,
             or
             Benefice
             ,
             and
             gives
             or
             promises
             Money
             therefore
             ,
             is
             punishable
             even
             by
             our
             Law.
             2.
             
             That
             by
             this
             Act
             ,
             a
             paction
             ,
             whereby
             the
             incumbent
             reserves
             to
             himself
             ,
             a
             competencie
             suitable
             to
             the
             Benefice
             ,
             is
             not
             Simony
             ;
             and
             what
             this
             conpetencie
             is
             ,
             is
             left
             arbitrary
             to
             the
             Judge
             ,
             because
             it
             is
             not
             determined
             .
             3.
             
             That
             this
             Crime
             is
             probable
             with
             us
             by
             Oath
             ,
             because
             of
             its
             clandestine
             convoyance
             ,
             as
             said
             is
             .
             By
             the
             
               Stat.
               Eliz.
            
             31.
             the
             person
             committing
             Simony
             ,
             is
             declared
             uncapable
             to
             enjoy
             that
             Ecclesiastick
             Office.
             
          
           
             IV.
             Baratry
             is
             a
             kind
             of
             Simony
             ,
             (
             
               Socinus
               reg
            
             .
             55.
             
             
               Bald.
               part
            
             .
             5.
             
             Consil.
             21.
             )
             which
             with
             us
             is
             committed
             by
             these
             ,
             who
             go
             to
             Rome
             to
             buy
             Benefices
             ,
             without
             licences
             from
             the
             Chancellor
             ,
             or
             their
             ordinar
             ,
             I.
             1.
             
             P.
             7.
             cap.
             106.
             the
             pain
             of
             it
             is
             banishment
             ,
             and
             never
             to
             bruik
             honour
             ,
             or
             imployment
             for
             the
             future
             ,
             within
             the
             Kingdom
             .
             This
             word
             comes
             from
             the
             Italian
             word
             Baratry
             ,
             which
             signifies
             ,
             corrupting
             of
             Judges
             ;
             for
             our
             Law
             presumed
             ,
             that
             these
             who
             went
             to
             Rome
             to
             get
             a
             Benefice
             ,
             designed
             to
             get
             it
             by
             corruption
             .
             But
             though
             Baraters
             are
             called
             
               canpones
               beneficiorum
            
             by
             the
             Doctors
             ;
             as
             Craig
             observes
             ,
             pag.
             371.
             
             Yet
             our
             Kings
             being
             of
             old
             very
             submissive
             to
             the
             See
             of
             Rome
             ,
             durst
             not
             directly
             at
             first
             ,
             forbid
             application
             to
             Rome
             ;
             but
             did
             only
             forbid
             the
             carrying
             abroad
             Money
             out
             of
             the
             Kingdom
             ;
             knowing
             that
             nothing
             could
             be
             done
             there
             without
             Money
             :
             But
             thereafter
             this
             Crime
             growing
             greater
             ,
             the
             Parliament
             did
             by
             the
             84.
             
               cap.
               P.
            
             6.
             
             I.
             3.
             forbid
             expresly
             the
             going
             to
             Rome
             ,
             to
             purchase
             Benefices
             ,
             or
             to
             be
             its
             collectors
             ,
             under
             the
             pain
             
             of
             being
             demean'd
             as
             Traitors
             ,
             and
             never
             to
             bruik
             Benefice
             ,
             or
             use
             Worship
             ;
             which
             is
             ratified
             by
             the
             53.
             
             Act
             5.
             
             
               P.
               I.
            
             4.
             
             But
             though
             the
             punishment
             is
             that
             of
             Treason
             ,
             by
             these
             Acts
             ;
             yet
             by
             the
             2.
             
             Act
             1
             
               P.
               I.
            
             6.
             the
             punishment
             of
             Baratry
             ,
             is
             declared
             to
             be
             prescription
             ,
             banishment
             ,
             and
             never
             to
             bruik
             Honour
             ,
             nor
             Office
             within
             the
             Kingdom
             :
             and
             all
             applications
             to
             Rome
             are
             punishable
             as
             Baratry
             .
             This
             Act
             being
             after
             the
             Reformation
             .
             And
             by
             this
             last
             Act
             ,
             it
             is
             declared
             that
             Baratry
             may
             be
             punisht
             ,
             either
             by
             the
             Justices
             ,
             or
             Lords
             of
             Session
             .
             And
             upon
             this
             Act
             Iames
             Arch-Bishop
             of
             Glasgow
             ,
             was
             exauctorated
             after
             the
             Reformation
             ,
             for
             going
             to
             Rome
             .
          
           
             V.
             The
             Sons
             of
             Noble
             Men
             ,
             and
             others
             passing
             to
             Schools
             beyond
             Sea's
             without
             the
             Kings
             Licence
             ,
             are
             also
             said
             to
             commit
             Baratry
             ,
             I.
             6.
             
             P.
             6.
             cap.
             71.
             
             And
             the
             Council
             uses
             to
             ordain
             Noble
             Men
             ,
             who
             breed
             their
             Children
             abroad
             ,
             in
             Popish
             Schools
             ,
             to
             bring
             them
             home
             under
             a
             great
             fine
             ,
             as
             they
             did
             lately
             to
             the
             Lords
             of
             Mordingtoun
             ,
             and
             Semple
             in
             anno
             .
             1668.
             
             Before
             which
             Act
             also
             ,
             all
             Laicks
             going
             out
             of
             the
             Kingdom
             ,
             without
             consent
             of
             the
             King
             ,
             or
             Licence
             from
             the
             Chancellor
             ,
             committed
             Baratry
             .
             I.
             4.
             
             P.
             5.
             cap.
             53.
             
             And
             though
             Craig
             debates
             pag.
             371.
             whether
             the
             punishment
             of
             this
             be
             the
             same
             with
             Treason
             ,
             because
             it
             is
             said
             to
             be
             punishable
             as
             Treason
             ,
             cap.
             84.
             
             Pa.
             6.
             
             I.
             3.
             
             Yet
             it
             is
             clear
             ,
             that
             this
             punishment
             is
             restricted
             by
             the
             Act
             2.
             
             P.
             1.
             
             I.
             1.
             
             To
             the
             being
             declared
             incapable
             of
             Trust
             ,
             and
             Banishment
             .
             This
             Prohibition
             of
             Laicks
             going
             abroad
             ,
             was
             first
             at
             Carthage
             ,
             and
             is
             now
             in
             vigour
             at
             Naples
             ,
             and
             many
             other
             places
             .
             And
             though
             it
             be
             now
             in
             desuetude
             ,
             at
             least
             is
             not
             punisht
             ,
             except
             in
             Privy
             Councellours
             :
             Yet
             I
             see
             no
             reason
             ,
             why
             any
             should
             say
             ,
             that
             this
             Crime
             takes
             only
             place
             in
             Vassals
             ,
             holding
             immediatly
             of
             the
             King
             ;
             for
             the
             Act
             is
             general
             .
             And
             yet
             Merchants
             are
             warranted
             by
             divers
             Acts
             of
             Parliament
             ,
             to
             Traffique
             abroad
             ,
             and
             so
             fall
             not
             under
             this
             Prohibition
             .
          
        
         
           
           
             TITLE
             VI.
             Treason
             .
             Laesa
             Majestas
             .
          
           
             
               1
               
                 Treason
                 is
                 divided
                 by
                 the
                 Civil
                 Law
                 in
                 Perduellion
                 and
                 Laese-Majestie
                 .
              
            
             
               2
               
                 The
                 differences
                 betwixt
                 Perduellion
                 and
                 Laese-Majestie
                 .
              
            
             
               3
               
                 Treason
                 with
                 us
                 may
                 be
                 divided
                 in
                 Perduellion
                 Laese-Majestie
                 and
                 Statutory
                 Treason
                 .
              
            
             
               4
               
                 The
                 nature
                 of
                 Perduellion
                 ,
                 or
                 rising
                 in
                 Arms
                 ,
                 which
                 is
                 the
                 first
                 species
                 of
                 Treason
                 .
              
            
             
               5
               
                 The
                 second
                 species
                 of
                 Treason
                 is
                 committed
                 against
                 the
                 Kings
                 Person
                 .
              
            
             
               6
               
                 The
                 third
                 is
                 the
                 recepting
                 such
                 as
                 have
                 committed
                 Treason
                 .
              
            
             
               7
               
                 The
                 fourth
                 is
                 to
                 hold
                 out
                 Houses
                 against
                 the
                 King.
                 
              
            
             
               8
               
                 The
                 fifth
                 is
                 to
                 assail
                 Castles
                 where
                 the
                 King
                 resides
                 .
              
            
             
               9
               
                 The
                 sixth
                 is
                 to
                 raise
                 a
                 fray
                 in
                 the
                 Kings
                 Host.
                 
              
            
             
               10
               
                 The
                 seventh
                 is
                 to
                 trouble
                 any
                 who
                 kills
                 a
                 declared
                 Traitor
                 .
              
            
             
               11
               
                 The
                 eighth
                 is
                 to
                 impugn
                 the
                 Authority
                 of
                 the
                 three
                 Estates
                 .
              
            
             
               12
               
                 The
                 ninth
                 is
                 to
                 decline
                 the
                 King
                 or
                 Councils
                 Authority
                 .
              
            
             
               13
               
                 The
                 tenth
                 is
                 to
                 conceal
                 ,
                 and
                 not
                 reveal
                 Treason
                 .
              
            
             
               14
               
                 The
                 eleventh
                 is
                 to
                 desert
                 the
                 Kings
                 Host.
                 
              
            
             
               15
               
                 The
                 twelfth
                 is
                 to
                 deny
                 the
                 Kings
                 Prerogative
                 ,
                 in
                 having
                 the
                 sole
                 power
                 in
                 calling
                 and
                 dissolving
                 Parliaments
                 .
              
            
             
               16
               
                 How
                 the
                 killing
                 Counsellors
                 is
                 punishable
                 .
              
            
             
               17
               
                 The
                 several
                 branches
                 of
                 Statutory
                 Treason
                 .
              
            
             
               18
               
                 To
                 accuse
                 any
                 man
                 for
                 Treason
                 ,
                 if
                 the
                 accused
                 be
                 assoilzied
                 ,
                 is
                 Treason
                 .
              
            
             
               19
               
                 Treason
                 is
                 not
                 Baleable
              
               .
            
             
               20
               
                 Summonds
                 of
                 Treason
                 ought
                 to
                 be
                 execute
                 by
                 Heraulds
                 .
              
            
             
               
               21
               
                 Whether
                 less
                 probation
                 be
                 sufficient
                 in
                 Treason
                 then
                 in
                 other
                 Crimes
                 .
              
            
             
               22
               
                 Treason
                 may
                 be
                 pursued
                 after
                 the
                 Committers
                 death
                 .
              
            
             
               23
               
                 Traitors
                 may
                 be
                 forefaulted
                 in
                 absence
                 .
              
            
             
               24
               
                 How
                 disobeying
                 the
                 King
                 is
                 punishable
                 .
              
            
             
               25
               
                 The
                 punishment
                 of
                 Treason
                 in
                 general
                 .
              
            
          
           
             UNhappy
             man
             retains
             in
             nothing
             so
             much
             a
             desire
             to
             be
             like
             his
             Maker
             ,
             as
             in
             that
             he
             would
             be
             Supreme
             :
             and
             no
             wonder
             that
             this
             Crime
             should
             be
             incident
             to
             him
             in
             this
             laps'd
             condition
             ,
             when
             his
             will
             is
             crooked
             ,
             and
             his
             judgement
             blind
             ;
             since
             the
             very
             Angels
             in
             their
             purity
             ,
             and
             Man
             in
             his
             innocence
             ,
             were
             tempted
             by
             it
             :
             so
             that
             since
             men
             have
             subjected
             themselves
             to
             Government
             ,
             we
             may
             easily
             conclude
             they
             found
             a
             great
             convenience
             in
             this
             submission
             ;
             else
             they
             had
             never
             offered
             so
             much
             violence
             to
             their
             own
             inclination
             .
             To
             Societies
             ,
             and
             Laws
             ,
             we
             owe
             every
             moment
             the
             preservation
             of
             our
             lives
             and
             fortunes
             ,
             which
             nothing
             but
             Discipline
             does
             secure
             :
             and
             without
             an
             intire
             submission
             ,
             these
             Societies
             would
             be
             but
             Companies
             of
             Robbers
             ,
             and
             Laws
             but
             meer
             toyes
             .
             How
             many
             dangers
             do
             Governours
             incurr
             ?
             And
             by
             how
             many
             cares
             and
             fears
             are
             they
             disquieted
             ?
             Wherefore
             it
             is
             most
             just
             ,
             that
             those
             who
             govern
             ,
             should
             be
             more
             secure
             against
             their
             Subjects
             ,
             then
             against
             their
             enemies
             ,
             since
             they
             may
             be
             most
             easily
             wrong'd
             by
             those
             who
             live
             in
             their
             own
             bosome
             ,
             and
             who
             have
             easie
             and
             open
             access
             to
             them
             .
             In
             other
             Crimes
             ,
             one
             ,
             or
             at
             most
             few
             ,
             are
             wrong'd
             :
             whereas
             in
             rebellion
             ,
             and
             
               Laese
               Majestie
            
             the
             whole
             Society
             is
             offended
             .
             And
             therefore
             it
             was
             most
             just
             ,
             that
             those
             who
             design
             the
             ruine
             of
             the
             Common-wealth
             ,
             or
             the
             Supreme
             Governour
             (
             which
             Crime
             we
             call
             Treason
             )
             should
             of
             all
             others
             be
             most
             severely
             punished
             .
             And
             the
             
               Basilicks
               ,
               l.
            
             1.
             h.
             1.
             observes
             well
             ,
             that
             Treason
             is
             a
             kind
             of
             Sacriledge
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
           
             I.
             Treason
             was
             by
             the
             Civil
             Law
             divided
             ,
             in
             
               Perduellionem
               ,
               &
               Laesam
               Majestatem
            
             .
             Perduellion
             was
             that
             Treason
             which
             was
             committed
             against
             the
             Prince
             or
             Common-wealth
             immediatly
             :
             
               Adversus
               populum
               Romanum
               ,
               vel
               securitatem
               ejus
               .
            
             Laese
             Majestie
             (
             as
             opposed
             to
             Perduellion
             )
             was
             committed
             by
             speaking
             against
             the
             Prince
             ,
             revealing
             his
             secrets
             ,
             &c.
             
          
           
             This
             Crime
             was
             punish'd
             
               per
               legem
               juliam
            
             ;
             the
             branches
             whereof
             are
             the
             raising
             of
             Arms
             against
             the
             State
             ,
             the
             being
             in
             accession
             to
             the
             flight
             of
             such
             as
             were
             Hostages
             to
             the
             Common-wealth
             ,
             or
             to
             the
             killing
             of
             any
             Magistrat
             of
             the
             Common-wealth
             ,
             the
             keeping
             correspondence
             with
             the
             enemies
             ,
             the
             continuing
             to
             govern
             a
             Province
             after
             a
             a
             Successor
             was
             named
             ;
             the
             Levying
             of
             an
             Army
             ,
             and
             running
             in
             to
             the
             Enemies
             .
             All
             which
             are
             expresly
             enumerat
             
               ff
               .
               ad
               leg
               .
               Iul.
               Majestat
               .
            
          
           
             II.
             Betwixt
             these
             two
             ,
             Hottoman
             assignes
             these
             four
             differences
             ,
             1.
             
             That
             Perduellion
             was
             that
             whereby
             the
             Common-wealth
             was
             in
             general
             wrong'd
             ,
             
               qui
               summam
               rei
               publicae
               lube
               factare
               conati
               sunt
               .
               Laesa
               Majestas
            
             was
             that
             whereby
             the
             Common-wealth
             was
             only
             wronged
             in
             a
             part
             ,
             or
             by
             consequence
             ;
             as
             to
             suffer
             the
             enemies
             of
             the
             Common-wealth
             to
             escape
             ,
             or
             to
             conceal
             them
             ,
             &c.
             
             The
             2.
             is
             ,
             the
             Crime
             of
             Laese
             Majestie
             might
             have
             been
             pursued
             before
             the
             ordinary
             Judge
             
               in
               foro
            
             ;
             but
             Perduellion
             could
             not
             be
             pursued
             but
             in
             the
             great
             Meetings
             of
             the
             People
             ,
             
               à
               populo
               Romano
               ,
               comitiis
               centuriatis
               in
               campo
               martio
               .
            
             Whence
             probably
             did
             arise
             the
             judging
             Treason
             by
             Parliaments
             with
             us
             .
             The
             3.
             was
             ,
             that
             the
             Crime
             of
             ordinary
             Laese
             Majestie
             was
             not
             punished
             with
             death
             ,
             as
             Perduellion
             was
             ,
             but
             with
             ban●shment
             .
             The
             4.
             was
             ,
             that
             the
             ordinary
             Laese
             Majestie
             was
             punish'd
             by
             death
             ,
             but
             Perduellion
             was
             punishable
             after
             death
             .
          
           
             III.
             Treason
             may
             be
             with
             us
             divided
             in
             Perduellion
             ,
             which
             we
             call
             High
             Treason
             ,
             called
             by
             the
             English
             Law
             
               alta
               proditio
            
             ,
             or
             rebellion
             ,
             which
             is
             only
             with
             us
             a
             rising
             in
             Arms
             against
             the
             King
             ;
             and
             in
             ordinary
             Treason
             and
             Laese
             Majestie
             ,
             such
             as
             
             to
             conceal
             ,
             and
             not
             reveal
             Treason
             .
             And
             in
             Statutory
             Treason
             ,
             which
             is
             not
             Treason
             properly
             of
             its
             own
             nature
             ,
             but
             is
             declared
             to
             be
             so
             by
             a
             particular
             Statute
             ,
             as
             is
             that
             of
             Murder
             under
             trust
             ,
             Theft
             in
             Landed-men
             ,
             &c.
             
          
           
             IV.
             Perduellion
             in
             the
             Civil
             Law
             ,
             is
             that
             which
             we
             call
             Rebellion
             in
             our
             Acts
             of
             Parliament
             ,
             and
             it
             was
             so
             called
             
               extravagan
               .
               Hen.
            
             7.
             
               qui
               sunt
               rebelles
            
             :
             And
             there
             it
             is
             Statute
             that
             
               rebelles
               &
               infideles
               ,
               imperii
               ,
               qui
               quom
               docunque
               aliquid
               machinantur
               contra
               prosperitatem
               imperii
               .
            
             But
             I
             find
             not
             the
             word
             Rebellion
             used
             in
             the
             Law
             before
             that
             time
             .
             Yet
             sometimes
             Rebellion
             is
             in
             our
             Law
             taken
             for
             that
             which
             is
             committed
             against
             the
             Kings
             Person
             ,
             as
             in
             the
             3.
             
             Act
             1.
             
             
               Parl.
               K.
               Ia.
            
             1.
             where
             it
             is
             said
             ,
             No
             man
             shall
             rebell
             against
             the
             Kings
             Person
             openly
             ,
             nor
             notourly
             :
             But
             the
             Adverb
             there
             used
             
               openly
               and
               notourly
            
             in
             that
             ,
             and
             the
             subsequent
             Acts
             ,
             interprets
             sufficiently
             the
             word
             rising
             against
             the
             Kings
             person
             ,
             to
             be
             the
             same
             with
             us
             that
             is
             called
             Perduellion
             in
             the
             Civil
             Law
             ,
             
               viz.
               Siquis
               hostili
               animo
               adversus
               principem
               ,
               vel
               rempublicam
               animatus
               sit
               .
            
             To
             raise
             Arms
             against
             the
             King
             then
             ,
             or
             to
             rise
             in
             open
             rebellion
             ,
             is
             the
             first
             and
             highest
             degree
             of
             Treason
             ,
             Ia.
             2.
             
             Par.
             6.
             
             Act
             25.
             where
             it
             is
             called
             a
             raising
             in
             fear
             of
             War
             against
             the
             King
             ;
             which
             Act
             comprehends
             all
             the
             kinds
             of
             Treason
             ,
             like
             
               lex
               prima
               ff
               .
               ad
               L.
               Iul.
               Majest
               .
            
             And
             therefore
             I
             will
             follow
             that
             method
             .
             And
             though
             it
             be
             added
             in
             that
             Act
             ,
             that
             it
             shall
             be
             Treason
             to
             rise
             in
             fear
             of
             War
             against
             his
             Person
             ,
             or
             Majesty
             ,
             of
             what
             ever
             age
             he
             be
             of
             ,
             without
             the
             consent
             of
             the
             three
             Estates
             :
             Yet
             the
             consent
             of
             the
             three
             Estates
             will
             not
             defend
             the
             rising
             in
             Arms
             against
             the
             King
             ,
             as
             was
             found
             in
             the
             case
             of
             the
             Marquiss
             of
             Argyle
             ,
             being
             pursued
             upon
             this
             Act
             ,
             in
             Anno
             1662.
             for
             rising
             in
             Arms
             against
             the
             Marquiss
             of
             Montrose
             then
             the
             Kings
             Commissioner
             .
             For
             the
             Analysis
             of
             that
             Act
             must
             run
             run
             so
             ,
             as
             that
             these
             words
             ,
             
               Without
               consent
               of
               the
               three
               Estates
               ,
            
             cannot
             be
             added
             to
             all
             the
             former
             treasons
             committed
             against
             the
             Kings
             Person
             ,
             which
             are
             contained
             in
             that
             Act
             ;
             For
             many
             things
             in
             that
             Act
             
             could
             not
             be
             justified
             by
             the
             Authority
             of
             the
             three
             Estates
             ,
             for
             else
             the
             three
             Estates
             ,
             and
             not
             the
             King
             ,
             would
             be
             Soveraign
             :
             for
             they
             only
             are
             Soveraign
             ,
             against
             whom
             Treason
             can
             be
             committed
             .
             But
             these
             words
             must
             only
             be
             taken
             as
             added
             to
             the
             last
             Crime
             prohibit
             ,
             which
             is
             the
             assailing
             of
             the
             Castles
             ,
             or
             Houses
             where
             the
             Kings
             Person
             is
             ,
             which
             may
             be
             lawfully
             done
             by
             Authority
             of
             the
             Estates
             .
             For
             if
             the
             King
             being
             very
             young
             ,
             were
             taken
             prisoner
             ,
             as
             our
             Kings
             oft-times
             were
             in
             their
             minority
             ,
             it
             had
             been
             absurd
             to
             think
             ,
             that
             these
             who
             went
             to
             assail
             ,
             by
             the
             authority
             of
             the
             three
             Estates
             ,
             that
             Castle
             where
             the
             Kings
             Person
             was
             ,
             should
             be
             punish'd
             as
             Traitors
             ,
             because
             of
             their
             obedience
             .
             But
             to
             suppress
             all
             pretext
             that
             might
             arise
             from
             that
             Act
             ,
             it
             is
             declared
             by
             the
             5
             :
             Act
             1.
             
             Parl.
             1.
             
             
               Sess.
               Ch.
            
             2.
             
             That
             the
             King
             hath
             the
             only
             power
             of
             making
             War
             ,
             and
             Peace
             .
             And
             that
             it
             shall
             be
             Treason
             for
             any
             number
             of
             men
             ,
             less
             or
             more
             ,
             upon
             any
             ground
             or
             pretext
             whatsoever
             ,
             to
             rise
             ,
             or
             continue
             in
             Arms
             ,
             to
             maintain
             any
             Forts
             ,
             Strengths
             ,
             or
             Garisons
             ,
             or
             to
             make
             Leagues
             or
             Treaties
             amongst
             themselves
             ,
             or
             with
             forraign
             Princes
             ,
             without
             his
             Majesties
             authority
             and
             approbation
             first
             interponed
             thereto
             :
             or
             to
             attempt
             any
             of
             these
             things
             under
             the
             pain
             of
             Treason
             .
             From
             which
             Act
             it
             is
             observable
             ,
             1.
             
             That
             the
             authority
             of
             the
             three
             Estates
             is
             not
             able
             to
             defend
             the
             rising
             in
             Arms
             ,
             or
             making
             Leagues
             ,
             seing
             that
             is
             declared
             to
             be
             his
             Majesties
             prerogative
             .
             2.
             
             That
             the
             rising
             in
             defensive
             Arms
             is
             Treason
             by
             these
             words
             ,
             
               upon
               what
               pretext
               soever
            
             .
             3.
             
             That
             
               nudus
               conatus
            
             is
             in
             this
             case
             Treason
             by
             these
             words
             ,
             
               to
               attempt
            
             .
             By
             the
             English
             Law
             the
             conspiring
             to
             raise
             a
             War
             is
             not
             Treason
             ,
             except
             it
             be
             
               de
               facto
            
             rais'd
             ;
             and
             with
             them
             ,
             if
             three
             or
             four
             rise
             to
             throw
             down
             private
             Houses
             ,
             or
             for
             any
             privat
             cause
             ,
             it
             is
             but
             a
             Ryot
             ;
             but
             if
             these
             three
             or
             four
             rise
             to
             reform
             Laws
             ,
             or
             Religion
             ,
             or
             upon
             any
             publick
             account
             ,
             then
             it
             is
             accounted
             the
             Levying
             War
             against
             the
             King
             ,
             
               Cook
               hoc
               tit
               .
               pag.
            
             9.
             who
             likewise
             tells
             us
             ,
             that
             if
             three
             conspire
             to
             Levy
             a
             War
             ,
             it
             is
             Treason
             ,
             if
             in
             the
             meer
             conspirers
             ,
             if
             the
             rest
             thereafter
             Levyed
             actually
             a
             War
             ,
             though
             
             he
             was
             not
             present
             ;
             and
             in
             that
             sense
             only
             I
             would
             interpret
             the
             severe
             l.
             19.
             
             
               Basil.
               h.
               t.
               propter
               cogitationem
               dignus
               est
               poena
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             the
             English
             Law
             requires
             still
             
               ouuert
               fait
            
             ,
             an
             open
             deed
             .
             This
             rising
             in
             Arms
             is
             likewise
             called
             
               seditio
               regni
               vel
               exercitus
               Reg.
               Majest
               .
               lib.
            
             4.
             cap.
             1.
             
               &
               cap.
            
             11.
             
               ibid.
               ad
               tit
               .
               sedit
            
             .
          
           
             The
             second
             species
             of
             Treason
             ,
             is
             to
             commit
             Treason
             against
             the
             King's
             Person
             ;
             and
             I
             find
             that
             this
             is
             the
             first
             kind
             of
             Treason
             exprest
             in
             the
             former
             Act
             25.
             
             Parl.
             6.
             
             Ia.
             2.
             whereby
             it
             is
             declared
             Treason
             to
             lay
             hands
             upon
             his
             person
             violently
             ,
             what
             ever
             age
             he
             be
             of
             .
             Which
             words
             were
             added
             to
             clear
             that
             it
             was
             Treason
             to
             rebell
             even
             against
             his
             authority
             before
             he
             was
             Proclaimed
             ,
             or
             Crowned
             .
             For
             the
             being
             Crowned
             or
             Proclaimed
             ,
             is
             
               tantum
               declaratoria
               juris
               ,
               sed
               nihil
               novi
               juris
               tribuit
               ,
            
             it
             being
             the
             
               jus
               sanguinis
            
             ,
             and
             succession
             of
             blood
             which
             makes
             him
             King.
             This
             species
             of
             Treason
             is
             likewise
             declared
             ,
             Act
             3.
             and
             4.
             
             Parl.
             1.
             
             Ia.
             1.
             and
             in
             thir
             cases
             
               affectus
               sine
               effectu
               punitur
            
             :
             and
             thus
             the
             Master
             of
             Forbes
             was
             hurled
             through
             the
             Calsey
             ,
             hanged
             and
             quartered
             ,
             for
             imagining
             (
             this
             is
             an
             English
             term
             which
             signifies
             a
             design
             )
             to
             shoot
             K.
             Iames
             the
             5th
             .
             17.
             
             Iuly
             1537.
             
             And
             the
             Countess
             of
             Glames
             was
             burnt
             for
             imagining
             to
             poyson
             the
             said
             King
             Iames
             the
             fifth
             ,
             17.
             
             Iuly
             1537.
             
             By
             the
             Law
             of
             England
             ,
             it
             is
             not
             Treason
             to
             kill
             a
             King
             out
             of
             possession
             ,
             
               Cook
               pag.
            
             9.
             
             But
             this
             seems
             unjust
             ,
             if
             the
             King's
             title
             be
             clear
             ,
             as
             our
             Kings
             was
             in
             exile
             .
             Though
             in
             dubious
             cases
             ,
             such
             as
             betwixt
             the
             Bruce
             and
             Baliol
             ,
             possession
             may
             difference
             the
             case
             .
             To
             kill
             the
             King
             's
             eldest
             Son
             ,
             is
             with
             them
             Treason
             ,
             25.
             
             
               Stat.
               Edw.
            
             3.
             
          
           
             The
             third
             species
             of
             Treason
             is
             ,
             the
             resetting
             any
             who
             hath
             committed
             Treason
             ,
             or
             that
             supplies
             them
             in
             redde
             ,
             help
             or
             counsel
             ,
             
               cujus
               opera
               dolo
               malo
               hostes
               populi
               romani
               pecunia
               aliave
               re
               adjuti
               erant
               :
            
             This
             is
             likewise
             discharged
             ,
             Act.
             97.
             
             Parl.
             7.
             
             Ia.
             5.
             
             Where
             all
             the
             Liedges
             are
             forbidden
             to
             reset
             ,
             supplie
             ,
             or
             maintain
             our
             Soveraign
             Lords
             Rebels
             ,
             under
             pain
             of
             death
             :
             and
             if
             any
             disobey
             ,
             to
             inforce
             (
             
               id
               est
            
             ,
             to
             second
             the
             
             King
             )
             against
             notour
             rebels
             ,
             against
             his
             person
             ,
             when
             they
             be
             required
             and
             commanded
             ,
             they
             shall
             be
             punished
             by
             the
             King
             as
             favourers
             of
             such
             Rebels
             ,
             except
             they
             have
             for
             them
             a
             reasonable
             excusation
             ,
             Act
             4.
             
             Parl.
             1.
             
             Ia.
             1.
             
             From
             which
             Act
             it
             may
             be
             debated
             the
             refusing
             to
             assist
             against
             rebels
             that
             are
             not
             notour
             ,
             or
             against
             Rebels
             that
             have
             not
             committed
             any
             other
             Treason
             then
             Perduellion
             ,
             cannot
             infer
             with
             us
             the
             guilt
             of
             Treason
             .
             The
             Doctors
             here
             debate
             ,
             whether
             a
             Wife
             resetting
             her
             own
             Husband
             ,
             or
             a
             Father
             his
             Son
             ,
             commits
             Treason
             .
             And
             albeit
             it
             may
             be
             alledged
             ,
             that
             the
             relation
             of
             Soveraign
             and
             Subject
             ,
             is
             the
             chiefest
             of
             all
             others
             ,
             and
             so
             all
             other
             relations
             should
             cede
             to
             it
             ;
             and
             rebellion
             against
             the
             State
             looses
             all
             relations
             ,
             
               l.
               post
               liminium
               ff
               .
               de
               capt
               .
               &
               postlimin
               :
            
             Yet
             the
             ordinary
             distinction
             is
             ,
             that
             if
             any
             of
             these
             relations
             assist
             a
             Rebel
             with
             things
             that
             are
             necessary
             for
             him
             as
             a
             man
             ,
             as
             meat
             ,
             drink
             ,
             &c.
             
             In
             that
             case
             they
             are
             not
             guilty
             of
             Treason
             ;
             But
             if
             they
             assist
             these
             relations
             with
             any
             thing
             that
             may
             be
             serviceable
             to
             them
             in
             their
             Treason
             ,
             then
             they
             are
             guilty
             ,
             
               Farin
               .
               quest
            
             .
             113.
             num
             .
             280.
             
             And
             
               Matheus
               hoc
               tit
               .
               cap.
            
             2.
             num
             .
             20.
             
             For
             albeit
             Rebels
             lose
             all
             the
             priviledge
             of
             the
             Municipal
             Law
             ,
             yet
             they
             retain
             those
             priviledges
             that
             flow
             from
             the
             Law
             of
             Nations
             ,
             and
             Nature
             ,
             
               Bartol
               .
               ad
               l.
               amissum
               ,
               ff
               .
               de
               capt
               ,
               &
               postlim
               .
            
             And
             thus
             Caesar
             pardoned
             
             Pompey's
             Sons
             ,
             and
             Tiberius
             Piso's
             Son
             ,
             albeit
             they
             followed
             their
             Fathers
             after
             they
             were
             declared
             Traitors
             .
             But
             I
             find
             in
             our
             Law
             many
             decisions
             of
             this
             question
             ,
             as
             in
             Iuly
             1537.
             where
             
               Ianet
               Dowglas
            
             Lady
             Glames
             is
             convict
             and
             burnt
             ,
             for
             fortifying
             and
             assisting
             the
             Earl
             of
             Angus
             and
             
               George
               Dowglas
            
             her
             Brethren
             ,
             Traitors
             and
             Rebels
             .
             And
             18.
             
             Iuly
             1537.
             the
             Mr.
             of
             Glames
             is
             hang'd
             and
             drawn
             for
             concealing
             ,
             and
             not
             revealing
             the
             treasonable
             design
             of
             his
             Mother
             to
             poyson
             the
             King
             :
             but
             the
             Countess
             of
             Errol
             being
             pursued
             for
             assisting
             the
             Earl
             of
             Bothwel
             ,
             at
             least
             for
             not
             revealing
             a
             Letter
             she
             had
             received
             from
             the
             Earl
             of
             Bothwels
             Lady
             ,
             desiring
             assistance
             :
             It
             was
             alledged
             for
             the
             Lady
             ,
             that
             the
             Countess
             of
             Bothwel
             was
             no
             Rebel
             ,
             
             though
             her
             Husband
             was
             ,
             and
             that
             she
             had
             not
             consented
             .
             This
             was
             delay'd
             ,
             Anno
             1596.
             
          
           
             VII
             .
             The
             fourth
             species
             or
             point
             of
             Treason
             is
             ,
             to
             stuff
             the
             Houses
             of
             them
             who
             are
             convict
             of
             Treason
             ,
             and
             holds
             them
             against
             the
             King
             ,
             or
             that
             stuffs
             any
             of
             their
             own
             Houses
             in
             furthering
             of
             the
             King's
             Rebels
             ,
             which
             is
             expressed
             also
             by
             the
             former
             Act
             :
             Yet
             I
             think
             this
             rather
             exegetick
             of
             the
             former
             point
             ,
             then
             a
             separat
             point
             of
             Treason
             ▪
             for
             both
             these
             may
             be
             comprehended
             under
             help
             redde
             or
             counsel
             .
             
               Robert
               Stewart
            
             was
             hang'd
             for
             keeping
             out
             his
             House
             against
             the
             King
             :
             and
             the
             Earl
             of
             Orknay
             his
             Father
             was
             hang'd
             for
             hounding
             out
             his
             Son
             ;
             the
             one
             the
             5.
             of
             Ianuary
             ,
             and
             the
             other
             the
             1.
             of
             February
             ,
             1615.
             
             And
             Cunninghame
             of
             Tourlands
             was
             forefault
             and
             execute
             for
             assisting
             his
             Brother
             in
             keeping
             out
             the
             House
             of
             Cunninghame-head
             ,
             15.
             
             February
             ,
             1601.
             
             But
             yet
             when
             Houses
             are
             ordained
             to
             be
             rendered
             (
             being
             kept
             only
             for
             privat
             causes
             )
             under
             pain
             of
             Treason
             ,
             though
             the
             party
             disobey
             ,
             yet
             if
             he
             thereafter
             yeeld
             ,
             that
             manner
             of
             keeping
             out
             Houses
             will
             not
             be
             punished
             as
             Treason
             ,
             but
             Arbitrarily
             ,
             as
             in
             Burgies
             case
             ,
             1668.
             
          
           
             The
             2.
             of
             February
             ,
             2674.
             
             Mackloud
             of
             Assint
             was
             Pannel'd
             for
             having
             Garrison'd
             his
             House
             of
             Arbreak
             ,
             and
             convocating
             his
             Majesties
             Liedges
             ,
             to
             the
             number
             of
             400.
             men
             ,
             under
             Pay
             and
             Collours
             .
             Against
             which
             it
             was
             alledg'd
             ,
             that
             Assint
             here
             only
             fortified
             his
             House
             ,
             and
             convocat
             his
             men
             to
             oppose
             the
             Earl
             of
             Seaforth
             ,
             but
             not
             the
             King
             :
             Nor
             did
             he
             pretend
             any
             quarrel
             against
             the
             Government
             ,
             but
             against
             privat
             oppressions
             .
             To
             which
             it
             was
             answered
             ,
             that
             this
             was
             expresly
             Treason
             by
             the
             6.
             
             Parl.
             K.
             Ia.
             2.
             
             Cap.
             14.
             whereby
             it
             is
             Statute
             ,
             that
             none
             rebel
             against
             the
             King's
             Person
             or
             Authority
             :
             And
             the
             House
             being
             here
             Garrison'd
             to
             defend
             against
             the
             Sheriff
             ,
             who
             was
             comming
             to
             eject
             in
             his
             Majesties
             Name
             :
             To
             resist
             him
             ,
             was
             to
             resist
             his
             Majesties
             Authority
             ,
             and
             being
             Garrison'd
             in
             furtherance
             of
             Rebels
             and
             rebellion
             ,
             it
             was
             Treason
             by
             the
             25.
             
             Act
             6.
             
             Parl.
             K.
             Ia.
             2.
             
             Likeas
             the
             Convocation
             
             being
             of
             about
             400.
             men
             ,
             or
             thereby
             ,
             under
             the
             command
             of
             Captains
             ,
             Ensigns
             ,
             and
             other
             Officers
             .
             It
             was
             likewise
             Treason
             by
             the
             75.
             
             Act
             9.
             
             
               Parl.
               Q.
               M.
            
             and
             the
             5.
             
             Act.
             1.
             
             
               Parl.
               Ch.
            
             2.
             
             The
             Justices
             did
             find
             the
             Garrisoning
             of
             the
             House
             not
             relevant
             to
             infer
             Treason
             ,
             but
             only
             to
             infer
             the
             punishment
             of
             deforcement
             ,
             whereupon
             the
             pursuers
             were
             forced
             to
             alledge
             of
             new
             ,
             that
             they
             insisted
             against
             him
             for
             having
             Garrison'd
             his
             House
             after
             the
             publication
             of
             the
             Letters
             of
             Fire
             and
             Sword
             raised
             at
             the
             Pursuers
             instance
             against
             Assint
             ,
             upon
             which
             debate
             they
             found
             that
             the
             Garrisoning
             and
             providing
             of
             the
             House
             after
             the
             publication
             of
             the
             Letters
             of
             Fire
             and
             Sword
             ,
             was
             relevant
             to
             infer
             the
             punishment
             of
             Treason
             .
             Likeas
             they
             refused
             to
             sustain
             that
             Article
             wherein
             was
             Libel'd
             the
             raising
             of
             Men
             ,
             and
             the
             disposing
             them
             in
             Companies
             under
             Collours
             ,
             to
             be
             relevant
             ,
             except
             it
             were
             alledg'd
             that
             they
             were
             an
             hundred
             men
             or
             upwards
             ,
             and
             were
             under
             Collours
             ,
             or
             Muster'd
             ,
             or
             under
             weekly
             or
             daily
             pay
             .
             And
             that
             all
             this
             was
             done
             after
             the
             publication
             of
             the
             Letters
             of
             Fire
             and
             Sword
             :
             both
             which
             Interloquutors
             seem'd
             surprizing
             .
             For
             as
             to
             the
             first
             ,
             it
             seem'd
             that
             the
             Garrisoning
             of
             any
             House
             against
             a
             Sheriff
             ,
             or
             any
             Judge
             ,
             is
             to
             Garrison
             it
             against
             the
             King
             '
             Authority
             ;
             for
             a
             Sheriff
             doth
             represent
             the
             King
             in
             his
             Authority
             as
             much
             as
             any
             Souldier
             doth
             .
             And
             it
             is
             undenyable
             ,
             that
             to
             Garrison
             Houses
             against
             the
             King's
             Souldiers
             ,
             is
             Treason
             .
             Nor
             can
             it
             be
             denyed
             but
             that
             if
             this
             were
             allowed
             ,
             no
             sentence
             could
             receive
             execution
             in
             Scotland
             ,
             since
             every
             man
             might
             Garrison
             his
             House
             ,
             and
             every
             man
             might
             deny
             that
             he
             Garrison'd
             his
             House
             against
             the
             King.
             And
             to
             put
             in
             a
             Garrison
             ,
             and
             authorize
             them
             to
             defend
             the
             House
             ,
             was
             so
             clearly
             a
             War-like
             action
             ,
             that
             there
             was
             no
             place
             left
             to
             debate
             upon
             intentions
             .
             And
             though
             the
             defending
             Houses
             be
             ordinarily
             pursued
             as
             deforcement
             ,
             yet
             the
             formal
             Garrisoning
             of
             it
             imports
             much
             more
             .
             And
             the
             commission
             of
             Fire
             and
             Sword
             did
             not
             add
             any
             thing
             to
             the
             Crime
             committed
             ,
             in
             Garrisoning
             the
             House
             :
             For
             the
             design
             of
             such
             Letters
             is
             only
             to
             warrand
             and
             command
             the
             
             Liedges
             to
             prosecute
             them
             as
             Rebels
             ;
             So
             that
             before
             the
             raising
             of
             the
             Letters
             they
             were
             accounted
             open
             and
             notorious
             Rebels
             ,
             for
             Letters
             of
             Fire
             and
             Sword
             are
             only
             granted
             against
             such
             ;
             and
             therefore
             Assint
             in
             Garrisoning
             his
             House
             to
             defend
             such
             ,
             did
             expresly
             commit
             Treason
             against
             the
             25.
             
             Act
             6.
             
             
               Par.
               Ia.
            
             2.
             
          
           
             The
             second
             part
             of
             the
             Interloquutor
             seem'd
             likewise
             very
             hard
             ;
             for
             raising
             men
             in
             fear
             of
             War
             ,
             and
             Listing
             them
             under
             Colours
             ,
             or
             swearing
             them
             to
             Colours
             ,
             is
             certainly
             
               exercitum
               comparare
            
             ,
             though
             there
             were
             no
             commission
             of
             Fire
             or
             Sword
             ;
             for
             the
             design
             of
             these
             Letters
             is
             not
             to
             make
             a
             Traitor
             ,
             but
             to
             prosecute
             actual
             Rebels
             .
             And
             though
             this
             Army
             was
             not
             Levied
             to
             oppose
             immediatly
             the
             King's
             Government
             ,
             yet
             even
             to
             raise
             an
             Army
             within
             the
             Kingdom
             ,
             though
             no
             design
             could
             be
             proved
             ,
             was
             Treason
             ,
             for
             that
             was
             to
             usurp
             the
             King's
             power
             :
             But
             much
             more
             was
             this
             Criminal
             ,
             when
             the
             Levy
             was
             made
             ,
             upon
             the
             wicked
             design
             of
             opposing
             the
             execution
             of
             the
             King's
             Laws
             ,
             to
             see
             which
             executed
             was
             the
             chief
             part
             of
             his
             Kingly
             Government
             .
             And
             it
             is
             clear
             by
             the
             foresaid
             17
             Act
             6.
             
             
               Parl.
               Ia.
            
             2.
             that
             it
             is
             Treason
             to
             make
             War
             against
             the
             King's
             Liedges
             against
             his
             forbidding
             ,
             and
             if
             any
             do
             ,
             the
             King
             is
             
               to
               gang
               upon
               them
            
             ,
             with
             assistance
             of
             the
             hall
             Lands
             ,
             and
             to
             punish
             them
             after
             the
             quality
             of
             their
             trespass
             .
          
           
             VIII
             .
             The
             fifth
             point
             of
             Treason
             is
             to
             assail
             Castles
             ,
             or
             places
             where
             the
             King
             resides
             ,
             or
             is
             for
             the
             time
             ,
             ibid.
             But
             this
             must
             be
             only
             understood
             to
             be
             Treason
             ,
             if
             the
             assaulter
             know
             the
             King
             to
             be
             there
             ,
             or
             if
             he
             be
             not
             ,
             upon
             design
             to
             rescue
             him
             ,
             
               quo
               casu
            
             ,
             he
             must
             be
             warranted
             by
             the
             Estates
             ,
             as
             said
             is
             .
          
           
             IX
             .
             The
             sixth
             point
             of
             Treason
             is
             ,
             to
             raise
             a
             fray
             in
             the
             King's
             Host
             or
             Army
             wilfully
             ,
             Ia.
             2.
             
             Parl.
             12.
             
             Act
             54.
             upon
             which
             Act
             the
             Mr.
             of
             Forbes
             was
             hanged
             for
             raising
             sedition
             in
             the
             King's
             Host
             at
             Iedburgh
             ,
             14.
             
             Iuly
             ,
             1537.
             
          
           
             X.
             The
             seventh
             point
             of
             Treason
             is
             ,
             to
             trouble
             any
             who
             kills
             a
             declared
             Traitor
             ,
             which
             Act
             extends
             only
             to
             the
             Kin
             ,
             
             Friends
             ,
             Fortifiers
             and
             Maintainers
             of
             these
             who
             are
             killed
             as
             Traitors
             ;
             because
             it
             is
             presumeable
             that
             when
             these
             who
             are
             so
             related
             trouble
             the
             killer
             ,
             it
             is
             presumeable
             the
             trouble
             arises
             upon
             that
             account
             .
             2.
             
             These
             relations
             are
             discharged
             to
             bear
             the
             killers
             any
             grudge
             ,
             or
             injure
             them
             by
             word
             or
             writ
             .
             Nota
             ,
             It
             appears
             that
             the
             reason
             of
             this
             grudge
             needs
             not
             be
             proved
             ,
             but
             is
             presumed
             presumption
             ,
             
               juris
               &
               de
               jure
            
             ,
             for
             here
             
               lex
               praesumit
               &
               disponit
               super
               praesumpto
               .
            
          
           
             XI
             .
             The
             eighth
             point
             of
             Treason
             is
             ,
             to
             impugn
             the
             dignity
             and
             authority
             of
             the
             three
             Estates
             :
             or
             to
             seek
             and
             procure
             the
             innovation
             and
             diminution
             of
             their
             power
             or
             authority
             ,
             Act
             130
             Parl.
             8.
             
             Ia.
             6.
             
             But
             this
             is
             to
             be
             understood
             of
             a
             direct
             impugning
             of
             their
             authority
             ,
             as
             if
             one
             contended
             that
             Parliaments
             were
             not
             necessary
             ,
             or
             that
             one
             of
             the
             three
             Estates
             may
             be
             turned
             out
             .
          
           
             XII
             .
             The
             ninth
             point
             of
             Treason
             is
             ,
             to
             decline
             the
             King's
             Authority
             ,
             or
             the
             Authority
             of
             his
             Council
             in
             any
             case
             ,
             whether
             Spiritual
             or
             Temporal
             .
             And
             the
             King's
             Council
             are
             declared
             to
             be
             Judges
             competent
             to
             all
             causes
             whatsoever
             ,
             whether
             Spiritual
             or
             Temporal
             ,
             of
             what
             ever
             degree
             or
             function
             the
             defenders
             who
             are
             summoned
             shall
             be
             ,
             Act
             129.
             
             Parl.
             8.
             
             
               K.
               Ia.
            
             6.
             which
             Act
             was
             made
             to
             repress
             the
             insolencies
             of
             the
             Ministry
             ,
             who
             about
             that
             time
             used
             constantly
             to
             decline
             the
             King's
             Authority
             in
             Ecclesiastick
             matters
             .
             Conform
             to
             which
             Act
             Mr.
             
               Andrew
               Crightoun
            
             was
             sentenced
             to
             be
             hanged
             and
             demain'd
             as
             Traitor
             ,
             Septemb.
             1610.
             
             And
             Mr.
             
               Iames
               Guthrie
            
             was
             execute
             in
             Anno
             1662.
             for
             declining
             the
             King
             and
             his
             Councils
             jurisdiction
             at
             Striviling
             ,
             when
             he
             was
             challenged
             for
             some
             words
             spoken
             in
             the
             Pulpit
             .
             From
             this
             Act
             it
             may
             be
             observed
             ,
             that
             the
             King
             is
             in
             his
             own
             Person
             Judge
             competent
             over
             all
             Causes
             ,
             and
             all
             Persons
             ,
             even
             though
             the
             pursuit
             be
             at
             his
             own
             instance
             ,
             which
             will
             appear
             both
             from
             the
             Rubrick
             and
             Statutory
             part
             of
             the
             Act
             ,
             albeit
             regulariter
             no
             man
             can
             be
             Judge
             in
             his
             own
             cause
             .
          
           
           
             XIII
             .
             The
             tenth
             point
             of
             Treason
             is
             ,
             to
             conceal
             and
             not
             reveal
             Treason
             :
             But
             concealing
             in
             this
             case
             is
             not
             Treason
             ,
             except
             the
             concealer
             could
             have
             proved
             it
             ;
             for
             else
             he
             had
             by
             revealing
             and
             not
             proving
             made
             himself
             guilty
             of
             Treason
             .
             This
             concealing
             of
             Treason
             is
             by
             the
             English
             Law
             called
             misprision
             of
             Treason
             ,
             and
             is
             punish'd
             only
             by
             imprisonment
             during
             life
             ,
             forfeiting
             of
             goods
             ,
             and
             of
             the
             profit
             of
             Lands
             during
             life
             .
             For
             this
             Crime
             the
             Earl
             of
             Morton
             was
             execute
             by
             King
             Iames
             6.
             for
             having
             conceal'd
             the
             design'd
             death
             of
             King
             Henry
             his
             Father
             :
             And
             it
             may
             be
             doubted
             whether
             concealing
             be
             Treason
             ,
             where
             the
             King
             is
             not
             in
             a
             condition
             to
             repress
             or
             punish
             the
             Treason
             that
             is
             intended
             ,
             for
             there
             the
             end
             of
             revealing
             seems
             to
             cease
             ,
             which
             is
             information
             in
             order
             to
             resistance
             .
             It
             hath
             been
             likewise
             doubted
             ,
             whether
             the
             not
             revealing
             Treason
             was
             punishable
             where
             the
             Treason
             was
             design'd
             by
             the
             Prince
             or
             Queen
             :
             But
             since
             they
             are
             likewise
             Subjects
             ,
             and
             may
             commit
             Treason
             ,
             therefore
             there
             can
             be
             no
             doubt
             but
             it
             is
             Treason
             in
             any
             others
             to
             conceal
             their
             treasonable
             designes
             .
          
           
             XIV
             .
             The
             eleventh
             point
             of
             Treason
             is
             ,
             to
             flee
             from
             his
             Majesty
             or
             his
             Lievtenant
             ,
             which
             is
             not
             extended
             only
             to
             such
             as
             are
             sworn
             to
             Collours
             ,
             but
             even
             to
             such
             as
             are
             warned
             to
             ,
             and
             do
             attend
             the
             King's
             Host
             ,
             
               vid.
               tit
               .
               the
               jurisdiction
               over
               Souldiers
               .
            
          
           
             XV.
             The
             twelfth
             point
             of
             Treason
             is
             ,
             to
             deny
             his
             Majesties
             having
             the
             only
             power
             of
             calling
             and
             dissolving
             of
             Parliaments
             ,
             Act
             3.1
             .
             
               Parl.
               Ch.
            
             2.
             
          
           
             XVI
             .
             By
             the
             common
             Law
             it
             is
             Treason
             to
             kill
             any
             of
             the
             Princes
             Counsellors
             ,
             because
             they
             are
             a
             part
             of
             the
             Princes
             own
             body
             ,
             
               l.
               quisquis
               C.
               h.
               t.
            
             But
             with
             us
             the
             pursuing
             or
             invading
             any
             of
             the
             Session
             ,
             Secret
             Council
             ,
             or
             any
             of
             his
             Majesties
             Officers
             for
             doing
             his
             Majesties
             service
             ,
             is
             only
             punishable
             by
             death
             ,
             but
             not
             as
             Treason
             ,
             Act
             4.
             
             Parl.
             16.
             
             Ia.
             6.
             
             By
             Officers
             here
             are
             meant
             only
             Officers
             of
             State
             ,
             else
             it
             might
             be
             extended
             to
             Messengers
             .
             And
             I
             heard
             it
             resolved
             that
             this
             Act
             
             extended
             not
             to
             such
             as
             invaded
             the
             Lyon.
             And
             these
             words
             ,
             
               Any
               of
               the
               Session
            
             ,
             are
             not
             extended
             to
             Advocats
             ,
             Clerks
             ,
             Macers
             ,
             or
             any
             else
             besides
             the
             Lords
             ,
             as
             is
             clear
             by
             the
             narrative
             of
             the
             Act.
             But
             I
             think
             the
             quality
             adjected
             that
             they
             were
             invaded
             for
             doing
             his
             Majesties
             service
             ,
             may
             be
             proved
             by
             circumstances
             and
             presumptions
             ,
             as
             if
             a
             pursuer
             who
             had
             lost
             a
             Cause
             ,
             should
             invade
             the
             next
             day
             a
             Lord
             who
             had
             voted
             against
             him
             .
             And
             the
             words
             ,
             
               This
               being
               verified
               and
               tryed
            
             ,
             import
             so
             much
             .
             But
             the
             
               Stat.
               Edward
            
             .
             3.
             is
             much
             more
             clear
             ,
             making
             it
             Treason
             to
             kill
             the
             Officers
             therein
             mentioned
             only
             ,
             viz.
             Chancellor
             ,
             Thesaurer
             ,
             chief
             Justice
             of
             either
             Bench
             ,
             or
             any
             Judge
             of
             either
             Bench
             sitting
             in
             Judgement
             only
             ;
             and
             from
             this
             Statute
             of
             our
             Neighbouring
             Nation
             ,
             we
             may
             argue
             that
             the
             killing
             none
             below
             a
             Lord
             of
             Session
             should
             infer
             the
             punishment
             of
             this
             Act.
             The
             killing
             a
             Member
             of
             Parliament
             is
             not
             in
             England
             Treason
             ,
             though
             the
             Parliament
             be
             a
             higher
             Judicatory
             then
             any
             exprest
             in
             the
             Act.
             And
             Cook
             tells
             us
             that
             they
             allow
             not
             
               argumentum
               à
               fortiori
            
             to
             infer
             Crimes
             .
             And
             with
             us
             the
             killing
             a
             Member
             of
             Parliament
             would
             not
             infer
             death
             by
             this
             Act
             ,
             since
             they
             fall
             under
             no
             qualification
             therein
             specified
             .
             In
             
               England
               killing
               Officers
            
             falls
             only
             under
             the
             Statute
             ,
             but
             with
             us
             ,
             
               invading
               or
               pursuing
               them
            
             is
             death
             ,
             though
             it
             take
             no
             effect
             .
             Quaritur
             ,
             If
             to
             invade
             them
             when
             they
             are
             out
             of
             the
             Kingdom
             would
             fall
             under
             the
             Statute
             ,
             since
             they
             are
             not
             under
             that
             character
             elsewhere
             .
             Or
             if
             he
             who
             invaded
             them
             during
             their
             being
             suspended
             ,
             would
             fall
             under
             this
             Act
             ,
             since
             during
             that
             time
             they
             retained
             the
             character
             ,
             and
             the
             exercise
             is
             only
             suspended
             .
             And
             it
             is
             resolved
             by
             the
             Doctors
             that
             a
             Statute
             punishing
             such
             as
             invade
             Magistrats
             ,
             is
             only
             to
             be
             extended
             to
             such
             Magistrats
             as
             are
             once
             admitted
             ,
             but
             not
             to
             such
             as
             are
             only
             named
             or
             elected
             ;
             for
             such
             Statutes
             are
             extended
             
               in
               gratiosis
            
             ,
             yet
             they
             are
             restricted
             in
             such
             odious
             points
             as
             thir
             ,
             
               Cabal
               .
               cas
            
             .
             148.
             
          
           
           
             Treasonable
             words
             ,
             
               vid.
               t.
            
             Injuries
             and
             Libells
             .
          
           
             XVII
             ,
             The
             third
             branch
             of
             the
             division
             is
             Statutory
             Treason
             ,
             which
             comprehends
             under
             it
             several
             other
             points
             of
             Treason
             ,
             which
             because
             they
             relate
             to
             other
             Crimes
             ,
             therefore
             I
             shall
             also
             refer
             the
             Reader
             to
             these
             Titles
             wherein
             these
             Crimes
             are
             principally
             treated
             of
             .
             But
             it
             will
             appear
             by
             these
             Acts
             ,
             that
             these
             Crimes
             are
             not
             declared
             to
             be
             Treason
             ,
             but
             only
             to
             be
             punishable
             as
             Treason
             ,
             and
             therefore
             these
             Statutory
             Treasons
             have
             not
             at
             all
             the
             other
             priviledges
             competent
             to
             Treason
             ,
             as
             that
             they
             may
             be
             proved
             by
             Women
             ,
             
               &
               alios
               testes
               inhabiles
            
             ,
             or
             that
             he
             who
             accuses
             in
             these
             will
             commit
             Treason
             ,
             if
             he
             prove
             not
             his
             accusation
             .
             Thus
             wilful
             Fire
             raising
             is
             Treason
             ,
             Ia.
             5.
             
             Parl.
             3.
             
               cap.
               ultimo
            
             .
             Theft
             in
             Landed-men
             is
             Treason
             ,
             Ia.
             6.
             
             Parl.
             11.
             cap.
             50.
             
               vid.
               tit
            
             .
             Theft
             ,
             Murder
             under
             trust
             is
             treason
             ,
             Ia.
             6.
             
             Parl.
             11.
             cap.
             51.
             
               vid.
               tit
            
             .
             Murder
             ,
             sayers
             of
             Mass
             ,
             Jesuits
             ,
             trafficking
             Papists
             and
             their
             resetters
             ,
             commit
             Treason
             ,
             Ia.
             6.
             
             Parl.
             12.
             cap.
             120.
             
               vid.
               tit
               .
               Heresie
            
             .
             To
             buy
             or
             bring
             home
             poyson
             ,
             is
             treason
             ,
             Ia.
             2.
             
             Parl.
             7.
             c.
             31.
             
               vid.
               Poyson
            
             .
             Thieves
             who
             take
             leill
             men
             upon
             Bond
             to
             re-enter
             them
             ,
             commit
             treason
             ,
             Ia.
             6.
             
             Parl.
             1.
             cap.
             21.
             
             But
             though
             this
             Act
             speaks
             generally
             of
             the
             taking
             of
             any
             Scottish-man
             ,
             yet
             it
             may
             clearly
             appear
             by
             the
             narrative
             ,
             and
             the
             whole
             strain
             of
             the
             Act
             ,
             that
             the
             same
             strikes
             only
             against
             such
             Thieves
             as
             kept
             correspondence
             with
             the
             English
             ,
             and
             took
             Scottish-men
             prisoners
             into
             England
             .
             But
             custom
             hath
             interpret
             this
             otherwise
             ,
             for
             
               Duncan
               Macgrigor
            
             was
             15.
             
             Iuly
             ,
             1643.
             convict
             and
             hang'd
             as
             a
             traitor
             ,
             for
             arte
             and
             part
             of
             taking
             
               Iames
               Anderson
            
             and
             
               Iohn
               Mackie
            
             ,
             and
             the
             taking
             of
             Captain
             Cairns
             found
             relevant
             as
             an
             Article
             of
             Treason
             against
             Assint
             .
          
           
             To
             usurp
             any
             Prelats
             place
             after
             his
             decease
             ,
             is
             likewise
             treason
             ,
             Ia.
             5.
             
             Parl.
             7.
             cap.
             125.
             
          
           
             XVIII
             .
             This
             Crime
             hath
             in
             it
             many
             specialities
             ;
             wherein
             it
             differs
             from
             other
             Crimes
             :
             As
             first
             ;
             He
             who
             accuses
             any
             man
             for
             treason
             ,
             doth
             incur
             the
             pain
             of
             treason
             ,
             if
             the
             defenders
             be
             acquit
             ,
             which
             is
             occasioned
             (
             as
             the
             Act
             bears
             )
             because
             
             of
             the
             odiousness
             of
             treason
             .
             But
             since
             the
             the
             Act
             sayes
             expresly
             that
             this
             shall
             take
             place
             where
             
               the
               party
               calumniat
               is
               called
               ,
               accused
               ,
               and
               quit
               of
               the
               Crime
               of
               Treason
            
             ;
             therefore
             it
             may
             be
             inferred
             ,
             that
             though
             the
             pursuer
             raise
             Summonds
             of
             treason
             ,
             and
             should
             pass
             from
             the
             same
             before
             the
             Pannel
             go
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             that
             
               eo
               casu
            
             ,
             though
             the
             pursuer
             might
             be
             punished
             
               poena
               extraordinaria
            
             ,
             yet
             he
             could
             not
             be
             punished
             as
             a
             traitor
             .
             It
             may
             be
             likewise
             doubted
             ,
             if
             this
             holds
             in
             Statutory
             T●eason
             ,
             as
             Theft
             in
             Landed
             men
             ,
             &c.
             
             And
             since
             the
             reason
             inductive
             of
             that
             Act
             is
             the
             odiousness
             of
             treason
             ,
             it
             would
             appear
             that
             this
             rigid
             Law
             should
             not
             take
             place
             in
             these
             points
             of
             treason
             ,
             which
             are
             not
             so
             odious
             of
             their
             own
             nature
             .
          
           
             Another
             speciality
             in
             treason
             is
             ,
             that
             it
             can
             only
             be
             tryed
             by
             the
             Justices
             ,
             
               Reg.
               Maj.
               lib.
            
             1.
             e.
             1.
             v.
             1.
             and
             that
             because
             of
             the
             Kings
             immediat
             interest
             ,
             since
             it
             is
             not
             presumable
             that
             the
             Fiscal
             in
             Inferiour
             Courts
             would
             be
             as
             careful
             as
             his
             Majesties
             Advocat
             ,
             who
             cannot
             appear
             there
             ,
             and
             because
             of
             the
             intricacies
             and
             great
             consequence
             of
             that
             Crime
             :
             but
             it
             may
             be
             doubted
             whether
             Lords
             of
             Regality
             ,
             or
             Subjects
             having
             a
             Justitiary
             ,
             are
             Judges
             competent
             to
             Treason
             ,
             and
             it
             seems
             not
             ,
             for
             the
             reasons
             foresaid
             .
          
           
             XIX
             .
             The
             second
             priviledge
             of
             treason
             is
             ,
             that
             those
             who
             are
             pursued
             for
             treason
             should
             be
             immediatly
             committed
             to
             prison
             ,
             and
             their
             goods
             should
             be
             put
             under
             sicker
             Burrows
             ,
             
               id
               est
            
             Caution
             ,
             under
             which
             they
             must
             remain
             ay
             and
             while
             they
             suffer
             an
             Assize
             ,
             Ia.
             2.
             p.
             12.
             c.
             49.
             and
             
               Reg.
               Maj.
               lib.
            
             4.
             c.
             1.
             
             But
             it
             seems
             very
             hard
             in
             our
             Law
             ,
             that
             there
             is
             no
             time
             prescribed
             for
             the
             pursuer
             to
             insist
             ,
             but
             that
             the
             person
             suspect
             may
             be
             kept
             in
             prison
             for
             a
             long
             time
             ,
             though
             he
             be
             very
             innocent
             ,
             and
             offer
             himself
             to
             a
             tryal
             ;
             whereby
             the
             most
             innocent
             of
             Subjects
             may
             be
             ruined
             in
             their
             Fortunes
             and
             Families
             ,
             without
             any
             just
             cause
             .
             And
             yet
             upon
             the
             other
             hand
             ,
             it
             were
             hard
             that
             Traitors
             should
             be
             allow'd
             to
             go
             abroad
             ,
             because
             probation
             cannot
             be
             presently
             had
             ,
             which
             it
             may
             be
             the
             traitor
             hath
             abstracted
             ,
             or
             that
             the
             King
             or
             State
             should
             be
             forc'd
             to
             discover
             too
             soon
             by
             a
             pursuit
             ,
             a
             treason
             ,
             which
             he
             is
             bound
             in
             
             policy
             to
             cover
             for
             some
             time
             .
             And
             as
             in
             War
             ,
             so
             in
             Treason
             (
             which
             is
             as
             dangerous
             )
             many
             things
             are
             allow'd
             to
             be
             done
             which
             are
             not
             otherwise
             regular
             ,
             the
             interest
             of
             all
             preponderating
             the
             interest
             of
             any
             one
             ,
             or
             a
             few
             .
          
           
             XX.
             The
             third
             speciality
             in
             treason
             ,
             is
             ,
             that
             all
             Charges
             of
             treason
             should
             be
             execute
             by
             Heraulds
             and
             Pursevants
             ,
             bearing
             Coats
             of
             Arms
             ,
             and
             by
             Macers
             ,
             and
             that
             for
             the
             greater
             solemnity
             ,
             else
             these
             Charges
             are
             declared
             null
             ,
             Ia.
             6.
             p.
             12.
             c.
             125.
             
             Likeas
             ,
             the
             ordinary
             custome
             is
             to
             execute
             Summonds
             of
             treason
             after
             that
             manner
             .
             But
             it
             was
             found
             upon
             the
             5.
             of
             December
             1666.
             in
             the
             Action
             intented
             at
             his
             Majesties
             Advocats
             instance
             against
             Mackulloch
             and
             others
             ,
             that
             this
             Act
             did
             only
             relate
             to
             Summonds
             of
             treason
             ,
             or
             any
             other
             Charges
             ,
             wherein
             men
             are
             ordain'd
             to
             obey
             ,
             under
             pain
             of
             Treason
             .
             But
             that
             inditements
             of
             treason
             given
             to
             men
             who
             are
             in
             prison
             ,
             may
             be
             execute
             by
             ordinary
             Messengers
             :
             And
             yet
             the
             Act
             sayes
             ,
             that
             all
             Executions
             given
             otherwise
             then
             is
             appointed
             by
             that
             Act
             ,
             shall
             be
             null
             .
          
           
             XXI
             .
             Women
             ,
             and
             others
             ,
             may
             be
             Witnesses
             in
             this
             Crime
             ,
             though
             in
             other
             Crimes
             they
             cannot
             :
             and
             one
             Witness
             is
             sufficient
             here
             ,
             and
             
               famosi
               &
               impuberes
            
             of
             what
             ever
             age
             ,
             are
             receivable
             as
             Witnesses
             ,
             by
             an
             express
             Act
             of
             the
             Sederunt
             of
             Lords
             of
             Session
             ,
             in
             Anno
             1591.
             
             Likeas
             ,
             
               Cod.
               fab
               .
               hoc
               tit
               .
               def
               .
            
             4.
             sayes
             ,
             
               est
               privilegium
               criminis
               Laese
               Majestatis
               ut
               facilius
               probetur
               .
            
             And
             that
             it
             may
             be
             proved
             
               per
               famosos
               &
               socios
               criminis
            
             .
             And
             that
             it
             was
             decided
             in
             Savoy
             ,
             1591.
             
               vid.
               Pappon
               .
               lib.
            
             24.
             tit
             .
             2.
             
             But
             the
             English
             do
             most
             justly
             conclude
             ,
             that
             because
             the
             punishment
             is
             severe
             in
             treason
             ,
             therefore
             it
             ought
             to
             be
             proved
             by
             manifest
             and
             direct
             proof
             ,
             and
             not
             by
             presumptions
             ,
             or
             strains
             of
             wit
             ,
             
               Cook
               pag.
            
             12.
             
             And
             that
             two
             witnesses
             are
             necessary
             for
             proving
             treason
             ,
             he
             proves
             most
             learnedly
             ,
             pag.
             26.
             
          
           
             By
             the
             Civil
             Law
             ,
             
               famosi
               ,
               &
               mulieres
            
             were
             admitted
             to
             accuse
             in
             this
             Crime
             ,
             though
             not
             in
             any
             other
             Crime
             ,
             l.
             7
             ,
             and
             8.
             
               ff
               .
               ad
               l.
               jul
               .
               maj
               .
            
             But
             this
             last
             priviledge
             should
             only
             hold
             
             in
             Perduellion
             ,
             
               Mascard
               .
               de
               prob
               .
               lib.
            
             1.
             conclu
             .
             462.
             and
             not
             in
             Statutory
             Treason
             .
             And
             that
             this
             should
             hold
             in
             no
             species
             of
             treason
             ,
             was
             Math.
             opinion
             ,
             pa.
             372.
             because
             
               per
               l.
               ult
               .
               cod
               .
               de
               prob
               .
               in
               capitalibus
               causis
               Idoniis
               testibus
               atque
               appertissimis
               documentis
               opus
               esse
               dicitur
               nec
               excipitur
               crimen
               Majestatis
               .
            
             Neither
             doth
             it
             follow
             ,
             that
             because
             persons
             who
             are
             not
             admitted
             in
             other
             Crimes
             ,
             are
             admitted
             to
             be
             accusers
             in
             this
             ,
             that
             therefore
             these
             who
             are
             unfit
             to
             be
             Witnesses
             in
             other
             Crimes
             ,
             should
             be
             admitted
             in
             this
             :
             for
             there
             is
             little
             hazard
             in
             an
             unfit
             accuser
             ,
             but
             there
             is
             great
             hazard
             in
             unfit
             Witnesses
             .
             And
             this
             I
             think
             much
             more
             suitable
             to
             reason
             then
             the
             former
             Statute
             ;
             for
             the
             greater
             the
             hazard
             is
             ,
             the
             probation
             should
             be
             so
             much
             the
             clearer
             .
             And
             though
             
               testes
               inhabiles
            
             may
             be
             received
             ,
             or
             one
             Witness
             may
             prove
             sufficiently
             for
             subjecting
             the
             Pannel
             to
             the
             torture
             ,
             (
             which
             is
             all
             that
             can
             be
             infer'd
             from
             that
             Act
             of
             Sederunt
             ,
             which
             sayes
             only
             that
             they
             ought
             to
             be
             received
             Witnesses
             ,
             but
             sayes
             not
             ,
             that
             they
             ought
             to
             be
             received
             in
             all
             cases
             )
             .
             Yet
             it
             were
             against
             all
             reason
             that
             any
             condemnatory
             verdict
             or
             sentence
             could
             be
             founded
             upon
             such
             probation
             .
          
           
             I
             find
             also
             by
             the
             Law
             of
             Savoy
             ,
             that
             
               socii
               criminis
               ,
               &
               famosi
            
             ,
             are
             admitted
             to
             be
             Witnesses
             ;
             not
             in
             treason
             generally
             ,
             but
             in
             Perduellion
             .
             And
             that
             Act
             is
             by
             their
             Lawyers
             restricted
             so
             ,
             that
             the
             Pannel
             cannot
             be
             condemned
             to
             death
             or
             forfeiture
             upon
             such
             depositions
             ,
             but
             only
             to
             torture
             :
             Nor
             will
             he
             be
             tortured
             upon
             such
             depositions
             ,
             except
             the
             deponent
             be
             upon
             Oath
             ,
             and
             abide
             the
             torture
             also
             at
             his
             deposition
             ,
             
               Cod.
               fab
               .
               lib.
            
             9.
             tit
             .
             5.
             
             All
             which
             seems
             most
             reasonable
             ,
             but
             yet
             it
             seems
             that
             no
             man
             is
             to
             be
             repute
             
               socius
               criminis
            
             ,
             but
             he
             who
             is
             convict
             ,
             or
             hath
             confess'd
             the
             Crime
             ,
             and
             dilates
             others
             ;
             for
             else
             a
             man
             being
             accused
             for
             treason
             ,
             cannot
             alledge
             that
             the
             Witnesses
             led
             against
             him
             were
             
               socii
               criminis
            
             ,
             for
             that
             were
             to
             confess
             himself
             to
             be
             guilty
             :
             for
             no
             man
             can
             be
             
               socius
               criminis
            
             to
             the
             Pannel
             ,
             except
             the
             Pannel
             be
             guilty
             himself
             ,
             and
             was
             socius
             to
             the
             witness
             therein
             
               nam
               relata
               se
               mutuo
               ponunt
            
             .
             And
             this
             
             was
             so
             found
             in
             
             Assint's
             Process
             ,
             but
             it
             was
             there
             alledg'd
             ,
             that
             though
             
               socius
               criminis
            
             could
             not
             be
             received
             for
             the
             Pannel
             ,
             yet
             he
             could
             be
             received
             against
             him
             :
             And
             that
             was
             the
             sense
             of
             the
             Doctors
             ,
             who
             exclude
             
               socius
               criminis
            
             from
             being
             a
             witness
             in
             treason
             .
             But
             as
             to
             this
             ,
             I
             doubt
             very
             much
             ,
             for
             if
             a
             person
             confessed
             his
             accession
             ,
             it
             seems
             unjust
             that
             he
             could
             condemn
             others
             ,
             being
             infamous
             himself
             .
             And
             yet
             in
             open
             treasons
             ,
             as
             rising
             in
             Arms
             ,
             it
             seems
             necessary
             to
             receive
             such
             as
             were
             in
             Arms
             ;
             for
             none
             else
             can
             come
             near
             an
             Army
             of
             Rebels
             ,
             and
             so
             the
             Crime
             must
             be
             proved
             by
             these
             ,
             or
             by
             none
             .
          
           
             XXII
             .
             The
             fifth
             priviledge
             is
             ,
             that
             treason
             is
             not
             extinguisht
             by
             death
             in
             all
             cases
             ,
             as
             other
             Crimes
             are
             .
             But
             that
             treason
             committed
             against
             the
             K●ngs
             Person
             ,
             or
             Common-wealth
             ,
             may
             be
             inquired
             into
             after
             death
             ,
             and
             the
             committers
             Heir
             may
             be
             forefault
             therefore
             ,
             Ia.
             5.
             p.
             6.
             c.
             69.
             which
             Act
             bearing
             to
             be
             founded
             upon
             the
             Civil
             Law
             ;
             these
             general
             words
             contained
             in
             it
             ,
             
               against
               the
               Kings
               Person
               ,
               or
               Common-weal
               ,
            
             must
             only
             be
             extended
             against
             such
             treasons
             ,
             as
             were
             by
             the
             Civil
             Law
             accounted
             Perduellion
             :
             And
             therefore
             it
             is
             most
             necessary
             to
             know
             the
             Civil
             Law
             in
             this
             case
             ,
             and
             what
             was
             therein
             called
             Perduellion
             .
             Seing
             albeit
             all
             treasons
             may
             by
             an
             natural
             interpretation
             be
             said
             to
             be
             committed
             against
             the
             Kings
             Person
             ,
             or
             Common-wealth
             ,
             yet
             the
             Civil
             Law
             declared
             only
             that
             species
             of
             the
             Crime
             of
             treason
             ,
             which
             they
             called
             Perduellion
             to
             be
             punishable
             after
             death
             ,
             
               l.
               ult
               .
               ff
               .
               ad
               l.
               jul
               .
               Maj.
               plane
               non
               quisquis
               legis
               juliae
               Majestatis
               reus
               ,
               est
               in
               eadem
               conditione
               :
               Sed
               qui
               Perduellionis
               reus
               est
               ,
               hostili
               animo
               adversus
               rem
               publicam
               ,
               vel
               principem
               animatus
               .
            
             So
             that
             the
             infallible
             mark
             of
             Perduellion
             is
             
               hostilis
               animus
            
             ,
             a
             design
             of
             raising
             Arms.
             And
             therefore
             we
             may
             conclude
             that
             not
             only
             Statutory
             Treasons
             are
             extinguished
             by
             death
             ,
             but
             that
             even
             simple
             concealing
             ,
             and
             not
             revealing
             ,
             or
             a
             malicious
             design
             to
             poyson
             the
             King
             ,
             and
             such
             other
             treasons
             as
             shew
             not
             a
             desire
             of
             rising
             in
             Arms
             ,
             are
             likewise
             extinguish'd
             by
             death
             .
             And
             yet
             the
             
               Basil.
               l.
            
             12.
             
             
               h.
               t.
            
             say
             ,
             that
             all
             the
             heads
             of
             treason
             are
             extinguisht
             by
             death
             ,
             
               excepto
               capite
               proditionis
               ,
               &
               insidiarum
               contra
               principem
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             Albeit
             the
             bones
             of
             the
             Defunct
             Traitor
             are
             ordinarily
             taken
             up
             ,
             and
             brought
             to
             the
             Pannel
             in
             pursuits
             of
             this
             nature
             ,
             as
             was
             done
             in
             the
             forefaultur
             of
             the
             Laird
             of
             Restalrig
             ;
             yet
             this
             is
             not
             necessary
             ,
             but
             it
             is
             necessary
             in
             pursuits
             of
             this
             nature
             ,
             that
             the
             Defuncts
             nearest
             of
             Kin
             be
             called
             ,
             as
             Defenders
             ,
             for
             their
             interest
             ;
             both
             because
             their
             Estates
             are
             to
             be
             taken
             from
             them
             by
             their
             forefaultur
             ,
             and
             to
             the
             end
             they
             may
             defend
             the
             Defunct
             ,
             and
             object
             both
             against
             the
             relevancy
             of
             the
             Libell
             ,
             and
             the
             hability
             of
             the
             Witnesses
             :
             And
             therefore
             the
             Basilicks
             add
             very
             well
             ,
             that
             
               haereditas
               publicatur
               ,
               nisi
               crimen
               ab
               haeredibus
               purgetur
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             It
             may
             be
             doubted
             ,
             whether
             since
             the
             forefaulting
             after
             death
             ,
             is
             founded
             upon
             the
             Civil
             Law
             ,
             and
             that
             the
             former
             Act
             bears
             expresly
             ,
             that
             these
             pursuits
             may
             be
             intended
             conform
             to
             the
             common
             Law
             ,
             if
             these
             pursuits
             should
             not
             prescrive
             with
             us
             in
             five
             years
             ,
             as
             they
             do
             by
             the
             common
             Law
             :
             and
             it
             would
             appear
             they
             should
             ,
             since
             these
             pursuits
             are
             intented
             conform
             to
             the
             common
             Law
             ,
             and
             
               quem
               sequitur
               commodum
               eum
               d●bet
               sequi
               incommodum
               .
            
          
           
             The
             sixth
             priviledge
             of
             Treason
             is
             ,
             that
             the
             Kings
             Advocat
             is
             to
             be
             the
             last
             Speaker
             to
             the
             Assize
             in
             Perduellion
             ,
             though
             in
             other
             cases
             the
             Pannel's
             Advocats
             are
             to
             be
             last
             Speakers
             ;
             And
             the
             last
             Speaker
             has
             much
             advantage
             ,
             for
             he
             may
             answer
             all
             is
             alledg'd
             by
             the
             opponent
             ,
             Art.
             11.
             
             Regulations
             1670.
             
          
           
             XXIII
             .
             The
             last
             priviledge
             of
             Treason
             is
             ,
             that
             albeit
             of
             old
             no
             persons
             could
             be
             condemned
             in
             absence
             by
             the
             Justices
             ;
             yet
             the
             Parliament
             still
             could
             have
             proceeded
             against
             Traitors
             in
             absence
             .
             And
             now
             by
             a
             late
             Act
             of
             Parliament
             ,
             it
             is
             found
             ,
             that
             in
             the
             case
             of
             Perduellion
             ,
             and
             of
             treasonable
             rising
             in
             Arms
             against
             the
             Kings
             Authority
             ,
             the
             Justices
             may
             proceed
             to
             the
             receiving
             of
             probation
             ,
             and
             pronouncing
             of
             sentence
             
             even
             in
             absence
             of
             the
             Party
             :
             Which
             being
             first
             propounded
             as
             a
             Querie
             to
             the
             Council
             ,
             they
             remitted
             the
             same
             to
             the
             Session
             ,
             to
             whom
             his
             Majesties
             Advocat
             gave
             in
             the
             following
             Reasons
             ,
             and
             Queries
             ,
             upon
             the
             15.
             
             August
             1667.
             
             Whether
             or
             not
             a
             person
             guilty
             of
             high
             Treason
             may
             be
             pursued
             before
             the
             Justices
             ,
             albeit
             they
             be
             absent
             and
             contumacious
             ?
             So
             that
             the
             Justice
             upon
             citation
             ,
             and
             sufficient
             probation
             and
             evidence
             ,
             may
             pronounce
             Sentence
             and
             Doom
             of
             forefaultur
             ,
             if
             the
             Ditty
             be
             proved
             .
             The
             reason
             of
             scruple
             is
             ,
             that
             Processes
             of
             forefaultur
             are
             not
             so
             frequent
             ;
             and
             that
             in
             other
             ordinary
             Crimes
             ,
             the
             defenders
             ,
             if
             they
             do
             not
             appear
             ,
             are
             declared
             Fugitives
             ,
             and
             that
             the
             following
             reasons
             appears
             to
             be
             strong
             and
             relevant
             for
             the
             affirmative
             ,
             1.
             
             By
             the
             common
             Law
             ,
             albeit
             a
             party
             absent
             cannot
             be
             condemned
             for
             a
             Crime
             ,
             yet
             in
             Treason
             which
             is
             
               crimen
               exceptum
            
             :
             This
             is
             a
             speciality
             ,
             that
             absents
             may
             be
             proceeded
             against
             ,
             and
             sentenced
             .
             2.
             
             By
             the
             first
             Act
             of
             King
             Iames
             the
             5th
             .
             his
             6.
             
             Parliament
             ,
             it
             is
             declared
             ,
             that
             the
             King
             hath
             good
             cause
             and
             action
             to
             pursue
             all
             Summonds
             of
             Treason
             committed
             against
             his
             Person
             and
             Common-wealth
             ,
             conform
             to
             the
             common
             Law
             ,
             and
             good
             equity
             and
             reason
             ,
             notwithstanding
             there
             be
             no
             special
             Law
             ,
             Act
             ,
             or
             provision
             made
             thereupon
             .
             And
             therefore
             seing
             by
             the
             common
             Law
             ,
             persons
             guilty
             of
             Laese
             Majestie
             may
             be
             proceeded
             against
             ,
             and
             sentenc'd
             ,
             though
             they
             be
             absent
             .
             It
             appears
             that
             there
             is
             the
             same
             reason
             why
             the
             Justices
             should
             proceed
             against
             ,
             and
             sentence
             persons
             guilty
             of
             Treason
             ,
             though
             absent
             ,
             and
             that
             he
             is
             sufficiently
             warranted
             by
             the
             said
             Act
             so
             to
             do
             .
             3.
             
             It
             is
             inconsistent
             with
             Law
             ,
             Equity
             and
             Reason
             ,
             that
             a
             person
             guilty
             of
             Treason
             should
             be
             in
             a
             better
             case
             ,
             and
             his
             Majesty
             in
             a
             worse
             ,
             by
             the
             contumacy
             of
             a
             Traitor
             ,
             the
             same
             being
             an
             addition
             (
             if
             any
             can
             be
             added
             )
             to
             so
             high
             a
             Crime
             ;
             and
             that
             he
             should
             have
             impunity
             ,
             and
             his
             Majesty
             prejudged
             of
             the
             casuality
             arising
             to
             him
             by
             his
             forefaultur
             .
             4.
             
             The
             Parliament
             is
             in
             use
             to
             proceed
             and
             pronounce
             doom
             of
             forefaultur
             ,
             though
             the
             party
             be
             absent
             :
             and
             in
             so
             doing
             they
             do
             not
             proceed
             in
             and
             by
             
             a
             legislative
             power
             ,
             but
             as
             the
             Supreme
             Judges
             :
             and
             the
             Parliament
             being
             the
             fountain
             of
             Justice
             ,
             what
             is
             just
             before
             them
             ,
             is
             just
             and
             warrantable
             before
             other
             Judicatories
             in
             the
             like
             cases
             .
             5.
             
             By
             the
             above-mentioned
             Act
             of
             Parliament
             ,
             it
             is
             Statute
             ,
             that
             Summonds
             and
             Process
             of
             Treason
             may
             be
             intented
             and
             pursued
             after
             the
             death
             of
             the
             Delinquents
             ,
             either
             his
             Memory
             ,
             or
             Estate
             ,
             delating
             the
             one
             ,
             and
             forefaulting
             the
             other
             ,
             whereupon
             sentence
             may
             follow
             to
             the
             effect
             foresaid
             .
             And
             therefore
             ,
             seing
             sentence
             may
             follow
             when
             the
             Delinquent
             cannot
             be
             present
             ,
             and
             is
             not
             in
             beeing
             ,
             it
             were
             against
             all
             reason
             ,
             that
             when
             they
             are
             wilfully
             and
             contumaciously
             absent
             ,
             they
             should
             not
             be
             proceeded
             against
             ,
             and
             sentenced
             ,
             if
             they
             be
             guilty
             .
             And
             it
             were
             unjust
             that
             his
             Majesty
             should
             call
             a
             Parliament
             for
             punishing
             and
             forefaulting
             of
             persons
             ,
             being
             absent
             ,
             or
             that
             he
             should
             wait
             till
             they
             die
             ;
             especially
             seing
             in
             the
             interim
             the
             probation
             may
             perish
             ,
             by
             decease
             of
             the
             Witnesses
             .
          
           
             
               
                 
                   
                     Follows
                     the
                     Lords
                     of
                     Session
                     their
                     opinion
                     ,
                  
                   
                     
                       Edinburgh
                       ,
                       
                         the
                         26.
                         of
                         February
                         ,
                         1667.
                         
                      
                    
                  
                   
                     The
                     Lords
                     of
                     Council
                     and
                     Session
                     having
                     considered
                     the
                     Queries
                     above-written
                     ,
                     presented
                     to
                     them
                     by
                     the
                     Lord
                     Bellenden
                     his
                     Majesties
                     Thesaurer
                     Depute
                     ,
                     it
                     was
                     their
                     opinion
                     ,
                     that
                     upon
                     the
                     Iustices
                     citation
                     ,
                     and
                     sufficient
                     probation
                     taken
                     before
                     them
                     ,
                     the
                     Iudge
                     and
                     Assize
                     may
                     proceed
                     and
                     pronounce
                     sentence
                     thereintil
                     ,
                     and
                     forefaulter
                     against
                     the
                     persons
                     guilty
                     of
                     high
                     Treason
                     ,
                     though
                     they
                     be
                     absent
                     and
                     contumacious
                     .
                  
                   
                     
                       
                         Sic
                         subscribitur
                      
                       Io.
                       Gilmore
                       I.
                       P.
                       D.
                       
                    
                  
                
              
            
          
           
             Upon
             this
             the
             Parliament
             ratified
             the
             Processes
             led
             against
             these
             persons
             :
             and
             by
             the
             11.
             
             
               Act
               Parl.
            
             2.
             
             Ch.
             2.
             
             Ses.
             1.
             it
             is
             Statuted
             ,
             that
             rising
             in
             Arms
             against
             the
             Kings
             Authority
             ,
             might
             be
             pursued
             before
             ,
             and
             judged
             by
             the
             Justices
             .
             But
             the
             Parliament
             retain
             still
             a
             power
             cumulative
             with
             the
             Justices
             ;
             and
             when
             Processes
             of
             Treason
             are
             intented
             before
             them
             ,
             they
             
             may
             proceed
             as
             formerly
             ,
             and
             thought
             this
             last
             Act
             a
             great
             innovation
             of
             all
             our
             Law.
             Nor
             is
             it
             imaginable
             but
             that
             if
             it
             had
             been
             safe
             ,
             that
             that
             priviledge
             would
             had
             been
             granted
             to
             his
             Majesty
             formerly
             :
             And
             that
             it
             is
             contrary
             to
             the
             Civil
             Law
             ,
             is
             clear
             ,
             
               per
               l.
            
             1.
             
               &
               l.
               penult
               ff
               .
               de
               requirendis
               reis
               ,
               nam
               annotabantur
               bona
               ,
               &
               si
               reus
               post
               anum
               non
               comparuerit
               ,
               &
               satis
               dederit
               de
               stando
               ;
               non
               recuperabit
               bona
               ,
               non
               tamen
               de
               delicto
               habetur
               pro
               confesso
               .
               Divi
               fratres
               rescripserunt
               ,
               l.
            
             1.
             
               ne
               quis
               absens
               puniatur
               ,
               &
               hoc
               jure
               utimur
               ,
               ne
               absens
               damnetur
               .
            
             And
             that
             no
             probation
             can
             be
             received
             against
             absents
             in
             Treason
             ,
             is
             clear
             by
             
               Matheus
               hoc
               tit
            
             .
             and
             albeit
             
               per
               extrav
               .
               constitutionem
               Hen.
            
             7.
             
             It
             is
             ordained
             ,
             that
             probation
             may
             be
             received
             in
             absence
             ,
             yet
             this
             is
             repute
             no
             part
             of
             the
             Civil
             Law
             ,
             and
             is
             followed
             by
             no
             Nation
             ,
             and
             by
             that
             extravagant
             constitution
             this
             priviledge
             is
             allowed
             to
             all
             species
             of
             Treason
             ,
             which
             we
             find
             to
             be
             unjust
             .
             And
             albeit
             Treason
             may
             be
             in
             some
             cases
             punished
             after
             death
             ,
             yet
             it
             cannot
             be
             from
             that
             inferred
             ,
             that
             it
             may
             be
             punished
             in
             absence
             ,
             since
             after
             death
             the
             malice
             of
             unjust
             pursuers
             ordinarily
             ceases
             ,
             and
             the
             hazard
             of
             Death
             is
             then
             over
             :
             so
             that
             the
             event
             of
             the
             pursuit
             is
             not
             so
             terrible
             ,
             nor
             dangerous
             .
             And
             in
             these
             Processes
             ,
             the
             nearest
             of
             Kin
             are
             called
             ,
             who
             may
             propound
             against
             both
             relevancy
             and
             probation
             ,
             whatever
             was
             competent
             to
             the
             Defunct
             .
             Whereas
             when
             a
             person
             is
             pursued
             in
             absence
             for
             Treason
             ,
             no
             man
             can
             in
             our
             Law
             be
             admitted
             to
             propound
             any
             thing
             in
             his
             defence
             .
             And
             albeit
             it
             seem
             unreasonable
             that
             a
             person
             guilty
             of
             Treason
             should
             be
             in
             a
             better
             condition
             by
             his
             contumacy
             ,
             then
             if
             he
             compeared
             .
             To
             this
             it
             may
             be
             answered
             ,
             that
             this
             would
             prove
             too
             much
             ,
             for
             this
             absurdity
             may
             be
             as
             well
             press'd
             in
             absents
             for
             all
             other
             Crimes
             ,
             and
             against
             such
             as
             are
             absents
             in
             all
             the
             several
             inditements
             of
             Treason
             ;
             and
             yet
             the
             Justices
             are
             never
             allow'd
             even
             by
             the
             late
             Act
             to
             proceed
             to
             sentence
             against
             any
             ,
             but
             such
             as
             are
             pursued
             for
             rising
             in
             Arms
             against
             the
             King.
             But
             the
             true
             answer
             to
             this
             seeming
             absurdity
             ,
             is
             ,
             that
             the
             Law
             is
             not
             so
             inhumane
             ,
             as
             to
             punish
             equally
             presum'd
             and
             real
             guilt
             :
             
             what
             may
             be
             a
             Crime
             ,
             as
             what
             is
             found
             one
             .
             And
             it
             hath
             been
             oft
             found
             ,
             that
             men
             have
             been
             absent
             ,
             rather
             out
             of
             fear
             of
             a
             prevailing
             Faction
             ,
             or
             corrupt
             Witnesses
             ,
             or
             by
             inadvertence
             ,
             or
             not
             being
             truly
             cited
             ,
             or
             by
             being
             violently
             detained
             ,
             then
             out
             of
             a
             consciousness
             of
             guilt
             ;
             yet
             since
             so
             judicious
             a
             person
             proposed
             this
             overture
             ,
             and
             since
             Council
             ,
             Session
             ,
             and
             Parliament
             have
             fortified
             it
             by
             their
             Authority
             ,
             I
             submit
             my
             judgment
             to
             their
             determinations
             .
          
           
             XXIV
             .
             It
             is
             ordinary
             for
             his
             Majesty
             ,
             to
             command
             ,
             or
             forbid
             ,
             by
             privat
             warrands
             ,
             under
             all
             highest
             pains
             ,
             or
             as
             you
             shall
             be
             answerable
             to
             us
             .
             And
             the
             certification
             here
             being
             indefinit
             ,
             it
             may
             be
             doubted
             what
             the
             punishment
             may
             be
             ,
             in
             case
             of
             contravention
             .
             And
             1.
             
             It
             would
             appear
             that
             the
             contraveeners
             cannot
             be
             punish'd
             as
             guilty
             of
             Treason
             ,
             for
             only
             Laws
             can
             make
             Traitors
             in
             this
             Kingdom
             .
             2.
             
             It
             seems
             that
             this
             being
             a
             contempt
             of
             the
             chief
             and
             Supreme
             Magistrat
             ,
             it
             may
             be
             punish'd
             arbitrarily
             ;
             if
             the
             command
             be
             lawful
             ,
             and
             in
             case
             of
             importance
             ,
             since
             even
             inferiour
             Judges
             may
             punish
             such
             as
             contemn
             or
             disobey
             them
             ,
             in
             what
             is
             necessary
             for
             their
             jurisdiction
             .
             Likeas
             Lawyers
             are
             of
             opinion
             ,
             that
             
               in
               obediens
               praecepto
               superioris
               sub
               paena
               indignationis
               ,
               est
               arbitrarie
               puniendus
               ,
               Cabal
               .
               casu
            
             30.
             
             
               Bald.
               in
               l.
               legis
               virtus
               ,
               ff
               .
               de
               legib
               .
               Menoch
               .
               cas
               .
            
             365.
             
             But
             in
             that
             case
             ,
             they
             determine
             that
             the
             arbitrary
             punishment
             cannot
             extend
             to
             death
             .
             And
             though
             some
             Doctors
             are
             of
             opinion
             ,
             that
             commissions
             are
             to
             be
             punish'd
             in
             this
             case
             more
             severely
             then
             omissions
             ,
             yet
             I
             conceive
             some
             omissions
             may
             infer
             greater
             contempt
             ,
             and
             be
             more
             dangerous
             then
             commissions
             .
             Nor
             allow
             I
             the
             distinction
             used
             by
             
               Lucas
               de
               penna
               ,
               ad
               l.
            
             1.
             
             
               C.
               ut
               dignit
               .
               ord
               .
               servet
               .
            
             who
             sayes
             ,
             that
             if
             the
             contempt
             be
             of
             dangerous
             consequence
             ,
             as
             if
             one
             being
             commanded
             to
             take
             care
             of
             a
             Castle
             ,
             or
             to
             stop
             the
             passage
             of
             an
             enemy
             ,
             that
             then
             the
             contempt
             is
             to
             be
             severely
             punish'd
             by
             death
             :
             but
             if
             the
             contempt
             be
             of
             things
             indifferent
             ,
             or
             mean
             ,
             then
             the
             contempt
             is
             only
             punishable
             arbitrarily
             .
             And
             yet
             he
             is
             too
             severe
             in
             making
             it
             to
             be
             punishable
             by
             death
             ,
             except
             the
             person
             
             commanded
             were
             a
             Souldier
             ,
             or
             one
             who
             were
             obliged
             by
             acceptation
             of
             his
             Office
             to
             obey
             under
             that
             peril
             .
             And
             therefore
             I
             would
             rather
             distinguish
             betwixt
             such
             commands
             as
             use
             to
             be
             punish'd
             by
             death
             ,
             if
             contemn'd
             ,
             such
             as
             Military
             commands
             ;
             and
             in
             these
             ,
             the
             contempt
             may
             be
             punish'd
             by
             death
             ,
             for
             Custom
             comes
             in
             place
             of
             Law
             ,
             
               &
               sibi
               imputet
            
             ,
             who
             hath
             undertaken
             such
             an
             employment
             as
             requires
             such
             obedience
             .
             But
             if
             the
             King
             should
             command
             any
             Country
             Gentle-man
             ,
             or
             Lawyer
             ,
             to
             fortifie
             ,
             or
             keep
             a
             Castle
             under
             all
             highest
             pains
             ,
             it
             is
             probable
             ,
             that
             their
             omission
             could
             not
             be
             punish'd
             by
             death
             ,
             and
             is
             only
             punishable
             by
             losing
             of
             the
             Princes
             favour
             ,
             
               &
               quod
               Princeps
               non
               exhibebit
               se
               gratiosum
               :
            
             which
             Bartol
             ▪
             makes
             the
             punishment
             of
             that
             disobedience
             in
             all
             cases
             ,
             
               ad
               extrav
               .
               qui
               sunt
               rebelles
               .
            
          
           
             XXV
             .
             The
             punishment
             of
             Laese
             Majestie
             was
             death
             ,
             l.
             5.
             
             
               C.
               h.
               t.
               animae
               omissio
            
             ,
             as
             Iustinian
             calls
             it
             in
             his
             Institutions
             ,
             together
             with
             the
             Confiscation
             of
             all
             his
             Estate
             that
             lyes
             within
             the
             Territories
             of
             him
             against
             whom
             the
             Treason
             is
             committed
             ;
             but
             is
             not
             extended
             to
             his
             Estate
             lying
             else-where
             ,
             C.
             2.
             
               de
               constil
               .
               in
            
             6.
             
             So
             that
             if
             a
             man
             commit
             Treason
             against
             the
             King
             of
             Britain
             ,
             his
             Estate
             in
             France
             does
             not
             forfeit
             .
          
           
             With
             us
             the
             punishment
             of
             Treason
             is
             death
             ,
             and
             Confiscation
             likewise
             of
             all
             the
             Traitors
             Estate
             ,
             whether
             Heretable
             ,
             or
             Moveable
             ,
             Feudal
             ,
             or
             Allodial
             .
             And
             the
             solemnity
             used
             in
             Parliament
             at
             the
             pronouncing
             of
             such
             sentences
             are
             ,
             that
             the
             Pannel
             receives
             his
             sentence
             kneeling
             ,
             and
             that
             after
             the
             Doom
             of
             the
             forefaulter
             is
             pronounced
             against
             him
             ,
             the
             Lyon
             and
             his
             Brethren
             Heraulds
             come
             in
             in
             their
             formalities
             ,
             and
             tear
             his
             Coat
             of
             Arms
             at
             the
             Throne
             ,
             and
             thereafter
             hang
             up
             his
             Escurchion
             revers'd
             upon
             the
             Cross
             :
             Which
             had
             its
             rise
             from
             the
             old
             Roman
             customs
             ,
             for
             as
             Tacit
             ,
             observes
             ,
             lib.
             5.
             
               deterrere
               omnes
               à
               simili
               culpa
               volebant
               ,
               non
               poenae
               modo
               ,
               sed
               ignominiae
               m●tu
               ,
               ut
               nomen
               è
               fastis
               deleretur
               ,
               &
               effigies
               tolleretur
               .
            
             Which
             is
             likewise
             clear
             ,
             l.
             24.
             
               ff
               .
               de
               poenis
            
             .
             And
             that
             this
             is
             the
             custom
             of
             Flanders
             is
             clear
             by
             
               Perez
               .
               h.
               t.
               moribus
               nostris
               insignia
               
               gentilia
               delentur
               ,
               &
               destruuntur
               .
            
             But
             this
             I
             think
             should
             only
             hold
             in
             the
             Crime
             of
             Perduellion
             ,
             but
             not
             in
             other
             Treasons
             ,
             
               Perez
               .
               ibid.
               num
            
             .
             19.
             
          
           
             Another
             speciality
             introduced
             in
             the
             punishment
             of
             Perduellion
             ,
             by
             the
             common
             Law
             ,
             was
             ,
             that
             
               memoria
               damnabatur
            
             ,
             and
             that
             his
             Children
             were
             declared
             uncapable
             to
             bruik
             any
             Estate
             or
             Office
             ;
             which
             the
             Emperours
             Arcadius
             and
             
               Honorius
               ,
               l.
            
             5.
             
               c.
               ad
               l.
               Iul.
               Maj.
            
             calls
             a
             mitigation
             of
             the
             punishment
             due
             to
             Children
             ,
             who
             as
             they
             say
             should
             have
             died
             for
             their
             Fathers
             Crime
             .
             But
             this
             is
             so
             unjust
             ,
             that
             no
             Nation
             doth
             now
             use
             it
             ,
             as
             Matheus
             observes
             ,
             p.
             352.
             
             And
             it
             is
             expresly
             against
             
               l.
               Crimen
               ff
               .
               de
               poenis
               ,
            
             and
             the
             Scripture
             ,
             
               Deut.
               Chap.
            
             24.
             
             Vers.
             16.
             
             And
             the
             opinion
             of
             
               Plato
               ,
               lib.
            
             9.
             
               de
               legibus
            
             .
             And
             therefore
             Amazias
             2
             King.
             14.5
             ,
             6.
             would
             not
             kill
             such
             as
             were
             the
             Children
             of
             those
             who
             kill'd
             his
             Father
             ,
             because
             (
             as
             is
             exprest
             there
             )
             
               The
               Father
               shall
               not
               be
               put
               to
               death
               for
               the
               Children
               ,
               nor
               the
               Children
               for
               the
               Fathers
               .
            
             And
             
             Achan's
             punishment
             ,
             Ioshua
             7.14
             .
             wherein
             he
             and
             his
             sons
             and
             his
             daughters
             were
             stoned
             to
             death
             ,
             and
             burned
             for
             his
             own
             Crime
             is
             no
             concluding
             argument
             against
             this
             opinion
             ,
             since
             that
             was
             founded
             expresly
             upon
             Gods
             revealed
             will
             ,
             who
             can
             dispense
             with
             ,
             or
             alter
             the
             Laws
             of
             Nature
             :
             but
             it
             is
             very
             probable
             that
             the
             reason
             of
             that
             severe
             sentence
             was
             ,
             that
             God
             knew
             the
             whole
             Family
             to
             be
             involved
             in
             the
             guilt
             .
             And
             it
             is
             very
             probable
             that
             they
             were
             resetters
             of
             the
             theft
             ,
             or
             conscious
             to
             it
             ,
             since
             the
             stollen
             goods
             were
             taken
             out
             of
             the
             Tent
             were
             they
             were
             .
             And
             I
             remember
             that
             our
             Parliament
             in
             Anno
             1661.
             having
             adjected
             to
             the
             Marquiss
             of
             Argyles
             Sentence
             the
             dishabilitation
             of
             his
             Children
             ,
             his
             Majesty
             did
             expresly
             command
             it
             to
             be
             rescinded
             in
             the
             last
             Session
             of
             that
             Parliament
             ;
             in
             which
             the
             Children
             were
             rendered
             capable
             to
             bruik
             Estates
             or
             Honours
             ,
             as
             the
             other
             Subjects
             were
             .
             I
             know
             it
             is
             the
             opinion
             of
             some
             Lawyers
             ,
             such
             as
             Budeus
             ,
             that
             this
             l.
             5.
             was
             thereafter
             abrogat
             ,
             ●
             .
             
               Sanc●mus
               C.
               de
               poenis
            
             ,
             which
             by
             his
             calculation
             is
             two
             years
             after
             the
             other
             .
             And
             though
             Matheus
             thinks
             that
             
               l.
               Sancimus
            
             
             is
             only
             introduced
             in
             favours
             of
             the
             Friends
             ,
             but
             not
             of
             the
             Children
             :
             Yet
             it
             is
             more
             just
             to
             think
             that
             by
             this
             Law
             the
             former
             was
             abrogat
             ,
             even
             
               quo
               ad
            
             Children
             ,
             since
             the
             reason
             given
             in
             that
             Law
             is
             general
             ,
             
               Sancimus
               ibi
               esse
               poenam
               ubi
               &
               noxia
               est
               propinquos
               ,
               notos
               ,
               familiares
               procul
               à
               calumnia
               submovemus
               quos
               reos
               sceleris
               societas
               non
               facit
               .
               Nec
               enim
               adfinitas
               ,
               vel
               amicitia
               nefarium
               crimen
               admittunt
               .
               Peccata
               igitur
               suos
               teneant
               auctores
               :
               nec
               ulterius
               progrediatur
               metus
               ,
               quam
               reperiatur
               delictum
               .
               Hoc
               singulis
               quibusque
               judicibus
               intimetur
               .
            
             Nor
             can
             it
             be
             concluded
             ,
             that
             it
             is
             clear
             that
             the
             former
             Law
             was
             not
             abrogat
             by
             that
             Law
             ,
             since
             
               l.
               pen.
               C.
               Theod.
               de
               bon
               .
               proscrip
               .
            
             the
             same
             Emperour
             Honorius
             leaves
             no
             Estate
             to
             the
             Children
             of
             Traitors
             ;
             for
             it
             does
             not
             follow
             ,
             that
             because
             they
             are
             to
             succeed
             to
             no
             Estate
             of
             the
             Traitors
             ,
             that
             therefore
             they
             should
             be
             uncapable
             to
             gain
             ,
             or
             to
             succeed
             to
             any
             other
             Estate
             .
             But
             after
             all
             these
             Laws
             the
             
               Basil.
               l.
            
             5.
             
               h.
               t.
            
             extends
             the
             punishment
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             Another
             punishment
             of
             Perduellion
             by
             the
             Canon
             Law
             ,
             
               cap.
               felicis
               de
               paenis
               in
            
             6.
             is
             ,
             that
             the
             Traitors
             House
             shall
             be
             thrown
             down
             ,
             and
             not
             re-built
             ,
             which
             is
             not
             in
             observance
             amongst
             us
             .
             Nor
             was
             it
             lawful
             to
             mourn
             for
             him
             when
             dead
             ,
             or
             to
             give
             him
             a
             publick
             Burial
             ,
             l.
             11.
             
               ff
               .
               de
               his
               qui
               not
               .
               &
               l.
            
             35.
             
               ff
               .
               de
               relig
            
             .
             And
             with
             us
             it
             is
             ordinary
             for
             the
             friends
             of
             such
             as
             are
             condemned
             for
             Treason
             ,
             to
             get
             a
             warrand
             for
             attending
             them
             in
             mourning
             upon
             the
             Scaffold
             .
             But
             I
             do
             not
             find
             that
             the
             attending
             him
             in
             mourning
             ,
             or
             the
             burying
             him
             ,
             was
             ever
             accounted
             a
             Crime
             in
             Scotland
             .
          
           
             I
             find
             that
             some
             Lawyers
             believe
             ,
             that
             the
             fear
             of
             losing
             an
             Estate
             excuses
             him
             who
             has
             complyed
             with
             the
             Enemies
             of
             his
             Prince
             ,
             
               notae
               ad
               Clar.
               h.
               t.
               num
               .
            
             9.
             
             
               Imol.
               Consil.
            
             34.
             
             But
             this
             was
             expresly
             repelled
             in
             the
             Marquiss
             of
             
             Argyle's
             Process
             1661.
             
             But
             certainly
             the
             fear
             of
             life
             might
             excuse
             ;
             for
             there
             can
             be
             no
             Crime
             where
             there
             is
             not
             a
             voluntar
             act
             ,
             and
             nothing
             can
             be
             voluntar
             which
             is
             forc'd
             .
          
           
             Though
             repentance
             is
             no
             relevant
             defence
             against
             a
             ditty
             of
             
             Treason
             ,
             especially
             where
             there
             is
             once
             a
             deed
             of
             Treason
             committed
             ;
             yet
             such
             is
             the
             clemency
             of
             Princes
             ,
             that
             by
             the
             l.
             1.
             
             
               Basil.
               h.
               t.
            
             I
             find
             that
             he
             who
             in
             the
             beginning
             of
             a
             conspiracy
             reveals
             ,
             is
             to
             be
             rewarded
             ,
             but
             he
             who
             after
             the
             Treason
             is
             committed
             reveals
             the
             Authors
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             is
             only
             to
             be
             pardoned
             .
          
           
             Sometimes
             likewise
             to
             punish
             the
             atrociousness
             of
             this
             Crime
             ,
             the
             very
             Parents
             are
             banish'd
             ,
             and
             all
             the
             Family
             are
             ordain'd
             to
             change
             their
             name
             ;
             as
             was
             done
             
             Ravillac's
             case
             by
             the
             Parliament
             of
             Paris
             :
             for
             though
             these
             could
             not
             be
             corporeally
             punish'd
             ,
             yet
             the
             State
             may
             justly
             deny
             their
             protection
             ,
             and
             Countrey
             ,
             to
             any
             who
             may
             be
             presum'd
             will
             bear
             revenge
             ,
             or
             probably
             were
             infected
             with
             their
             Friends
             Crime
             .
          
           
             But
             though
             these
             punishments
             may
             be
             inflicted
             after
             probation
             ,
             yet
             if
             the
             Pannel
             was
             only
             denounced
             for
             not
             appearing
             in
             Tre●son
             ,
             he
             only
             loses
             his
             Moveables
             ;
             and
             a
             gift
             of
             forfeiture
             following
             such
             a
             denounciation
             was
             declared
             null
             by
             the
             Lords
             of
             Session
             ,
             because
             the
             certification
             of
             the
             Letters
             in
             that
             case
             ,
             is
             only
             to
             be
             denounced
             fugitives
             ,
             and
             lose
             their
             Moveables
             ,
             30.
             
             Iuly
             ,
             1662.
             and
             30.
             
             Novemb.
             1671.
             
             
               Haige
               contra
               Moscrop
            
             .
          
        
         
           
           
             TITLE
             VII
             .
             Sedition
             .
          
           
             
               1.
               
               
                 What
                 is
                 Sedition
              
               ?
            
             
               2.
               
               
                 The
                 punishment
                 of
                 it
              
               .
            
             
               3.
               
               
                 Convocation
                 of
                 the
                 Liedges
                 how
                 punished
                 .
              
            
          
           
             I.
             SEdition
             is
             a
             Commotion
             of
             the
             people
             without
             authority
             ,
             and
             if
             it
             be
             such
             as
             tends
             to
             the
             disturbing
             of
             the
             Government
             ,
             
               ad
               exitium
               principis
               vel
               Senatorum
               ejus
               &
               mutationem
               rei
               publicae
               ,
            
             it
             is
             Treason
             ;
             but
             if
             it
             only
             be
             raised
             upon
             any
             privat
             account
             ,
             it
             is
             not
             properly
             called
             Treason
             :
             But
             it
             is
             with
             us
             called
             a
             Convocation
             of
             the
             Liedges
             .
          
           
             These
             publick
             Seditions
             are
             called
             
               Seditio
               regni
               vel
               exercitus
               ,
               cap.
            
             1.
             l.
             4.
             
             
               Reg.
               Majest
            
             .
             And
             this
             species
             of
             Sedition
             is
             punishable
             as
             Treason
             :
             And
             the
             Mr.
             of
             Forbes
             was
             hang'd
             for
             raising
             Sedition
             in
             the
             King's
             Host
             at
             Iedburgh
             .
             When
             a
             Sedition
             is
             raised
             against
             the
             Government
             ,
             it
             is
             ●epute
             Treason
             by
             the
             Doctors
             ,
             as
             is
             clear
             by
             
               Bossius
               de
               crimine
               Laese
               Majestatis
            
             :
             And
             
               Perezius
               hoc
               .
               tit
            
             .
          
           
             II.
             Albeit
             
               per
               l.
            
             1.
             
               cod
               .
               de
               seditiosis
            
             ,
             it
             be
             only
             said
             ,
             
               mulctam
               gravissimam
               subtinebit
            
             ,
             which
             general
             term
             ,
             in
             my
             opinion
             ,
             is
             used
             to
             signifie
             that
             this
             Crime
             is
             not
             to
             be
             equally
             punished
             ,
             but
             according
             to
             the
             several
             degrees
             of
             guilt
             ,
             and
             the
             authors
             and
             first
             raisers
             of
             the
             tumult
             are
             to
             be
             most
             severely
             punished
             .
             And
             the
             Basilick
             sayes
             only
             that
             
               gravissimae
               paenae
               subjicitur
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             which
             the
             Greek
             gloss
             expounds
             unwarrantably
             to
             be
             
               ultimum
               suplicium
            
             in
             all
             cases
             ,
             and
             as
             to
             raise
             men
             against
             the
             Prince
             is
             Treason
             ,
             so
             to
             raise
             them
             against
             Publick
             Order
             or
             Discipline
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             is
             Sedition
             properly
             ,
             and
             thus
             Treason
             and
             Sedition
             properly
             
             differ
             ,
             though
             oftentimes
             Sedition
             may
             be
             accompanied
             with
             qualities
             which
             may
             raise
             it
             to
             Treason
             .
             And
             this
             the
             Basilicks
             make
             not
             
               seditiosus
               conventus
            
             Treason
             ,
             but
             if
             it
             be
             rais'd
             
               ut
               occidatur
               Magistratus
               seditiosus
               conventus
            
             ,
             it
             is
             Treason
             in
             that
             case
             ,
             l.
             1.
             
               h.
               t.
            
             
          
           
             I
             find
             not
             Sedition
             to
             be
             expresly
             declared
             Treason
             with
             us
             in
             any
             case
             ;
             for
             by
             the
             78.
             
             
               Act
               Ia.
            
             2.
             
             Parl.
             14.
             
               the
               raising
               of
               Commons
               in
               hindering
               the
               common
               Law
            
             (
             which
             is
             properly
             Sedition
             )
             or
             the
             making
             of
             Leagues
             and
             Bonds
             within
             Burgh
             ,
             without
             the
             command
             of
             their
             Head
             Officer
             ,
             is
             declared
             to
             be
             punishable
             by
             Confiscation
             of
             Moveables
             ,
             and
             that
             their
             lives
             shall
             be
             in
             the
             King's
             will.
             From
             which
             Act
             it
             is
             likewise
             to
             be
             observed
             ,
             that
             the
             command
             of
             the
             Magistrate
             doth
             in
             things
             belonging
             to
             his
             Office
             excuse
             the
             Liedges
             ,
             and
             therefore
             it
             may
             be
             asserted
             that
             the
             Liedges
             rising
             in
             obedience
             to
             commands
             of
             the
             Sheriff
             ,
             or
             Lord
             of
             Regality
             ,
             are
             not
             punishable
             ,
             except
             it
             was
             clearly
             palpable
             to
             them
             that
             their
             insurrection
             was
             in
             contempt
             of
             his
             Majesties
             Authority
             ,
             which
             appears
             to
             be
             the
             meaning
             of
             the
             foresaid
             
               l.
               si
               quis
               contra
               evidentissimam
               jussionem
               ,
            
             &c.
             
             And
             seing
             the
             Liedges
             are
             oblidged
             to
             obey
             their
             Magistrats
             ,
             and
             to
             rise
             when
             he
             calls
             them
             ,
             as
             is
             evident
             by
             many
             Acts
             of
             Parliament
             ,
             and
             without
             this
             allowance
             his
             Majesty
             could
             not
             be
             served
             :
             it
             were
             hard
             to
             punish
             them
             for
             that
             obedience
             ,
             which
             would
             be
             punishable
             if
             they
             refused
             it
             .
          
           
             III.
             The
             convocating
             the
             Liedges
             in
             Bands
             of
             Men
             of
             War
             ,
             for
             daily
             ,
             or
             monethly
             wages
             ,
             without
             special
             licence
             ,
             is
             declared
             likewise
             to
             be
             punishable
             by
             death
             ,
             by
             the
             75.
             
             Act
             9.
             
             
               Parl.
               Q.
               M.
            
             which
             Act
             is
             ratified
             by
             the
             12.
             
             Act
             10.
             
             
               Parl.
               K.
               Ia.
            
             6.
             
             And
             the
             making
             of
             all
             Leagues
             and
             Bands
             amongst
             the
             Liedges
             without
             his
             Majesties
             consent
             ,
             are
             discharged
             ,
             and
             the
             contraveeners
             are
             declared
             to
             be
             punishable
             as
             movers
             of
             Sedition
             and
             unquietness
             ,
             to
             the
             trouble
             of
             the
             publick
             peace
             of
             the
             Realm
             ,
             therefore
             to
             be
             punished
             with
             all
             rigour
             ,
             to
             the
             example
             of
             others
             .
             Both
             which
             Acts
             are
             ratified
             by
             the
             4.
             
             Act
             
             1.
             
             
               Ses.
               Charl.
            
             2.
             
             And
             yet
             it
             may
             be
             contended
             that
             such
             Seditions
             as
             these
             are
             punishable
             as
             Treason
             ,
             since
             the
             making
             of
             Bonds
             and
             Leagues
             amongst
             the
             Liedges
             is
             declared
             by
             the
             foresaid
             4.
             
             Act
             to
             be
             one
             of
             his
             Majesties
             Royal
             Prerogatives
             .
             And
             sure
             it
             is
             Treason
             for
             any
             of
             his
             Majesties
             Liedges
             to
             usurp
             his
             royal
             prerogative
             .
             But
             sure
             it
             is
             ,
             that
             to
             convocat
             the
             Liedges
             simply
             without
             Bonds
             or
             Leagues
             ,
             can
             no
             wayes
             be
             accounted
             Treason
             ,
             much
             less
             the
             being
             present
             as
             such
             Convocations
             ,
             though
             in
             Arms
             :
             And
             thus
             it
             was
             found
             in
             the
             case
             of
             a
             Baxter
             who
             was
             pursued
             as
             guilty
             of
             the
             Convocation
             raised
             against
             the
             Customers
             in
             Anno
             1665.
             
             That
             naked
             assistance
             at
             such
             meetings
             
               per
               se
            
             was
             not
             relevant
             to
             infer
             death
             ,
             but
             only
             an
             arbitrary
             punishment
             ,
             as
             is
             clear
             by
             the
             5.
             
             Act
             1.
             
             
               Parl.
               Ia.
            
             1.
             whereby
             all
             men
             are
             forbidden
             to
             travel
             with
             more
             not
             they
             can
             sustain
             ,
             and
             if
             they
             do
             ,
             they
             may
             be
             put
             under
             sicker
             Burrows
             till
             the
             King
             declare
             his
             will.
             And
             by
             the
             85.
             
             Act
             6.
             
             
               Parl.
               I.
            
             1.
             
             Electing
             of
             Deacons
             was
             discharged
             as
             Sedition
             .
          
           
             Convocations
             are
             allowed
             in
             some
             cases
             ,
             as
             for
             pursuing
             of
             Thieves
             and
             Sorners
             ,
             as
             Ia.
             6.
             
             Parl.
             14.
             cap.
             247.
             
          
           
             This
             Crime
             of
             simple
             Convocation
             is
             ordinarily
             pursued
             before
             the
             Council
             ,
             and
             is
             seldome
             punished
             either
             by
             the
             Council
             ,
             or
             Justice
             Court
             ,
             
               tanquum
               crimen
               per
               se
            
             ,
             but
             as
             the
             agradging
             quality
             of
             a
             Ryot
             or
             other
             Crime
             .
          
        
         
           
           
             TITLE
             VIII
             .
             Poyson
             .
          
           
             
               1.
               
               
                 The
                 punishment
                 of
                 Poyson
                 by
                 our
                 Law.
                 
              
            
             
               2.
               
               
                 How
                 far
                 the
                 giving
                 good
                 Druggs
                 irregularly
                 is
                 punishable
                 .
              
            
             
               3.
               
               
                 Whether
                 the
                 poysoning
                 Iews
                 ,
                 or
                 Excommunicat
                 Persons
                 ,
                 be
                 punishable
                 .
              
            
             
               4.
               
               
                 Whether
                 the
                 poysoning
                 Beasts
                 ,
                 or
                 Fields
                 ,
                 be
                 punishable
                 by
                 this
                 Statute
                 .
              
            
             
               5.
               
               
                 Whether
                 endeavours
                 to
                 poyson
                 be
                 punishable
                 .
              
            
             
               6.
               
               
                 The
                 aggravations
                 of
                 this
                 Crime
              
               .
            
          
           
             1.
             
             POyson
             is
             by
             our
             Law
             declared
             to
             be
             punishable
             as
             the
             Crime
             of
             Treason
             ,
             but
             it
             is
             not
             declared
             Treason
             ,
             Act
             31.7
             .
             
               Parl.
               Ia.
            
             2.
             
             By
             which
             all
             persons
             are
             discharged
             to
             bring
             home
             Poyson
             for
             any
             use
             by
             which
             any
             Christian
             man
             or
             woman
             may
             take
             bodily
             harm
             ,
             and
             that
             under
             the
             pain
             of
             Treason
             ,
             and
             that
             being
             convict
             ,
             they
             shall
             forefault
             to
             the
             King
             Life
             ,
             Land
             ,
             and
             Goods
             ;
             but
             notwithstanding
             of
             these
             words
             ,
             
               for
               any
               manner
               or
               use
            
             ,
             Apothecaries
             and
             others
             do
             daily
             bring
             home
             Poyson
             .
             But
             to
             this
             it
             may
             be
             answer'd
             ,
             that
             they
             bring
             the
             same
             home
             ,
             not
             as
             Poyson
             ,
             but
             as
             Druggs
             ,
             and
             the
             Law
             presumes
             that
             the
             Liedges
             are
             in
             no
             hazard
             of
             that
             Poyson
             which
             is
             in
             the
             hands
             of
             skilful
             men
             .
             This
             was
             likewise
             the
             opinion
             of
             the
             Doctors
             
               Gothofred
               prax
               .
               criminal
               .
               §
               .
               venenum
               :
            
             But
             notwithstanding
             that
             the
             buying
             or
             giving
             of
             Poyson
             is
             declared
             Treason
             by
             the
             Law
             ,
             yet
             I
             find
             no
             instances
             in
             the
             Journal
             Books
             where
             any
             have
             been
             convict
             as
             Traitors
             upon
             this
             account
             :
             But
             on
             the
             contrary
             ,
             
               Iohn
               Dick
            
             for
             poysoning
             his
             Brother
             and
             Sister
             is
             only
             ordained
             to
             be
             execute
             ,
             
             but
             is
             not
             forefault
             ,
             
               ult
               .
               March
            
             1649.
             
             If
             any
             Stranger
             bring
             home
             Poyson
             any
             manner
             of
             way
             ,
             it
             is
             provided
             by
             the
             32.
             
             Act
             of
             that
             Parliament
             ,
             that
             they
             shall
             be
             punished
             the
             same
             manner
             of
             way
             ,
             and
             that
             no
             remission
             or
             safe
             conduct
             shall
             be
             profitable
             to
             them
             .
          
           
             The
             reason
             of
             this
             severity
             proceeds
             from
             the
             abominableness
             of
             that
             Crime
             ,
             
               plus
               est
               enim
               hominem
               veneno
               necare
               quam
               gladio
               dicit
               gloss
               .
               in
               §
               .
               ead
               .
               l●ge
               just
               .
               de
               publicis
               judicibus
               per
               textum
               l.
            
             1.
             
               de
               mal
               .
               &
               Math.
            
             For
             he
             to
             whom
             Poyson
             is
             given
             cannot
             defend
             himself
             ,
             and
             Poyson
             is
             a
             way
             of
             death
             so
             much
             hated
             ,
             that
             though
             the
             Law
             hath
             allowed
             executions
             by
             the
             Sword
             ,
             yet
             it
             hath
             never
             allowed
             any
             execution
             by
             Poyson
             .
          
           
             Those
             who
             give
             Poyson
             were
             by
             the
             Civil
             Law
             called
             venenarii
             and
             they
             were
             only
             punished
             capitally
             ,
             
               per
               l.
               Corneliam
               de
               sicariis
               ,
               l.
            
             1.
             
             §
             .
             1.
             
               adl
               .
               Cornel.
               de
               sic
            
             .
             And
             it
             may
             be
             proved
             by
             presumptions
             ,
             
               Clarus
               Quest.
            
             4.
             
               vers
               .
               fin
            
             .
             But
             the
             Body
             must
             in
             this
             case
             be
             sighted
             by
             Physitians
             ,
             and
             the
             poysonous
             quality
             must
             be
             proved
             .
          
           
             The
             buying
             of
             Poyson
             ,
             though
             with
             a
             design
             to
             kill
             thereby
             ,
             if
             murder
             do
             not
             actually
             ensue
             ,
             is
             not
             thought
             capital
             by
             the
             Doctors
             ,
             but
             only
             punishable
             
               paena
               extraordinaria
               ,
               Gothofred
               .
               prax
               .
               criminal
               .
               §
               .
               venenum
               num
               .
            
             21.
             
             Yet
             with
             us
             the
             very
             buying
             is
             by
             this
             Act
             of
             Parliament
             capital
             .
          
           
             II.
             Whether
             to
             give
             Druggs
             that
             are
             not
             of
             their
             own
             nature
             poysonable
             too
             frequently
             ,
             and
             contrary
             to
             the
             nature
             of
             the
             disease
             ,
             be
             punishable
             by
             this
             Law
             ,
             or
             as
             murder
             ,
             or
             be
             punishable
             at
             all
             ,
             was
             debated
             in
             Kennedies
             case
             ,
             the
             8.
             of
             February
             1676.
             and
             that
             it
             was
             punishable
             was
             contended
             ,
             because
             venenum
             or
             pharmacon
             was
             in
             Law
             
               nomen
               generis
            
             ,
             and
             exprest
             good
             Druggs
             as
             well
             as
             ill
             ,
             
               l.
               venenum
               ff
               .
               de
               verb.
               sig
               .
            
             And
             the
             best
             of
             Druggs
             ,
             given
             in
             great
             excess
             ,
             is
             Poyson
             ;
             for
             Poyson
             consists
             in
             excess
             of
             quantity
             as
             well
             as
             quality
             ,
             and
             whatever
             overpowers
             our
             nature
             is
             poysonable
             to
             us
             .
             And
             since
             the
             one
             may
             kill
             as
             well
             as
             the
             other
             ,
             and
             that
             killing
             is
             that
             which
             is
             punish'd
             ,
             the
             Law
             should
             punish
             the
             one
             as
             well
             as
             the
             other
             .
             
             And
             whatever
             may
             be
             said
             where
             the
             design
             was
             not
             known
             ,
             yet
             here
             the
             design
             of
             killing
             was
             communicated
             to
             Kennedie
             .
             And
             it
             is
             proved
             that
             he
             refused
             to
             give
             meer
             poyson
             ,
             left
             the
             external
             marks
             after
             death
             should
             discover
             that
             Poyson
             was
             given
             ,
             but
             that
             it
             was
             safer
             to
             give
             constant
             purgations
             to
             be
             thrown
             in
             by
             his
             Servant
             in
             his
             drink
             upon
             all
             occasions
             ,
             and
             that
             without
             his
             knowledge
             ,
             and
             contrary
             to
             the
             nature
             of
             his
             disease
             ,
             he
             having
             a
             Flux
             :
             All
             which
             circumstances
             shew
             a
             design
             to
             kill
             .
             And
             
               Gothofred
               .
               §
               .
               venenum
            
             is
             clear
             that
             
               medici
               &
               farmacopolae
               ineptum
               medicamentum
               scienter
               ad
               hibentes
               ut
               infirmus
               morietur
               tenentur
               ut
               homicidae
               .
            
             And
             though
             the
             judgement
             of
             Physicians
             ought
             to
             be
             ask'd
             where
             the
             design
             is
             not
             known
             ,
             yet
             where
             the
             design
             of
             killing
             ,
             and
             means
             suitable
             to
             that
             design
             are
             clearly
             proved
             ,
             there
             is
             no
             place
             for
             consulting
             Physicians
             ;
             nor
             can
             any
             danger
             ensue
             from
             the
             preparat●ve
             of
             punishing
             this
             Pannel
             to
             other
             Physicians
             or
             Apothecaries
             ,
             except
             they
             give
             Physick
             without
             being
             imployed
             by
             the
             party
             ,
             and
             at
             the
             desire
             of
             Servants
             ,
             who
             imploy
             upon
             a
             design
             to
             kill
             ,
             and
             administrat
             the
             Druggs
             at
             unseasonable
             hours
             :
             All
             which
             are
             of
             themselves
             Criminal
             ;
             and
             this
             way
             is
             more
             dangerous
             then
             ordinary
             Poyson
             ,
             because
             Servants
             are
             more
             easily
             admitted
             then
             others
             ,
             and
             this
             way
             is
             less
             discoverable
             .
             Nor
             needs
             it
             be
             proved
             that
             the
             Defunct
             died
             of
             this
             Poyson
             ,
             for
             even
             one
             who
             got
             true
             Poyson
             might
             have
             died
             of
             other
             diseases
             ,
             but
             it
             is
             sufficiently
             proved
             ,
             that
             after
             the
             giving
             of
             thir
             Purgatives
             ,
             he
             died
             the
             next
             morning
             of
             such
             a
             loosness
             as
             made
             his
             Bed
             to
             swim
             .
             And
             as
             this
             is
             like
             the
             natural
             product
             ,
             so
             
               presumitur
               contra
               versantem
               in
               illicito
            
             ,
             especially
             all
             this
             design
             of
             Murder
             being
             to
             conceal
             the
             Servants
             theft
             ,
             in
             which
             this
             Apothecary
             was
             a
             sharer
             .
          
           
             III.
             From
             these
             words
             of
             the
             Act
             ,
             
               through
               the
               which
               any
               Christian
               man
               or
               woman
               may
               take
               bodily
               harm
               ,
            
             it
             may
             be
             concluded
             ,
             that
             1.
             
             The
             poysoning
             of
             a
             Jew
             or
             Pagan
             falls
             not
             under
             this
             Act
             ,
             though
             it
             may
             be
             pursued
             as
             Murder
             :
             And
             it
             may
             be
             doubted
             whether
             the
             poysoning
             of
             an
             Excommunicat
             
             person
             can
             fall
             under
             this
             Act
             ,
             since
             they
             are
             not
             Christians
             :
             But
             to
             prevent
             all
             this
             ,
             the
             English
             Statute
             bears
             ,
             that
             to
             kill
             any
             reasonable
             creature
             
               in
               rerum
               natura
            
             ,
             by
             Poyson
             ,
             or
             otherwayes
             ,
             &c.
             
             And
             Cook
             observes
             ,
             that
             to
             poyson
             a
             Jew
             or
             Turk
             falls
             under
             their
             Satute
             .
          
           
             IV.
             From
             these
             words
             likewise
             it
             may
             be
             observed
             that
             the
             poysoning
             of
             bruit
             Beasts
             does
             not
             fall
             immediatly
             under
             this
             Act
             ,
             nor
             yet
             the
             poysoning
             whole
             Fields
             ,
             to
             the
             end
             Beasts
             may
             die
             .
             Albeit
             both
             these
             Crimes
             be
             punishable
             by
             death
             by
             the
             Laws
             of
             other
             Nations
             ,
             as
             Carpz
             .
             observes
             ,
             
               tract
               .
               crim
               .
               Quest.
            
             21.
             num
             .
             24.
             
             And
             since
             Theft
             is
             punishable
             by
             death
             ,
             much
             more
             ought
             the
             poysoning
             of
             Beasts
             be
             ,
             since
             not
             only
             is
             the
             party
             less'd
             by
             wanting
             his
             Beasts
             as
             much
             as
             in
             Theft
             ,
             but
             the
             Common-wealth
             is
             more
             prejudg'd
             then
             in
             Theft
             ,
             since
             the
             Beasts
             so
             poyson'd
             ,
             are
             made
             unserviceable
             as
             to
             all
             uses
             ;
             and
             men
             are
             likewise
             in
             danger
             by
             eating
             or
             using
             of
             them
             :
             And
             this
             is
             worse
             then
             houghing
             of
             Oxen
             ,
             which
             is
             capital
             by
             our
             Law.
             
          
           
             But
             if
             a
             Beast
             be
             poyson'd
             ,
             that
             men
             may
             be
             thereby
             poyson'd
             ,
             then
             the
             poysoning
             of
             Beasts
             will
             infer
             death
             .
          
           
             From
             these
             words
             ,
             
               may
               take
               bodily
               harm
            
             ,
             it
             may
             be
             infer'd
             likewise
             that
             the
             giving
             of
             Poyson
             whereby
             men
             do
             fall
             Paralitick
             ,
             or
             Lame
             ,
             should
             fall
             under
             this
             Statute
             ,
             though
             the
             person
             dies
             not
             ,
             since
             that
             may
             be
             constructed
             bodily
             harm
             .
          
           
             V.
             As
             also
             it
             may
             be
             concluded
             ,
             that
             since
             to
             bring
             home
             Poyson
             whereby
             men
             may
             die
             does
             infer
             death
             ,
             that
             therefore
             the
             giving
             of
             Poyson
             ,
             though
             death
             do
             not
             follow
             ,
             either
             because
             the
             Poyson
             was
             not
             strong
             enough
             ,
             or
             because
             the
             party
             poisoned
             did
             counter-act
             its
             force
             immediatly
             by
             suitable
             remedies
             ,
             should
             be
             punishable
             by
             death
             ;
             for
             these
             are
             more
             immediat
             deeds
             then
             to
             bring
             home
             Poyson
             :
             And
             generally
             indeavour
             is
             in
             this
             Crime
             punish'd
             as
             the
             consumat
             Act
             ,
             where
             the
             indeavour
             comes
             to
             any
             deed
             that
             approaches
             the
             Crime
             ,
             l.
             1.
             
               ff
               .
               ad
               l.
               Pomp.
               de
               parricid
               .
            
             though
             Carpz
             .
             is
             of
             a
             contrair
             opinion
             ,
             asserting
             that
             conatus
             or
             indeavour
             is
             only
             to
             be
             
             punished
             even
             in
             that
             case
             by
             an
             extraordinary
             punishment
             .
             The
             administrating
             Drinks
             or
             Medicaments
             to
             procure
             or
             increase
             love
             ,
             is
             thought
             not
             punishable
             ,
             though
             death
             do
             not
             follow
             ,
             because
             there
             was
             no
             design
             there
             to
             kill
             ,
             
               Carpz
               .
               ibid.
               &
               l.
               siquis
               ff
               .
               de
               poenis
               ,
            
             though
             this
             be
             punishable
             ,
             as
             that
             Law
             asserts
             ,
             by
             a
             lesser
             punishment
             ,
             
               nam
               est
               res
               mali
               exempli
            
             .
          
           
             VI.
             Indeavour
             is
             punishable
             in
             the
             poysoning
             of
             Parents
             ,
             and
             in
             reiterated
             indeavours
             ,
             though
             death
             follow
             not
             .
             And
             the
             poysoning
             of
             Magistrats
             ,
             or
             Masters
             ,
             since
             these
             great
             aggravations
             are
             so
             odious
             in
             the
             very
             contrivance
             ,
             that
             these
             aggravations
             are
             as
             odious
             as
             success
             :
             And
             as
             the
             Judge
             may
             mitigate
             the
             punishment
             upon
             the
             accovnt
             of
             lessening
             circumstances
             ,
             so
             he
             may
             highten
             the
             punishment
             upon
             the
             account
             of
             aggradging
             circumstances
             ,
             
               Vasq.
               contraver
               .
               illust
               .
               cap.
            
             14.
             and
             
               Carpz
               .
               num
            
             .
             50.
             quest
             .
             20.
             part
             .
             1.
             gives
             us
             several
             decisions
             to
             this
             purpose
             ,
             and
             amongst
             other
             decisions
             ,
             tells
             us
             of
             two
             Mountibanks
             who
             were
             burnt
             with
             hot
             Tongs
             to
             death
             ,
             for
             having
             poyson'd
             ten
             several
             persons
             .
             But
             if
             a
             Physician
             would
             poyson
             his
             Patient
             ,
             it
             would
             be
             certainly
             Treason
             with
             us
             ,
             as
             being
             Murder
             under
             trust
             .
          
        
         
           
           
             TITLE
             .
             IX
             .
             
               De
               Incendiariis
            
             ,
             or
             Fire-raisers
             .
          
           
             
               1.
               
               
                 Malicious
                 and
                 designed
                 Fire-raising
                 is
                 only
                 punishable
                 by
                 death
                 .
              
            
             
               2.
               
               
                 What
                 presumptions
                 can
                 prove
                 this
                 design
                 .
              
            
             
               3.
               
               
                 Whether
                 one
                 may
                 be
                 punished
                 for
                 burning
                 his
                 own
                 House
                 ?
              
            
             
               4.
               
               
                 The
                 punishment
                 of
                 Fire-raising
                 according
                 to
                 the
                 Civil
                 Law.
                 
              
            
             
               5.
               
               
                 The
                 punishmint
                 of
                 it
                 according
                 to
                 our
                 Law.
                 
              
            
             
               6.
               
               
                 The
                 burning
                 of
                 Coal-heughs
                 how
                 punished
                 .
              
            
             
               7.
               
               
                 Whether
                 the
                 drowning
                 a
                 Coal-heugh
                 be
                 punishable
                 ,
                 as
                 the
                 burning
                 of
                 it
                 .
              
            
             
               8.
               
               
                 Fire-raising
                 cannot
                 be
                 remitted
              
               .
            
             
               9.
               
               
                 The
                 punishment
              
               culposi
               incendii
               .
            
             
               10.
               
               
                 How
                 accidental
                 Fire-raising
                 is
                 to
                 be
                 punished
                 .
              
            
             
               11.
               
               
                 How
                 Masters
                 are
                 to
                 be
                 punished
                 for
                 their
                 Servants
                 negligence
                 .
              
            
          
           
             IT
             is
             most
             unnatural
             that
             the
             Elements
             which
             were
             created
             to
             be
             Servants
             to
             Man
             ,
             should
             have
             dominion
             over
             him
             :
             And
             therefore
             these
             who
             raise
             Fire
             are
             repute
             great
             enemies
             to
             mankind
             ,
             and
             more
             criminal
             then
             either
             Theives
             or
             Murderers
             .
             For
             in
             Theft
             ,
             the
             thing
             stollen
             remains
             still
             with
             the
             Common-wealth
             ,
             whereas
             it
             is
             absolutely
             destroyed
             by
             Fire
             :
             And
             in
             Murder
             the
             Crime
             extends
             never
             further
             then
             the
             design
             ,
             whereas
             in
             Fire-raising
             ,
             the
             merciless
             Element
             which
             is
             imployed
             ,
             debords
             oft
             beyond
             its
             commission
             ,
             and
             involves
             in
             the
             common
             misery
             those
             against
             whom
             the
             Fire-raiser
             had
             no
             design
             ,
             with
             those
             who
             were
             his
             known
             enemies
             .
             And
             therefore
             
             those
             who
             raise
             Fire
             within
             a
             Town
             are
             burnt
             ;
             whereas
             those
             who
             burn
             only
             a
             House
             are
             not
             so
             grievously
             punished
             .
          
           
             I.
             
               A
               Fire-raiser
            
             ,
             or
             Incendiarius
             ,
             is
             by
             Lawyers
             defined
             to
             be
             he
             who
             of
             design
             raiseth
             Fire
             ,
             whether
             he
             kindle
             the
             same
             with
             his
             own
             hand
             ,
             or
             commissionat
             another
             ,
             or
             executes
             himself
             anothers
             Commission
             .
             And
             because
             of
             the
             atrociousness
             of
             this
             Crime
             ,
             the
             attempt
             is
             punished
             ,
             though
             the
             effect
             follow
             not
             ,
             and
             threatnings
             ,
             though
             nothing
             follow
             ,
             are
             punished
             ,
             
               Damhaud
               .
               rubrica
               de
               Incendiariis
            
             ,
             but
             because
             this
             Crime
             is
             of
             so
             high
             a
             nature
             ,
             and
             that
             it
             is
             improbable
             that
             any
             would
             be
             so
             merciless
             to
             commit
             the
             same
             ,
             therefore
             the
             Law
             requires
             that
             the
             Fire-raising
             which
             is
             punishable
             ,
             be
             committed
             
               dolo
               malo
            
             :
             And
             with
             us
             it
             is
             required
             they
             be
             
               combustores
               domorum
               nequiter
               &
               malitiose
            
             ,
             as
             Skeen
             translates
             it
             ,
             
               ad
               cap.
            
             10.
             
             Malcolmi
             2.
             
             And
             wilful
             Fire-raising
             is
             only
             declared
             punishable
             by
             death
             ,
             Cap.
             8.
             
             Parl.
             3.
             
             I.
             5.
             
          
           
             II.
             But
             since
             design
             and
             dolus
             are
             acts
             of
             the
             mind
             ,
             therefore
             they
             are
             inferr'd
             from
             presumptions
             ,
             and
             what
             presumptions
             are
             necessary
             in
             this
             case
             ,
             are
             very
             well
             related
             by
             
               Far.
               quest
            
             .
             110.
             cap.
             2.
             
             And
             
               Iohn
               Meldrum
            
             was
             execute
             upon
             presumptions
             ,
             2
             Aug.
             1633.
             where
             he
             being
             pursued
             for
             burning
             the
             House
             of
             Frendrick
             :
             The
             only
             presumptions
             adduced
             against
             him
             were
             ,
             great
             threatnings
             ,
             capital
             enmity
             ,
             his
             contradicting
             himself
             in
             his
             own
             Examinations
             ,
             common
             brute
             and
             open
             fame
             ,
             that
             he
             was
             the
             burner
             .
             But
             I
             think
             that
             case
             very
             hard
             ,
             and
             not
             to
             be
             drawn
             in
             consequence
             ,
             for
             though
             the
             dolus
             and
             design
             may
             be
             proved
             by
             presumptions
             ,
             because
             that
             is
             an
             act
             of
             the
             mind
             ,
             yet
             the
             burning
             it self
             being
             an
             external
             act
             ,
             should
             only
             be
             proved
             by
             Witnesses
             and
             confession
             .
             2.
             
             Seing
             
               probatio
               praesumptiva
            
             is
             but
             fi●titi●
             ,
             it
             were
             hard
             to
             allow
             both
             th●
             burning
             it self
             ,
             and
             
               quo
               animo
            
             the
             Fire
             was
             raised
             to
             be
             proved
             by
             presumptions
             against
             that
             common
             rule
             in
             Law
             ,
             that
             
               duae
               fictiones
               non
               cadunt
               in
               candem
               rem
               .
            
             3.
             
             Lawyers
             are
             positive
             ,
             that
             
               dolus
               debet
               possit
               probari
               manifeste
               ,
               Bertez
               .
               consil
               .
            
             322.
             
          
           
           
             III.
             It
             is
             doubted
             among
             the
             Doctors
             ,
             whether
             he
             that
             burns
             his
             own
             House
             may
             be
             punished
             as
             Incendiarius
             ,
             since
             
               quilibet
               est
               rei
               sua
               arbiter
            
             ;
             and
             dominion
             is
             defined
             to
             be
             the
             using
             of
             any
             thing
             as
             we
             think
             fit
             .
             But
             since
             Fire-raising
             is
             oft-times
             punished
             ,
             not
             only
             for
             the
             prejudice
             it
             hath
             done
             ,
             
               sed
               quia
               flamma
               potuit
               longius
               è
               vagari
               ,
            
             therefore
             Fire-raising
             should
             be
             punished
             in
             this
             case
             .
             And
             as
             it
             is
             not
             presumable
             that
             any
             man
             will
             burn
             his
             own
             without
             design
             ,
             so
             if
             this
             were
             not
             punished
             ,
             men
             might
             upon
             the
             pretext
             of
             burning
             their
             own
             waste
             and
             destroy
             their
             own
             ,
             and
             ruine
             their
             neighbouss
             .
             And
             he
             might
             very
             well
             be
             presumed
             to
             have
             had
             a
             design
             against
             his
             Neighbours
             ;
             but
             though
             the
             immediat
             dominion
             belong
             to
             private
             persons
             ,
             yet
             the
             King
             has
             also
             an
             interest
             ,
             
               &
               dominium
               directum
            
             .
             And
             as
             no
             man
             can
             kill
             himself
             lawfully
             ,
             so
             neither
             can
             he
             burn
             his
             own
             House
             ,
             except
             he
             can
             instruct
             that
             he
             did
             the
             same
             upon
             a
             just
             and
             reasonable
             cause
             .
          
           
             IV.
             The
             punishment
             of
             Fire-raising
             by
             the
             Civil
             Law
             ,
             was
             various
             ,
             and
             suitable
             to
             the
             several
             degrees
             of
             the
             Crime
             ;
             for
             raisers
             of
             Fire
             within
             a
             Town
             were
             burnt
             alive
             :
             Those
             who
             burnt
             Corns
             beside
             Houses
             were
             bound
             and
             beat
             ,
             and
             then
             burnt
             ,
             but
             not
             burnt
             quick
             ,
             as
             we
             speak
             ,
             lex
             28.
             
               parag
               .
               Incendiarii
               ff
               .
               de
               poenis
               ,
            
             but
             the
             burning
             of
             a
             House
             or
             Village
             was
             not
             so
             highly
             punish'd
             .
             And
             
               Clarus
               Quest.
            
             68.
             thinks
             that
             the
             Statutory
             pain
             of
             Fire-raising
             ,
             if
             it
             be
             capital
             ,
             should
             not
             take
             place
             in
             small
             Fire-raising
             :
             But
             since
             a
             small
             spark
             may
             kindle
             a
             great
             fire
             ,
             this
             conclusion
             seems
             very
             unwarrantable
             ,
             if
             the
             Fire
             was
             designedly
             rais'd
             .
          
           
             V.
             According
             to
             our
             Law
             ,
             the
             burning
             of
             folks
             in
             their
             Houses
             ,
             and
             Corns
             ,
             and
             wilful
             Fire-raising
             ,
             is
             Treason
             :
             And
             Laese
             Majestie
             ,
             Ia.
             5.
             p.
             3.
             cap.
             8.
             
             From
             which
             Act
             it
             is
             to
             be
             observed
             ,
             1.
             
             That
             the
             Particle
             and
             ,
             is
             not
             here
             copulative
             ,
             but
             a
             disjunctive
             ,
             for
             either
             of
             these
             cases
             ,
             viz.
             the
             burning
             of
             Corns
             is
             
               per
               se
            
             Treason
             .
             2.
             
             It
             is
             observable
             ,
             that
             all
             Fire-ra●sing
             is
             not
             Treason
             (
             though
             the
             Rubrick
             of
             the
             Act
             bear
             ,
             that
             all
             Fire-raising
             is
             Treason
             )
             which
             may
             be
             concluded
             by
             
             these
             reasons
             ,
             1.
             
             That
             all
             punishments
             should
             be
             commensurat
             to
             the
             Delicts
             and
             Crimes
             which
             are
             punished
             ;
             and
             therefore
             since
             Fire-raisings
             are
             very
             various
             ,
             it
             were
             unjust
             that
             they
             should
             be
             all
             equally
             punished
             ,
             especially
             the
             punishment
             here
             being
             Treason
             ,
             which
             were
             too
             severe
             for
             burning
             Peets
             in
             a
             Moss
             ,
             or
             a
             little
             Cottage
             standing
             in
             a
             Moor
             ,
             where
             the
             guilt
             is
             so
             small
             ,
             that
             the
             offenders
             in
             these
             cases
             should
             be
             capitally
             punished
             .
             And
             in
             a
             case
             pursued
             against
             Mackenzie
             of
             Suddie
             ,
             upon
             the
             29.
             
             Iuly
             1693.
             for
             burning
             some
             fewel
             standing
             upon
             a
             Moor
             ,
             the
             Justices
             would
             not
             sustain
             this
             as
             Treason
             .
             2.
             
             If
             all
             Fire-raising
             were
             by
             this
             Act
             Treason
             ,
             there
             needed
             not
             a
             posterior
             Act
             have
             been
             made
             ,
             cap.
             146.
             p.
             12.
             
             Ia.
             6.
             declaring
             that
             wilful
             Fire-raising
             in
             Coal-heughs
             ,
             upon
             malice
             and
             despite
             ,
             is
             punishable
             as
             Treason
             .
             3.
             
             By
             the
             foresaid
             Act
             of
             
               K.
               Ia.
            
             5.
             it
             needed
             not
             to
             have
             been
             said
             that
             the
             burning
             of
             Folks
             in
             their
             Houses
             ,
             and
             the
             burning
             of
             Houses
             and
             Corns
             should
             be
             Treason
             ,
             if
             generally
             all
             Fire-raising
             were
             Treason
             .
          
           
             For
             the
             better
             understanding
             then
             of
             that
             Act
             ,
             we
             must
             consider
             that
             there
             are
             three
             several
             species
             of
             Fire-raising
             declared
             to
             be
             Treason
             by
             that
             Act
             :
             The
             first
             is
             ,
             the
             burning
             Folks
             in
             their
             Houses
             ,
             which
             must
             be
             interpret
             likewise
             to
             be
             the
             burning
             of
             Dwelling
             Houses
             ,
             though
             the
             People
             were
             not
             accidentally
             there
             ,
             or
             were
             possibly
             there
             ,
             and
             escaped
             .
             Which
             species
             of
             Fire-raising
             is
             most
             severely
             punished
             ,
             both
             because
             Fire-raising
             was
             of
             all
             others
             the
             most
             horrid
             ,
             
               &
               domus
               sua
               est
               unicuique
               tutissimum
               refugium
               ,
            
             and
             because
             ordinarily
             the
             burning
             of
             all
             the
             persons
             dwelling
             in
             the
             House
             is
             thereby
             designed
             ,
             as
             well
             as
             the
             burning
             the
             House
             it self
             .
          
           
             The
             second
             species
             is
             ,
             the
             burning
             Houses
             and
             Corns
             ,
             which
             is
             suitable
             to
             the
             foresaid
             28.
             
             Law
             
               ff
               .
               de
               poenis
            
             ,
             where
             it
             is
             said
             ,
             that
             
               qui
               acervum
               frumenti
               juxta
               aedes
               positum
               combusserit
               ,
               vinctus
               ,
               verberatusque
               ,
               igne
               necatur
               .
            
          
           
             The
             third
             species
             is
             ,
             willful
             Fire-raising
             ,
             which
             differs
             in
             this
             from
             Burning
             ,
             that
             Burning
             is
             of
             a
             particular
             place
             ,
             with
             
             design
             to
             destroy
             no
             more
             :
             But
             Fire-raising
             is
             the
             burning
             a
             particular
             place
             ,
             with
             design
             to
             burn
             more
             ;
             as
             to
             kindle
             a
             little
             Corn
             upon
             design
             to
             burn
             the
             whole
             Field
             .
          
           
             VI.
             The
             other
             Act
             making
             the
             burning
             of
             Coal-heughs
             to
             be
             Treason
             ,
             was
             practised
             upon
             
               Iohn
               Henry
            
             ,
             14.
             
             Iune
             1615.
             who
             was
             hang'd
             thereupon
             .
             And
             the
             reason
             of
             this
             Law
             was
             founded
             upon
             the
             favourableness
             of
             that
             Manufactory
             ,
             which
             some
             do
             ruine
             by
             putting
             fire
             in
             them
             ,
             which
             is
             so
             easie
             ,
             that
             nothing
             could
             defend
             against
             it
             ,
             but
             the
             severity
             of
             such
             a
             Law
             as
             this
             ,
             and
             upon
             the
             greatness
             of
             the
             hazard
             which
             did
             arise
             by
             such
             Fires
             as
             this
             ,
             which
             could
             never
             be
             quenched
             when
             once
             kindled
             .
          
           
             VII
             .
             I
             was
             once
             consulted
             whether
             the
             drowning
             of
             Coal-heughs
             was
             Treason
             by
             this
             Act
             ,
             since
             
               erat
               eadem
               ratio
               utrobique
            
             ,
             but
             I
             thought
             not
             ,
             because
             penal
             Laws
             ,
             especially
             in
             which
             the
             punishment
             is
             so
             severe
             as
             Treason
             ,
             should
             not
             be
             extended
             ,
             as
             is
             elsewhere
             largely
             debated
             .
             And
             the
             hazard
             of
             drowning
             a
             Coal-heugh
             is
             not
             equal
             to
             the
             burning
             of
             it
             ;
             for
             drowning
             can
             be
             easier
             removed
             ,
             and
             cannot
             spread
             so
             far
             .
          
           
             VIII
             .
             So
             odious
             is
             this
             Crime
             ,
             that
             it
             is
             expresly
             provided
             it
             shall
             be
             one
             of
             the
             four
             points
             of
             the
             Crown
             ,
             and
             so
             can
             only
             be
             cognosced
             by
             the
             Justices
             ;
             and
             all
             remissions
             granted
             for
             Fire-raising
             are
             declared
             null
             :
             But
             this
             last
             is
             not
             
               in
               viridi
               observantia
            
             .
             And
             Fire-raising
             being
             included
             in
             the
             Earl
             of
             Caithness
             remission
             ,
             it
             was
             sustained
             ,
             though
             thir
             Acts
             were
             objected
             .
          
           
             IX
             .
             If
             dole
             and
             design
             canot
             be
             proved
             in
             the
             Fire-raising
             ,
             so
             that
             it
             were
             accidental
             ,
             
               sed
               si
               culpa
               incendio
               causam
               dederit
               ,
            
             there
             is
             a
             Civil
             Action
             ,
             by
             the
             Civil
             Law
             allow'd
             ,
             
               ex
               lege
               aquilia
            
             :
             But
             for
             the
             further
             understanding
             
               incendii
               culpas
            
             ,
             the
             more
             exact
             Doctors
             do
             distinguish
             betwixt
             
               incendium
               ex
               culpa
               lata
               ,
               ex
               culpa
               levi
               ,
               &
               ex
               culpa
               levissima
               commissum
               .
            
             And
             since
             
               culpa
               lata
               aequi
               paratur
               dolo
            
             ,
             therefore
             they
             make
             it
             to
             be
             corporeally
             punishable
             ,
             though
             in
             that
             case
             the
             punishment
             is
             not
             extended
             to
             death
             ;
             but
             if
             the
             same
             be
             committed
             only
             
               ex
               
               culpa
               levi
            
             ,
             then
             it
             is
             to
             be
             punished
             by
             a
             Fine
             :
             but
             if
             the
             committer
             have
             not
             wherewith
             to
             pay
             his
             Fine
             ,
             he
             may
             Subsidiarly
             be
             punished
             in
             his
             person
             :
             But
             if
             the
             Fire
             be
             raised
             
               per
               culpam
               levissimam
            
             ,
             then
             the
             committer
             can
             never
             be
             punished
             corporeally
             ,
             even
             though
             he
             want
             Money
             wherewith
             to
             pay
             his
             Fine
             ,
             
               dicunt
               tamen
               aliqui
               culpam
               levissimam
               in
               faciendo
               ,
               aequiparari
               culpae
               levi
               in
               committendo
               ,
               Alex.
               con
               .
            
             55.
             
          
           
             IX
             .
             By
             our
             Law
             ,
             he
             who
             burns
             a
             House
             in
             a
             Town
             by
             misgovernance
             ,
             and
             
               not
               of
               set
               purpose
            
             ,
             as
             the
             Act
             sayes
             ,
             he
             shall
             be
             punished
             at
             the
             sight
             of
             the
             Magistrats
             of
             the
             Town
             ,
             and
             his
             Goods
             ,
             shall
             be
             given
             to
             him
             who
             suffers
             the
             prejudice
             ,
             and
             shall
             likewise
             be
             banished
             for
             three
             years
             ;
             and
             if
             he
             have
             no
             Goods
             ,
             he
             shall
             be
             scourged
             at
             the
             Mercat
             Cross
             ,
             and
             thorow
             the
             Town
             ,
             and
             shall
             be
             banished
             for
             seven
             years
             ;
             but
             if
             he
             who
             owes
             the
             House
             ,
             do
             either
             by
             himself
             ,
             his
             Wife
             ,
             or
             Bairns
             ,
             
               (
               id
               est
            
             negligently
             )
             burn
             his
             own
             House
             ,
             albeit
             no
             Neighbour
             be
             thereby
             prejudged
             ,
             yet
             he
             shall
             be
             banish'd
             the
             Town
             for
             three
             years
             :
             And
             if
             he
             to
             whom
             the
             House
             is
             set
             burn
             the
             same
             negligently
             ,
             he
             shall
             repair
             the
             dammage
             ,
             and
             be
             baninished
             for
             three
             years
             :
             Or
             if
             a
             Stranger
             ,
             or
             Traveller
             ,
             burn
             ,
             as
             said
             is
             ,
             he
             shall
             be
             Arrested
             ,
             and
             repair
             the
             skaith
             ,
             which
             if
             he
             be
             not
             able
             to
             do
             ,
             he
             shall
             abide
             in
             Sickerness
             (
             
               id
               est
            
             ,
             in
             Prison
             )
             at
             the
             King's
             will
             :
             And
             if
             the
             Governours
             of
             the
             Town
             be
             negligent
             in
             the
             execution
             of
             their
             Office
             ,
             they
             are
             to
             be
             unlawed
             in
             ten
             pounds
             :
             And
             if
             Fire
             happens
             in
             Husband-Towns
             ,
             in
             Barronies
             ,
             they
             are
             to
             be
             punished
             by
             the
             Lords
             ,
             
               id
               est
            
             ,
             Barrons
             in
             like-manner
             as
             Magistrats
             do
             within
             Burgh
             ,
             Ia.
             1.
             
             Parl.
             4.
             cap.
             75.
             
          
           
             By
             this
             Act
             likewise
             ,
             no
             Fire
             is
             to
             be
             carried
             from
             on
             House
             to
             another
             ,
             but
             in
             a
             covered
             Vessel
             ,
             under
             the
             pain
             of
             an
             Un-law
             ;
             but
             since
             this
             Un-law
             is
             not
             exprest
             ,
             it
             is
             therefore
             Arbitrary
             to
             the
             Judge
             to
             raise
             it
             as
             high
             as
             his
             Jurisdiction
             will
             suffer
             ,
             though
             in
             justice
             he
             should
             proportion
             it
             to
             the
             Crime
             ,
             especially
             since
             it
             is
             not
             tax'd
             here
             of
             design
             ,
             that
             it
             may
             be
             proportioned
             ,
             as
             said
             is
             .
          
           
           
             Upon
             this
             Act
             there
             may
             be
             several
             doubts
             raised
             ,
             as
             first
             .
             What
             is
             meant
             by
             the
             word
             misgovernance
             ,
             for
             clearing
             whereof
             ,
             the
             common
             distinction
             made
             by
             the
             Doctors
             ,
             and
             related
             by
             
               Alexander
               Consilio
            
             55.
             would
             be
             considered
             .
             And
             it
             appears
             that
             misgovernance
             in
             this
             case
             does
             include
             
               culpam
               levissimam
            
             ,
             the
             meanest
             fault
             ,
             because
             the
             Act
             bears
             misgovernance
             ,
             and
             
               not
               of
               set
               purpose
            
             ;
             so
             that
             whatever
             is
             not
             of
             set
             purpose
             ,
             or
             designed
             ,
             is
             punishable
             by
             this
             Act.
             Likeas
             ,
             the
             word
             recklesly
             ,
             which
             is
             likewise
             used
             in
             this
             Act
             ,
             as
             exegetick
             of
             the
             former
             ,
             may
             be
             properly
             enough
             extended
             to
             
               culpa
               levissima
            
             ▪
             but
             yet
             it
             may
             be
             argued
             upon
             the
             other
             hand
             ,
             that
             since
             the
             punishment
             of
             Servants
             raising
             Fire
             by
             misgovernance
             ,
             is
             to
             be
             Scourged
             publickly
             ,
             and
             then
             Banished
             ,
             and
             that
             Masters
             are
             punished
             if
             they
             burn
             their
             own
             Houses
             ,
             after
             that
             manner
             ,
             it
             were
             hard
             to
             extend
             this
             punishment
             
               ad
               culpam
               levissimam
            
             :
             and
             as
             the
             Law
             interprets
             obligations
             to
             give
             Wine
             or
             Corn
             ,
             neither
             to
             be
             extended
             to
             the
             best
             ,
             nor
             worst
             of
             that
             species
             ;
             so
             in
             this
             case
             ,
             misgovernance
             should
             be
             interpret
             ,
             as
             that
             it
             may
             properly
             neither
             be
             meant
             of
             
               culpa
               lata
            
             ,
             nor
             levissima
             ,
             but
             of
             
               culpa
               levis
            
             ,
             which
             is
             media
             :
             and
             the
             word
             misgovernance
             properly
             doth
             imply
             a
             fault
             that
             is
             considerable
             ,
             
               &
               verba
               poenam
               imponentia
               ,
               sunt
               strictissime
               interpretanda
               ,
            
             as
             Lawyers
             observe
             .
             2.
             
             It
             may
             be
             doubted
             ,
             whether
             if
             Children
             who
             are
             not
             come
             to
             that
             age
             at
             which
             they
             are
             only
             punishable
             themselves
             ,
             should
             burn
             the
             Fathers
             House
             ,
             if
             the
             Father
             be
             punishable
             by
             this
             Act
             ,
             
               eo
               casu
            
             ;
             and
             albeit
             it
             would
             seem
             that
             he
             is
             ,
             seing
             accident
             without
             judgement
             is
             punished
             in
             this
             case
             ,
             by
             repairing
             the
             dammage
             done
             ,
             yet
             it
             is
             more
             suitable
             to
             reason
             to
             conclude
             that
             he
             is
             not
             ,
             because
             1.
             
             He
             who
             hath
             no
             government
             by
             Law
             of
             himself
             ,
             or
             any
             thing
             else
             ,
             cannot
             be
             said
             to
             do
             any
             thing
             by
             misgovernance
             .
             2.
             
             Children
             in
             Law
             are
             equiparat
             to
             fu●ious
             persons
             ,
             or
             Idiots
             ;
             and
             as
             the
             Father
             could
             not
             be
             punishable
             for
             what
             is
             done
             by
             his
             Children
             ,
             being
             furious
             ,
             and
             Idiots
             ,
             so
             neither
             can
             he
             be
             punishable
             for
             what
             is
             done
             by
             them
             whilst
             they
             are
             impuberes
             .
             3.
             
             
               Quia
               accessorium
               
               sequitur
               naturam
               sui
               principalis
               ,
               &
               subsidiarium
               naturam
               ejus
               cui
               est
               subsidiarum
               ,
            
             and
             therefore
             ,
             where
             the
             Child
             himself
             cannot
             be
             punished
             ,
             we
             ought
             to
             conclude
             that
             the
             Father
             ought
             not
             to
             be
             punished
             for
             him
             .
          
           
             XI
             .
             The
             Doctors
             do
             conclude
             that
             the
             Master
             of
             the
             Family
             is
             bound
             not
             only
             for
             his
             own
             ,
             but
             likewise
             for
             the
             fault
             of
             any
             of
             the
             Family
             who
             raiseth
             Fire
             ,
             for
             having
             choos'd
             them
             himself
             ,
             he
             ought
             to
             be
             lyable
             for
             their
             fault
             ,
             and
             he
             ought
             to
             blame
             himself
             for
             not
             choosing
             of
             better
             Servants
             .
             But
             this
             is
             to
             be
             restricted
             to
             the
             injuries
             done
             by
             the
             Servants
             in
             their
             respective
             imployments
             to
             which
             they
             were
             made
             overseers
             by
             Masters
             :
             As
             for
             instance
             ,
             if
             the
             Cook
             should
             leave
             the
             Fire
             securely
             at
             night
             in
             the
             Kitchin
             ,
             but
             a
             Laquie
             belonging
             to
             the
             House
             should
             thereafter
             come
             in
             to
             the
             Kitchin
             and
             scatter
             it
             so
             as
             that
             both
             their
             Masters
             and
             the
             Neighbours
             House
             were
             burnt
             ,
             they
             conclude
             that
             the
             Master
             would
             not
             be
             lyable
             to
             make
             up
             his
             Neighbours
             dammage
             ,
             since
             the
             Master
             was
             not
             to
             be
             blamed
             ,
             the
             person
             choos'd
             by
             him
             having
             done
             his
             duty
             ,
             
               Carpz
               .
               part
            
             .
             1.
             quest
             .
             39.
             num
             .
             51
             ,
             &
             52.
             
             But
             this
             seems
             unreasonable
             ,
             for
             it
             may
             be
             alledged
             that
             the
             Master
             should
             not
             have
             choosed
             any
             such
             Servants
             :
             And
             it
             is
             all
             one
             to
             the
             Neighbours
             ,
             by
             whom
             the
             prejudice
             is
             done
             ,
             or
             whether
             it
             was
             done
             without
             the
             committers
             office
             ,
             or
             not
             .
             And
             therefore
             it
             were
             fit
             to
             consider
             whether
             the
             person
             who
             did
             the
             injury
             was
             known
             to
             be
             a
             profligat
             or
             vicious
             person
             before
             he
             was
             imploy'd
             .
             And
             it
             seems
             that
             this
             may
             be
             the
             interest
             of
             the
             Common-wealth
             ,
             because
             it
             would
             secure
             Neighbours
             ,
             and
             be
             advantagious
             for
             the
             Common-wealth
             ,
             that
             none
             should
             imploy
             Servants
             who
             are
             not
             sufficient
             .
          
        
         
           
           
             TITLE
             X.
             Witch-craft
          
           
             
               1.
               
               Wierus
               
                 arguments
                 against
                 the
                 punishing
                 of
                 Witches
                 ,
                 with
                 the
                 answers
                 thereto
                 .
              
            
             
               2.
               
               
                 Some
                 observations
                 which
                 may
                 perswade
                 a
                 Iudge
                 to
                 be
                 cautious
                 in
                 judging
                 this
                 Crime
                 .
              
            
             
               3.
               
               
                 Upon
                 what
                 presumptions
                 Witches
                 may
                 be
                 apprehended
                 .
              
            
             
               4.
               
               
                 Who
                 are
                 Iudges
                 competent
                 thereto
              
               .
            
             
               5.
               
               
                 Paction
                 with
                 the
                 Devil
              
               .
            
             
               6.
               
               
                 Renouncing
                 of
                 Baptism
              
               .
            
             
               7.
               
               
                 The
                 Devils
                 mark
              
               .
            
             
               8.
               
               
                 Threatning
                 to
                 do
                 mischief
                 ;
                 how
                 punishable
                 .
              
            
             
               9.
               
               
                 Malefices
                 where
                 there
                 are
                 no
                 conection
                 betwixt
                 the
                 cause
                 and
                 the
                 effect
                 .
              
            
             
               10.
               
               
                 The
                 useing
                 Magick
                 Arts
                 for
                 good
                 ends
                 .
                 how
                 punishable
                 .
              
            
             
               11.
               
               
                 Consulting
                 with
                 Witches
                 how
                 punished
              
               .
            
             
               12.
               
               
                 What
                 the
                 being
                 defamed
                 by
                 the
                 Witches
                 imports
                 .
              
            
             
               13.
               
               
                 A
                 Witches
                 confession
                 not
                 punishable
                 ,
                 except
                 the
                 thing
                 confest
                 be
                 possible
                 ,
              
               &
               de
               succubis
               &
               incubis
               .
            
             
               14.
               
               
                 Whether
                 the
                 transportations
                 confest
                 ,
                 be
                 real
                 ,
                 and
                 though
                 real
                 ,
                 whether
                 punishable
                 .
              
            
             
               15.
               
               
                 Whether
                 a
                 Witch
                 can
                 cause
                 any
                 person
                 be
                 possest
                 .
              
            
             
               16.
               
               
                 Whether
                 penetration
                 be
                 possible
              
               .
            
             
               17.
               
               
                 Whether
                 transformation
                 be
                 possible
              
               .
            
             
               18.
               
               
                 Whether
                 he
                 can
                 make
                 Bruits
                 to
                 speak
                 ,
                 or
                 raise
                 storms
                 .
              
            
             
               19.
               
               
                 Whether
                 Witches
                 may
                 transfer
                 diseases
                 ,
                 and
                 whether
                 it
                 be
                 lawfull
                 to
                 seek
                 their
                 help
                 for
                 this
                 .
              
            
             
               20.
               
               
                 Whether
                 Witches
                 may
                 kill
                 by
                 their
                 looks
                 .
              
            
             
               21.
               
               
                 Whether
                 they
                 can
                 procure
                 love
                 by
                 their
                 potions
                 .
              
            
             
               22.
               
               
                 How
                 they
                 torment
                 men
                 by
                 their
                 Images
                 .
              
            
             
               
               23.
               
               
                 Whether
                 Confessions
                 before
                 Kirk
                 Sessions
                 be
                 relevant
                 .
              
            
             
               24.
               
               
                 Who
                 can
                 be
                 Witnesses
                 in
                 this
                 Crime
                 .
              
            
             
               25.
               
               
                 The
                 punishment
                 of
                 this
                 Crime
                 by
                 the
                 Civil
                 Law
                 ,
                 and
                 ours
                 .
              
            
             
               26.
               
               
                 The
                 punishment
                 of
                 it
                 by
                 the
                 Law
                 of
              
               England
               .
            
          
           
             THat
             there
             are
             Witches
             ,
             Divines
             cannot
             doubt
             ,
             since
             the
             Word
             of
             God
             hath
             ordain'd
             that
             no
             Witch
             shall
             live
             ;
             nor
             Lawyers
             in
             Scotland
             ,
             seing
             our
             Law
             ordains
             it
             to
             be
             punished
             with
             death
             .
             And
             though
             many
             Lawyers
             in
             Holland
             ,
             and
             elsewhere
             ,
             do
             think
             ,
             that
             albeit
             there
             were
             Witches
             under
             the
             Law
             ,
             yet
             there
             are
             none
             under
             the
             Gospel
             ;
             the
             Devils
             power
             having
             ceased
             ,
             as
             to
             these
             ,
             as
             well
             as
             in
             his
             giving
             Responses
             by
             Oracles
             .
          
           
             I.
             Wierus
             ,
             that
             great
             Patron
             of
             Witch-craft
             ,
             endeavours
             to
             maintain
             his
             opinion
             by
             these
             Arguments
             ,
             1.
             
             That
             such
             as
             are
             accused
             of
             Witch-craft
             are
             ordinarily
             silly
             old
             Women
             ,
             whose
             Age
             and
             Sex
             disposeth
             them
             to
             Melancholy
             ,
             and
             whose
             Melancholy
             disposeth
             them
             to
             a
             madnesse
             ,
             which
             should
             render
             their
             Confessions
             very
             suspect
             :
             And
             in
             this
             Crime
             there
             are
             seldom
             other
             prooves
             ;
             whereas
             the
             things
             confest
             are
             so
             horrid
             ,
             that
             it
             cannot
             be
             imagined
             any
             reasonable
             creature
             would
             commit
             them
             .
             2.
             
             God
             can
             only
             work
             the
             Miracle
             ascribed
             to
             Witches
             ;
             he
             who
             is
             the
             Author
             of
             Nature
             being
             only
             able
             to
             alter
             or
             divert
             its
             course
             .
             And
             the
             Devil
             doth
             but
             delude
             the
             fancy
             of
             poor
             Creatures
             ,
             as
             Feavers
             and
             Melancholy
             misrepresent
             objects
             :
             Nor
             are
             such
             as
             are
             cheated
             in
             the
             one
             more
             guilty
             then
             they
             who
             are
             sick
             of
             the
             other
             .
             And
             it
             is
             severe
             to
             burn
             men
             and
             women
             for
             doing
             that
             which
             is
             concluded
             impossible
             to
             be
             done
             by
             them
             .
             3.
             
             It
             is
             unjust
             to
             punish
             them
             for
             doing
             ill
             by
             Charms
             ,
             except
             it
             could
             be
             first
             proved
             that
             these
             Charms
             produc'd
             the
             effects
             that
             are
             punishable
             ;
             and
             Lawyers
             should
             argue
             thus
             ,
             those
             who
             kill
             or
             hurt
             Men
             or
             Beasts
             by
             unlawful
             means
             ,
             are
             punishable
             by
             death
             .
             But
             so
             it
             is
             ,
             that
             Witches
             and
             Charmers
             kill
             Men
             and
             Beasts
             by
             unlawful
             means
             ,
             and
             therfore
             Charmers
             ought
             to
             be
             punished
             by
             death
             .
             Off
             which
             
             Syllogism
             Wierus
             denyes
             the
             Minor
             ;
             for
             it
             can
             never
             be
             proved
             that
             Verses
             ,
             Crosses
             ,
             or
             laying
             Flesh
             in
             the
             Threshold
             ,
             &c.
             can
             destroy
             Men
             or
             Beasts
             ,
             these
             being
             causes
             very
             disproportionable
             to
             such
             effects
             ,
             there
             being
             no
             Contract
             betwixt
             the
             Agent
             and
             Patient
             in
             these
             cases
             .
             4.
             
             These
             who
             execute
             the
             will
             of
             God
             are
             not
             punishable
             ,
             for
             that
             is
             their
             duty
             ,
             and
             so
             cannot
             be
             their
             Crime
             .
             But
             so
             it
             is
             ,
             that
             whatever
             the
             Devil
             or
             Witches
             do
             ,
             is
             decreed
             by
             God
             either
             for
             tryal
             or
             punishment
             expresly
             ,
             and
             without
             his
             permission
             nothing
             can
             be
             done
             .
             And
             if
             the
             Devil
             were
             not
             acting
             here
             by
             obedience
             ,
             or
             were
             at
             liberty
             ,
             he
             would
             not
             leave
             any
             one
             man
             undestroyed
             ,
             or
             any
             of
             Gods
             works
             undefaced
             .
          
           
             But
             that
             there
             are
             Witches
             ,
             and
             that
             they
             are
             punishable
             capitally
             ,
             not
             only
             when
             they
             Poyson
             or
             Murder
             ,
             but
             even
             for
             Enchanting
             and
             deluding
             the
             world
             ,
             is
             clear
             by
             an
             express
             Text
             ,
             Exod.
             22.
             
             Vers.
             18.
             
             
               Thou
               shalt
               not
               suffer
               a
               Witch
               to
               live
               :
            
             And
             it
             is
             observable
             ,
             that
             the
             same
             word
             which
             expresses
             a
             Witch
             here
             ,
             is
             that
             which
             is
             used
             in
             Exod.
             7.
             to
             express
             those
             Magicians
             who
             deluded
             only
             the
             people
             by
             transforming
             a
             Rod
             into
             a
             Serpent
             ,
             as
             Moses
             had
             done
             ,
             though
             no
             person
             was
             prejudged
             by
             their
             cheat
             and
             illusion
             .
             Likeas
             ,
             Lev.
             29.
             and
             27.
             
             It
             is
             ordained
             that
             
               a
               man
               or
               a
               woman
               that
               hath
               a
               familiar
               spirit
               ,
               or
               that
               is
               a
               Wizard
               ,
               shall
               surely
               be
               put
               to
               death
               ;
               they
               shall
               stone
               them
               with
               stones
               ;
               their
               blood
               shall
               be
               upon
               them
               .
            
             Which
             Laws
             were
             in
             such
             observation
             amongst
             the
             Jews
             ,
             that
             the
             Witch
             of
             Endor
             ,
             1
             Sam.
             28.
             was
             afraid
             to
             use
             her
             Sorcerie
             before
             the
             King
             ,
             because
             the
             King
             had
             cut
             off
             those
             who
             had
             Familiar
             Spirits
             and
             Wizards
             out
             of
             the
             Land.
             And
             so
             great
             indignation
             did
             the
             eternal
             God
             bear
             to
             this
             sin
             ,
             that
             he
             did
             destroy
             the
             Ten
             Tribes
             of
             Israel
             because
             they
             were
             addicted
             to
             it
             .
          
           
             Not
             were
             the
             Jews
             only
             enemies
             to
             this
             vice
             ,
             but
             even
             the
             Henthens
             following
             the
             Dictats
             of
             Nature
             ,
             punished
             Witches
             as
             enemies
             to
             the
             author
             of
             it
             ;
             for
             the
             Persians
             dashed
             their
             heads
             against
             Stones
             ,
             as
             Minsing
             observes
             ,
             
               ad
               §
               .
               Item
               lex
               
               Cornelia
               inst
               .
               de
               pub
               .
               jud
               .
            
             and
             
               Tacitus
               lib.
            
             2.
             
             Annal.
             tells
             us
             ,
             that
             
               Publius
               Marcius
            
             and
             Pituanus
             were
             execute
             for
             this
             Crime
             :
             for
             which
             likewise
             
               Valerius
               Maximus
               ,
               lib.
            
             6.
             eap
             .
             3.
             tells
             us
             ,
             that
             Publicia
             and
             Lucinia
             were
             with
             threescore
             and
             ten
             other
             Romans
             hang'd
             .
             But
             since
             it
             is
             expresly
             condemned
             in
             Scripture
             ,
             and
             by
             many
             general
             Councils
             ,
             such
             as
             
               Aurelian
               ,
               Toletan
            
             ,
             and
             Anaciritan
             ,
             it
             should
             not
             be
             lawful
             for
             us
             to
             debate
             what
             the
             Law
             hath
             expresly
             condemn'd
             ,
             by
             the
             same
             reason
             ,
             that
             we
             should
             deny
             Witches
             ,
             we
             must
             deny
             the
             truth
             of
             all
             History
             ,
             Ecclesiastick
             and
             Secular
             :
             And
             
               Plutarch
               ,
               lib.
            
             5.
             
             
               Sumps
               .
               cap.
            
             7.
             observes
             ,
             
               Quodammodo
               Philosophiam
               tollunt
               qui
               rebus
               mirabilibus
               fidem
               non
               habent
               opportet
               autem
               qua
               ratione
               aliquid
               fiat
               ,
               ratione
               tractare
               ,
               quod
               vero
               id
               fiat
               ,
               ex
               ratione
               est
               sumendum
               .
            
             It
             is
             sure
             that
             the
             Devil
             having
             the
             power
             and
             will
             to
             prejudge
             men
             ,
             cannot
             but
             be
             ready
             to
             execute
             all
             that
             is
             in
             Witch-craft
             :
             And
             it
             is
             as
             credible
             that
             God
             would
             suffer
             men
             to
             be
             convinc'd
             by
             this
             means
             ,
             that
             there
             are
             Spirits
             ,
             and
             that
             by
             thir
             means
             he
             would
             give
             continued
             proofs
             of
             his
             power
             in
             repressing
             the
             Devil
             ,
             and
             of
             the
             necessity
             that
             silly
             men
             have
             of
             depending
             upon
             his
             infinit
             power
             .
          
           
             To
             the
             former
             Arguments
             it
             may
             be
             answered
             ,
             that
             as
             to
             the
             first
             ,
             all
             sins
             and
             vices
             are
             the
             effects
             of
             delusion
             ;
             nor
             are
             Witches
             more
             deluded
             by
             Melancholy
             ,
             then
             Murderers
             are
             by
             Rage
             or
             Revenge
             .
             And
             though
             it
             hath
             never
             been
             seen
             that
             persons
             naturally
             mad
             ,
             have
             been
             either
             guilty
             of
             ,
             or
             punished
             for
             this
             Crime
             ,
             the
             Devil
             designing
             in
             this
             Crime
             to
             gain
             only
             such
             as
             can
             damn
             themselves
             by
             giving
             a
             free
             consent
             .
             Yet
             if
             Madness
             could
             be
             proved
             ,
             or
             did
             appear
             ;
             it
             would
             certainly
             defend
             both
             against
             the
             guilt
             and
             punishment
             :
             And
             therefore
             such
             a
             series
             of
             clear
             circumstances
             should
             concurr
             before
             a
             person
             be
             found
             guilty
             of
             this
             Crime
             ,
             as
             should
             be
             able
             to
             secure
             the
             Pannel
             ,
             and
             satisfie
             the
             Judge
             fully
             in
             the
             Quaerie
             .
             But
             since
             daily
             experience
             convinces
             the
             world
             that
             there
             may
             be
             such
             a
             Crime
             ,
             and
             that
             the
             Law
             exacts
             either
             confession
             ,
             or
             clear
             proofs
             ,
             who
             can
             condemn
             the
             Law
             as
             rigorous
             in
             this
             case
             ,
             
             since
             without
             believing
             these
             there
             could
             be
             no
             Justice
             administrat
             ,
             and
             whilst
             Judges
             shun'd
             to
             punish
             it
             in
             some
             cases
             ,
             they
             behov'd
             to
             suffer
             it
             from
             the
             same
             arguments
             to
             go
             unpunished
             in
             all
             cases
             .
          
           
             To
             the
             second
             ,
             it
             is
             answered
             ,
             that
             though
             neither
             the
             Devil
             nor
             Witches
             can
             work
             miracles
             ,
             yet
             the
             offering
             to
             cheat
             the
             world
             by
             a
             commerce
             with
             the
             Devil
             ,
             and
             the
             very
             believing
             that
             the
             Devil
             is
             able
             to
             do
             such
             things
             for
             them
             ,
             should
             be
             a
             sufficient
             Crime
             ;
             but
             much
             more
             when
             they
             believe
             all
             those
             things
             to
             be
             done
             by
             themselves
             ,
             they
             giving
             their
             own
             express
             consent
             to
             the
             Crime
             ,
             and
             concurring
             by
             all
             that
             in
             them
             is
             to
             the
             commission
             of
             it
             .
             Likeas
             ,
             it
             is
             undenyable
             that
             the
             Devil
             knowing
             all
             the
             secrets
             of
             Nature
             ,
             may
             be
             applying
             Actives
             to
             Passives
             ,
             that
             are
             unknown
             to
             us
             ,
             produce
             real
             effects
             which
             seem
             impossible
             .
          
           
             To
             the
             third
             ,
             though
             Charms
             be
             not
             able
             to
             produce
             the
             effects
             that
             are
             punishable
             in
             Witches
             ,
             yet
             since
             these
             effects
             cannot
             be
             produced
             without
             the
             Devil
             ,
             and
             that
             he
             will
             not
             imploy
             himself
             at
             the
             desire
             of
             any
             who
             have
             not
             resigned
             themselves
             wholly
             to
             him
             ,
             it
             is
             very
             just
             that
             the
             users
             of
             these
             should
             be
             punished
             ,
             being
             guilty
             at
             least
             of
             Apostasie
             and
             Heresie
             .
          
           
             The
             fourth
             Argument
             is
             but
             a
             meer
             and
             silly
             Sophism
             ,
             for
             though
             God
             in
             his
             providence
             permits
             at
             least
             all
             things
             that
             are
             done
             ,
             to
             be
             done
             ,
             yet
             such
             as
             contemn
             either
             the
             commands
             of
             him
             or
             his
             Vicegerents
             ought
             to
             be
             punish'd
             .
          
           
             I
             cannot
             but
             acknowledge
             that
             there
             are
             some
             secrets
             in
             Nature
             which
             would
             have
             been
             lookt
             upon
             in
             the
             first
             Authors
             as
             the
             effects
             of
             Magick
             :
             And
             I
             believe
             that
             in
             the
             duller
             Nations
             a
             Philosopher
             drawing
             Iron
             with
             a
             Loadstone
             might
             have
             run
             a
             great
             risque
             of
             being
             burnt
             ;
             and
             it
             is
             hard
             to
             give
             a
             judgement
             of
             Naudeus
             learned
             Book
             in
             favours
             of
             the
             Persian
             Magicians
             ,
             the
             
               Assyrian
               Chaldeans
            
             ,
             the
             Indian
             Gymnosophists
             ,
             and
             the
             Druids
             of
             the
             Gauls
             ;
             for
             it
             cannot
             be
             denyed
             but
             that
             many
             true
             Mathematicians
             and
             Physicians
             have
             past
             
             for
             Magicians
             in
             the
             duller
             ages
             of
             the
             world
             ,
             but
             as
             to
             this
             ,
             there
             is
             now
             no
             fear
             since
             Learning
             hath
             sufficiently
             illuminat
             the
             world
             ,
             so
             as
             to
             distinguish
             betwixt
             these
             two
             .
             But
             I
             am
             still
             jealous
             of
             those
             Sages
             who
             were
             frequented
             by
             Familiar
             Spirits
             ,
             though
             they
             were
             otherwise
             very
             excellent
             men
             ,
             such
             as
             
               Porphir
               .
               Iamblicus
               ,
               Plotin
            
             .
             and
             others
             ,
             who
             pretended
             by
             the
             purity
             of
             their
             lives
             to
             be
             so
             spiritual
             ,
             as
             to
             deserve
             the
             friendship
             of
             Spirits
             :
             For
             besides
             that
             the
             Primitive
             Fathers
             and
             Doctors
             of
             the
             Church
             have
             testified
             against
             such
             ,
             as
             meer
             Magicians
             .
             It
             is
             not
             intelligible
             how
             those
             Spirits
             which
             frequented
             them
             could
             be
             good
             ,
             since
             they
             were
             tempted
             to
             fall
             from
             the
             true
             Religion
             to
             Paganism
             ,
             and
             did
             offer
             such
             Sacrifices
             as
             the
             true
             God
             did
             never
             allow
             ;
             and
             if
             such
             impostures
             were
             allowed
             ,
             it
             were
             easie
             for
             any
             to
             defend
             themselves
             ,
             being
             truly
             Witches
             .
          
           
             II.
             Albeit
             Witch-craft
             be
             the
             greatest
             of
             Crimes
             ,
             since
             it
             includes
             in
             it
             the
             grossest
             of
             Heresies
             ,
             and
             Blasphemies
             ,
             and
             Treasons
             against
             God
             ,
             in
             preferring
             to
             the
             Almighty
             his
             rebel
             and
             enemy
             ,
             and
             in
             thinking
             the
             Devil
             worthier
             of
             being
             served
             and
             reverenced
             ,
             and
             is
             accompanied
             with
             Murder
             ,
             Poysoning
             ,
             Bestiality
             ,
             and
             other
             horrid
             Crimes
             .
             Yet
             I
             conclude
             only
             from
             this
             ,
             that
             when
             Witches
             are
             found
             guilty
             ,
             they
             should
             be
             most
             severely
             punished
             ,
             not
             with
             Scourg●ng
             and
             Ban●shment
             ,
             as
             the
             custom
             of
             Savoy
             was
             related
             to
             be
             by
             
               Gothofred
               ,
               hoc
               tit
            
             .
             but
             by
             the
             most
             ignominious
             of
             deaths
             .
             Yet
             from
             the
             horridness
             of
             this
             Crime
             ,
             I
             do
             conclude
             ,
             that
             of
             all
             Crimes
             it
             requires
             the
             clearest
             relevancy
             ,
             and
             most
             convincing
             probation
             .
             And
             I
             condemn
             next
             to
             the
             Witches
             themselves
             ,
             those
             cruel
             and
             too
             forward
             Judges
             ,
             who
             burn
             persons
             by
             thousands
             as
             guilty
             of
             this
             Crime
             ,
             to
             whom
             I
             shall
             recommend
             these
             considerations
             ,
          
           
             1.
             
             That
             it
             is
             not
             presumeable
             that
             any
             who
             hear
             of
             the
             kindness
             of
             God
             to
             men
             ,
             and
             of
             the
             Devils
             malice
             against
             them
             ;
             of
             the
             rewards
             of
             Heaven
             ,
             and
             torments
             of
             Hell
             ,
             would
             deliberatly
             enter
             into
             the
             service
             of
             that
             wicked
             Spirit
             ,
             whom
             they
             
             know
             to
             have
             no
             riches
             to
             bestow
             ,
             nor
             power
             to
             help
             ,
             except
             it
             be
             allowed
             by
             permission
             ,
             that
             he
             may
             tempt
             men
             :
             And
             that
             he
             being
             a
             liar
             from
             the
             beginning
             ,
             his
             promises
             deserves
             no
             belief
             ,
             especially
             since
             in
             no
             mans
             experience
             he
             hath
             ever
             advantag'd
             any
             person
             :
             whereas
             on
             the
             contrary
             ,
             his
             service
             hath
             brought
             all
             who
             entered
             in
             it
             to
             the
             Stake
             .
          
           
             II.
             Those
             poor
             persons
             who
             are
             ordinarily
             accused
             of
             this
             Crime
             ,
             are
             poor
             ignorant
             creatures
             ,
             and
             oft-times
             Women
             who
             understand
             not
             the
             nature
             of
             what
             they
             are
             accused
             of
             ;
             and
             many
             mistake
             their
             own
             fears
             and
             apprehensions
             for
             Witch-craft
             ;
             of
             which
             I
             shall
             give
             you
             two
             instances
             ,
             one
             of
             a
             poor
             Weaver
             ,
             who
             after
             he
             had
             confess'd
             Witch-craft
             ,
             being
             asked
             how
             he
             saw
             the
             Devil
             ,
             he
             answered
             ,
             
               Like
               Flies
               dancing
               about
               the
               Candle
               .
            
             Another
             of
             a
             VVom●n
             ,
             who
             asked
             seriously
             ,
             when
             she
             was
             accused
             ,
             if
             a
             VVoman
             might
             be
             a
             VVitch
             and
             not
             know
             it
             ?
             And
             it
             is
             dangerous
             that
             these
             who
             are
             of
             all
             others
             the
             most
             simple
             ,
             should
             be
             tryed
             for
             a
             Crime
             ,
             which
             of
             all
             others
             is
             most
             mysterious
             .
          
           
             III.
             These
             poor
             creatures
             when
             they
             are
             defamed
             ,
             become
             so
             confounded
             with
             fear
             ,
             and
             the
             closse
             Prison
             in
             which
             they
             are
             kept
             ,
             and
             so
             starved
             for
             want
             of
             meat
             and
             sleep
             ,
             (
             either
             of
             which
             wants
             is
             enough
             to
             disorder
             the
             strongest
             reason
             )
             that
             hardly
             wiser
             and
             more
             serious
             people
             then
             they
             would
             escape
             distraction
             :
             And
             when
             men
             are
             confounded
             with
             fear
             and
             apprehension
             ,
             they
             will
             imagine
             things
             very
             ridiculous
             and
             absurd
             ,
             and
             as
             no
             man
             would
             escape
             a
             profound
             melancholy
             upon
             such
             an
             occasion
             ,
             and
             amidst
             such
             usages
             ;
             therefore
             I
             remit
             to
             Physicians
             and
             others
             to
             consider
             what
             may
             be
             the
             effects
             of
             melancholy
             ,
             which
             hath
             oft
             made
             men
             ,
             who
             appeared
             otherwayes
             solid
             enough
             ,
             imagine
             they
             were
             Horses
             ,
             or
             had
             lost
             their
             Noses
             ,
             &c.
             
             And
             since
             it
             may
             make
             men
             erre
             in
             things
             which
             are
             oblivious
             to
             their
             senses
             ,
             what
             may
             be
             expected
             as
             to
             things
             which
             transcends
             the
             wisest
             mens
             reason
             .
          
           
             IV.
             Most
             of
             these
             poor
             creatures
             are
             tortur'd
             by
             their
             keepers
             ,
             who
             being
             perswaded
             they
             do
             God
             good
             service
             ,
             think
             it
             
             their
             duty
             to
             vex
             and
             torment
             poor
             Prisoners
             :
             And
             I
             know
             
               ex
               certissima
               scientia
            
             ,
             that
             most
             of
             all
             that
             ever
             were
             taken
             ,
             were
             tormented
             after
             this
             manner
             ,
             and
             this
             usage
             was
             the
             ground
             of
             all
             their
             confession
             :
             and
             albeit
             the
             poor
             miscreants
             cannot
             prove
             this
             usage
             ,
             the
             acters
             being
             the
             only
             witnesses
             ,
             yet
             the
             Judge
             should
             be
             afraid
             of
             it
             ,
             as
             that
             which
             at
             first
             did
             elicit
             the
             confession
             ,
             and
             for
             fear
             of
             which
             they
             dare
             not
             retract
             it
             .
          
           
             V.
             I
             went
             when
             I
             was
             a
             Justice-Depute
             to
             examine
             some
             Women
             ,
             who
             had
             confest
             judicially
             ,
             and
             one
             of
             them
             ,
             who
             was
             a
             silly
             creature
             ,
             told
             me
             under
             secresie
             ,
             that
             she
             had
             not
             confest
             because
             she
             was
             guilty
             ,
             but
             being
             a
             poor
             creature
             ,
             who
             wrought
             for
             her
             meat
             ,
             and
             being
             defam'd
             for
             a
             Witch
             she
             knew
             she
             would
             starve
             ,
             for
             no
             person
             thereafter
             would
             either
             give
             her
             meat
             or
             lodging
             ,
             and
             that
             all
             men
             would
             beat
             her
             ,
             and
             hound
             Dogs
             at
             her
             ,
             and
             that
             therefore
             she
             desired
             to
             be
             out
             of
             the
             World
             ;
             whereupon
             she
             wept
             most
             bitterly
             ,
             and
             upon
             her
             knees
             call'd
             God
             to
             witness
             to
             what
             she
             said
             .
             Another
             told
             me
             that
             she
             was
             afraid
             the
             Devil
             would
             challenge
             a
             right
             to
             her
             ,
             after
             she
             was
             said
             to
             be
             his
             servant
             ,
             and
             would
             haunt
             her
             ,
             as
             the
             Minister
             said
             when
             he
             was
             desiring
             her
             to
             confess
             ;
             and
             therefore
             she
             desired
             to
             die
             .
             And
             really
             Ministers
             are
             oft-times
             indiscreet
             in
             their
             zeal
             ,
             to
             have
             poor
             creatures
             to
             confess
             in
             this
             :
             And
             I
             recommend
             to
             Judges
             that
             the
             wisest
             Ministers
             should
             be
             sent
             to
             them
             ,
             and
             those
             who
             are
             sent
             ,
             should
             be
             cautious
             in
             this
             .
          
           
             VI.
             Many
             of
             them
             confess
             things
             which
             all
             Divines
             conclude
             impossible
             ,
             as
             transmutation
             of
             their
             bodies
             into
             beasts
             ,
             and
             money
             into
             stones
             ,
             and
             their
             going
             through
             walls
             and
             closs
             doors
             ,
             and
             a
             thousand
             other
             ridiculous
             things
             ,
             which
             have
             no
             truth
             nor
             existence
             but
             in
             their
             fancy
             .
          
           
             VII
             .
             The
             Accusers
             here
             are
             Masters
             ,
             or
             Neighbours
             who
             had
             their
             Children
             dead
             ,
             and
             are
             engaged
             by
             grief
             to
             suspect
             these
             poor
             creatures
             .
             I
             knew
             one
             likewise
             burnt
             because
             the
             Lady
             was
             jealous
             of
             her
             with
             her
             Husband
             :
             And
             the
             Crime
             is
             so
             odious
             that
             they
             are
             never
             assisted
             or
             defended
             by
             their
             relations
             .
          
           
           
             VIII
             .
             The
             Witnesses
             and
             Assysers
             are
             afraid
             that
             if
             they
             escape
             that
             they
             will
             die
             for
             it
             ,
             and
             therefore
             they
             take
             an
             unwarrantable
             latitude
             .
             And
             I
             have
             observed
             that
             scarce
             ever
             any
             who
             were
             accused
             before
             a
             Countrey
             Assize
             of
             Neighbours
             ,
             did
             escape
             that
             tryal
             .
          
           
             IX
             .
             Commissions
             are
             granted
             ordinarily
             to
             Gentlemen
             ,
             and
             others
             in
             the
             Countrey
             who
             are
             suspect
             upon
             this
             account
             :
             and
             who
             are
             not
             exactly
             enough
             acquaint
             with
             the
             nature
             of
             this
             Crime
             ,
             which
             is
             so
             debateable
             amongst
             the
             most
             learned
             :
             Nor
             have
             the
             Pannels
             any
             to
             plead
             for
             them
             ,
             and
             to
             take
             notice
             who
             are
             led
             as
             Witnesses
             ;
             so
             that
             many
             are
             admitted
             who
             are
             
               testes
               inhabiles
            
             ,
             and
             suspect
             :
             And
             albeit
             their
             confessions
             are
             sent
             to
             ,
             and
             advised
             by
             the
             Council
             before
             such
             Commissions
             be
             granted
             ,
             yet
             the
             Council
             cannot
             know
             how
             these
             confessions
             were
             emitted
             ,
             nor
             all
             the
             circumstances
             which
             are
             necessary
             and
             cannot
             be
             known
             at
             a
             distance
             .
             Very
             many
             of
             these
             poor
             silly
             Women
             do
             reseal
             at
             the
             Stake
             from
             the
             conf●ssions
             they
             emitted
             at
             the
             Bar
             ,
             and
             yet
             have
             died
             very
             penitent
             :
             And
             as
             it
             is
             presumeable
             that
             few
             will
             accuse
             themselves
             ,
             or
             confesse
             against
             their
             own
             life
             ,
             yet
             very
             many
             confess
             this
             Crime
             .
          
           
             3.
             
             The
             method
             I
             shall
             use
             in
             treating
             of
             this
             Crime
             shall
             be
             ,
             1.
             
             Upon
             what
             suspicion
             Witches
             may
             be
             apprehended
             .
             2.
             
             What
             Judges
             are
             competent
             .
             3.
             
             What
             Ditty
             's
             are
             relevant
             :
             4.
             
             What
             probation
             is
             sufficient
             .
             5.
             
             What
             is
             the
             ordinary
             punishment
             .
             As
             to
             the
             first
             ,
             I
             know
             it
             is
             ordinary
             in
             Scotland
             not
             only
             that
             Magistrats
             do
             apprehend
             Witches
             almost
             upon
             any
             dilation
             ,
             but
             even
             Gentlemen
             ,
             and
             such
             as
             are
             Masters
             of
             the
             Ground
             ,
             do
             likewise
             make
             them
             prisoners
             ,
             and
             keep
             them
             so
             till
             they
             transmit
             them
             at
             their
             pleasure
             to
             Justices
             of
             Peace
             ,
             Magistrats
             ,
             or
             to
             some
             open
             Prisons
             .
             But
             all
             this
             procedor
             is
             most
             unwarrantable
             ,
             for
             Gentlemen
             ,
             and
             such
             as
             are
             vested
             with
             no
             authority
             ,
             should
             upon
             no
             account
             without
             a
             special
             warrand
             apprehend
             any
             upon
             suspicion
             that
             they
             are
             Witches
             ,
             since
             to
             apprehend
             is
             an
             act
             of
             jurisdiction
             ;
             and
             the●efore
             I
             think
             no
             prison
             should
             receive
             any
             as
             suspect
             of
             
             Witch-craft
             ,
             until
             they
             know
             that
             the
             person
             offered
             to
             them
             be
             apprehended
             by
             lawful
             Authority
             .
             2.
             
             Since
             imprisonment
             is
             a
             punishment
             ,
             and
             constantly
             attended
             with
             much
             infamy
             to
             the
             name
             ,
             and
             detriment
             to
             the
             affairs
             of
             him
             who
             is
             imprisoned
             ,
             especially
             in
             Witch-craft
             :
             I
             do
             conclude
             that
             there
             must
             some
             presumption
             preceed
             all
             inquisition
             .
             For
             the
             meanest
             degrees
             of
             inquisition
             ,
             though
             without
             captour
             ,
             does
             somewhat
             defame
             .
             And
             that
             the
             person
             should
             not
             be
             apprehended
             except
             it
             appear
             by
             the
             event
             of
             the
             inquisition
             ,
             that
             she
             lyes
             under
             either
             many
             or
             pregnant
             suspicions
             ;
             such
             as
             that
             she
             is
             defamed
             by
             other
             Witches
             ;
             that
             she
             hath
             been
             her self
             of
             an
             evil
             fame
             ;
             that
             she
             hath
             been
             found
             Charming
             ,
             or
             that
             the
             ordinary
             Instruments
             of
             Charming
             be
             found
             in
             her
             House
             .
             And
             according
             to
             
             Delrio's
             opinion
             ,
             lib.
             5.
             
             Sect.
             2.
             
               ad
               assumendas
               informationes
               ,
               sufficiunt
               levia
               judicia
               ,
               sed
               gravia
               requiruntur
               ad
               hoc
               ut
               citetur
               reus
               ,
               &
               ut
               judex
               specialiter
               inquirat
               .
            
          
           
             IV.
             Witch-craft
             was
             
               crimen
               utriusque
               fori
            
             ,
             by
             the
             Canon
             Law
             :
             and
             with
             us
             the
             Kirk-sessions
             use
             to
             inquire
             into
             it
             ,
             in
             order
             to
             the
             Scandal
             ;
             and
             to
             take
             the
             confession
             of
             the
             Parties
             ,
             to
             receive
             Witnesses
             against
             them
             ;
             as
             is
             clear
             by
             the
             Process
             of
             
               Ianet
               Barker
            
             and
             
               Margaret
               Lawder
               ,
               Decemb
            
             9.
             1643.
             
             But
             since
             so
             much
             weight
             is
             laid
             upon
             the
             depositions
             there
             emitted
             ,
             Kirk-sessions
             should
             be
             very
             cautious
             in
             their
             procedors
             .
          
           
             By
             the
             Act
             of
             Parliament
             
               Q.
               M.
            
             9.
             
             Parl.
             73.
             
             Act.
             All
             Sheriffs
             ,
             Lords
             of
             Regalities
             ,
             and
             their
             Deputes
             ,
             and
             all
             other
             Judges
             having
             power
             to
             execute
             the
             same
             ,
             are
             ordained
             to
             execute
             that
             Act
             against
             Witch-craft
             ;
             which
             can
             import
             no
             more
             ,
             but
             that
             they
             should
             concur
             to
             the
             punishment
             of
             the
             Crime
             ,
             by
             apprehending
             ,
             or
             imprisoning
             the
             party
             suspect
             :
             But
             it
             doth
             not
             follow
             ,
             that
             because
             they
             may
             concur
             ,
             that
             therefore
             they
             are
             Judges
             competent
             to
             the
             cognition
             of
             the
             Crime
             ;
             since
             the
             relevancy
             in
             it
             is
             oft-times
             so
             intricat
             ,
             and
             the
             procedor
             requires
             necessarily
             so
             much
             arbitrariness
             ,
             and
             the
             punishment
             is
             so
             severe
             ,
             that
             these
             considerations
             joyntly
             should
             appropriat
             
             the
             cognition
             thereof
             solely
             to
             the
             Justice
             Court.
             Nor
             find
             I
             any
             instances
             wherein
             these
             Inferior
             Courts
             have
             tryed
             this
             Crime
             .
             And
             albeit
             the
             Council
             do
             oft-times
             grant
             Commissions
             to
             Countrey-men
             ,
             yet
             that
             seems
             dangerous
             ;
             nor
             can
             I
             see
             why
             by
             express
             Act
             of
             Parliament
             it
             should
             have
             been
             appointed
             ,
             that
             no
             Commission
             should
             be
             granted
             for
             trying
             Murder
             ,
             and
             yet
             Witch-craft
             should
             be
             so
             tryed
             by
             Commissions
             .
             The
             Justices
             ●hen
             are
             the
             proper
             Judges
             in
             Witch-craft
             .
          
           
             V.
             As
             to
             the
             relevancy
             in
             this
             Crime
             ,
             the
             first
             Article
             useth
             to
             be
             paction
             to
             serve
             the
             Devil
             ,
             which
             is
             certainly
             relevant
             ,
             
               per
               se
            
             ,
             without
             any
             addition
             ,
             as
             is
             to
             be
             seen
             in
             all
             the
             inditements
             ,
             especially
             in
             that
             of
             
               Margaret
               Hutchison
               ,
               August
            
             10.
             1661.
             
             And
             by
             
               Delrio
               ,
               Carpz
               .
               p.
            
             1.
             quest
             .
             49.
             and
             others
             ;
             but
             because
             the
             Devil
             useth
             to
             appear
             in
             the
             similitude
             of
             a
             man
             ,
             when
             he
             desireth
             these
             poor
             creatures
             to
             serve
             him
             ;
             therefore
             they
             should
             be
             interrogat
             ,
             if
             they
             knew
             him
             to
             be
             the
             Devil
             when
             they
             condescended
             to
             his
             service
             .
          
           
             Paction
             with
             the
             Devil
             is
             divided
             by
             Lawyers
             ,
             in
             
               expressum
               ,
               &
               tacitum
            
             ,
             an
             expresse
             and
             tacit
             paction
             .
             Expresse
             paction
             is
             performed
             either
             by
             a
             formal
             promise
             given
             to
             the
             Devil
             then
             present
             ,
             or
             by
             presenting
             a
             supplication
             to
             him
             ,
             or
             by
             giving
             the
             promise
             to
             a
             Proxie
             or
             Commissioner
             impowered
             by
             the
             Devil
             for
             that
             effect
             ,
             which
             is
             used
             by
             some
             who
             dare
             not
             see
             himself
             .
             The
             formula
             set
             down
             by
             Delrio
             ,
             is
             
               I
               deny
               God
               Creator
               of
               Heaven
               and
               Earth
               ,
               and
            
             I
             
               adhere
               to
               thee
               ,
               and
               believe
               in
               thee
               .
            
             But
             by
             the
             Journal
             Books
             it
             appears
             ,
             that
             the
             ordinary
             form
             o●
             expresse
             paction
             confest
             by
             our
             witness
             ,
             is
             a
             simple
             promise
             to
             serve
             him
             .
             Tacit
             paction
             is
             either
             when
             a
             person
             who
             hath
             made
             no
             expresse
             paction
             ,
             useth
             the
             words
             or
             signs
             which
             Sorcerers
             use
             ,
             knowing
             them
             to
             be
             such
             ,
             either
             by
             their
             Books
             ,
             or
             Discourse
             ;
             and
             this
             is
             condemned
             as
             Sorcery
             ,
             Can.
             26.
             quest
             .
             5.
             and
             is
             relevant
             to
             infer
             the
             Crime
             of
             Witch-craft
             ,
             or
             to
             use
             these
             words
             and
             signs
             ,
             though
             the
             user
             know
             them
             not
             to
             be
             such
             ;
             and
             this
             is
             no
             Crime
             ,
             if
             the
             ignorance
             be
             probable
             ,
             
             and
             if
             the
             user
             be
             content
             to
             abstain
             ,
             
               Delrio
               ,
               lib.
            
             2.
             quest
             .
             4.
             
          
           
             VI.
             Renouncing
             of
             Baptism
             is
             by
             Delrio
             made
             an
             effect
             of
             Paction
             ,
             yet
             with
             us
             it
             is
             
               per
               se
            
             relevant
             ,
             as
             was
             found
             in
             the
             former
             Procels
             of
             
               Margaret
               Hutchison
            
             :
             and
             the
             solemnity
             confest
             by
             our
             Witches
             ,
             is
             the
             putting
             one
             hand
             to
             the
             crown
             of
             the
             head
             ,
             and
             another
             to
             the
             sole
             of
             the
             foot
             ,
             renouncing
             their
             Baptism
             in
             that
             posture
             .
             Delrio
             tells
             us
             ,
             that
             the
             Devil
             useth
             to
             Baptize
             them
             of
             new
             ,
             and
             to
             wipe
             off
             their
             brow
             the
             old
             Baptism
             :
             And
             our
             Witches
             confess
             alwayes
             the
             giving
             them
             new
             names
             ,
             which
             are
             very
             ridiculous
             ,
             as
             
               Red-shanks
               ,
               Serjeant
               ,
               &c.
            
             
          
           
             VII
             .
             The
             Devils
             mark
             useth
             to
             be
             a
             great
             Article
             with
             us
             ,
             but
             it
             is
             not
             
               per
               se
            
             found
             relevant
             ,
             except
             it
             be
             confest
             by
             them
             ,
             that
             they
             got
             that
             mark
             with
             their
             own
             consent
             ;
             
               quo
               casu
            
             ,
             it
             is
             equivalent
             to
             a
             Paction
             .
             This
             mark
             is
             given
             them
             ,
             as
             is
             alleadg'd
             ,
             by
             a
             nip
             in
             any
             part
             of
             the
             body
             ,
             and
             it
             is
             blew
             ;
             Delrio
             calls
             it
             Stigma
             ,
             or
             Character
             ,
             lib.
             2.
             quest
             .
             4.
             and
             alleadges
             that
             it
             is
             sometimes
             like
             the
             impression
             of
             a
             Hares
             foot
             ,
             or
             the
             foot
             of
             a
             Rat
             ,
             or
             Spider
             ,
             l.
             5.
             
             Sect.
             4.
             num
             .
             28.
             
             Some
             think
             that
             it
             is
             impossible
             there
             can
             be
             any
             mark
             which
             is
             insensible
             ,
             and
             will
             not
             bleed
             ;
             for
             all
             things
             that
             live
             must
             have
             blood
             ,
             and
             so
             this
             place
             behov'd
             both
             to
             be
             dead
             and
             alive
             at
             once
             ,
             and
             behov'd
             to
             live
             without
             aliment
             ;
             for
             blood
             is
             the
             aliment
             of
             the
             body
             :
             but
             it
             is
             very
             easie
             to
             conceive
             that
             the
             Devil
             may
             make
             a
             place
             insensible
             at
             a
             time
             ,
             or
             may
             apply
             things
             that
             may
             squeez
             out
             the
             blood
             .
          
           
             This
             mark
             is
             discovered
             amongst
             us
             by
             a
             Pricker
             ,
             whose
             Trade
             it
             is
             ,
             and
             who
             learns
             it
             as
             other
             Trades
             ;
             but
             this
             is
             a
             horrid
             cheat
             :
             for
             they
             alleadge
             that
             if
             the
             place
             bleed
             not
             ,
             or
             if
             the
             person
             be
             not
             sensible
             ,
             he
             or
             she
             is
             infallibly
             a
             Witch
             .
             But
             as
             Delrio
             confesses
             ,
             it
             is
             very
             hard
             to
             know
             any
             such
             mark
             ,
             
               à
               nevo
               ,
               clavo
               ,
               vel
               impertigine
               naturali
               ,
            
             and
             there
             are
             many
             pieces
             of
             dead
             flesh
             which
             are
             insensible
             ,
             even
             in
             living
             bodies
             :
             And
             a
             Villain
             who
             used
             this
             Trade
             with
             us
             ,
             being
             in
             the
             year
             1666.
             
             apprehended
             for
             other
             villanies
             ,
             did
             confess
             all
             this
             Trade
             to
             be
             a
             meer
             cheat
             .
          
           
             VIII
             .
             Threatening
             to
             do
             mischief
             ,
             if
             any
             evil
             follow
             immediatly
             ,
             hath
             been
             too
             ordinarily
             found
             a
             relevant
             Article
             to
             infer
             Witch-craft
             with
             us
             .
             Thus
             
               Agnes
               Finnie
            
             was
             pursued
             in
             Anno
             1643.
             upon
             the
             general
             Article
             of
             having
             witch'd
             several
             persons
             ;
             and
             particularly
             for
             these
             Articles
             ,
             1.
             
             That
             
               William
               Fairlie
            
             having
             nick-named
             and
             called
             her
             
               Annie
               Winnie
            
             ,
             she
             sware
             in
             rage
             he
             should
             go
             halting
             home
             ,
             and
             within
             24.
             hours
             he
             took
             a
             Palsie
             .
             2.
             
             That
             
               Beatrix
               Nisbit
            
             refusing
             to
             pay
             the
             said
             Agnes
             the
             Annualrent
             of
             two
             Dollors
             owing
             by
             
               Hector
               Nisbit
            
             her
             Father
             ,
             she
             told
             her
             she
             should
             repent
             it
             ,
             and
             within
             an
             hour
             thereafter
             she
             lost
             her
             Tongue
             ,
             and
             the
             power
             of
             her
             right
             Side
             .
             3.
             
             That
             
               Ianet
               Greintoun
            
             having
             refused
             to
             carry
             away
             two
             Herrings
             she
             had
             bought
             from
             the
             said
             Agnes
             ,
             and
             to
             pay
             for
             them
             ,
             she
             told
             her
             it
             should
             be
             the
             last
             meat
             she
             should
             eat
             ,
             and
             within
             a
             little
             after
             she
             fell
             sick
             :
             Against
             which
             Articles
             it
             was
             there
             alledged
             that
             this
             Libell
             was
             not
             relevant
             ,
             and
             could
             not
             go
             to
             the
             knowledge
             of
             an
             Inquest
             :
             1.
             
             Because
             no
             means
             were
             condescended
             upon
             from
             which
             the
             Witch-craft
             was
             inferred
             :
             And
             if
             this
             Libell
             were
             relevant
             ,
             it
             would
             be
             relevant
             to
             Libell
             generally
             that
             the
             Pannel
             were
             a
             Witch
             .
             2.
             
             Assizers
             are
             only
             Judges
             to
             the
             matter
             of
             fact
             ,
             and
             not
             to
             what
             consists
             
               in
               jure
            
             .
             But
             so
             it
             is
             ,
             that
             if
             this
             Libel
             were
             to
             pass
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             all
             the
             debate
             
               in
               jure
            
             behoved
             to
             be
             before
             the
             Assize
             before
             whom
             the
             Pannels
             Procurators
             behoved
             to
             debate
             how
             far
             
               minae
               &
               damnum
               sequutum
            
             are
             relevant
             ,
             and
             how
             far
             any
             person
             is
             punishable
             as
             a
             Witch
             ,
             though
             no
             Charms
             or
             other
             means
             commonly
             used
             by
             Witches
             be
             condescended
             upon
             ;
             and
             as
             to
             the
             threatnings
             ,
             they
             were
             not
             relevant
             ,
             seing
             they
             had
             not
             all
             the
             requisits
             which
             are
             exprest
             by
             the
             Doctors
             as
             requisite
             ,
             for
             they
             were
             not
             specifick
             ,
             bearing
             the
             promise
             to
             do
             a
             particular
             ill
             ,
             as
             that
             Fairlie
             should
             take
             a
             Palsie
             ,
             or
             Nisbit
             lose
             her
             Tongue
             .
             2.
             
             There
             was
             not
             a
             preceeding
             reason
             of
             enmity
             proved
             ,
             nor
             
             is
             it
             probable
             that
             for
             so
             small
             a
             matter
             as
             a
             Herring
             ,
             or
             the
             Annualrent
             of
             two
             Dollors
             ,
             she
             would
             have
             killed
             any
             person
             ,
             and
             exposed
             her self
             to
             hazard
             ;
             nor
             was
             the
             effect
             immediat
             ,
             nor
             such
             as
             could
             not
             have
             proceeded
             from
             any
             other
             natural
             cause
             ,
             without
             all
             which
             had
             concur'd
             .
             
               Delrio
               lib.
            
             5.
             
             Sect
             3.
             is
             very
             clear
             ,
             that
             
               minae
               etiam
               cum
               damno
               sequuto
            
             ,
             are
             not
             so
             much
             as
             a
             presumption
             :
             but
             though
             all
             these
             did
             concur
             ,
             it
             is
             very
             clear
             ,
             both
             from
             
               Delrio
               ibid.
            
             and
             
               Farin
               .
               quest
            
             .
             5.
             num
             .
             37.
             
             That
             all
             these
             threatnings
             are
             not
             sufficient
             to
             infer
             the
             Crime
             of
             Witch-craft
             .
             Lastly
             ,
             It
             was
             offered
             to
             be
             proved
             ,
             that
             some
             of
             these
             persons
             died
             of
             a
             natural
             disease
             ,
             depending
             upon
             causes
             preceeding
             that
             threatning
             :
             Notwithstanding
             of
             all
             which
             ,
             the
             Libell
             was
             found
             relevant
             ,
             and
             she
             was
             burnt
             .
             But
             I
             think
             this
             decision
             very
             hard
             ,
             and
             very
             contrary
             to
             the
             opinion
             of
             all
             received
             Writers
             ,
             who
             think
             ,
             that
             albeit
             minae
             be
             adminiculatae
             with
             all
             the
             former
             advantages
             ,
             
               &
               probatae
               de
               ea
               quae
               solet
               minas
               exequi
               ,
            
             yet
             the
             same
             are
             only
             sufficient
             to
             infer
             an
             Arbitrary
             punishment
             ,
             not
             Corporal
             ,
             but
             Pecuniary
             ;
             and
             certainly
             such
             a
             wicked
             custom
             as
             threatning
             ,
             is
             in
             it self
             a
             Crime
             :
             And
             thus
             it
             was
             only
             well
             found
             to
             be
             
               crimen
               in
               suo
               genere
            
             ,
             in
             the
             Process
             led
             against
             
               Katherin
               Oswald
               ,
               Novemb.
            
             11.
             1629.
             
          
           
             IX
             .
             Sometimes
             Articles
             are
             Libel'd
             ,
             wherein
             the
             malefice
             hath
             no
             dependence
             at
             all
             upon
             the
             means
             used
             :
             And
             thus
             it
             was
             Libel'd
             against
             
               Margaret
               Hutchison
               ,
               August
            
             20.
             1661.
             
             That
             
               Iohn
               Clarks
            
             Wife
             being
             sick
             ,
             she
             came
             to
             the
             Bed
             side
             when
             all
             the
             Doors
             and
             Windows
             were
             fast
             ,
             and
             comb'd
             her
             head
             several
             nights
             ;
             and
             the
             last
             of
             these
             nights
             she
             came
             to
             the
             Bed
             side
             ,
             and
             put
             her
             hand
             to
             the
             Womans
             Pape
             ,
             whereupon
             the
             Child
             died
             ,
             which
             Article
             was
             found
             relevant
             
               per
               se.
            
             And
             it
             was
             Libel'd
             against
             
               Ianet
               Cock
               ,
               September
            
             7.
             1661.
             that
             a
             Woman
             called
             Spindie
             being
             at
             enmity
             with
             her
             ,
             she
             gave
             her
             a
             cuff
             ,
             whereupon
             Spindie
             immediatly
             distracted
             ;
             and
             being
             reproved
             therefore
             by
             the
             Minister
             of
             Dalkeith
             ,
             he
             immediatly
             distracted
             ;
             which
             Article
             was
             likewise
             found
             relevant
             ,
             
             being
             joyned
             with
             fame
             and
             dilation
             :
             Which
             decisions
             are
             in
             my
             opinion
             very
             dangerous
             ,
             for
             they
             want
             a
             sure
             foundation
             ,
             and
             are
             precedents
             whereby
             Judges
             may
             become
             very
             arbitrary
             .
             And
             against
             these
             I
             may
             oppone
             a
             third
             alledgiance
             used
             in
             the
             former
             Process
             against
             
               Agnes
               Finnie
            
             ,
             wherein
             it
             was
             alledged
             ,
             that
             the
             conclusion
             of
             all
             Criminal
             Libels
             should
             be
             necessarily
             inferred
             from
             the
             deed
             subsumed
             ,
             and
             that
             
               conclusio
               semper
               sequitur
               debiliorem
               partem
               :
               nam
               libellus
               est
               syllogismus
               apodicticus
               ;
               sed
               non
               probabilis
            
             ;
             and
             therefore
             except
             the
             Libel
             could
             condescend
             upon
             some
             means
             used
             by
             the
             Pannel
             ,
             from
             which
             the
             malefice
             were
             necessarily
             infer'd
             ,
             it
             could
             not
             be
             concluded
             that
             these
             Malefices
             were
             done
             by
             her
             ,
             or
             that
             she
             was
             guilty
             of
             the
             wrong
             done
             .
             Thus
             
               Bodin
               lib.
            
             4.
             does
             conclude
             ,
             that
             
               veneficae
               non
               sunt
               condemnandae
               licet
               sint
               deprehensae
               cum
               bufonibus
               ,
               ossibus
               ,
               aliisque
               instrumentis
               egredientes
               exovili
               licet
               oves
               immediate
               moriantur
               .
            
             And
             
               Perkins
               cap.
            
             6.
             asserts
             ,
             that
             neither
             defamation
             nor
             threatnings
             ,
             albeit
             what
             is
             threatned
             does
             follow
             ,
             nor
             
               mala
               fama
            
             ,
             nor
             the
             Defuncts
             laying
             the
             blame
             of
             their
             death
             upon
             the
             person
             accused
             (
             called
             inculpatio
             by
             the
             Doctors
             )
             can
             infer
             this
             Crime
             ,
             though
             all
             these
             be
             conjoyned
             ;
             for
             in
             his
             opinion
             ,
             nothing
             can
             be
             a
             sufficient
             ground
             to
             condemn
             a
             Witch
             ,
             except
             the
             Pannels
             own
             confession
             ,
             or
             the
             depositions
             of
             two
             famous
             Witnesses
             ,
             deponing
             upon
             means
             used
             by
             the
             Pannel
             .
             And
             it
             is
             remakable
             ,
             that
             in
             the
             Chapter
             immediatly
             subsequent
             to
             that
             wherein
             Witches
             are
             ordinarily
             to
             be
             put
             to
             death
             ,
             GOD
             hath
             expresly
             ordained
             ,
             that
             
               out
               of
               the
               mouth
               of
               two
               or
               three
               Witnesses
               every
               word
               shall
               be
               established
               .
            
             And
             in
             the
             Process
             deduced
             against
             
               Isobel
               Young
            
             for
             Witch-craft
             ,
             Feb.
             4.
             1629.
             and
             against
             
               Katherine
               Oswald
               ,
               Novemb.
            
             11.
             1629.
             
             This
             point
             is
             likewise
             debated
             ,
             it
             being
             Libel'd
             against
             the
             said
             Katherine
             ,
             that
             by
             her
             Witch-craft
             she
             caused
             a
             Cow
             give
             blood
             instead
             of
             milk
             ;
             and
             caused
             a
             Woman
             fall
             and
             break
             a
             rib
             in
             her
             side
             .
             Against
             which
             it
             was
             alledged
             ,
             that
             there
             was
             no
             necessar
             connexion
             there
             ,
             
               inter
               terminum
               à
               quo
               &
               ad
               quem
               inter
               causam
               &
               effectum
            
             :
             But
             on
             the
             contrary
             ,
             
             the
             Cowes
             giving
             blood
             for
             milk
             might
             proceed
             from
             another
             natural
             cause
             ,
             viz.
             from
             lying
             upon
             an
             Ant
             or
             Emmot
             hill
             ;
             and
             therefore
             I
             think
             that
             because
             we
             know
             not
             what
             vertue
             may
             be
             in
             Herbs
             ,
             Stones
             ,
             or
             other
             things
             which
             may
             be
             applyed
             ,
             it
             were
             very
             hard
             to
             find
             Cures
             performed
             by
             the
             application
             of
             these
             ,
             without
             the
             using
             Charms
             ,
             or
             Spells
             ,
             to
             be
             Witch-craft
             :
             But
             when
             these
             outward
             applications
             are
             used
             ,
             to
             do
             hurt
             ;
             as
             for
             instance
             ,
             if
             the
             said
             
               Margaret
               Wallace
            
             ,
             being
             at
             enmity
             with
             
               Iohn
               Clark
            
             ,
             and
             after
             she
             was
             forbidden
             to
             frequent
             his
             House
             ,
             did
             continue
             to
             frequent
             the
             same
             ,
             and
             did
             throw
             in
             blood
             or
             any
             unusual
             thing
             upon
             his
             Wifes
             Pap
             :
             if
             the
             Child
             who
             suck'd
             the
             same
             had
             thereafter
             died
             ,
             I
             think
             this
             Article
             ,
             joyned
             with
             preceeding
             defamation
             of
             her
             by
             another
             Witch
             ,
             might
             have
             been
             found
             relevant
             ,
             because
             she
             was
             there
             
               in
               re
               illicita
            
             .
             And
             since
             the
             Law
             cannot
             know
             exactly
             what
             efficacy
             there
             is
             in
             natural
             causes
             ,
             it
             may
             very
             well
             discharge
             any
             such
             superstitious
             forbidden
             Acts
             ,
             as
             it
             pleases
             ,
             under
             the
             pain
             of
             Witch-craft
             .
             Nor
             can
             these
             who
             are
             accused
             ,
             complain
             of
             severity
             ,
             since
             
               sibi
               imputent
            
             ,
             that
             use
             these
             forbidden
             things
             against
             the
             express
             commandment
             of
             the
             Law
             ;
             and
             therefore
             since
             the
             Law
             and
             Practick
             hath
             forbidden
             all
             Charms
             ,
             it
             is
             most
             just
             that
             these
             who
             use
             the
             same
             should
             be
             severely
             punished
             ,
             whatever
             the
             pretext
             be
             upon
             which
             they
             are
             used
             ,
             or
             after
             whatever
             way
             or
             manner
             ,
             or
             to
             whatever
             end
             ,
             whether
             good
             or
             bad
             .
          
           
             X.
             Albeit
             
               per
               leg
            
             .
             4.
             
             
               Cod.
               de
               mal
               .
               &
               Math.
            
             these
             Magick
             Arts
             are
             only
             condemned
             ,
             which
             tend
             to
             the
             destruction
             of
             mankind
             ,
             but
             not
             these
             whereby
             men
             are
             cured
             ,
             or
             the
             fruits
             of
             the
             ground
             preserved
             ;
             yet
             I
             have
             oft-times
             imputed
             this
             constitution
             to
             Tribonian
             ,
             who
             was
             a
             Pagan
             ,
             and
             a
             severe
             enemy
             to
             Christians
             ,
             or
             else
             that
             it
             behoved
             to
             be
             so
             interpret
             ,
             or
             that
             thereby
             remedies
             ,
             assisted
             by
             Godly
             Prayers
             ,
             were
             allowed
             ,
             else
             what
             mean
             these
             words
             ,
             
               suffragia
               innocenter
               adhibita
            
             .
             But
             since
             I
             am
             informed
             from
             the
             Ecclesiastick
             Historians
             ,
             as
             
               Zozim
               .
               lib.
            
             2.
             that
             Constantine
             was
             not
             yet
             turn'd
             Christian
             
             when
             he
             past
             that
             constitution
             ;
             but
             however
             this
             constitution
             is
             omitted
             in
             the
             Basilicks
             :
             and
             the
             Gloss
             sayes
             ,
             that
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             it
             was
             not
             thought
             fit
             to
             be
             mentioned
             ,
             in
             the
             repurgation
             of
             the
             Law
             :
             And
             that
             constitution
             was
             very
             well
             reprobat
             by
             Leo's
             65.
             
             Novel
             .
             And
             by
             the
             Canon
             Law
             ,
             
               tit
               .
               de
               sorti-legiis
            
             :
             And
             the
             general
             Sanction
             of
             the
             former
             Act
             of
             Parliament
             leaves
             no
             place
             for
             this
             distinction
             .
             Suitable
             to
             all
             which
             ,
             
               Iohn
               Brough
            
             was
             convict
             for
             Witch-craft
             ,
             in
             Anno
             1643.
             for
             curing
             Beasts
             ,
             by
             casting
             white
             stones
             in
             water
             ,
             and
             sprinkling
             them
             therewith
             ;
             and
             for
             curing
             Women
             ,
             by
             washing
             their
             feet
             with
             South-running
             Water
             ,
             and
             putting
             odd
             money
             in
             the
             Water
             .
             Several
             other
             instances
             are
             to
             be
             seen
             in
             the
             Processes
             led
             in
             Anno
             1661.
             
             And
             the
             instance
             of
             Drummond
             is
             very
             remarkable
             ,
             who
             was
             burnt
             for
             performing
             many
             miraculous
             Cures
             ,
             albeit
             no
             malefice
             was
             ever
             proved
             .
          
           
             XI
             .
             Consulting
             with
             Witches
             is
             a
             relevant
             Ditty
             with
             us
             ,
             as
             was
             found
             against
             
               Alison
               Iollie
               ,
               per.
               Octob.
            
             1596.
             and
             this
             is
             founded
             upon
             the
             express
             words
             of
             the
             Act.
             The
             professing
             likewise
             skill
             in
             Necromancy
             ,
             or
             any
             such
             Craft
             ,
             is
             by
             the
             foresaid
             Act
             of
             Parliament
             a
             relevant
             Article
             .
             For
             the
             full
             clearing
             of
             which
             Act
             ,
             it
             is
             fit
             to
             know
             that
             Divination
             was
             either
             
               per
               daemono-mantiam
            
             ,
             the
             invocation
             of
             Pagan
             Gods
             ,
             or
             Nanganiam
             ,
             which
             was
             the
             Prophecying
             for
             invocation
             of
             some
             Sublunary
             thing
             .
             Mangania
             is
             divided
             in
             Necromantiam
             ,
             which
             was
             a
             Prophecying
             by
             departed
             Spirits
             ,
             Udromantiam
             ,
             which
             was
             a
             Divination
             by
             Water
             ,
             &c.
             
             All
             which
             species
             and
             kinds
             of
             Divinations
             by
             any
             thing
             ,
             is
             comprehended
             under
             the
             general
             prohibition
             of
             Necromancy
             ,
             and
             such
             like
             Acts
             :
             So
             that
             Predictions
             and
             Responses
             by
             the
             Sieve
             ,
             and
             the
             Shear
             ,
             and
             by
             the
             Book
             ,
             and
             all
             such
             cheats
             and
             species
             of
             Sorcery
             are
             punishable
             by
             death
             in
             this
             Act
             :
             Yet
             these
             forbidden
             practices
             may
             sometimes
             be
             excused
             by
             ignorance
             ,
             or
             if
             it
             can
             be
             cleared
             by
             circumstances
             ,
             that
             the
             user
             designed
             nothing
             but
             an
             innocent
             jest
             or
             recreation
             ,
             
               Delrio
               lib.
            
             4.
             cap.
             1.
             quaest
             4.
             
          
           
           
             XII
             .
             The
             last
             Article
             in
             Criminal
             Libels
             useth
             ordinarily
             to
             be
             the
             being
             delated
             by
             other
             Witches
             ,
             which
             the
             Doctors
             calls
             diffamatio
             ,
             and
             we
             
               common
               bruit
               and
               open
               fame
            
             ,
             which
             are
             never
             sustained
             as
             relevant
             ,
             
               per
               se
            
             ,
             but
             only
             joyned
             with
             other
             relevant
             Articles
             ,
             as
             is
             to
             be
             seen
             in
             the
             foresaid
             Process
             of
             
               Margaret
               Hutchison
            
             ,
             though
             I
             think
             that
             Interloquutor
             very
             severe
             ,
             since
             if
             any
             of
             the
             former
             Articles
             be
             
               per
               se
            
             relevant
             ,
             they
             need
             not
             the
             assistance
             of
             fame
             and
             delation
             .
             Sometimes
             likewise
             ,
             but
             with
             much
             more
             reason
             ,
             Articles
             that
             are
             of
             themselves
             irrelevant
             are
             sustained
             relevant
             ,
             being
             joyned
             with
             fame
             and
             delation
             ;
             an
             example
             whereof
             is
             to
             be
             seen
             in
             the
             9th
             Article
             of
             the
             Inditement
             against
             
               Ianet
               Cock
               ,
               Septemb.
            
             7.
             1661.
             
             In
             which
             Article
             she
             was
             accused
             for
             having
             recovered
             a
             Child
             by
             Charms
             ,
             with
             the
             help
             of
             another
             Witch
             ;
             which
             other
             Witch
             had
             confessed
             the
             same
             when
             she
             was
             confronted
             with
             the
             said
             Ianet
             :
             Likeas
             both
             of
             them
             were
             found
             lying
             above
             the
             Child
             ,
             whispering
             one
             to
             another
             ,
             and
             the
             blood
             of
             a
             Dog
             was
             found
             standing
             in
             a
             Plate
             beside
             them
             ;
             which
             Article
             was
             not
             sustained
             relevant
             
               per
               se
            
             ,
             but
             was
             found
             relevant
             ,
             being
             joyned
             with
             same
             and
             delation
             .
          
           
             XIII
             .
             The
             relevancy
             of
             this
             Crime
             being
             thus
             discussed
             ,
             the
             ordinary
             probation
             of
             it
             is
             ,
             by
             Confession
             or
             Witnesses
             ;
             but
             the
             probation
             here
             should
             be
             very
             clear
             ,
             and
             it
             should
             be
             certain
             that
             the
             person
             who
             emitted
             it
             is
             not
             weary
             of
             life
             ,
             or
             opprest
             with
             melancholly
             .
             2.
             
             Albeit
             
               non
               requiritur
               hic
               ut
               constet
               de
               corpore
               delicti
               ,
            
             this
             being
             a
             Crime
             which
             consists
             oft-times
             
               in
               animo
            
             ;
             yet
             it
             ought
             to
             be
             such
             as
             contains
             nothing
             in
             it
             that
             is
             impossible
             or
             improbable
             .
             And
             thus
             albeit
             
               Isobel
               Ramsay
            
             did
             upon
             the
             20.
             of
             August
             1661.
             confess
             that
             the
             Devil
             gave
             her
             six
             pence
             ,
             and
             said
             that
             GOD
             desi●ed
             him
             to
             give
             it
             her
             :
             and
             at
             another
             time
             a
             Dollor
             ,
             which
             turn'd
             thereafter
             in
             a
             
             Slait-stone
             ;
             the
             Justices
             did
             not
             find
             this
             confession
             ,
             though
             judicial
             ,
             relevant
             .
             And
             to
             know
             what
             things
             are
             of
             themselves
             impossible
             for
             the
             Devil
             to
             do
             ,
             or
             at
             least
             what
             is
             believed
             to
             be
             impossible
             ,
             may
             be
             seen
             very
             fully
             treated
             of
             in
             
             Delrio's
             second
             Book
             ,
             
             where
             it
             is
             condescended
             that
             
               succubi
               &
               incubi
               sunt
               possibiles
               ,
               id
               est
               ,
            
             that
             the
             Devil
             may
             ly
             in
             the
             shape
             of
             a
             man
             with
             a
             woman
             ,
             or
             in
             the
             shape
             of
             a
             woman
             with
             a
             man
             ,
             having
             first
             formed
             to
             himself
             a
             body
             of
             condensed
             Air
             ;
             and
             upon
             such
             a
             confession
             as
             this
             ,
             
               Margaret
               Lawder
            
             and
             others
             were
             convict
             .
             It
             is
             likewise
             possible
             for
             the
             Devil
             to
             transport
             Witches
             to
             their
             publick
             Conventions
             ,
             from
             one
             place
             to
             another
             ,
             which
             he
             may
             really
             do
             ,
             by
             carrying
             them
             :
             and
             sundry
             Witches
             were
             in
             Anno
             1665.
             burnt
             in
             Culross
             upon
             such
             a
             confession
             as
             this
             .
          
           
             XIV
             .
             It
             may
             be
             ,
             I
             confess
             ,
             argued
             ,
             that
             Spirits
             and
             immaterial
             substances
             cannot
             touch
             things
             material
             ,
             and
             consequently
             can
             neither
             raise
             nor
             transport
             them
             :
             but
             if
             we
             consider
             how
             the
             Adamant
             raises
             and
             transports
             the
             Iron
             ,
             and
             how
             the
             soul
             of
             man
             ,
             which
             is
             a
             Spirit
             ,
             can
             raise
             or
             transport
             the
             body
             ;
             and
             that
             a
             mans
             voice
             ,
             or
             a
             Musical
             sound
             is
             able
             to
             occasion
             great
             and
             extraordinary
             motions
             in
             other
             men
             ,
             we
             may
             easily
             conclude
             ,
             that
             Devils
             ,
             who
             are
             Spirits
             of
             far
             more
             Energy
             ,
             may
             produce
             effects
             surpassing
             very
             far
             our
             understanding
             .
             And
             yet
             I
             do
             not
             deny
             but
             that
             the
             Devil
             does
             sometimes
             perswade
             the
             Witches
             that
             they
             are
             carried
             to
             places
             where
             they
             never
             were
             ,
             making
             those
             impressions
             upon
             their
             spirits
             ,
             and
             acquainting
             them
             what
             was
             done
             there
             ,
             which
             is
             done
             by
             impressing
             Images
             upon
             their
             Brain
             ,
             and
             which
             Images
             are
             carried
             to
             the
             exterior
             senses
             by
             the
             animal
             Spirits
             ,
             even
             as
             we
             see
             the
             Air
             carries
             the
             species
             of
             colours
             upon
             it
             ,
             though
             in
             a
             very
             insensible
             way
             :
             and
             thus
             we
             see
             likewise
             ,
             that
             the
             sumes
             of
             Wine
             or
             Melancholy
             will
             represent
             strange
             apparitions
             ,
             and
             make
             us
             think
             them
             real
             .
             Nor
             ought
             it
             to
             be
             concluded
             that
             because
             those
             Witches
             are
             only
             transported
             in
             Spirit
             ,
             or
             in
             Dreams
             ,
             that
             therefore
             they
             ought
             not
             to
             be
             punish'd
             ,
             since
             none
             can
             be
             punished
             for
             dreaming
             ;
             and
             that
             because
             those
             Witches
             desire
             to
             have
             these
             Dreams
             ,
             and
             glory
             in
             them
             when
             they
             are
             awake
             :
             nor
             have
             any
             these
             Dreams
             but
             such
             as
             have
             entered
             into
             a
             preceeding
             paction
             .
             I
             know
             that
             the
             Canon
             Episcopi
             in
             the
             Council
             
             of
             Anacir
             ,
             (
             or
             the
             Aquilean
             Council
             ,
             as
             others
             call
             it
             )
             does
             condemn
             these
             transportations
             ,
             as
             false
             and
             meer
             delusions
             ,
             which
             are
             imprest
             upon
             the
             fancy
             of
             poor
             Creatures
             by
             the
             Devil
             ,
             
               &
               cum
               solus
               spiritus
               haec
               patitur
               ,
               nec
               non
               in
               animo
               sed
               in
               corpore
               inveniri
               opinantur
               ,
            
             but
             that
             Act
             of
             that
             Council
             does
             not
             assert
             all
             transportations
             to
             be
             imaginary
             ,
             and
             Dreams
             ,
             but
             only
             declares
             those
             who
             thought
             they
             follow'd
             Diana
             and
             Herodias
             to
             these
             publick
             meetings
             ,
             to
             be
             altogether
             seduced
             ,
             for
             these
             indeed
             were
             seduced
             ;
             for
             Herodias
             being
             dead
             long
             since
             ,
             could
             not
             be
             at
             their
             meetings
             .
             But
             from
             that
             it
             is
             unjustly
             concluded
             ,
             that
             there
             are
             no
             real
             transportations
             ,
             there
             being
             so
             many
             instances
             of
             these
             transportations
             given
             ,
             both
             in
             Sacred
             and
             prophane
             Story
             ;
             and
             persons
             having
             been
             found
             wounded
             ,
             and
             having
             really
             committed
             Murders
             and
             other
             insolencies
             ,
             during
             these
             transportations
             .
          
           
             XV.
             Whether
             it
             be
             possible
             for
             a
             Witch
             to
             cause
             any
             person
             be
             possest
             ,
             by
             putting
             Devils
             into
             their
             body
             ,
             may
             be
             debated
             ;
             and
             that
             it
             is
             possible
             ,
             appears
             from
             the
             History
             of
             
               Simon
               Magus
            
             ,
             and
             many
             others
             ,
             and
             is
             testified
             to
             be
             true
             by
             St.
             Ierome
             ,
             in
             the
             life
             of
             St.
             Hilarion
             .
             And
             since
             Witches
             have
             confest
             that
             there
             are
             Devils
             who
             obey
             one
             another
             ,
             and
             that
             there
             are
             different
             degrees
             amongst
             them
             ;
             why
             may
             not
             those
             of
             an
             inferiour
             degree
             be
             forced
             ,
             by
             vertue
             of
             a
             paction
             with
             those
             of
             a
             superior
             order
             ,
             to
             possess
             men
             and
             women
             at
             the
             desire
             of
             Witches
             ?
             Witches
             themselves
             have
             confest
             that
             this
             hath
             been
             done
             .
             And
             I
             find
             by
             a
             decision
             of
             the
             Parliament
             of
             Thelodus
             ,
             that
             Devils
             have
             been
             heard
             to
             complain
             in
             those
             that
             were
             possest
             ,
             that
             they
             were
             put
             there
             by
             the
             inchantment
             of
             such
             and
             such
             women
             :
             But
             upon
             the
             other
             hand
             ,
             it
             is
             not
             to
             be
             imagined
             that
             Devils
             would
             obey
             mortal
             creatures
             ,
             or
             that
             GOD
             would
             leave
             so
             great
             a
             power
             to
             any
             of
             them
             to
             torment
             poor
             mortals
             :
             And
             the
             Devil
             ,
             who
             is
             a
             liar
             from
             the
             beginning
             ,
             is
             not
             to
             be
             believed
             ,
             in
             saying
             that
             he
             is
             put
             there
             by
             Inchantments
             ;
             and
             though
             he
             make
             such
             promises
             to
             Witches
             ,
             yet
             he
             does
             in
             these
             but
             cheat
             them
             :
             and
             if
             the
             Devil
             could
             possess
             
             at
             pleasure
             ,
             we
             would
             see
             many
             more
             possest
             then
             truly
             there
             are
             .
          
           
             XVI
             .
             The
             Devil
             cannot
             make
             one
             solid
             body
             to
             penetrat
             another
             ,
             Quest.
             17.
             and
             therefore
             I
             think
             that
             Article
             libel'd
             against
             
               Margaret
               Hutchison
            
             ,
             of
             coming
             to
             Iohn
             Clark's
             house
             ,
             when
             doors
             and
             windows
             were
             shut
             ,
             should
             not
             have
             been
             admitted
             to
             probation
             ,
             since
             it
             is
             very
             probable
             they
             would
             have
             searched
             the
             house
             after
             the
             second
             or
             third
             nights
             fear
             ;
             and
             she
             could
             not
             penetrat
             doors
             nor
             walls
             .
          
           
             XVII
             .
             The
             Devil
             cannot
             transform
             one
             species
             into
             another
             ,
             as
             a
             woman
             into
             a
             cat
             ,
             for
             else
             he
             behoved
             to
             annihilat
             some
             of
             the
             substance
             of
             the
             woman
             ,
             or
             creat
             some
             more
             substance
             to
             the
             cat
             ,
             the
             one
             being
             much
             more
             then
             the
             other
             ;
             and
             the
             Devil
             can
             neither
             annihilat
             or
             creat
             ,
             nor
             could
             he
             make
             the
             shapes
             return
             ,
             
               nam
               non
               datur
               regressus
               à
               privatione
               ad
               habitum
               :
            
             But
             if
             we
             consider
             the
             strange
             tricks
             of
             Juglers
             ,
             and
             the
             strange
             apparitions
             that
             Kercher
             and
             others
             relate
             from
             natural
             causes
             ,
             we
             may
             believe
             that
             the
             Devil
             may
             make
             a
             woman
             appear
             to
             be
             a
             beast
             ,
             
               &
               è
               contra
            
             ,
             by
             either
             abusing
             the
             sense
             of
             the
             beholders
             ,
             or
             altering
             the
             Medium
             ,
             by
             inclosing
             them
             in
             the
             skin
             of
             the
             beast
             represented
             ,
             or
             by
             inclosing
             them
             in
             a
             body
             of
             air
             ,
             shap'd
             like
             that
             which
             he
             would
             have
             them
             represent
             ,
             and
             the
             ordinary
             relation
             of
             the
             witnesses
             ,
             being
             wounded
             when
             the
             Beast
             was
             wounded
             ,
             in
             which
             they
             were
             changed
             ,
             may
             be
             likewise
             true
             ,
             either
             by
             their
             being
             really
             wounded
             within
             the
             body
             of
             air
             in
             which
             they
             were
             inclosed
             ,
             or
             by
             the
             Devils
             inflicting
             that
             wound
             really
             himself
             ,
             which
             is
             
             Delrio's
             opinion
             .
             But
             it
             would
             seem
             hard
             to
             condemn
             any
             person
             upon
             the
             confession
             of
             what
             seems
             almost
             impossible
             in
             it self
             :
             And
             I
             cannot
             allow
             instances
             in
             the
             Journal
             Books
             ,
             where
             poor
             creatures
             have
             been
             burnt
             upon
             such
             confessions
             ,
             without
             other
             strong
             adminicles
             .
          
           
             XVIII
             .
             The
             Devil
             may
             make
             Bruits
             to
             speak
             ,
             or
             at
             least
             speak
             out
             of
             them
             ,
             Quest.
             18.
             
          
           
             He
             can
             also
             raise
             storms
             in
             the
             Air
             ,
             and
             calm
             these
             that
             are
             
             raised
             ,
             Quest.
             11.
             
             And
             yet
             it
             being
             libel'd
             against
             
               Ianet
               Cock
            
             ,
             that
             she
             said
             to
             these
             who
             were
             carrying
             a
             Witch
             to
             be
             execute
             ,
             
               were
               it
               not
               a
               good
               sport
               if
               the
               Devil
               should
               take
               her
               from
               you
            
             ;
             likeas
             a
             great
             storm
             did
             overtake
             them
             when
             they
             were
             carrying
             her
             to
             the
             place
             ,
             it
             having
             been
             a
             great
             calm
             both
             before
             and
             after
             ;
             yet
             this
             Article
             was
             not
             sustained
             relevant
             ,
             since
             it
             might
             have
             proceeded
             from
             folly
             ,
             or
             jest
             ,
             or
             
               van●
               jactantia
            
             :
          
           
             XIX
             .
             The
             Devil
             may
             inflict
             diseases
             ,
             which
             is
             an
             effect
             he
             may
             occasion
             
               applicando
               act
               va
               passivis
            
             ,
             and
             by
             the
             same
             means
             he
             may
             likewise
             cure
             :
             A
             clear
             instance
             whereof
             appears
             in
             the
             Marriage-knot
             .
             And
             not
             only
             may
             he
             cure
             diseases
             laid
             on
             by
             himself
             ,
             as
             Wierus
             observes
             ,
             but
             even
             natural
             diseases
             ,
             since
             he
             knows
             the
             natural
             causes
             and
             the
             origin
             of
             even
             these
             natural
             diseases
             ,
             better
             then
             Physicians
             can
             ,
             who
             are
             not
             present
             when
             diseases
             are
             contracted
             ,
             and
             who
             being
             younger
             then
             he
             ,
             must
             h●ve
             less
             experience
             .
             And
             it
             is
             as
             untrue
             that
             
               Divus
               Thomas
            
             observes
             ,
             who
             asserts
             that
             cures
             performed
             by
             the
             Devil
             cannot
             continue
             ,
             since
             his
             Cures
             are
             not
             natural
             .
             And
             since
             he
             both
             may
             make
             sick
             ,
             and
             may
             make
             whole
             ,
             it
             follows
             that
             he
             may
             transferr
             a
             disease
             from
             one
             person
             to
             another
             .
             And
             I
             find
             that
             it
             being
             libell'd
             against
             
               Margaret
               Hutchison
            
             ,
             that
             she
             took
             a
             disease
             off
             a
             Woman
             to
             put
             it
             on
             a
             Cat
             :
             It
             was
             alledged
             that
             this
             Article
             was
             not
             relevant
             ;
             because
             ,
             1.
             
             
               Una
               saga
               non
               potest
               esse
               ligans
               &
               solvens
               in
               eodem
               morbo
               .
            
             2.
             
             That
             in
             such
             transactions
             as
             these
             ,
             the
             Devil
             never
             used
             to
             interpose
             his
             skill
             ,
             except
             where
             he
             was
             a
             gainer
             ;
             and
             therefore
             though
             he
             would
             transfer
             a
             disease
             from
             a
             bruit
             beast
             to
             a
             rational
             creature
             ,
             yet
             he
             would
             never
             transfer
             a
             disease
             from
             a
             rational
             c●eature
             to
             a
             bruit
             beast
             ;
             both
             these
             defences
             were
             repelled
             .
             Many
             Witches
             likewise
             confess
             that
             they
             cannot
             cure
             diseases
             ,
             because
             they
             are
             laid
             on
             by
             Witches
             of
             a
             superior
             order
             ,
             who
             depend
             upon
             Spirits
             of
             a
             higher
             degree
             .
          
           
             Some
             think
             that
             they
             may
             innocently
             imploy
             a
             Witch
             to
             take
             off
             the
             disease
             imposed
             by
             another
             ,
             and
             lay
             it
             upon
             the
             Witch
             who
             imposed
             it
             ,
             even
             as
             men
             may
             innocently
             borrow
             
             money
             from
             an
             Usurer
             ,
             to
             be
             imployed
             for
             pious
             uses
             ,
             or
             may
             cause
             an
             Infidel
             swear
             by
             his
             false
             Gods
             ,
             for
             eliciting
             truth
             :
             and
             that
             in
             this
             manner
             Devils
             are
             rather
             punish'd
             then
             serv'd
             .
             But
             since
             all
             commerce
             with
             Devils
             is
             unlawful
             ,
             this
             practice
             is
             justly
             reprobated
             by
             D
             ,
             
               Autun
               ,
               p.
            
             2.
             discourse
             48.
             
             But
             yet
             it
             is
             thought
             lawful
             to
             all
             who
             are
             bewitched
             ,
             to
             desire
             the
             bewitchers
             to
             take
             off
             the
             disease
             ,
             if
             it
             can
             be
             removed
             without
             a
             new
             application
             to
             the
             Devil
             ,
             but
             only
             by
             taking
             away
             the
             old
             charm
             ;
             or
             it
             is
             lawful
             to
             any
             to
             remove
             the
             charm
             or
             sign
             of
             it
             ,
             if
             it
             be
             in
             their
             power
             ,
             
               D
               ,
               Autun
               .
               pag.
            
             825.
             
          
           
             XX.
             Witches
             may
             kill
             by
             their
             looks
             ,
             which
             looks
             being
             full
             of
             venomous
             spirits
             ,
             may
             infect
             the
             person
             upon
             whom
             they
             look
             ,
             and
             this
             is
             called
             
               fascinatio
               physica
               ,
               sed
               fascinatio
               vulgaris
               ,
               quae
               dicitur
               fieri
               per
               oculos
               tenerorum
               puerorum
               vel
               parvorum
               porcorum
               vana
               est
               &
               ridicula
               ,
               Del.
               lib.
            
             3.
             
             Q.
             4.
             
             Sect.
             1.
             
          
           
             I
             know
             there
             are
             who
             think
             all
             kinds
             of
             fascination
             by
             the
             eyes
             ,
             either
             an
             effect
             of
             fancy
             in
             the
             person
             affected
             ,
             or
             else
             think
             it
             a
             meer
             illusion
             of
             the
             Devil
             ,
             who
             perswades
             Witches
             that
             he
             can
             bestow
             upon
             them
             the
             power
             of
             killing
             by
             looks
             ,
             or
             else
             the
             Devil
             really
             kills
             ,
             and
             ascribes
             it
             falsly
             to
             their
             looks
             :
             whereas
             others
             contend
             that
             by
             the
             received
             opinion
             of
             all
             Historians
             ,
             men
             have
             been
             found
             to
             be
             injured
             by
             the
             looks
             of
             Witches
             :
             and
             why
             may
             not
             Witches
             poyson
             this
             way
             ,
             as
             well
             as
             the
             Basilisk
             doth
             ?
             Or
             why
             may
             not
             the
             spirits
             in
             the
             eye
             affect
             as
             well
             as
             the
             breath
             ?
             Or
             why
             may
             not
             looks
             kill
             as
             well
             as
             raise
             passions
             in
             the
             person
             lookt
             upon
             ?
             Nor
             can
             it
             be
             denyed
             but
             that
             blear'dness
             is
             begot
             by
             blear'dness
             ;
             and
             that
             menstruous
             women
             will
             spoyl
             a
             Mirrour
             by
             looking
             upon
             it
             .
             Likeas
             there
             seems
             even
             some
             ground
             for
             it
             in
             Scripture
             ;
             for
             ,
             Deut.
             28.54
             .
             it
             is
             said
             ,
             
               that
               a
               mans
               eyes
               shall
               be
               evil
               towards
               his
               brother
               .
            
             And
             some
             likewise
             endeavour
             by
             consequence
             from
             Matth.
             20.15
             .
             
               Is
               thine
               eye
               evil
            
             :
             the
             word
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             signifying
             in
             Scripture
             both
             to
             bewitch
             and
             to
             envy
             .
             Some
             likewise
             think
             that
             St.
             
               Paul
               Gal.
            
             3.1
             .
             alludes
             to
             this
             received
             opinion
             ,
             but
             conjecture
             doth
             so
             much
             over-rule
             all
             this
             affair
             ,
             that
             it
             
             were
             hard
             to
             fix
             crimes
             upon
             so
             slender
             grounds
             :
             And
             therefore
             though
             where
             Witches
             confess
             that
             they
             did
             kill
             by
             their
             looks
             ,
             their
             confession
             and
             belief
             may
             ,
             if
             they
             be
             otherwise
             of
             a
             sound
             judgement
             ,
             make
             a
             very
             considerable
             part
             of
             a
             crime
             ,
             where
             it
             is
             joyned
             with
             other
             probabilities
             ,
             yet
             
               per
               se
            
             it
             is
             hardly
             relevant
             .
          
           
             XXI
             .
             It
             may
             be
             also
             doubted
             whether
             Witches
             can
             by
             amorous
             potions
             inchant
             men
             or
             women
             to
             love
             :
             and
             though
             it
             may
             seem
             that
             these
             being
             acts
             of
             the
             soul
             ,
             cannot
             be
             raised
             by
             any
             corporeal
             means
             ,
             yet
             l.
             4.
             
               c.
               de
               Malef.
               &
               Mathemat
            
             .
             makes
             this
             possible
             ,
             and
             punishable
             ,
             
               eorum
               scientia
               punienda
               ,
               &
               severissimis
               merito
               legibus
               vindicanda
               ,
               qui
               magicis
               accincti
               artibus
               pudicos
               ad
               libidinem
               de
               fixisse
               animos
               deteguntur
            
             :
             But
             this
             Law
             speaks
             only
             of
             lust
             ,
             and
             not
             of
             love
             ,
             as
             I
             conceive
             .
             Nor
             can
             it
             be
             denyed
             ,
             but
             that
             not
             only
             Witches
             ,
             but
             even
             Naturalists
             may
             give
             Potions
             that
             may
             incline
             men
             or
             women
             to
             lust
             .
             And
             therefore
             the
             question
             still
             remains
             ,
             whether
             Witches
             may
             incline
             men
             or
             women
             by
             Potions
             to
             a
             fancy
             and
             kindness
             for
             any
             particular
             person
             ;
             and
             though
             Potions
             may
             incline
             men
             to
             madness
             ,
             yet
             it
             doth
             not
             follow
             that
             therefore
             they
             may
             incline
             them
             to
             love
             .
             And
             though
             
               D
               ,
               Autun
            
             doth
             bring
             many
             Arguments
             from
             History
             ,
             and
             pretends
             that
             the
             Devil
             may
             raise
             and
             excite
             the
             old
             species
             of
             love
             which
             ly
             hidden
             in
             the
             body
             ,
             and
             may
             thereby
             form
             a
             passion
             ,
             yet
             these
             are
             too
             conjectural
             grounds
             to
             be
             the
             foundation
             of
             a
             criminal
             sentence
             .
             The
             Basilicks
             make
             the
             punishment
             of
             this
             to
             be
             deportation
             ,
             and
             so
             supplies
             the
             former
             Law.
             
          
           
             XXII
             .
             Witches
             do
             likewise
             torment
             mankind
             ,
             by
             making
             Images
             of
             Clay
             or
             Wax
             ,
             and
             when
             the
             Witches
             prick
             or
             punse
             these
             Images
             ,
             the
             persons
             whom
             these
             Images
             represent
             ,
             do
             find
             extream
             torment
             ,
             which
             doth
             not
             proceed
             from
             any
             influence
             these
             Images
             have
             upon
             the
             body
             tormented
             ,
             but
             the
             Devil
             doth
             by
             natural
             means
             raise
             these
             torments
             in
             the
             person
             tormented
             at
             the
             same
             very
             time
             that
             the
             Witches
             do
             prick
             or
             punse
             ,
             or
             hold
             to
             the
             fire
             these
             Images
             of
             Clay
             or
             Wax
             ;
             which
             
             manner
             of
             torment
             was
             lately
             confess'd
             by
             some
             Witches
             in
             Inverness
             ,
             who
             likewise
             produced
             the
             Images
             ,
             and
             it
             was
             well
             known
             they
             hated
             the
             person
             who
             was
             tormented
             ,
             and
             upon
             a
             confession
             so
             adminiculat
             ,
             Witches
             may
             very
             judiciously
             be
             be
             found
             guilty
             ,
             since
             
               constat
               de
               corpore
               delicti
               de
               modo
               de
               linquendi
               &
               inimicitiis
               praeviis
               .
            
          
           
             XXIII
             .
             It
             is
             ordinarily
             doubted
             whether
             confessions
             emitted
             before
             the
             Kirk
             Sessions
             in
             this
             case
             be
             sufficient
             :
             But
             this
             I
             have
             treated
             more
             fully
             in
             the
             Title
             of
             Probation
             by
             Confession
             .
             Only
             here
             I
             shall
             observe
             ,
             that
             
               Christian
               Stewart
            
             was
             found
             Art
             and
             Part
             of
             the
             bewitching
             
               Patrick
               Ruthven
            
             ,
             by
             laying
             on
             him
             a
             heavy
             sickness
             with
             a
             black
             Clout
             ,
             which
             she
             her self
             had
             confest
             before
             several
             Ministers
             ,
             Nottars
             ,
             and
             others
             ,
             at
             diverse
             times
             ;
             all
             which
             confessions
             were
             proved
             :
             and
             upon
             these
             repeated
             confessions
             she
             was
             burnt
             ,
             Novemb.
             1596.
             
             
               Margaret
               Lawder
            
             was
             convict
             upon
             confession
             emitted
             before
             the
             Magistrats
             and
             Ministers
             of
             Edinburgh
             ,
             albeit
             past
             from
             in
             Judgement
             ,
             Decemb.
             9.
             1643.
             see
             that
             Book
             of
             Adjournal
             ,
             pag.
             349.
             
             And
             if
             the
             confession
             be
             not
             fully
             adminiculat
             ,
             Lawyers
             advise
             that
             confessors
             should
             be
             subjec●●d
             to
             the
             torture
             ,
             which
             is
             not
             usual
             in
             Scotland
             .
             And
             it
             is
             very
             observable
             that
             the
             Justices
             would
             not
             put
             
               Iames
               Welch
            
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             though
             he
             had
             confest
             himself
             a
             Witch
             before
             the
             Presbytery
             of
             Kirkcudbright
             ,
             because
             he
             was
             Minor
             when
             he
             confest
             the
             Crime
             ,
             and
             the
             confession
             was
             only
             extrajudicial
             ,
             and
             that
             he
             now
             retracted
             the
             same
             ;
             but
             because
             he
             had
             so
             grossely
             prevaricat
             ,
             and
             had
             delated
             so
             many
             honest
             persons
             ,
             they
             ordained
             him
             to
             be
             scourged
             and
             put
             in
             the
             Correction
             house
             ,
             April
             17.
             1662.
             
             It
             was
             proved
             against
             
               Margaret
               Wallace
               ,
               March
            
             20.
             1622.
             that
             she
             said
             that
             if
             it
             could
             be
             proved
             that
             she
             was
             in
             Gregs
             House
             ,
             she
             should
             be
             guilty
             of
             all
             the
             Ditty
             ;
             and
             therefore
             it
             being
             proved
             that
             she
             was
             in
             Gregs
             House
             ,
             that
             probation
             was
             alledged
             by
             the
             Advocat
             to
             be
             equivalent
             to
             a
             confession
             ,
             as
             was
             found
             against
             
               Patrick
               Cheyn
            
             :
             To
             which
             it
             was
             replyed
             ,
             that
             this
             could
             amount
             to
             
             no
             more
             then
             a
             lie
             ;
             and
             in
             my
             opinion
             ,
             it
             could
             not
             have
             even
             the
             strength
             of
             an
             extrajudicial
             confession
             ,
             but
             rather
             imported
             a
             denyal
             of
             the
             Crime
             .
          
           
             XXIV
             .
             The
             probation
             by
             Witness
             in
             this
             Crime
             is
             very
             difficult
             ,
             and
             therefore
             
               socii
               criminis
            
             ,
             or
             other
             confessing
             Witches
             are
             adduced
             ;
             but
             though
             many
             of
             them
             concur
             ,
             their
             depositions
             solely
             are
             not
             esteemed
             as
             sufficient
             ,
             
               ne
               vel
               ad
               poenam
               extraordinariam
               imponendam
               ,
            
             though
             some
             think
             the
             same
             sufficient
             to
             that
             end
             ,
             because
             of
             that
             general
             Brocard
             ,
             
               ex
               multiplicatis
               indiciis
               debilibus
               resultare
               indicia
               indubitata
               :
            
             But
             Delrio
             asserts
             ,
             that
             the
             conjection
             of
             such
             testimonies
             is
             not
             sufficient
             ,
             
               Nanquam
               enim
            
             ,
             saith
             he
             ,
             
               quae
               sua
               natura
               dubia
               sunt
               possunt
               facere
               rem
               indubitatam
               ut
               nec
               multa
               aegraunumsanum
               nec
               multa
               non
               alba
               unus
               album
               nec
               multa
               tepida
               anum
               callidum
               .
            
             And
             that
             the
             testimony
             of
             one
             confessing
             Witch
             was
             found
             not
             sufficient
             to
             file
             the
             Pannel
             ,
             is
             clear
             by
             the
             Process
             of
             
               Alison
               Iollie
            
             ,
             who
             was
             assoilzied
             
               pen.
               Octob.
            
             1596.
             
             Albeit
             
               Ianet
               Hepburn
            
             another
             Witch
             confest
             that
             the
             said
             Alison
             had
             caused
             her
             bewitch
             
               Isobel
               Hepburn
            
             ,
             whereof
             she
             died
             ;
             but
             though
             VVitch-craft
             cannot
             be
             proved
             
               per
               socios
               criminis
            
             ,
             though
             dying
             and
             penitent
             VVitches
             ,
             yet
             it
             may
             be
             doubted
             if
             the
             consulting
             VVitches
             may
             not
             be
             proved
             by
             two
             VVitches
             who
             were
             consulted
             :
             for
             if
             this
             be
             not
             a
             sufficient
             probation
             ,
             it
             would
             be
             impossible
             to
             prove
             consulting
             any
             other
             manner
             of
             way
             .
          
           
             The
             persons
             to
             whom
             the
             injuries
             are
             done
             by
             the
             VVitches
             are
             admitted
             to
             be
             VVitnesses
             :
             thus
             
               Katherine
               Wardlaw
            
             was
             admitted
             against
             
               Margaret
               Hutchison
            
             ;
             but
             sometimes
             they
             are
             only
             admitted
             
               cum
               nota
            
             ,
             if
             the
             probation
             be
             not
             otherwise
             weak
             ,
             and
             thus
             
               William
               Young
            
             and
             
               Agnes
               Hutchison
            
             were
             only
             admitted
             
               cum
               nota
            
             against
             
               Beatrix
               Leslie
               ,
               August
            
             1661.
             
             And
             in
             that
             Process
             likewise
             they
             received
             only
             
               Agnes
               Ross
               cum
               nota
            
             ,
             because
             she
             was
             the
             Mistriss
             of
             the
             two
             VVomen
             who
             were
             maleficiat
             .
             Neilson
             was
             admitted
             to
             be
             an
             Assizer
             against
             
               Margaret
               Wallace
            
             ,
             though
             he
             was
             Brother
             in
             Law
             to
             
               Iohn
               Nicol
            
             ,
             
             who
             had
             given
             information
             for
             raising
             the
             Ditty
             ,
             because
             the
             Ditty
             was
             not
             at
             Nicols
             instance
             ;
             and
             yet
             Starling
             was
             set
             from
             being
             an
             Assizer
             ,
             because
             Moor
             who
             was
             alledged
             to
             be
             one
             of
             the
             persons
             maleficiat
             was
             his
             Brother
             in
             Law.
             March
             2.
             1622.
             
             Dickson
             was
             there
             likewise
             admitted
             to
             be
             an
             Assizer
             ,
             though
             he
             assisted
             the
             Bailie
             in
             taking
             her
             ,
             which
             was
             found
             the
             office
             of
             a
             good
             Citizen
             ,
             and
             though
             he
             had
             deadly
             fead
             against
             her
             Husband
             ,
             since
             it
             was
             not
             proved
             he
             had
             any
             against
             her self
             .
          
           
             Women
             are
             received
             Witnesses
             in
             this
             Crime
             ,
             as
             is
             clear
             by
             the
             Process
             against
             
               Margaret
               Wallace
            
             ,
             and
             all
             the
             Processes
             in
             August
             1661.
             
             The
             not
             shedding
             of
             tears
             hath
             been
             used
             as
             a
             mark
             and
             presumption
             of
             Witch-craft
             ,
             
               Sprenger
               .
               mal
               .
               malef
               .
               p.
            
             3.
             q.
             15.
             because
             it
             is
             a
             mark
             of
             impenitence
             ;
             And
             because
             several
             Witches
             have
             confest
             they
             could
             not
             weep
             :
             But
             the
             being
             accused
             of
             so
             horrid
             a
             Crime
             may
             occasion
             a
             deep
             melancholly
             ;
             and
             melancholy
             being
             cold
             and
             dry
             ,
             hinders
             the
             sheding
             of
             tears
             :
             and
             great
             griefs
             do
             rather
             astonish
             then
             make
             one
             weep
             .
          
           
             XXV
             .
             The
             punishment
             of
             this
             Crime
             is
             with
             us
             death
             by
             the
             foresaid
             Act
             of
             Parliament
             ,
             to
             be
             execute
             as
             well
             against
             the
             user
             as
             the
             seeker
             of
             any
             response
             or
             consultation
             ,
             
               &
               de
               practica
            
             ,
             the
             Doom
             bears
             ,
             to
             be
             worried
             at
             the
             Stake
             ,
             and
             burnt
             .
          
           
             By
             the
             Civil
             Law
             ,
             Consulters
             were
             punished
             by
             death
             ,
             l.
             5.
             
             
               C.
               de
               mafef
               .
               &
               mathem
               .
               nemo
               aruspicem
               consulat
               ,
               aut
               mathematicum
               nemo
               ariolum
               ,
               angurum
               et
               vatum
               prava
               confessio
               nonticescat
               sileat
               omnibus
               rer
               petuo
               ,
               divinandi
               curiositas
               .
            
             In
             which
             Law
             ,
             Fortune
             tellers
             are
             also
             punishable
             :
             though
             with
             us
             ,
             dumbe
             persons
             who
             pretend
             to
             foretel
             future
             events
             ,
             are
             never
             punished
             Capitally
             ,
             But
             yet
             I
             have
             seen
             them
             tortured
             ,
             by
             order
             from
             the
             Council
             ,
             upon
             a
             representation
             that
             they
             were
             not
             truly
             Dumb
             ,
             but
             (
             feigning
             themselves
             to
             be
             so
             )
             abused
             ,
             and
             cheated
             the
             people
             .
             The
             forsaid
             Law
             is
             renewed
             
             in
             the
             
               Basilicks
               l.
            
             31
             
               h.
               t.
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             But
             Farin
             .
             and
             others
             thinks
             ,
             that
             where
             no
             person
             is
             injured
             ,
             death
             should
             not
             be
             inflicted
             ;
             and
             tha●
             imprisonment
             and
             banishment
             is
             now
             practised
             by
             all
             nations
             in
             that
             case
             ,
             Lib.
             1.
             
             Tom.
             3.
             quest
             20.
             
             Num.
             89.
             
             &
             
               Clarus
               .
               §
               .
               heresis
               num
               .
               ult
               .
            
             But
             Perezeus
             thinks
             this
             too
             favourable
             a
             punishment
             except
             the
             users
             of
             these
             curious
             arts
             were
             induced
             thereto
             ,
             out
             of
             meer
             simplicity
             ,
             
               &
               sine
               dolo
               malo
            
             ;
             but
             with
             us
             no
             such
             distinction
             can
             be
             allowed
             by
             the
             justices
             ,
             who
             must
             find
             all
             libels
             relevant
             ,
             which
             bear
             consulting
             with
             Witches
             ,
             and
             that
             Ditty
             being
             proved
             ,
             they
             must
             condemn
             the
             Pannel
             to
             die
             ;
             albeit
             I
             think
             the
             Councel
             may
             alter
             the
             punishment
             ,
             if
             it
             be
             clear
             that
             the
             user
             of
             these
             acts
             had
             no
             wicked
             designe
             nor
             intercourse
             with
             the
             Divel
             therein
             .
          
           
             XXVI
             .
             By
             the
             Law
             of
             England
             Witch-craft
             was
             of
             old
             punished
             sometimes
             by
             Death
             ,
             and
             sometimes
             by
             exile
             ;
             But
             1.
             
             Iac.
             this
             following
             Statute
             was
             made
             ,
             which
             I
             here
             set
             down
             ,
             because
             it
             is
             very
             special
             .
          
           
             
               If
               any
               person
               or
               persons
               shall
               use
               ,
               practise
               ,
               or
               exercise
               invocation
               or
               conjuration
               of
               any
               evil
               and
               wicked
               spirit
               ,
               or
               shall
               consult
               ,
               covenant
               with
               ,
               entertain
               ,
               employ
               ,
               feed
               or
               reward
               ,
               any
               evil
               or
               wicked
               spirit
               ;
               to
               ,
               or
               for
               ,
               any
               intent
               or
               purpose
               ,
               or
               take
               up
               any
               dead
               man
               ,
               woman
               ,
               or
               child
               ,
               out
               of
               his
               ,
               her
               ,
               or
               their
               grave
               ,
               or
               any
               other
               place
               where
               the
               dead
               body
               resteth
               ,
               or
               the
               skin
               ,
               bone
               ,
               or
               any
               part
               of
               a
               dead
               person
               ,
               to
               be
               imployed
               or
               used
               in
               any
               manner
               of
               witch-craft
               ,
               sorcery
               ,
               charme
               ,
               or
               inchantment
               ;
               Or
               shall
               use
               ,
               practise
               ,
               or
               exercise
               any
               witch-craft
               ,
               inchantment
               ,
               charm
               or
               sorcery
               ,
               whereby
               any
               person
               shall
               be
               killed
               ,
               destroyed
               ,
               wasted
               ,
               consumed
               ,
               pined
               ,
               or
               lamed
               ,
               in
               his
               ,
               or
               her
               body
               ,
               or
               any
               part
               thereof
               :
               that
               then
               every
               such
               offender
               or
               offenders
               ,
               their
               aiders
               ,
               abbetters
               ,
               and
               counsellors
               ,
               being
               of
               any
               the
               said
               offence
               ,
               duely
               and
               lawfully
               convicted
               :
               and
               attainted
               ,
               shall
               suffer
               pains
               of
               death
               ,
               as
               a
               fellon
               ,
               or
               fellons
               ,
               and
               shall
               
               lose
               the
               priviledge
               ,
               and
               benefit
               of
               Clergie
               ;
               and
               San●tuary
               .
               If
               any
               person
               ,
               or
               persons
               ,
               take
               upon
               him
               or
               them
               ,
               by
               witchcraft
               ,
               inchantment
               ,
               charm
               ,
               or
               sorcery
               ,
               to
               tell
               or
               declare
               ,
               in
               what
               place
               any
               treasure
               of
               Gold
               ,
               or
               Silver
               ,
               should
               or
               might
               be
               found
               ,
               or
               had
               in
               the
               earth
               ,
               or
               other
               secret
               places
               :
               Or
               where
               goods
               or
               other
               things
               lost
               ,
               or
               stoln
               ,
               are
               become
               :
               Or
               whereby
               any
               cattell
               or
               goods
               of
               any
               person
               ,
               shall
               be
               destroyed
               ,
               or
               to
               hurt
               or
               destroy
               any
               person
               in
               his
               ,
               or
               her
               body
               ,
               albeit
               the
               same
               be
               not
               effected
               or
               done
               ;
               being
               therefore
               lawfully
               convicted
               ,
               shall
               for
               the
               said
               offence
               suffer
               Imprisonment
               by
               the
               space
               of
               a
               whole
               year
               ,
               without
               baile
               or
               mainprise
               .
               Once
               every
               quarter
               of
               the
               year
               these
               Mountebanks
               are
               to
               mount
               the
               pillory
               ,
               and
               to
               stand
               thereupon
               in
               some
               Mercat
               Toun
               six
               hours
               ,
               and
               there
               to
               confesse
               his
               or
               her
               errour
               ,
               and
               offence
               .
            
          
        
         
           
           
             TITLE
             XI
             .
             Murder
             .
          
           
             
               1.
               
               
                 The
                 Etymologie
                 of
                 Murder
              
               .
            
             
               2.
               
               
                 Self
                 defence
                 defined
                 ,
                 and
                 whether
                 it
                 be
                 punishable
                 .
              
            
             
               3.
               
               
                 How
                 moderation
                 in
                 self
                 defence
                 is
                 said
                 to
                 be
                 exceeded
                 .
              
            
             
               4.
               
               
                 How
                 self
                 defence
                 must
                 be
                 proponed
                 .
              
            
             
               5.
               
               
                 How
                 it
                 ought
                 to
                 be
                 proved
                 .
              
            
             
               6.
               
               
                 What
                 is
                 casual
                 homicide
              
               .
            
             
               7.
               
               
                 Whether
                 he
                 who
                 was
                 doing
                 what
                 was
                 unlawful
                 ,
                 may
                 defend
                 himself
                 as
                 only
                 guilty
                 of
                 casual
                 homicide
                 .
              
            
             
               8.
               
               
                 Whether
                 he
                 who
                 is
                 only
                 guilty
                 of
                 casual
                 homicide
                 may
                 be
                 fined
                 .
              
            
             
               9.
               
               
                 What
                 is
              
               homicidium
               culposum
               ,
               
                 or
                 faulty
                 homicide
              
               .
            
             
               10.
               
               
                 What
                 wound
                 is
                 to
                 be
                 judged
                 mortal
                 .
              
            
             
               11.
               
               
                 How
                 the
                 designe
                 of
                 Murdering
                 or
                 forethought
                 fellony
                 ,
                 is
                 to
                 be
                 cleard
                 .
              
            
             
               12.
               
               Homicidium
               in
               rixa
               
                 when
                 many
                 are
                 conjunct
                 actors
                 ,
                 how
                 punishable
                 .
              
            
             
               13.
               
               
                 The
                 killing
                 of
                 thieves
                 ,
                 or
                 such
                 as
                 resist
                 authority
                 ;
                 how
                 punishable
                 .
              
            
             
               14.
               
               
                 Whether
                 it
                 be
                 lawful
                 for
                 a
                 father
                 to
                 kill
                 his
                 own
                 daughter
                 ,
                 if
                 he
                 find
                 her
                 comitting
                 adultery
                 .
              
            
             
               15.
               
               
                 Assasination
                 ,
                 how
                 punished
              
               .
            
             
               16.
               
               
                 Murder
                 under
                 trust
                 ,
                 how
                 punished
                 .
              
            
             
               17.
               
               
                 What
                 is
                 art
                 and
                 part
                 of
                 Murder
                 .
              
            
             
               18.
               
               
                 How
                 such
                 as
                 kill
                 in
                 the
                 execution
                 of
                 law
                 ,
                 are
                 punishable
                 .
              
            
             
               19.
               
               
                 Whether
                 it
                 be
                 lawfull
                 to
                 kill
                 a
                 Rebel
                 .
              
            
             
               20.
               
               
                 The
                 life-rent
                 escheat
                 of
                 murderers
                 falls
                 in
                 some
                 cases
                 .
              
            
             
               
               21.
               
               
                 Murder
                 is
                 one
                 of
                 the
                 pleys
                 of
                 the
                 Crown
                 .
              
            
             
               22.
               
               
                 How
                 Sheriffs
                 and
                 other
                 Iudges
                 ought
                 to
                 prosecute
                 murderers
                 .
              
            
             
               23.
               
               
                 Whether
                 remissions
                 can
                 be
                 granted
                 in
                 case
                 of
                 murder
                 .
              
            
          
           
             GOD
             Almighty
             did
             to
             the
             honour
             of
             impressing
             man
             with
             his
             own
             image
             ,
             add
             as
             a
             second
             obligation
             ,
             a
             natural
             horror
             in
             every
             man
             to
             be
             in
             any
             accession
             to
             the
             defaceing
             it
             ;
             so
             that
             he
             has
             consulted
             his
             own
             glory
             ,
             and
             our
             security
             ,
             joyntly
             in
             these
             severe
             laws
             which
             he
             has
             made
             against
             Murder
             .
             And
             his
             divine
             finger
             is
             not
             seen
             so
             apparently
             ,
             in
             any
             discovery
             ,
             as
             in
             that
             of
             Murder
             :
             and
             it
             is
             very
             remarkable
             ,
             that
             these
             Barbarians
             ,
             who
             saw
             the
             viper
             fasten
             upon
             Pauls
             hand
             ,
             did
             instantly
             conclude
             him
             guilty
             of
             Murder
             ,
             because
             he
             was
             (
             to
             their
             apprehension
             )
             so
             miraculously
             punished
             .
          
           
             I.
             Murder
             comes
             from
             the
             Dutch
             word
             Moorde
             ,
             which
             signifies
             ,
             
               caedem
               ex
               jusidiis
               vel
               proditorie
               factam
               .
               Math.
               h.
               t.
            
             And
             Murder
             is
             properly
             different
             from
             Slaughter
             ,
             the
             one
             being
             committed
             
               per
               seloniam
            
             ,
             the
             other
             
               per
               infortunium
               ,
               Leg.
               Malc
               .
               c.
            
             2.
             
             And
             therefore
             when
             our
             Law
             forbids
             killing
             under
             trust
             ,
             Ia.
             6.
             
             Pa.
             11.
             ch
             .
             81.
             
             It
             calls
             it
             murder
             under
             trust
             .
             But
             when
             it
             speaks
             of
             killing
             by
             accident
             ,
             or
             in
             self-defence
             ,
             it
             calls
             it
             Slaughter
             ,
             or
             Homicide
             .
             c.
             22.
             
             Par.
             1.
             
               K.
               Ch.
            
             2.
             
             Ses.
             2.
             
             And
             by
             this
             it
             seems
             that
             this
             crime
             is
             better
             writ
             murder
             then
             murther
             ,
             though
             murther
             be
             the
             ordinar
             way
             of
             writing
             it
             ,
             especially
             in
             our
             old
             Law.
             
          
           
             The
             Civilians
             define
             Murder
             to
             be
             the
             killing
             man
             by
             man
             unlawfully
             .
             And
             they
             divide
             it
             into
             that
             which
             is
             committed
             casually
             ,
             in
             defence
             ,
             culpable
             ,
             or
             wilfully
             .
          
           
             II.
             
               Necessarium
               Homicidium
            
             ,
             or
             homicid
             committed
             in
             self-defence
             is
             when
             a
             man
             being
             pursued
             or
             reduced
             to
             inevitable
             necessity
             ,
             has
             no
             way
             left
             him
             to
             evit
             his
             own
             death
             ,
             but
             by
             killing
             
             the
             Aggressor
             :
             This
             is
             in
             law
             called
             
               inculpata
               tutela
            
             ,
             or
             
               moderamen
               in
               culpatae
               tutelae
            
             within
             which
             moderation
             ,
             if
             the
             defender
             contain
             himself
             ,
             he
             is
             no
             way
             punishable
             ,
             but
             if
             he
             exceed
             the
             same
             ,
             yet
             so
             favourable
             is
             self-defence
             ,
             that
             the
             exceeder
             is
             not
             lyable
             to
             the
             ordinar
             punishment
             ,
             but
             is
             ordinarly
             punishable
             according
             to
             the
             excess
             ,
             at
             the
             discretion
             of
             the
             Judge
             .
             With
             us
             likewise
             self-defence
             is
             only
             punishable
             at
             the
             arbitrement
             or
             discretion
             of
             the
             Judge
             by
             the
             22.
             
               act
               .
               Sess.
            
             1.
             
             Pa.
             2.
             
               K.
               Ch.
            
             2.
             
             But
             seeing
             that
             act
             ordains
             it
             to
             be
             punisht
             at
             his
             discretion
             ,
             it
             may
             be
             doubted
             if
             in
             all
             cases
             self-defence
             be
             not
             some
             way
             punishable
             .
             And
             I
             remember
             that
             Captain
             Barclay
             being
             assoylzied
             in
             Decemb.
             1668.
             
             Because
             the
             Assyse
             found
             that
             the
             killing
             Sinclar
             was
             in
             his
             own
             defence
             ,
             the
             pursuers
             were
             to
             petition
             the
             Council
             (
             which
             is
             the
             ordinar
             way
             of
             taxing
             arbitrary
             punishment
             in
             this
             case
             )
             that
             he
             might
             be
             fined
             .
             And
             very
             learned
             Lawyers
             ,
             were
             of
             opinion
             ,
             that
             self-defence
             was
             in
             all
             cases
             punishable
             ,
             though
             attended
             with
             the
             most
             favourable
             circumstances
             of
             innocency
             ;
             from
             whom
             I
             differed
             upon
             these
             reasons
             ,
             1.
             
             By
             the
             Civil
             Law
             and
             the
             opinion
             of
             the
             Doctors
             ,
             if
             the
             defender
             contain
             himself
             exactly
             within
             that
             moderation
             ,
             he
             is
             no
             way
             punishable
             ,
             as
             is
             clear
             by
             
               Farin
               .
               part
            
             .
             74.
             quest
             .
             25.
             part
             .
             6.2
             .
             Self-defence
             is
             a
             duty
             ,
             and
             so
             not
             punishable
             ;
             for
             it
             were
             against
             reason
             that
             the
             Law
             should
             punish
             what
             it
             doth
             comcommand
             .
             3.
             
             The
             Law
             sayes
             that
             
               omni
               culpa
               caret
               qui
               se
               desendit
               ,
            
             and
             in
             our
             Law
             it
             is
             called
             
               murthrum
               justum
               .
               leg
               .
               Malcol
               .
               c.
            
             11.
             and
             so
             to
             punish
             him
             who
             necessarily
             defends
             himself
             ,
             were
             to
             inflict
             a
             punishment
             where
             the
             Law
             acknowledged
             there
             were
             no
             guilt
             .
             4.
             
             It
             should
             be
             in
             the
             power
             of
             every
             malicious
             rascal
             to
             wrong
             the
             most
             innocent
             ,
             for
             either
             he
             behov'd
             to
             suffer
             himself
             to
             be
             killed
             ,
             or
             to
             be
             punished
             by
             defending
             his
             own
             life
             :
             And
             by
             the
             said
             act
             ,
             it
             is
             only
             declard
             leisum
             to
             punish
             ,
             but
             not
             necessary
             .
             And
             yet
             by
             the
             Law
             of
             England
             ,
             Murderers
             
               se
               defendendo
            
             for
             fault
             their
             movables
             ,
             and
             both
             in
             that
             and
             in
             murder
             ,
             upon
             misadventure
             (
             for
             so
             they
             call
             casual
             homicide
             )
             
             the
             murtherer
             must
             have
             a
             pardon
             ,
             Statute
             6.
             
             E.
             1.
             cap.
             9.
             
             So
             great
             a
             regard
             ,
             sayes
             Bolton
             ,
             the
             Law
             hath
             to
             the
             life
             of
             a
             man
             ,
             cap.
             15.
             num
             .
             16.
             
             And
             by
             the
             Law
             of
             Savoy
             he
             who
             kills
             ,
             though
             in
             self-defence
             ,
             needs
             a
             pardon
             ,
             but
             the
             Prince
             in
             that
             case
             cannot
             refuse
             to
             grant
             a
             pardon
             .
             And
             therefore
             their
             Lawyers
             call
             that
             pardon
             
               gratia
               justitiae
               ,
               Cod.
               fabr
               .
               lib.
            
             9.
             tit
             .
             10.
             but
             with
             us
             ,
             no
             pardon
             is
             requisite
             ,
             albeit
             it
             is
             most
             ordinar
             to
             take
             remissions
             in
             such
             cases
             ,
             bearing
             self-defence
             in
             their
             narrative
             .
          
           
             III.
             This
             moderation
             is
             said
             to
             be
             exceeded
             in
             these
             three
             ,
             viz.
             in
             Armes
             ,
             2.
             
             In
             time
             .
             3.
             
             In
             the
             measure
             of
             following
             ,
             striking
             ,
             &c.
             
             This
             moderation
             is
             exceeded
             in
             Armes
             as
             if
             the
             aggressor
             have
             only
             a
             staff
             ,
             and
             the
             defender
             wound
             him
             with
             a
             sword
             or
             pistol
             ;
             the
             defender
             is
             in
             that
             case
             punishable
             ,
             for
             there
             we●e
             no
             reason
             in
             that
             case
             the
             defender
             should
             have
             had
             any
             fe●r
             of
             his
             life
             ,
             
               nec
               erat
               in
               dubio
               vitae
               constitutus
               .
            
             And
             yet
             this
             conclusion
             is
             not
             infallible
             ,
             for
             if
             the
             defender
             was
             much
             weaker
             then
             the
             aggressor
             ,
             he
             might
             be
             excused
             to
             use
             such
             unequal
             Weapons
             .
             The
             defender
             is
             said
             to
             exceed
             in
             time
             ,
             if
             he
             strike
             the
             aggressor
             ,
             
               ante
               quam
               sit
               in
               actu
               proximo
               occidendi
               ,
            
             for
             else
             it
             should
             be
             lawful
             to
             every
             man
             ,
             upon
             the
             first
             apprehension
             of
             fear
             ,
             to
             kill
             the
             aggressor
             ,
             which
             were
             very
             dangerous
             :
             and
             here
             it
             may
             be
             doubted
             ,
             if
             when
             any
             aggressor
             threatens
             to
             kill
             ,
             if
             the
             defender
             who
             knows
             not
             when
             the
             threat
             may
             be
             put
             in
             execution
             ,
             may
             immediatly
             kill
             .
             There
             are
             probable
             reasons
             to
             be
             urged
             for
             either
             opinion
             :
             And
             albeit
             the
             punishment
             should
             in
             this
             case
             depend
             upon
             the
             arbitrement
             of
             the
             Judge
             ,
             yet
             if
             the
             aggressor
             be
             known
             to
             have
             any
             designe
             to
             Murder
             ,
             or
             be
             a
             person
             who
             uses
             to
             execute
             what
             he
             threatens
             ,
             and
             if
             he
             have
             a
             Sword
             ,
             though
             not
             drawn
             ,
             or
             a
             Pistol
             ,
             though
             not
             cockt
             :
             (
             For
             if
             he
             have
             either
             of
             these
             ,
             there
             is
             no
             doubt
             but
             he
             may
             be
             lawfully
             killed
             ,
             because
             he
             is
             
               in
               actu
               proximo
               offendendi
            
             ,
             and
             no
             man
             should
             wait
             till
             he
             be
             killed
             )
             I
             think
             that
             though
             the
             aggressor
             be
             killed
             ,
             yet
             the
             defender
             hath
             the
             benefit
             of
             self-defence
             ;
             and
             albeit
             he
             may
             be
             arbitrarily
             punisht
             ,
             yet
             
             he
             cannot
             be
             punisht
             with
             death
             :
             and
             many
             Lawyers
             are
             of
             opinion
             ,
             that
             he
             who
             threatens
             to
             kill
             ,
             may
             be
             killed
             ,
             which
             opinion
             they
             found
             upon
             these
             reasons
             ,
             1.
             
             Because
             the
             Law
             looks
             upon
             that
             which
             is
             unlawful
             ,
             as
             done
             ,
             if
             it
             was
             intended
             to
             be
             done
             ,
             and
             that
             
               in
               odium
            
             of
             him
             who
             designes
             what
             is
             unlawful
             .
             ●
             .
             There
             is
             greater
             fear
             from
             some
             threats
             ,
             then
             from
             wounds
             ;
             and
             therefore
             ,
             seeing
             it
             is
             lawful
             to
             kill
             these
             who
             assault
             us
             with
             wounding
             ,
             why
             not
             ,
             and
             him
             who
             threatens
             ?
             3
             
               d.
               per.
               l.
            
             1.
             
             
               C.
               quando
               licet
               cuique
            
             ,
             &c.
             
               Mortem
               inquit
               imperator
               quam
               minabatur
               accipiet
               &
               id
               quod
               intendebat
               incurrat
               ,
            
             nor
             can
             the
             friends
             of
             the
             threatner
             complain
             ,
             seing
             the
             aggressor
             was
             in
             effect
             author
             of
             his
             own
             death
             ,
             And
             it
             is
             clear
             that
             the
             defender
             had
             no
             design
             to
             kill
             .
             Yet
             the
             Justices
             would
             not
             sustain
             ,
             
               minae
               per
               se
            
             ,
             to
             be
             a
             sufficient
             qualification
             of
             self-defence
             ,
             but
             sustain'd
             it
             joyntly
             with
             the
             aggressors
             fyring
             a
             Pistol
             ,
             though
             it
             mis-gave
             ,
             and
             though
             the
             defender
             might
             have
             fled
             ,
             Ianuary
             1668.
             
             
               Sinclar
               contra
               Barclay
            
             .
             And
             albeit
             by
             the
             Canon
             Law
             ,
             
               insultatus
               debet
               fugere
            
             .
             And
             that
             by
             the
             Law
             of
             England
             ,
             he
             who
             is
             invaded
             ,
             is
             oblieged
             to
             flee
             as
             far
             as
             he
             can
             ,
             as
             to
             a
             Wall
             or
             Ditch
             ,
             
               Bolt
               .
               cap.
            
             15.
             num
             .
             17.
             
             Yet
             by
             the
             opinion
             of
             the
             Civilians
             ,
             a
             person
             invaded
             is
             not
             oblieged
             to
             flee
             far
             ,
             
               Farin
               .
               quest
            
             .
             125.
             
             P.
             2.
             
             It
             may
             be
             probable
             ,
             that
             if
             the
             defender
             was
             alone
             in
             a
             House
             ,
             or
             place
             with
             the
             aggressor
             ,
             and
             could
             expect
             no
             help
             ,
             that
             upon
             threatning
             or
             other
             probable
             designes
             laid
             against
             his
             life
             ,
             he
             may
             kill
             the
             aggressor
             ;
             and
             from
             which
             may
             be
             deduced
             ,
             that
             the
             
               actus
               proximus
            
             which
             Lawyers
             speak
             of
             ,
             must
             not
             be
             interpret
             ,
             only
             the
             having
             a
             Sword
             drawn
             ;
             for
             if
             a
             stronger
             man
             have
             a
             weaker
             in
             a
             lockt
             house
             ,
             and
             threaten
             ,
             he
             may
             kill
             him
             ,
             though
             asleep
             ,
             if
             he
             cannot
             otherwayes
             escape
             .
          
           
             The
             defender
             is
             said
             to
             exceed
             in
             the
             measure
             ;
             also
             if
             he
             killed
             him
             for
             wounding
             ,
             whom
             he
             might
             have
             shun'd
             :
             or
             if
             he
             followed
             the
             aggressor
             ,
             which
             though
             it
             be
             not
             fully
             lawful
             ,
             yet
             
               fugientem
               persequens
               dumodo
               in
               ipso
               actu
               non
               punitur
               paena
               ordinaria
               licet
               occiderit
               ,
               Boer
               .
               decis
               .
            
             168.
             
             Novemb
             7.
             
             
             And
             albeit
             much
             be
             left
             to
             the
             arbitration
             of
             the
             Judge
             ,
             as
             to
             all
             the
             three
             ,
             
               arma
               tempus
               &
               modus
            
             :
             yet
             the
             general
             rule
             is
             ,
             that
             if
             the
             defender
             exceed
             only
             in
             either
             of
             the
             three
             ,
             as
             ,
             
               v.
               g.
            
             in
             the
             armes
             ,
             or
             time
             ,
             the
             excess
             is
             said
             to
             be
             
               culpa
               levissima
            
             ,
             and
             no
             way
             punishable
             :
             if
             in
             two
             of
             these
             ,
             as
             in
             time
             and
             arms
             ,
             then
             it
             is
             accounted
             
               culpa
               levis
            
             ,
             and
             is
             somewhat
             ●●nishable
             :
             but
             if
             the
             defender
             exceed
             in
             all
             the
             three
             ,
             as
             in
             time
             ,
             arms
             ,
             way
             of
             prosecution
             ,
             then
             it
             is
             
               culpa
               lata
            
             ,
             but
             yet
             he
             is
             not
             punishable
             ,
             as
             if
             he
             had
             dolose
             Murdered
             ,
             for
             though
             it
             be
             a
             rule
             
               in
               civilibus
            
             that
             
               culpa
               lata
               equiparatur
               dolo
            
             :
             Yet
             it
             is
             a
             rule
             in
             criminalibus
             that
             
               culpa
               lata
               numquam
               equiparatur
               dolo
               ubi
               agitur
               de
               paena
               corporis
               afflictiva
               Far.
               quest
               .
            
             125.
             part
             6.
             
             It
             i●
             also
             controverted
             amongst
             Lawyers
             ,
             if
             seing
             honour
             is
             as
             dear
             as
             life
             ,
             it
             be
             lawful
             to
             kill
             him
             who
             asperses
             our
             honour
             ,
             as
             it
             is
             lawful
             to
             kill
             him
             who
             assaults
             our
             life
             .
             And
             albeit
             Farinacius
             be
             of
             the
             judgement
             ,
             that
             he
             who
             is
             thus
             provockt
             ,
             being
             a
             person
             of
             far
             more
             eminent
             condition
             ,
             then
             the
             injurer
             killing
             him
             is
             not
             to
             be
             punisht
             as
             a
             Murderer
             ,
             
               sed
               pena
               extraordinaria
               licet
               injuria
               sit
               verbalis
            
             ;
             yet
             in
             my
             judgement
             he
             errs
             in
             that
             position
             ;
             for
             in
             effect
             ,
             that
             is
             not
             self-defence
             (
             because
             the
             verbal
             injury
             cannot
             be
             retreated
             ,
             nor
             retain'd
             )
             but
             it
             is
             revenge
             :
             yet
             
               dolor
               justus
               aliquando
               operatur
               ut
               paena
               ordinaria
               temperetur
               ,
               Boer
               .
               decis
               .
            
             237
             but
             yet
             that
             is
             not
             allow'd
             in
             killing
             ,
             and
             such
             other
             injuries
             ,
             
               quae
               non
               possunt
               revocari
            
             ,
             Gothofr
             .
             
               prax
               .
               crim
               .
               §
               .
               homicida
               ,
               N.
            
             25.
             and
             albeit
             this
             hold
             in
             verbal
             injuries
             offer'd
             to
             our
             Honomr
             ,
             
               ubi
               nescit
               vox
               missa
               reverti
            
             :
             yet
             if
             the
             injury
             offer'd
             to
             our
             Honour
             be
             real
             ,
             and
             such
             as
             may
             be
             stopt
             ,
             as
             by
             commanding
             an
             eminent
             person
             to
             loose
             down
             his
             Breeches
             to
             be
             whipt
             ,
             or
             do
             any
             most
             ignominously
             servile
             Act
             to
             the
             aggressor
             ,
             in
             that
             caise
             ,
             I
             should
             think
             that
             the
             killer
             should
             not
             be
             capitally
             punisht
             ,
             albeit
             he
             was
             in
             no
             hazard
             of
             his
             life
             .
             I
             likewise
             think
             that
             the
             fear
             of
             imprisonment
             by
             the
             defender
             ,
             may
             excuse
             from
             capital
             punishment
             ,
             seing
             Liberty
             is
             as
             dear
             as
             Life
             ;
             and
             no
             man
             can
             be
             secure
             of
             his
             Life
             ,
             if
             he
             be
             unjustly
             imprisoned
             ,
             
               &
               sibi
               imputet
               aggressor
               
               qui
               occasionem
               praebuit
               .
            
             It
             is
             likewise
             lawful
             to
             kill
             such
             as
             would
             murder
             our
             Friend
             ,
             or
             fellow-traveller
             ,
             which
             is
             accounted
             lawful
             ,
             though
             not
             self-defence
             ,
             which
             is
             extended
             also
             to
             the
             defence
             of
             all
             others
             ,
             because
             we
             should
             love
             our
             Neighbour
             as
             our selves
             .
             And
             it
             is
             lawful
             to
             kill
             a
             Thief
             ,
             who
             in
             the
             night
             offers
             to
             break
             our
             Houses
             ,
             or
             steal
             our
             Goods
             ,
             even
             though
             he
             defend
             not
             himself
             ,
             because
             we
             know
             not
             but
             he
             designs
             against
             our
             Life
             :
             and
             Murder
             may
             be
             easily
             committed
             upon
             us
             in
             the
             night
             :
             but
             it
             is
             not
             lawful
             to
             kill
             a
             Thief
             who
             steals
             in
             the
             day
             time
             ,
             except
             he
             resist
             us
             when
             we
             offer
             to
             take
             him
             ,
             and
             present
             him
             to
             Justice
             .
          
           
             IV.
             This
             exception
             of
             self-defence
             ,
             must
             be
             propon'd
             against
             the
             revelancy
             ,
             and
             must
             be
             condescended
             upon
             ,
             thus
             the
             Pannal
             no
             ways
             acknowledging
             the
             killing
             ;
             yet
             if
             he
             killed
             ,
             it
             was
             done
             in
             his
             own
             defence
             ,
             in
             swa
             far
             as
             the
             Defunct
             drew
             a
             Sword
             ,
             and
             thrust
             ,
             or
             offer'd
             a
             Pistol
             ,
             &c.
             
             And
             the
             Justices
             will
             not
             allow
             that
             it
             should
             be
             propon'd
             to
             the
             Assize
             ,
             as
             I
             have
             oft
             heard
             this
             press'd
             ,
             but
             very
             unreasonably
             ;
             for
             this
             concerns
             the
             relevancy
             ,
             to
             which
             the
             Justices
             ,
             and
             not
             the
             Assizers
             are
             only
             Judges
             competent
             :
             And
             it
             were
             very
             dangerous
             to
             refer
             to
             ignorant
             Assizers
             ,
             Matters
             of
             such
             importance
             ,
             and
             which
             are
             oft
             so
             intricat
             
               in
               Iure
            
             .
             And
             whereas
             it
             may
             be
             urg'd
             ,
             that
             Art
             and
             Part
             is
             referred
             to
             the
             Assize
             ,
             and
             is
             not
             condescended
             upon
             ,
             and
             made
             relevant
             .
             It
             is
             answered
             ,
             that
             the
             accuser
             cannot
             know
             the
             accession
             of
             the
             Pannel
             ,
             till
             the
             Witnesses
             first
             condescend
             upon
             it
             :
             but
             the
             Pannel
             cannot
             but
             know
             all
             the
             circumstances
             of
             his
             own
             self-defence
             ,
             and
             is
             not
             to
             learn
             that
             from
             others
             :
             But
             yet
             though
             the
             proponer
             of
             a
             defence
             ,
             do's
             
               in
               civilibus
            
             acknowledge
             
               eo
               ipso
            
             the
             Lybel
             :
             yet
             
               in
               criminalibus
            
             ,
             though
             the
             defender
             ,
             or
             Pannel
             prove
             not
             his
             exception
             of
             self-defence
             ,
             he
             will
             not
             be
             condemned
             ,
             except
             the
             pursuer
             prove
             the
             Lybel
             .
          
           
           
             V.
             The
             way
             of
             proving
             this
             self-defence
             ,
             was
             by
             raising
             a
             precept
             of
             exculpation
             ,
             but
             is
             now
             only
             by
             a
             summonds
             ,
             which
             expresses
             not
             so
             particularly
             the
             defence
             in
             all
             its
             circumstances
             ,
             but
             that
             it
             may
             be
             hereafter
             help'd
             ,
             which
             it
             seems
             is
             unjust
             ,
             for
             the
             Pannel
             should
             know
             what
             himself
             did
             :
             nor
             should
             a
             Judge
             grant
             a
             precept
             for
             exculpation
             ,
             till
             he
             see
             that
             there
             be
             some
             ground
             for
             craving
             it
             .
          
           
             This
             exception
             of
             self-defence
             is
             so
             favourable
             ,
             that
             it
             may
             be
             prov'd
             by
             presumtions
             ,
             by
             Witnesses
             ,
             otherways
             declinable
             ,
             as
             Cousens
             ,
             Servants
             ,
             and
             Witnesses
             who
             depone
             only
             upon
             credulity
             ;
             and
             the
             Defence
             it self
             being
             once
             prov'd
             ,
             it
             is
             presumed
             that
             it
             was
             done
             necessarily
             ,
             and
             lawfully
             ,
             
               &
               potius
               ad
               defensionem
               quam
               ad
               vindictam
               Far.
               quest
            
             115.
             part
             7.
             
             §
             .
             1.
             
             And
             yet
             our
             Law
             allows
             no
             Witnesses
             to
             be
             receiv'd
             in
             defence
             ,
             but
             such
             as
             it
             allows
             pursuits
             and
             witnesses
             led
             in
             defence
             ,
             are
             more
             to
             be
             suspected
             ;
             for
             men
             are
             naturally
             enclined
             to
             go
             all
             lengths
             in
             bringing
             off
             the
             Pannel
             ;
             and
             for
             this
             cause
             it
             is
             ,
             that
             we
             have
             Assizes
             of
             Error
             against
             such
             as
             absolve
             a
             Pannel
             :
             but
             none
             against
             those
             who
             condemn
             him
             .
          
           
             Before
             this
             Act
             of
             Parliament
             ,
             self-defence
             was
             still
             sustain'd
             by
             the
             Justices
             ,
             to
             elide
             the
             Lybel
             of
             Murder
             ,
             but
             it
             was
             oft
             ineffectual
             ,
             seing
             there
             were
             no
             precepts
             of
             Exculpation
             then
             us'd
             ;
             and
             consequently
             ,
             except
             either
             the
             Pannel
             could
             have
             prov'd
             the
             
               inculpata
               tutela
            
             by
             the
             accusers
             own
             witnesses
             ,
             who
             were
             led
             to
             prove
             the
             Murder
             (
             which
             was
             not
             secure
             ,
             seing
             these
             who
             saw
             the
             beginning
             of
             the
             scuffle
             ,
             and
             first
             aggression
             ,
             might
             have
             been
             absent
             when
             the
             aggressor
             was
             killed
             )
             or
             that
             the
             witnesses
             would
             have
             voluntarly
             appeared
             (
             which
             was
             a
             probable
             reason
             to
             set
             them
             ,
             they
             being
             
               eo
               casu
               testes
               ultronii
            
             )
             the
             defence
             could
             not
             have
             been
             proved
             .
             Whether
             self-defence
             will
             defend
             ,
             or
             is
             lawful
             in
             Paricid
             .
             See
             more
             of
             this
             Title
             Exculpation
             .
          
           
             VI
             
               Homicidium
               casuale
            
             ,
             is
             when
             a
             man
             is
             kill'd
             casually
             ,
             without
             either
             the
             fault
             ,
             or
             design
             of
             the
             killer
             ,
             as
             if
             an
             Axe
             
             head
             should
             fall
             off
             ,
             and
             kill
             a
             by
             stander
             :
             or
             a
             Rider
             should
             kill
             with
             his
             Horses
             feet
             :
             In
             which
             case
             our
             Law
             appoints
             ,
             that
             if
             the
             prejudice
             be
             done
             by
             the
             Horses
             formest
             feet
             ,
             then
             the
             Ryder
             shall
             be
             forc'd
             to
             satisfy
             for
             the
             prejudice
             done
             :
             and
             these
             satisfactions
             are
             called
             Croo
             or
             Galnes
             ;
             but
             where
             it
             is
             there
             said
             ,
             that
             he
             shall
             give
             Croo
             or
             Galnes
             ,
             as
             if
             he
             had
             killed
             him
             himself
             ;
             it
             is
             to
             be
             interpret
             ,
             not
             as
             if
             the
             Rider
             should
             be
             punishable
             in
             that
             case
             ,
             as
             if
             he
             had
             killed
             him
             with
             his
             own
             hand
             :
             but
             that
             the
             Assythment
             shall
             be
             the
             same
             .
             But
             the
             Rider
             is
             not
             lyable
             at
             all
             for
             what
             prejudice
             is
             done
             by
             the
             Horses
             hinder
             feet
             ,
             lib.
             4.
             
             
               Reg.
               Maj.
               C.
            
             24.
             
          
           
             Casual
             Slaughter
             ,
             or
             homicide
             ,
             then
             is
             that
             which
             is
             occasioned
             by
             mistake
             and
             just
             ignorance
             ,
             for
             if
             it
             proceed
             from
             affected
             ignorance
             ;
             as
             for
             instance
             ,
             if
             a
             man
             will
             not
             know
             what
             he
             may
             know
             ,
             his
             ignorance
             in
             that
             case
             will
             not
             make
             the
             Murder
             following
             upon
             it
             ,
             to
             be
             constructed
             casual
             homicide
             ;
             but
             if
             it
             proceed
             from
             gross
             and
             
               supina
               ignorantia
            
             :
             it
             may
             be
             punishable
             by
             an
             extraordinary
             ,
             or
             arbitrary
             punishment
             ,
             but
             not
             by
             death
             .
             And
             since
             such
             ignorance
             is
             a
             fault
             ,
             the
             Murder
             occasioned
             by
             it
             becomes
             culposum
             ,
             or
             faulty
             homicide
             ;
             as
             seems
             to
             me
             clear
             by
             
               C.
               continebatur
               &c.
               lator
               de
               homicid
               .
            
             It
             is
             then
             necessary
             ,
             that
             the
             committer
             us'd
             all
             exact
             diligence
             to
             evite
             the
             Crime
             ,
             else
             he
             is
             not
             in
             the
             case
             of
             casual
             homicide
             .
             Further
             instances
             whereof
             ,
             are
             ,
             if
             a
             Mason
             before
             he
             throw
             down
             Stones
             ,
             advertise
             all
             below
             ,
             though
             in
             throwing
             he
             kill
             ,
             he
             is
             to
             be
             cleared
             as
             innocent
             .
             Or
             if
             a
             Hunter
             shoot
             at
             a
             Beast
             ,
             but
             a
             man
             come
             in
             the
             way
             and
             be
             killed
             :
             and
             yet
             if
             either
             the
             Mason
             cry
             not
             ,
             or
             if
             the
             Hunter
             did
             shoot
             in
             a
             place
             where
             people
             use
             to
             be
             ,
             he
             is
             guilty
             of
             faulty
             Murder
             ,
             in
             these
             cases
             which
             shews
             clearly
             the
             difference
             betwixt
             these
             two
             kinds
             of
             Murder
             .
          
           
             VII
             .
             If
             the
             killer
             be
             imployed
             about
             a
             thing
             unlawful
             ,
             either
             in
             it self
             ,
             or
             unlawful
             to
             the
             actor
             ,
             the
             murder
             ensuing
             is
             thought
             still
             casual
             Murder
             ,
             since
             Murder
             was
             not
             design'd
             ,
             
             if
             the
             committer
             did
             exact
             dilligence
             to
             shun
             all
             Murder
             ;
             as
             for
             instance
             ,
             to
             cary
             Guns
             is
             unlawful
             with
             us
             :
             and
             to
             hunt
             is
             unlawful
             to
             Priests
             by
             the
             Canon
             Law.
             If
             then
             a
             man
             having
             a
             Gun
             illegally
             ,
             should
             lay
             it
             up
             securely
             :
             or
             a
             Church-man
             should
             kill
             a
             man
             ,
             whilst
             he
             did
             shoot
             at
             a
             Beast
             in
             a
             remote
             place
             ;
             these
             Acts
             would
             not
             infer
             Murder
             ,
             because
             there
             was
             no
             Act
             done
             there
             ,
             with
             relation
             to
             Murder
             ,
             
               Covar
               .
               ad
               clement
               .
               si
               furiosus
               ,
            
             and
             yet
             the
             committer
             ,
             
               versatur
               in
               actu
               illicito
            
             .
             But
             yet
             others
             are
             of
             opinion
             ,
             that
             if
             the
             committer
             be
             doing
             what
             is
             unlawful
             for
             him
             ,
             he
             commits
             murder
             ,
             
               Tho.
               Aquix
            
             22.
             quest
             .
             69.
             
             Act
             :
             because
             he
             do's
             not
             at
             all
             that
             he
             ought
             to
             do
             in
             that
             case
             ,
             to
             evite
             Murder
             ,
             since
             what
             he
             do's
             is
             unlawful
             :
             But
             I
             think
             they
             may
             be
             thus
             reconciled
             ,
             viz.
             if
             the
             committer
             do
             what
             is
             against
             the
             Law
             of
             Nature
             :
             or
             what
             is
             criminal
             ,
             he
             should
             be
             lyable
             :
             or
             if
             what
             he
             do's
             ,
             may
             probably
             produce
             ill
             consequences
             ,
             and
             Murder
             ,
             though
             he
             design'd
             not
             the
             same
             :
             in
             all
             which
             cases
             he
             ought
             to
             be
             lyable
             .
             And
             it
             seems
             to
             me
             reasonable
             ,
             that
             he
             who
             Killed
             ,
             when
             he
             was
             doing
             what
             was
             unlawful
             ,
             may
             be
             arbitrarly
             punished
             ,
             though
             he
             did
             exact
             diligence
             to
             shun
             Killing
             .
          
           
             VIII
             When
             homicide
             is
             casually
             committed
             ,
             some
             think
             that
             because
             there
             is
             no
             design
             to
             kill
             ,
             therefore
             the
             killer
             ought
             no
             way
             to
             be
             punisht
             .
             Others
             think
             him
             lyable
             to
             an
             arbitrary
             punishment
             ,
             or
             fine
             ,
             
               &
               quod
               Wergeldum
               solvere
               tenetur
               .
               We
               semb
               .
               parat
               .
               ad
               l.
               Corn.
               de
               Sicar
               .
               num
               .
            
             27.
             
             A
             third
             Sect
             of
             Lawyers
             distinguish
             so
             ,
             that
             if
             there
             proceeded
             no
             fault
             in
             the
             committer
             ,
             then
             he
             is
             lyable
             in
             no
             fine
             ,
             or
             to
             no
             punishment
             :
             but
             that
             he
             is
             ,
             if
             any
             fault
             of
             his
             preceeded
             .
             But
             it
             seems
             that
             if
             any
             fault
             preceeded
             ,
             the
             Murder
             is
             not
             casual
             ,
             but
             is
             culposum
             ;
             and
             so
             the
             distinction
             meets
             not
             the
             state
             of
             the
             question
             :
             and
             it
             seems
             to
             me
             .
             that
             by
             lib.
             1.
             
             S.
             3.
             
               ff
               .
               ad
               l.
               Cor.
               de
               Sicar
               .
            
             all
             casual
             homicide
             deserves
             some
             punishment
             .
             And
             since
             some
             Lawyers
             think
             ,
             that
             Murder
             in
             self-defence
             excuses
             not
             from
             all
             punishment
             :
             much
             less
             ought
             casual
             Murder
             ,
             since
             self-defence
             
             wants
             not
             only
             a
             design
             to
             Kill
             ,
             but
             is
             a
             duty
             in
             it self
             .
          
           
             IX
             .
             
               Homicidium
               culposum
            
             :
             or
             faulty
             Slaughter
             ,
             is
             where
             the
             Murder
             was
             not
             design'd
             ;
             and
             yet
             it
             was
             committed
             meerly
             by
             accident
             ,
             as
             if
             one
             should
             hound
             a
             Dog
             at
             another
             ,
             who
             should
             bite
             him
             at
             whom
             he
             was
             hounded
             ,
             so
             that
             he
             should
             by
             thereby
             ;
             or
             if
             one
             should
             strike
             with
             a
             Batton
             ,
             when
             he
             had
             a
             Sword
             ;
             in
             these
             and
             the
             like
             cases
             ,
             the
             offender
             is
             to
             be
             punished
             arbitrarly
             :
             but
             because
             
               aberat
               animus
               occidendi
            
             ,
             this
             is
             not
             properly
             Murder
             ,
             and
             so
             is
             not
             punishable
             by
             Death
             ;
             but
             is
             punished
             according
             to
             the
             quality
             of
             these
             circumstances
             ,
             which
             attend
             the
             Fact.
             
          
           
             For
             clearing
             this
             difficulty
             ,
             the
             Doctors
             say
             ,
             that
             either
             the
             Killer
             is
             guilty
             only
             of
             
               culpa
               levis
               ,
               aut
               levissima
            
             ,
             and
             in
             that
             case
             he
             is
             no
             way
             punishable
             ;
             nor
             is
             there
             any
             difference
             ,
             
               inter
               homicidium
               casuale
               &
               homicidium
               per
               culpam
               levem
               aut
               levissimam
               commissum
               ,
            
             and
             this
             was
             found
             in
             the
             case
             of
             Nicolson
             ,
             who
             being
             pursued
             for
             Murder
             ,
             it
             was
             alledged
             that
             it
             was
             but
             
               homicidium
               casuale
            
             ,
             or
             culposum
             ,
             for
             in
             strugling
             ,
             his
             Gun
             being
             a
             half-bend
             ,
             went
             off
             ;
             nor
             knew
             he
             ever
             the
             Defunct
             ,
             and
             so
             could
             have
             no
             malice
             against
             him
             .
             To
             which
             it
             was
             replyed
             ,
             that
             the
             carying
             of
             Guns
             is
             forbid
             by
             the
             Law
             ;
             and
             he
             the
             Defunct
             was
             
               in
               actu
               illicito
            
             :
             nor
             should
             he
             have
             carri'd
             a
             Gun
             which
             used
             to
             go
             off
             ,
             
               &
               versans
               in
               actu
               illicito
               nunquam
               excusatur
            
             :
             which
             reply
             the
             Justices
             repelled
             ,
             Iune
             24.
             1673.
             
             For
             they
             thought
             that
             the
             Law
             against
             wearing
             Guns
             ,
             was
             in
             Desuetude
             as
             to
             Fowlers
             ,
             whose
             trade
             it
             was
             ,
             
               &
               omni
               culpa
               caret
               qui
               facit
               id
               quod
               omnes
               facere
               solent
               sed
               si
               sit
               lata
               culpa
               ,
            
             it
             is
             to
             be
             punished
             arbitrarly
             ,
             but
             not
             by
             death
             ,
             
               nam
               lata
               culpa
               nunquam
               equiparatur
               dolo
               ubi
               agitur
               de
               paena
               corporis
               afflictivae
               .
            
          
           
             X.
             Since
             the
             design
             of
             Killing
             depends
             much
             upon
             the
             nature
             of
             the
             Wound
             given
             ,
             Lawyers
             conclude
             ,
             that
             whe●e
             the
             Wound
             was
             not
             deadly
             ,
             or
             
               vulnus
               lethale
            
             ,
             as
             they
             call
             it
             ,
             the
             infli●ter
             of
             the
             Wound
             cannot
             be
             punished
             ,
             though
             the
             Party
             
             wounded
             thereafter
             died
             .
             And
             though
             some
             Lawyers
             be
             of
             opinion
             ,
             that
             if
             the
             Party
             live
             three
             dayes
             after
             the
             receiving
             of
             the
             Wound
             ;
             the
             Wound
             is
             thereby
             presumed
             not
             to
             be
             mortal
             ,
             Accurs
             .
             in
             l.
             1.
             
             
               C.
               de
               emendat
               serv.
            
             yet
             generally
             this
             is
             referred
             to
             the
             arbitrement
             of
             the
             Judge
             ;
             who
             is
             in
             this
             to
             follow
             the
             opinion
             of
             Physicians
             ,
             or
             of
             one
             Physician
             ,
             if
             more
             were
             not
             present
             :
             but
             if
             they
             vary
             ,
             then
             the
             Judge
             should
             encline
             to
             punish
             ,
             not
             by
             death
             ,
             but
             by
             an
             extraordinary
             punishment
             :
             for
             Murder
             is
             not
             to
             be
             inferred
             ,
             but
             from
             a
             concluding
             probation
             ,
             
               Gail
               .
               observ
            
             .
             111.
             lib.
             2.
             and
             if
             the
             Wound
             be
             but
             small
             ,
             and
             a
             Fever
             follow
             ,
             then
             it
             is
             presumed
             that
             the
             Party
             dyed
             rather
             of
             a
             Fever
             ,
             then
             of
             the
             Wound
             ;
             especially
             if
             the
             Person
             wounded
             walked
             a
             foot
             for
             fourty
             days
             ,
             
               Gomes
               Var.
               resol
               .
               lib.
            
             3.
             cap.
             3.
             
             And
             yet
             in
             December
             1669.
             
             M
             
             r.
             
               William
               Somervel
            
             was
             found
             guilty
             of
             the
             Murder
             of
             
               Bessy
               Rentoun
            
             ,
             though
             it
             was
             alledged
             that
             the
             said
             Bailzie
             got
             only
             a
             Wound
             with
             a
             Batton
             ,
             that
             she
             never
             took
             hed
             ,
             but
             travelled
             five
             Miles
             that
             night
             a
             foot
             ,
             and
             served
             as
             an
             ordinary
             servant
             eight
             moneths
             thereafter
             ,
             till
             she
             died
             of
             a
             Fever
             ;
             with
             which
             her
             brother
             infected
             her
             :
             all
             which
             was
             repelled
             ,
             because
             this
             alledgance
             was
             contrair
             to
             the
             Libel
             :
             wherein
             it
             was
             expresly
             lybelled
             ,
             that
             the
             Wounds
             were
             mortal
             ;
             and
             though
             ,
             where
             the
             Wounds
             are
             not
             lybelled
             expresly
             to
             be
             mortal
             ,
             such
             a
             defence
             might
             be
             admitted
             .
             And
             the
             Judge
             ought
             to
             consider
             
               intervallum
               temporis
            
             ,
             or
             
               supervenientia
               febris
            
             ;
             yet
             these
             ,
             nor
             no
             presumptions
             ought
             to
             be
             received
             ,
             where
             the
             Wounds
             were
             offered
             to
             be
             proved
             to
             be
             Lethal
             :
             but
             this
             Decision
             was
             so
             ill
             liked
             ,
             that
             the
             Council
             recomended
             M
             
             r.
             William
             to
             His
             Majesty
             ,
             who
             granted
             him
             a
             Remission
             .
             And
             since
             Judges
             may
             be
             so
             arbitrary
             in
             so
             great
             a
             concern
             ,
             I
             should
             wish
             that
             the
             various
             periods
             of
             Nature
             ,
             in
             its
             cures
             ,
             and
             the
             various
             determinations
             of
             Judges
             ,
             were
             ,
             as
             to
             the
             Criminal
             procedor
             ,
             fixed
             to
             some
             certain
             time
             .
             And
             that
             therefore
             ,
             seing
             ordinarly
             Wounds
             that
             are
             mortal
             ,
             do
             kill
             the
             receiver
             in
             fourty
             days
             ;
             I
             wish
             that
             it
             were
             therefore
             generally
             
             concluded
             ,
             that
             he
             who
             dies
             thereafter
             ,
             dies
             not
             of
             his
             Wounds
             ,
             if
             he
             has
             walked
             a-foot
             till
             that
             time
             ,
             
               vid.
               Zack
               .
               Quest.
               Medicolegal
            
             :
             But
             by
             the
             Law
             of
             England
             ,
             if
             the
             Person
             Wounded
             die
             within
             year
             and
             day
             after
             his
             Wound
             ,
             it
             is
             presumed
             he
             died
             of
             his
             Wounds
             ,
             
               Cook
               P.
            
             53.
             
          
           
             There
             was
             another
             Decision
             upon
             this
             Subject
             ,
             the
             13.
             of
             Iuly
             1674.
             
             
               Iames
               Mason
            
             being
             pursued
             for
             killing
             Ralstoun
             ,
             alledged
             that
             he
             could
             not
             be
             guilty
             of
             Murder
             ,
             since
             Ralstoun
             followed
             him
             all
             that
             day
             from
             house
             to
             house
             ,
             and
             having
             at
             last
             put
             violent
             hands
             in
             the
             Pannel
             ,
             he
             was
             forced
             to
             throw
             him
             off
             him
             ,
             and
             his
             Head
             fell
             upon
             a
             Stool
             and
             bled
             ;
             which
             Wound
             he
             took
             no
             pains
             to
             cure
             ,
             but
             stayed
             in
             the
             Streets
             in
             the
             night
             time
             :
             and
             though
             the
             Wound
             was
             found
             not
             to
             be
             mortal
             by
             the
             Chirurgians
             ,
             yet
             by
             cold
             and
             drinking
             ,
             he
             killed
             himself
             ,
             
               ex
               malo
               regimine
            
             ;
             and
             when
             it
             was
             replyed
             ,
             that
             this
             could
             not
             amount
             to
             self-defence
             ,
             since
             the
             killer
             was
             not
             in
             
               periculo
               vitae
               constitutus
            
             :
             it
             was
             duplyed
             ,
             that
             the
             violence
             done
             ,
             was
             proportionable
             to
             the
             violence
             offered
             by
             the
             Aggressor
             ,
             and
             so
             exceeded
             not
             
               moderamen
               inculpatae
               tutelae
            
             ;
             for
             the
             said
             Pannel
             struck
             not
             him
             with
             any
             mortal
             Weapon
             ,
             but
             only
             gave
             him
             a
             thrust
             with
             his
             hand
             ,
             which
             was
             necessary
             to
             throw
             the
             Defunct
             off
             him
             .
             Upon
             which
             debate
             ,
             the
             Justices
             sustain'd
             the
             Libel
             ,
             only
             to
             infer
             
               paenam
               extraordinariam
            
             ;
             and
             remitted
             also
             the
             Pannels
             defences
             of
             casual
             Homicide
             ,
             self-defence
             ,
             and
             that
             the
             Wound
             was
             not
             mortal
             ,
             to
             the
             knowledge
             of
             the
             Inquest
             .
          
           
             XI
             .
             It
             is
             here
             controverted
             ,
             whether
             he
             who
             intended
             to
             kill
             one
             ,
             by
             a
             mistake
             killed
             not
             him
             ,
             but
             another
             ,
             be
             punishable
             as
             a
             Murderer
             ;
             seing
             as
             to
             the
             person
             killed
             ,
             the
             Murderer
             had
             no
             design
             :
             yet
             I
             think
             he
             should
             die
             ,
             seing
             the
             design
             of
             killing
             a
             man
             ,
             and
             not
             any
             one
             particular
             man
             ,
             is
             Murder
             ;
             and
             the
             killer
             intended
             to
             deface
             God
             Almighties
             Image
             :
             
             and
             to
             take
             from
             the
             King
             a
             Subject
             .
             And
             I
             find
             that
             this
             is
             determined
             to
             be
             Murder
             by
             
               Bolton
               ,
               cap.
            
             11.
             num
             .
             24.
             by
             whom
             likewise
             it
             is
             given
             as
             a
             rule
             ,
             
               nihil
               interest
               utrum
               quis
               occidat
               an
               acausam
               mortis
               prabeat
               .
            
          
           
             And
             thus
             a
             Son
             for
             having
             caryed
             his
             Father
             (
             being
             sick
             )
             in
             a
             frosty
             night
             ,
             from
             one
             Town
             to
             another
             ,
             was
             executed
             as
             a
             Murderer
             ,
             because
             the
             Father
             died
             .
             And
             a
             Harlot
             having
             exposed
             her
             Child
             in
             an
             Orchard
             ,
             where
             a
             Kite
             killed
             it
             ,
             was
             execute
             as
             a
             Murderer
             ,
             also
             
               &
               ibi
               volunt
               as
               reputatur
               pro
               facto
            
             ;
             And
             if
             this
             were
             not
             Murder
             ,
             this
             Crime
             might
             be
             Palliated
             under
             other
             shapes
             .
          
           
             This
             Defence
             ,
             viz.
             that
             the
             killer
             had
             no
             design
             to
             Murder
             ,
             is
             a
             Negative
             ,
             and
             so
             can
             only
             be
             proved
             by
             presumptions
             ,
             as
             if
             there
             was
             no
             deadly
             fead
             formerly
             amongst
             the
             Parties
             .
             2.
             
             If
             the
             Parties
             were
             Kins-men
             or
             intimats
             .
             3.
             
             If
             the
             killer
             struck
             with
             a
             Staff
             ,
             having
             a
             Sword
             or
             Pistol
             ,
             or
             having
             these
             struck
             only
             with
             the
             hilts
             of
             his
             Sword
             ,
             or
             with
             the
             head
             of
             his
             Pistol
             :
             and
             generally
             it
             is
             rather
             presumed
             to
             be
             
               homicidium
               culposom
            
             ,
             then
             
               dolosum
               &
               premeditatum
               nam
               nunquam
               praesumitur
               dolus
               .
            
          
           
             By
             our
             Law
             ,
             Slaughter
             and
             Murder
             did
             of
             old
             differ
             ,
             as
             
               homicidium
               simplex
               &
               premeditatum
            
             ,
             in
             the
             Civil
             Law
             ;
             and
             Murder
             only
             committed
             ,
             as
             we
             call
             it
             ,
             upon
             
               fore-thought
               fellony
            
             ,
             was
             only
             properly
             called
             Murder
             ,
             and
             punished
             as
             such
             ,
             K.
             
               Ia.
               Par.
            
             3.
             cap.
             1.
             where
             it
             is
             Statute
             ,
             that
             Murder
             is
             to
             be
             capitally
             punished
             :
             but
             Chaudmella
             ,
             or
             Slaughter
             committed
             upon
             suddenly
             ,
             shall
             only
             be
             punishable
             according
             to
             the
             old
             Laws
             ,
             
               vid.
               Acts
            
             95.96
             .
             Par.
             6.
             
             Ia.
             1.
             
             &
             22.
             
             Par.
             4
             I.
             5
             &
             35.
             
             Par.
             5.
             
             Ia.
             3.
             
             
               &
               Act
            
             31.
             
             Par.
             6.
             
             
               Q
               M.
            
             The
             old
             Laws
             to
             which
             these
             Acts
             relate
             ,
             are
             Statute
             ,
             
               William
               c.
            
             5.
             
             
               Stat.
               Allexander
               c.
            
             6.
             
             
               Stat.
               Rob.
            
             2.
             c.
             9.
             in
             which
             it
             is
             declared
             ,
             that
             Mu●derers
             who
             are
             guilty
             of
             fore-thought
             fellony
             ,
             shall
             not
             have
             the
             priviledge
             and
             advantage
             of
             refuge
             in
             the
             Girth●
             :
             but
             that
             such
             as
             are
             guilty
             of
             Chaudmella
             ,
             or
             
             casual
             Slaughter
             ,
             shall
             be
             sheltered
             in
             the
             Girth
             .
             Yet
             I
             find
             that
             none
             of
             these
             are
             in
             any
             other
             old
             Statute
             ,
             to
             determine
             punishment
             of
             casual
             Slaughter
             ,
             but
             that
             it
             was
             not
             punishable
             as
             Murder
             ;
             is
             clear
             by
             the
             opposition
             .
             and
             in
             all
             our
             Laws
             ,
             betwixt
             single
             Slaughter
             ,
             and
             fore-thought-fellony
             :
             all
             casual
             Slaughter
             was
             of
             old
             comprehended
             under
             the
             word
             Chaudmella
             ,
             which
             is
             a
             French
             word
             :
             Chaud
             signifying
             Hot
             ,
             and
             Mesler
             signifying
             to
             mix
             .
             But
             in
             effect
             ,
             this
             Melletum
             answers
             properly
             to
             
               rixa
               &
               homicidium
               ,
               in
               rixa
               commissum
               ,
            
             which
             is
             but
             one
             species
             ,
             
               homicidii
               non
               dolosi
            
             .
          
           
             XII
             .
             By
             the
             late
             22.
             
             
               Act
               Parl.
            
             1.
             
             Ch.
             2.
             
             Sess.
             1.
             
             It
             is
             Statute
             ,
             that
             casual
             Homicide
             ,
             Homicide
             committed
             in
             self-defence
             ,
             and
             Homicide
             committed
             upon
             Thieves
             ,
             shall
             not
             be
             punished
             by
             death
             .
             And
             seing
             this
             Act
             mentions
             not
             Homicide
             ,
             committed
             in
             rixa
             ,
             or
             
               homicidum
               culposum
            
             :
             and
             seing
             
               homicidium
               culposum
            
             differs
             from
             casual
             Homicide
             ;
             it
             may
             be
             doubted
             ,
             if
             under
             the
             one
             ,
             the
             other
             may
             be
             comprehended
             :
             and
             it
             may
             be
             urged
             ,
             that
             casual
             Homicide
             is
             in
             this
             Act
             a
             general
             term
             ,
             comprehending
             all
             Homicide
             ,
             which
             is
             not
             committed
             by
             fore-thought
             fellony
             ,
             because
             what
             is
             not
             designed
             is
             casual
             ,
             and
             what
             is
             not
             fore-thought
             is
             casual
             :
             and
             the
             Doctors
             do
             use
             the
             Word
             Casual
             oftentimes
             in
             this
             general
             sense
             ;
             as
             is
             clear
             by
             
               Gothofred
               prax
               .
               crim
               .
               hoc
               .
               tit
               .
            
             And
             by
             the
             rubrick
             of
             this
             Act
             ,
             which
             bears
             an
             
               Act
               concerning
               the
               several
               degres
               of
               casual
               Homicide
               .
            
             It
             appears
             that
             the
             word
             Casual
             ,
             is
             taken
             there
             in
             a
             Lax
             Signification
             :
             albeit
             I
             confess
             ,
             that
             the
             inscription
             is
             most
             improper
             ;
             seing
             Homicide
             in
             self-defence
             ,
             and
             Homicide
             committed
             upon
             Robbers
             ,
             are
             not
             Species
             of
             casual
             Homicide
             :
             but
             whether
             Homicide
             in
             rixa
             be
             comprehended
             under
             that
             Act
             ,
             was
             contraverted
             in
             
               William
               Dowglas
            
             case
             :
             and
             by
             that
             Decision
             it
             is
             clear
             ,
             that
             in
             in
             our
             Law
             ,
             though
             Murder
             was
             not
             at
             first
             designed
             :
             yet
             if
             it
             was
             designed
             the
             time
             the
             stroak
             was
             given
             ,
             the
             killer
             is
             
             guilty
             of
             Murder
             :
             that
             premeditation
             is
             requisit
             to
             make
             Murder
             Capital
             ,
             being
             only
             such
             as
             
               antecedit
               actum
               licet
               non
               congressum
            
             .
          
           
             The
             Civilians
             in
             the
             case
             of
             
               Homicidium
               per
               plures
               commissum
            
             ,
             state
             three
             questions
             ;
             The
             first
             is
             ,
             where
             the
             Murder
             was
             committed
             upon
             fore-thought
             fellony
             ,
             and
             then
             indefinitly
             ,
             all
             the
             assisters
             are
             punishable
             by
             death
             .
             The
             second
             is
             ,
             when
             it
             is
             not
             certain
             ,
             but
             it
             is
             only
             suspected
             ,
             and
             presumeable
             that
             it
             was
             deliberatly
             committed
             ,
             and
             then
             all
             may
             be
             tortured
             ;
             but
             if
             they
             deny
             the
             design
             ,
             they
             are
             all
             only
             punishable
             by
             an
             arbitrary
             punishment
             ,
             because
             of
             the
             uncertainty
             .
             The
             third
             is
             ,
             when
             the
             Murder
             was
             certainly
             committed
             ,
             
               in
               rixa
            
             ,
             or
             tuilzie
             ;
             and
             then
             either
             the
             author
             of
             the
             Pley
             is
             certainly
             known
             ,
             and
             he
             is
             punishable
             by
             death
             ,
             in
             the
             rigour
             of
             the
             Law
             ,
             Albeit
             many
             Lawyers
             are
             positive
             ,
             that
             no
             Countrey
             uses
             this
             rigour
             ;
             I
             remember
             that
             in
             William
             Dowglas's
             case
             ,
             this
             was
             urged
             :
             for
             there
             several
             Gentle-men
             having
             made
             a
             quarrel
             ,
             which
             was
             only
             proved
             by
             one
             witness
             ,
             they
             went
             to
             the
             Fields
             of
             Lieth
             ,
             and
             Hoom
             of
             Eccles
             ,
             was
             killed
             ,
             but
             it
             was
             not
             proved
             who
             was
             the
             killer
             :
             and
             the
             quarrel
             was
             only
             proved
             by
             one
             witness
             ;
             who
             likewise
             proved
             ,
             that
             Spot
             had
             the
             quarrel
             with
             Eccles
             ,
             and
             that
             
               William
               Dowglas
            
             had
             none
             ;
             and
             yet
             the
             Assise
             found
             William
             guilty
             ,
             and
             he
             thereupon
             died
             because
             present
             .
          
           
             XIII
             .
             Homicide
             likewise
             committed
             upon
             Thieves
             ,
             and
             Robbers
             ,
             breaking
             houses
             in
             the
             night
             ,
             or
             committed
             in
             time
             of
             masterful
             depradations
             ,
             are
             free
             from
             punishment
             ,
             by
             the
             foresaid
             Act
             22.
             
             And
             albeit
             it
             be
             declared
             lawful
             to
             the
             Justices
             ,
             to
             fine
             such
             as
             are
             assoilzied
             from
             Murder
             ,
             upon
             the
             defences
             of
             casual
             Homicid
             ,
             and
             Homicide
             in
             defence
             :
             yet
             such
             as
             kill
             Robbers
             ,
             or
             night
             Thieves
             ,
             are
             free
             from
             all
             arbitrary
             punishment
             .
             By
             this
             Act
             likewise
             ,
             it
             is
             lawful
             to
             kill
             such
             as
             assist
             ,
             or
             defend
             the
             depredators
             ,
             or
             oppose
             their
             pursuit
             by
             force
             ;
             and
             by
             the
             6.
             
             Act
             of
             the
             second
             Session
             of
             that
             
             Parliament
             ,
             it
             is
             Statuted
             ,
             that
             the
             Parties
             whose
             goods
             are
             robbed
             ,
             shall
             acquaint
             the
             Sheriff
             ,
             or
             Justices
             of
             Peace
             ,
             of
             the
             Paroch
             ,
             who
             shall
             require
             all
             Parties
             to
             concurr
             ;
             and
             if
             any
             of
             the
             concurrers
             ,
             kill
             any
             of
             the
             Robbers
             ,
             they
             are
             declared
             free
             ;
             upon
             which
             it
             may
             be
             doubted
             ,
             if
             such
             as
             kill
             Robbers
             without
             acquainting
             the
             Sheriff
             ,
             or
             Justices
             of
             Peace
             ,
             are
             punishable
             :
             and
             it
             seems
             they
             are
             ,
             seing
             this
             Act
             explains
             the
             other
             ,
             and
             modifies
             somewhat
             the
             indefinite
             power
             given
             to
             private
             persons
             ,
             who
             upon
             pretence
             of
             such
             invasions
             ,
             which
             might
             prove
             very
             dangerous
             :
             and
             therefore
             the
             last
             did
             wisely
             require
             the
             concourse
             of
             the
             Magistrate
             ;
             and
             upon
             this
             consideration
             ,
             I
             know
             that
             it
             was
             consulted
             ,
             that
             notwithstanding
             of
             this
             ,
             such
             as
             had
             not
             acquainted
             the
             Sheriff
             ,
             or
             Justices
             ,
             could
             not
             be
             exculpat
             .
             And
             yet
             it
             may
             be
             argued
             ,
             that
             this
             Act
             narrates
             not
             the
             other
             ,
             nor
             bears
             expresly
             a
             rectification
             of
             it
             ;
             but
             ,
             without
             lessening
             the
             priviledge
             therein
             granted
             ,
             adds
             a
             new
             one
             ,
             and
             so
             being
             introduced
             in
             favours
             of
             possessors
             ,
             should
             not
             be
             interpret
             to
             their
             disadvantage
             .
             By
             the
             Civil
             Law
             ,
             
               licebat
               nocturnum
               furum
               occidere
            
             .
             And
             by
             the
             227.
             
             Act
             14.
             
             
               Par.
               Ia.
            
             6.
             it
             is
             declared
             lawful
             for
             the
             Leidges
             to
             conveen
             ,
             and
             execute
             Thieves
             ,
             and
             they
             are
             all
             made
             Justices
             for
             that
             effect
             ;
             upon
             which
             Act
             ,
             a
             defence
             was
             propon'd
             ,
             for
             the
             inhabitants
             of
             Kintail
             ,
             who
             took
             a
             Robber
             ,
             and
             execute
             him
             by
             their
             own
             authority
             ,
             in
             a
             formal
             Court.
             But
             by
             the
             Civil
             Law
             ,
             and
             Doctors
             ,
             it
             was
             not
             lawful
             ,
             
               furem
               vel
               predatorem
               diurnum
               occidere
            
             ,
             except
             the
             thing
             stoln
             was
             of
             great
             value
             ,
             and
             could
             not
             be
             otherwayes
             recovered
             ;
             or
             that
             he
             defended
             himself
             ,
             and
             resisted
             his
             being
             apprehended
             :
             all
             which
             defences
             may
             be
             proved
             ,
             by
             the
             assertion
             of
             the
             killer
             ,
             Farin
             .
             125.
             part
             .
             4.
             
             And
             if
             any
             other
             Probation
             were
             requisite
             ,
             the
             benefit
             of
             these
             Acts
             were
             a
             snare
             ,
             rather
             then
             an
             advantage
             :
             and
             necessity
             legittimats
             many
             things
             ,
             which
             are
             otherwayes
             hard
             .
          
           
           
             XIV
             .
             By
             the
             Civil
             Law
             ,
             it
             was
             lawful
             for
             the
             Father
             to
             kill
             his
             own
             Daughter
             ,
             if
             he
             found
             her
             committing
             adultery
             ,
             and
             to
             kill
             also
             her
             adulterer
             .
             
               l.
               part
            
             .
             1.
             
               ff
               .
               de
               Adult
            
             :
             which
             was
             allowed
             ,
             rather
             in
             hatred
             to
             adultery
             ,
             then
             because
             the
             Law
             considered
             it
             was
             too
             hard
             for
             a
             Father
             to
             restrain
             his
             passion
             in
             that
             case
             ;
             for
             if
             it
             had
             been
             allowed
             to
             the
             father
             only
             upon
             this
             last
             accompt
             ,
             it
             had
             been
             allowed
             much
             more
             to
             the
             Husband
             to
             kill
             his
             wife
             ,
             if
             he
             found
             her
             committing
             adultery
             ;
             for
             his
             relation
             beeing
             nearer
             ,
             and
             his
             honour
             more
             concerned
             then
             the
             Fathers
             ,
             his
             passion
             behov'd
             to
             be
             also
             more
             violent
             ;
             and
             yet
             the
             Law
             being
             jealous
             of
             the
             Husbands
             violence
             ,
             does
             only
             allow
             the
             Husband
             to
             kill
             the
             adulterer
             ,
             if
             he
             be
             a
             mean
             person
             ,
             but
             if
             the
             adulterer
             be
             a
             person
             of
             quality
             ,
             or
             if
             the
             adulterer
             be
             found
             elsewhere
             then
             in
             the
             Husbands
             own
             house
             ,
             it
             it
             not
             lawful
             to
             kill
             them
             ,
             for
             the
             injury
             is
             hightned
             by
             polluting
             the
             Husbands
             own
             house
             ,
             and
             becomes
             a
             kind
             of
             adulterous
             Hamsuckin
             :
             And
             yet
             if
             the
             Husband
             kill
             in
             either
             of
             these
             cases
             ,
             that
             Law
             ordained
             the
             husband
             only
             to
             be
             punished
             by
             some
             arbitrary
             punishment
             ,
             but
             not
             by
             death
             .
             
               l.
               Marito
               .
               ff
               .
               de
               Adulter
               .
            
             But
             this
             last
             determination
             doth
             not
             satisfie
             justice
             ,
             for
             it
             seems
             reasonable
             that
             it
             should
             be
             rather
             lawful
             to
             kill
             a
             person
             of
             quality
             ,
             committing
             adultery
             ,
             then
             a
             mean
             person
             ,
             both
             because
             adultery
             is
             more
             ordinar
             amongst
             them
             ,
             as
             having
             more
             ease
             ,
             and
             being
             more
             luxoriously
             fed
             ,
             and
             because
             the
             husband
             cannot
             be
             so
             easily
             presumed
             to
             have
             had
             former
             quarrels
             with
             a
             person
             above
             his
             rank
             ,
             and
             so
             should
             be
             believed
             to
             have
             killed
             him
             meerly
             to
             satisfie
             his
             just
             revenge
             .
             As
             also
             since
             they
             can
             sooner
             prevail
             ,
             they
             ought
             to
             be
             more
             rigidly
             punished
             .
             The
             Law
             has
             deny'd
             this
             priviledge
             to
             women
             ,
             who
             may
             not
             kill
             their
             Daughters
             or
             Husbands
             ,
             the
             reason
             whereof
             I
             conceive
             to
             have
             been
             ,
             that
             the
             Law
             considered
             ,
             that
             Husbands
             were
             more
             prejudged
             then
             the
             Wives
             ,
             by
             adultery
             ,
             since
             thereby
             ,
             not
             only
             was
             their
             bed
             defiled
             ,
             but
             their
             estate
             carryed
             away
             to
             another
             mans
             children
             ,
             or
             else
             it
             thought
             women
             too
             passionat
             
             to
             be
             intrusted
             with
             such
             a
             licence
             ,
             or
             that
             it
             was
             undecent
             to
             allow
             women
             the
             use
             of
             Armes
             :
             And
             yet
             I
             believe
             their
             just
             grief
             would
             secure
             them
             against
             the
             ordinar
             punishment
             ;
             and
             though
             some
             prerogative
             be
             due
             to
             the
             man
             over
             his
             wife
             ,
             but
             not
             
               è
               contra
            
             ,
             yet
             women
             may
             complain
             that
             men
             being
             the
             only
             Legislators
             ,
             have
             taken
             too
             great
             a
             measure
             of
             favour
             to
             themselves
             in
             this
             Law.
             I
             have
             not
             observed
             any
             decision
             of
             this
             in
             our
             Law
             ,
             and
             since
             our
             statutes
             have
             secuted
             murderers
             in
             other
             cases
             ,
             as
             in
             self-defence
             ,
             killing
             of
             thieves
             ,
             &c.
             
             And
             yet
             have
             not
             priviledged
             this
             case
             ,
             it
             may
             seem
             that
             the
             husband
             nor
             rather
             cannot
             kill
             by
             our
             Law
             ,
             and
             the
             most
             that
             they
             could
             expect
             ,
             were
             ,
             that
             after
             they
             were
             found
             guilty
             by
             the
             Law
             ,
             the
             Council
             might
             either
             change
             the
             doom
             of
             death
             into
             an
             arbitrary
             punishment
             ,
             or
             might
             recomend
             the
             party
             to
             his
             Majesties
             clemency
             for
             a
             remission
             :
             But
             it
             were
             hard
             to
             punish
             with
             death
             amongst
             us
             ,
             what
             almost
             all
             Nations
             allow
             as
             lawful
             ,
             and
             what
             may
             be
             yet
             a
             further
             check
             to
             that
             growing
             vice
             .
             And
             this
             seems
             juster
             then
             to
             allow
             with
             the
             Civil
             Law
             ,
             that
             the
             Husband
             or
             Father
             ,
             who
             are
             persons
             interessed
             ,
             should
             be
             judges
             in
             their
             own
             concern
             ,
             and
             should
             be
             judges
             when
             they
             are
             in
             passion
             ,
             and
             because
             they
             are
             in
             passion
             ;
             Nor
             can
             I
             see
             why
             the
             Law
             should
             punish
             even
             him
             who
             possesses
             by
             his
             own
             authority
             what
             is
             truly
             his
             own
             ,
             and
             yet
             should
             allow
             here
             the
             parties
             interessed
             to
             punish
             with
             death
             by
             their
             own
             authority
             :
             or
             that
             passion
             which
             only
             infers
             mitigation
             of
             the
             pain
             elsewhere
             ,
             should
             here
             infer
             absolute
             impunity
             ,
             for
             this
             were
             to
             make
             one
             irregular
             Act
             legittimat
             another
             ,
             since
             passion
             is
             a
             transgression
             against
             reason
             ,
             as
             Adultry
             is
             against
             Law
             :
             But
             since
             this
             indulgence
             is
             personal
             ,
             and
             only
             granted
             to
             the
             Father
             and
             Husband
             ,
             because
             of
             their
             just
             passion
             and
             near
             relation
             ,
             it
             is
             not
             reasonable
             that
             it
             should
             be
             extended
             to
             such
             as
             k●ll
             by
             the
             Fathers
             or
             Husbands
             Command
             ,
             which
             command
             none
             ought
             to
             obey
             ,
             being
             contrair
             to
             Law
             :
             Nor
             ought
             this
             indulgence
             to
             extend
             to
             the
             Father
             or
             Husband
             when
             they
             kill
             
               ex
               intervallo
            
             ,
             and
             not
             
             when
             they
             find
             the
             Committers
             in
             the
             very
             transgression
             ,
             for
             the
             Law
             allows
             no
             passion
             to
             continue
             ;
             &
             therefore
             what
             ever
             revenge
             is
             allowed
             to
             it
             ,
             is
             only
             allowed
             if
             it
             be
             executed
             immediatly
             ,
             
               &
               ex
               in
               continenti
            
             .
             And
             though
             in
             civil
             cases
             that
             is
             said
             to
             be
             done
             
               ex
               in
               continenti
            
             ,
             or
             immediatly
             ,
             which
             is
             done
             before
             the
             doer
             go
             about
             any
             thing
             else
             :
             Yet
             I
             conceive
             that
             interpretation
             would
             be
             too
             lax
             in
             this
             case
             ,
             and
             that
             the
             killer
             could
             not
             plead
             this
             priviledge
             ,
             except
             he
             killed
             them
             in
             the
             very
             Act
             ,
             or
             rising
             from
             it
             .
          
           
             
               Homicidium
               deliberatum
            
             ,
             or
             upon
             fore-thought
             Fellony
             ,
             is
             still
             punishable
             by
             death
             ,
             and
             confiscation
             of
             the
             movables
             of
             the
             Defunct
             for
             His
             Majesties
             use
             ,
             
               Stat.
               Rob.
            
             3.
             cap.
             43.
             
             And
             albeit
             Lawyers
             say
             ,
             that
             it
             is
             still
             rather
             presumable
             to
             be
             casual
             ,
             then
             deliberat
             ,
             and
             that
             by
             our
             Law
             and
             custome
             ,
             designe
             is
             still
             libelled
             ,
             yet
             because
             it
             is
             impossible
             to
             prove
             design
             ,
             which
             is
             a
             secret
             act
             of
             the
             mind
             .
             All
             killing
             is
             alwayes
             punishable
             by
             death
             ,
             except
             some
             of
             the
             qualities
             of
             chance
             ,
             self-defence
             ,
             &c.
             be
             alledged
             upon
             by
             the
             Pannel
             .
             It
             may
             be
             here
             asked
             ,
             if
             by
             our
             Law
             ,
             he
             who
             strikes
             with
             his
             fist
             ,
             or
             a
             batton
             (
             which
             are
             of
             themselves
             no
             mortal
             weapons
             )
             be
             punishable
             by
             death
             ,
             though
             the
             party
             struct
             there
             by
             him
             dye
             :
             And
             it
             would
             seem
             hard
             that
             he
             should
             ,
             seing
             no
             designe
             to
             kill
             can
             be
             here
             presumed
             ,
             
               &
               maleficia
               voluntas
               &
               affectus
               distinguunt
               ,
            
             and
             by
             the
             5.
             
               cap.
               Wil.
               Reg.
               num
            
             .
             4.
             
             It
             is
             said
             ,
             that
             
               si
               quis
               interficiat
               cum
               pugno
               dabit
               regi
            
             25.
             
               vaccas
               ,
               &
               satisfaciet
               parentelae
               defuncti
               secundum
               assisam
               regni
               ,
            
             by
             which
             it
             would
             appear
             ,
             that
             striking
             with
             the
             fist
             is
             not
             capital
             ,
             albeit
             death
             follow
             .
          
           
             Murder
             premeditated
             ,
             may
             be
             divided
             into
             that
             species
             which
             is
             simply
             such
             ,
             Assasination
             ,
             Murder
             under
             trust
             ,
             and
             self
             Murder
             .
          
           
             XVI
             .
             Murder
             under
             trust
             ,
             is
             with
             us
             ,
             when
             a
             party
             who
             put
             himself
             under
             the
             assurance
             and
             trust
             of
             another
             ,
             is
             murdered
             by
             him
             :
             and
             this
             is
             by
             a
             special
             statute
             punisht
             as
             treason
             ,
             Act.
             51.
             
             P.
             11.
             
             Ia.
             6.
             
             The
             words
             are
             (
             where
             the
             party
             
             slain
             is
             under
             the
             
               traist
               ,
               credit
               ,
               assurance
               ,
               and
               power
               of
               the
               slayer
            
             ;
             the
             party
             being
             tryed
             and
             found
             guilty
             thereof
             by
             an
             assize
             ,
             it
             shall
             be
             Treason
             ,
             and
             the
             person
             found
             culpable
             ,
             shall
             forefault
             Life
             ,
             Lands
             ,
             and
             Goods
             )
             what
             this
             credit
             and
             assurance
             is
             ,
             hath
             oft
             been
             questioned
             ,
             and
             it
             is
             reported
             that
             the
             origin
             of
             this
             ,
             was
             to
             punish
             the
             Murder
             of
             a
             Gentleman
             ,
             who
             invited
             his
             neighbour
             to
             a
             feast
             ,
             and
             killed
             him
             and
             all
             his
             relations
             in
             his
             own
             house
             :
             so
             that
             invitation
             is
             one
             branch
             of
             this
             trust
             .
             2.
             
             Assurance
             signifies
             ,
             that
             when
             two
             persons
             were
             at
             fead
             ,
             and
             the
             one
             hath
             found
             borrows
             to
             one
             another
             ,
             Act
             97.
             
             Ia.
             1.
             p.
             6.3
             .
             Where
             persons
             at
             varience
             are
             under
             capitulation
             .
             4
             This
             Act
             has
             been
             stretcht
             to
             the
             conjugal
             trust
             betwixt
             man
             and
             wife
             ,
             anno
             .
             1627.
             
             
               Andrew
               Row
            
             ,
             And
             yet
             in
             the
             Process
             intented
             against
             Swintoun
             ,
             for
             killing
             his
             wife
             ,
             anno
             .
             1666.
             
             It
             being
             objected
             that
             this
             act
             extended
             not
             to
             such
             trusts
             as
             this
             ,
             the
             pusurer
             restricted
             his
             Libel
             to
             Murder
             .
             And
             the
             Lords
             of
             Session
             ,
             Anno.
             1665.
             found
             that
             a
             sons
             killing
             his
             own
             mother
             ,
             was
             not
             a
             murder
             under
             trust
             ,
             punishable
             by
             this
             act
             :
             and
             yet
             it
             would
             appear
             ,
             that
             both
             killing
             of
             wives
             and
             Children
             falls
             under
             that
             branch
             of
             the
             act
             ,
             where
             the
             party
             is
             under
             the
             power
             of
             the
             slayer
             .
             This
             species
             of
             Murder
             was
             by
             the
             Civilians
             ,
             called
             proditio
             ,
             which
             is
             designed
             to
             be
             
               homicidium
               sub
               praetextu
               amicitiae
               ,
               v.
               g.
               dum
               sederem
               tecum
               in
               mensa
               vel
               amicitiam
               fingerem
               ,
            
             which
             is
             punishable
             by
             a
             more
             severe
             death
             then
             ordinar
             Murders
             .
             And
             in
             Spain
             ,
             the
             betrayer
             or
             proditor
             (
             for
             even
             in
             propriety
             of
             speech
             ,
             Murder
             under
             trust
             is
             treachery
             ,
             or
             Treason
             )
             
               trahitur
               ad
               caudam
               equi
               &
               postea
               furca
               suspenditur
               ,
            
             Gomez
             .
          
           
             By
             that
             act
             likewise
             ,
             tryal
             should
             be
             taken
             by
             an
             assize
             ;
             And
             therefore
             the
             Lords
             found
             ,
             that
             though
             Mr.
             
               Iames
               Oliphant
            
             had
             been
             guilty
             of
             killing
             his
             Mother
             ,
             and
             that
             it
             had
             been
             Treason
             ,
             yet
             his
             forefaulter
             could
             not
             fall
             to
             the
             King
             ,
             upon
             a
             simple
             Denunciation
             for
             not
             appearing
             to
             underly
             the
             Law
             ,
             because
             a
             tryal
             is
             requisite
             in
             this
             case
             .
             And
             by
             the
             137.
             act
             .
             13
             
             
               Par.
               Ia.
            
             6.
             
             The
             killing
             any
             person
             in
             the
             Parliament-House
             ,
             during
             the
             sitting
             thereof
             ,
             or
             the
             inner
             Tolbuith
             (
             
               id
               est
            
             ,
             the
             inner
             house
             of
             the
             Session
             )
             during
             the
             sitting
             thereof
             ,
             or
             the
             Council-house
             whilst
             the
             Lords
             sit
             ,
             or
             kill
             any
             in
             the
             Kings
             Chamber
             ,
             Cabinet
             ,
             or
             Chamber
             of
             peace
             ,
             or
             in
             the
             kings
             presence
             any
             where
             ,
             infers
             the
             pain
             of
             Treason
             .
          
           
             XVII
             .
             What
             is
             interpret
             to
             be
             art
             and
             part
             of
             Murder
             ,
             can
             hardly
             be
             defined
             ,
             for
             it
             does
             depend
             upon
             the
             assize
             :
             A
             designe
             to
             Murder
             ,
             though
             no
             Murder
             follow
             ,
             
               affectus
               sine
               effectu
               punitur
               capitaliter
            
             ,
             l.
             1.
             
               is
               qui
               cum
               telo
               ,
               C.
               ad
               Corn.
               de
               Sicar
            
             :
             yet
             by
             the
             custome
             of
             nations
             ,
             the
             punishment
             now
             reaches
             not
             life
             ,
             
               Clar.
               hoc
               .
               tit
               .
               num
               .
            
             74.
             and
             I
             find
             that
             
               Mathew
               Stewart
            
             ,
             being
             pursued
             for
             contriving
             the
             death
             of
             
               Thomas
               Kennedie
            
             ,
             came
             in
             the
             Kings
             will
             ,
             and
             was
             only
             banisht
             ,
             Mart
             :
             1597.
             
             As
             also
             I
             find
             ,
             that
             though
             Lawson
             was
             cleansed
             of
             the
             murder
             of
             her
             own
             child
             ,
             yet
             she
             being
             referred
             ,
             to
             the
             Justices
             ,
             because
             of
             the
             violent
             presumptions
             adduced
             against
             her
             ,
             and
             that
             she
             her self
             had
             confest
             she
             bore
             a
             dead
             child
             ;
             the
             Justices
             therefore
             did
             ordain
             her
             to
             be
             whipt
             and
             banisht
             ,
             20
             ▪
             August
             .
             1662.
             and
             
               Margaret
               Ramsay
            
             having
             confest
             that
             she
             bore
             a
             dead
             child
             ,
             and
             was
             advised
             to
             cast
             it
             into
             the
             north-Loch
             ,
             which
             she
             did
             not
             ,
             though
             without
             her
             knowledge
             it
             was
             done
             by
             others
             ;
             the
             Justices
             ,
             though
             she
             was
             assoylzied
             by
             the
             inquest
             ,
             ordained
             her
             to
             be
             scourged
             and
             banisht
             ,
             1661.
             
          
           
             XVIII
             .
             Though
             such
             as
             kill
             in
             prosecution
             of
             Law
             ,
             are
             not
             punishable
             as
             Murderers
             ,
             yet
             if
             they
             exceed
             ,
             they
             are
             punishable
             ,
             not
             only
             
               quo
               ad
               excessum
            
             ,
             arbitrarily
             ,
             but
             even
             
               paena
               ordinaria
            
             ,
             as
             Murderers
             .
             An
             instance
             whereof
             was
             decided
             ,
             the
             14.
             of
             Iune
             1672.
             in
             the
             person
             of
             Mr.
             
               Archibald
               Beath
            
             ,
             who
             being
             Pannelled
             for
             killing
             
               Allan
               Gairdiner
            
             ,
             alledged
             that
             the
             Council
             had
             by
             their
             Act
             and
             Proclamation
             ,
             ordained
             all
             Meal
             
             brought
             from
             Ireland
             to
             be
             seiz'd
             upon
             ,
             and
             the
             boats
             wherein
             it
             was
             brought
             ,
             to
             be
             sunk
             ,
             in
             prosecution
             whereof
             Gardiners
             Meal
             being
             Seiz'd
             ,
             he
             broke
             the
             Seizure
             ,
             and
             being
             followed
             in
             a
             Boate
             ,
             by
             the
             said
             Mr.
             Archibald
             ,
             and
             others
             ,
             he
             was
             commanded
             to
             stay
             his
             Boat
             ,
             but
             was
             so
             fare
             from
             obeying
             ,
             though
             commanded
             in
             His
             
             Majestie
             's
             name
             ,
             that
             he
             had
             run
             almost
             down
             the
             Pannels
             little
             Boat
             ,
             who
             was
             thereupon
             forced
             to
             shoot
             at
             them
             ,
             and
             though
             this
             Act
             ,
             
               ex
               post
               facto
            
             ,
             degenerat
             into
             an
             act
             of
             killing
             ,
             yet
             no
             killing
             was
             at
             first
             intended
             ;
             and
             the
             rise
             of
             all
             such
             Actions
             is
             to
             be
             first
             considered
             .
          
           
             To
             which
             it
             was
             replyed
             ,
             that
             this
             act
             was
             to
             be
             understood
             civiliter
             ,
             and
             did
             only
             impower
             the
             Leidges
             to
             Seize
             ,
             but
             not
             to
             kill
             ,
             and
             all
             mandats
             are
             to
             be
             so
             interpreted
             ,
             as
             not
             to
             be
             extended
             ,
             
               ad
               ea
               quae
               mandans
               in
               specie
               non
               mandasset
               ,
            
             or
             
               quae
               solitus
               est
               mandare
               si
               aliquando
               mandat
               non
               mandat
               nisi
               certa
               forma
               servata
               ,
            
             but
             it
             cannot
             be
             subsumed
             that
             the
             Council
             would
             have
             allowed
             the
             importer
             of
             such
             victual
             ,
             to
             be
             killed
             ,
             nor
             do
             they
             use
             to
             intrust
             the
             execution
             of
             such
             Laws
             to
             Ministers
             ;
             and
             if
             they
             had
             designed
             that
             the
             execution
             of
             this
             prohibition
             ,
             should
             reach
             death
             ,
             they
             would
             have
             expresly
             allow'd
             the
             Seizers
             to
             kill
             ,
             as
             they
             use
             to
             do
             in
             such
             cases
             .
             To
             which
             it
             was
             duply'd
             ,
             that
             though
             the
             Minister
             was
             not
             obliedged
             to
             concurr
             because
             of
             his
             function
             ,
             yet
             concurring
             as
             a
             Subject
             ,
             he
             is
             not
             punishable
             therefore
             capitally
             ;
             and
             if
             a
             Minister
             should
             concur
             when
             the
             hue
             and
             cry
             were
             raised
             after
             a
             night
             Thief
             ,
             or
             if
             a
             Minister
             did
             assist
             such
             as
             pursued
             Rebels
             ,
             and
             should
             kill
             in
             the
             pursuite
             ,
             it
             were
             absurd
             to
             conclude
             that
             he
             should
             be
             punisht
             as
             a
             Murderer
             ,
             because
             he
             was
             not
             obliedged
             to
             kil
             :
             and
             it
             is
             not
             imaginable
             ,
             but
             if
             it
             had
             been
             proposed
             to
             the
             Council
             what
             seizers
             should
             do
             ,
             in
             case
             of
             resistance
             ,
             but
             they
             would
             have
             authorized
             them
             to
             kil
             ;
             nor
             could
             their
             act
             receive
             compleat
             obedience
             in
             case
             of
             resistance
             ,
             for
             else
             such
             as
             resolve
             to
             contraveen
             ,
             might
             secure
             themselves
             by
             their
             resistance
             ,
             and
             the
             Council
             by
             
             empowering
             to
             sink
             the
             Boat
             where
             the
             Victual
             is
             ,
             does
             very
             clearly
             impower
             the
             killing
             of
             such
             as
             resist
             ,
             for
             they
             might
             have
             been
             sunk
             in
             the
             Boat
             ,
             and
             he
             who
             is
             allowed
             to
             sink
             a
             Boat
             ,
             is
             allowed
             to
             sink
             all
             who
             are
             in
             it
             .
             Notwithstanding
             of
             which
             defences
             ,
             the
             said
             Mr.
             Archibald
             was
             put
             to
             the
             knowledge
             of
             an
             inquest
             ,
             and
             after
             the
             verdict
             was
             ordain'd
             to
             lose
             his
             head
             ,
             but
             the
             Parliament
             having
             thereafter
             that
             same
             moneth
             allowed
             by
             their
             act
             ,
             such
             as
             resisted
             to
             be
             killed
             ,
             the
             said
             Mr.
             Archibald
             was
             thereupon
             remitted
             as
             to
             the
             Crime
             ,
             but
             was
             never
             readmitted
             to
             his
             Church
             .
          
           
             Some
             Militia
             Souldiers
             also
             being
             pursued
             for
             Murder
             ,
             3.
             
             Febr.
             1674.
             alledged
             that
             they
             could
             not
             go
             to
             the
             knowledge
             of
             an
             inquest
             as
             Murderers
             ,
             since
             if
             they
             killed
             ,
             it
             was
             in
             prosecution
             of
             their
             Officers
             orders
             ,
             for
             they
             being
             sent
             to
             Poynd
             ,
             were
             resisted
             ;
             and
             though
             it
             was
             reply'd
             ,
             that
             opposition
             to
             the
             poynding
             could
             not
             warrand
             killing
             ,
             but
             they
             might
             have
             pursued
             a
             ryot
             :
             This
             was
             alledged
             not
             to
             be
             relevant
             ,
             because
             ,
             
               sibi
               imputent
            
             ,
             who
             opposed
             ,
             and
             Souldiers
             must
             do
             effectually
             what
             is
             commanded
             :
             and
             their
             Officers
             may
             shoot
             them
             if
             they
             return
             without
             effectuating
             what
             was
             commanded
             ,
             and
             military
             commands
             must
             not
             be
             delayed
             ,
             nor
             opposed
             ,
             like
             other
             commands
             .
             Notwithstanding
             of
             which
             debate
             they
             were
             found
             guilty
             .
          
           
             XIX
             .
             It
             is
             much
             controverted
             amongst
             the
             Doctors
             ,
             whether
             it
             be
             lawful
             ,
             
               occidere
               hannitum
            
             ,
             a
             Person
             at
             the
             Horn
             ,
             and
             by
             the
             Civil
             Law
             ,
             
               non
               licet
               Bart.
               in
               l.
               ut
               vim
               .
               N.
            
             1.
             
               ff
               .
               de
               inst
               .
               &
               jure
               ,
            
             but
             by
             the
             Statutes
             of
             particular
             places
             ,
             they
             all
             conclude
             ,
             it
             may
             be
             lawful
             ,
             
               ob
               quietem
               publicam
            
             :
             and
             by
             our
             old
             Decisions
             ,
             that
             the
             killing
             of
             such
             as
             are
             at
             the
             Horn
             for
             Slaughter
             ,
             or
             other
             Crimes
             ,
             is
             not
             Criminal
             ,
             Ianuary
             1600.
             
             Guthrie
             contra
             Iarden
             :
             but
             by
             the
             foresaid
             22.
             
             
               Act
               Par.
            
             1.
             
             Ch.
             2.
             
             It
             is
             declared
             ,
             that
             the
             killing
             such
             as
             are
             denounced
             ,
             or
             declared
             Rebels
             ,
             for
             Capital
             Crimes
             ,
             or
             such
             as
             defend
             these
             Rebels
             ,
             may
             be
             lawfully
             killed
             ;
             whereby
             it
             is
             implyed
             ,
             that
             such
             as
             are
             at
             the
             Horn
             for
             other
             Crimes
             ,
             
             may
             not
             be
             killed
             ;
             and
             such
             could
             not
             be
             lawfully
             killed
             ,
             who
             are
             only
             at
             the
             Horn
             for
             Pecunial
             Causes
             ,
             and
             any
             Statute
             allowing
             to
             kill
             such
             ,
             would
             be
             null
             ,
             
               Clar.
               hoc
               .
               tit
               num
            
             .
             53.
             
             But
             it
             may
             be
             here
             doubted
             ,
             what
             are
             these
             Criminal
             Causes
             ,
             for
             which
             one
             at
             the
             Horn
             may
             be
             killed
             ?
             for
             clearing
             whereof
             ,
             it
             is
             fit
             to
             remember
             ,
             that
             the
             Doctors
             allow
             only
             such
             to
             be
             killed
             ,
             who
             are
             
               banniti
               ob
               grave
               delictum
               ,
               Clar.
               num
               .
            
             53.
             and
             in
             reason
             ,
             it
             should
             be
             such
             a
             Crime
             ,
             for
             which
             the
             Rebel
             hath
             deserved
             death
             ,
             if
             he
             had
             appeared
             ;
             for
             it
             seems
             rigid
             and
             unjust
             ,
             that
             wherever
             the
             conclusion
             of
             the
             Summonds
             was
             Criminal
             ,
             the
             Party
             being
             Denounced
             ,
             may
             be
             killed
             ;
             or
             that
             when
             ever
             the
             Rebel
             was
             Denounced
             for
             absence
             from
             a
             Justice-Court
             ,
             he
             may
             be
             killed
             ,
             seing
             the
             common-good
             ,
             which
             is
             the
             reason
             inductive
             of
             this
             Law
             ,
             do's
             not
             require
             ,
             nor
             in
             effect
             is
             not
             consistent
             with
             thir
             interpretations
             .
             2.
             
             It
             may
             be
             doubted
             ,
             if
             he
             who
             kills
             a
             Rebel
             for
             private
             revenge
             ,
             and
             not
             
               ob
               vindictam
               publicam
            
             ,
             will
             have
             the
             benefite
             of
             this
             Defence
             :
             of
             this
             we
             have
             an
             instance
             ,
             anno
             1600.
             where
             
               Robert
               Auchmoutic
            
             being
             pursued
             for
             the
             Slaughter
             of
             
               Iames
               Wanchop
            
             ,
             it
             was
             alledged
             that
             the
             Defunct
             was
             at
             the
             Horn
             ,
             for
             receipting
             a
             Traitor
             :
             to
             which
             it
             was
             replyed
             ,
             that
             the
             Pannel
             killed
             him
             upon
             a
             private
             quarrel
             ,
             for
             having
             conversed
             with
             the
             Defunct
             long
             after
             he
             was
             at
             the
             Horn
             ,
             for
             that
             cause
             :
             but
             that
             he
             killed
             him
             in
             a
             Duel
             ,
             upon
             a
             privat
             quarrel
             :
             in
             respect
             whereof
             ,
             the
             Pannels
             defence
             was
             repelled
             ,
             and
             he
             put
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             and
             thereafter
             beheaded
             .
             And
             yet
             I
             find
             the
             Doctors
             of
             opinion
             ,
             that
             
               bannito
               occiso
               per
               inimicum
               occidens
               non
               reputatur
               homicida
               ,
            
             and
             which
             is
             more
             ,
             he
             will
             not
             have
             right
             to
             the
             reward
             promised
             for
             killing
             the
             Rebel
             ,
             
               Caravet
               in
               Prag
            
             .
             1.
             
               de
               exul
               num
            
             .
             134.
             and
             enemies
             are
             these
             who
             most
             probably
             will
             execute
             this
             publick
             Justice
             ,
             which
             the
             Law
             designes
             .
             And
             seing
             our
             late
             Act
             makes
             no
             distinction
             betwixt
             such
             as
             kill
             upon
             publick
             and
             private
             revenge
             ;
             
             I
             believe
             that
             the
             case
             now
             hath
             no
             difficulty
             ,
             and
             that
             now
             the
             killer
             in
             both
             cases
             would
             be
             free
             from
             Punishment
             .
             Yet
             I
             think
             ,
             that
             he
             who
             would
             kill
             a
             Rebel
             in
             a
             Combat
             ,
             might
             yet
             be
             Pannelled
             ,
             for
             contraveening
             that
             Act
             anent
             Duels
             ;
             for
             though
             he
             might
             lawfully
             kill
             a
             Rebel
             ,
             yet
             he
             could
             not
             lawfully
             fight
             a
             Duel
             .
             3.
             
             It
             may
             be
             doubted
             ,
             if
             he
             who
             was
             Denounced
             Rebel
             ,
             was
             not
             lawfully
             Denounced
             ,
             
               v.
               g.
            
             if
             he
             was
             out
             of
             the
             Countrey
             the
             time
             of
             the
             Charge
             ,
             or
             that
             the
             Execution
             was
             not
             stamped
             ,
             or
             wanted
             some
             Solemnity
             ,
             if
             
               eo
               casu
            
             ,
             the
             killer
             would
             be
             guilty
             of
             Murder
             :
             which
             Defence
             ,
             I
             find
             likewise
             propon'd
             in
             the
             former
             case
             ,
             and
             yet
             repelled
             ,
             and
             very
             justly
             ,
             for
             a
             privat
             Person
             is
             not
             oblieged
             to
             know
             these
             nullities
             .
             If
             any
             man
             resist
             the
             execution
             of
             his
             Majesties
             Laws
             ,
             by
             Messengers
             ,
             or
             other
             publick
             Servants
             ,
             in
             that
             case
             ,
             the
             Messenger
             cannot
             proceed
             to
             kill
             ,
             as
             was
             found
             in
             
               Iohn
               Mackintoshes
            
             case
             ,
             May
             11.
             1673.
             but
             if
             the
             resister
             do
             also
             proceed
             ,
             to
             offer
             violence
             ,
             by
             drawing
             upon
             the
             Messenger
             ,
             in
             that
             case
             the
             Messenger
             may
             kill
             him
             lawfully
             ,
             without
             necessity
             of
             proving
             that
             he
             would
             have
             been
             in
             danger
             of
             his
             life
             ,
             if
             he
             had
             not
             killed
             ;
             though
             privat
             persons
             cannot
             kill
             when
             they
             are
             invaded
             ,
             except
             they
             be
             by
             that
             invasion
             put
             in
             danger
             of
             their
             life
             .
          
           
             XX.
             Albeit
             ordinarily
             death
             ,
             and
             the
             confiscation
             of
             Moveables
             ,
             is
             the
             punishment
             of
             Murder
             ;
             and
             that
             the
             life-rent
             of
             the
             Murderer
             doth
             not
             thereby
             fall
             ;
             yet
             in
             some
             cases
             ,
             the
             life-rent
             falls
             ,
             as
             by
             the
             118
             Act
             12.
             
             
               Par.
               Ia.
            
             6.
             
             These
             who
             are
             denounced
             Rebels
             ,
             for
             slaying
             men
             in
             the
             Church
             ,
             or
             Church-yard
             ,
             in
             the
             time
             of
             Prayer
             ,
             Preaching
             ,
             or
             administration
             of
             the
             Sacraments
             ,
             their
             Life-rents
             presently
             falls
             to
             the
             King
             (
             though
             regulariter
             Life-rent
             Escheits
             fall
             to
             the
             respective
             Superior
             ,
             and
             the
             receipters
             do
             likewise
             loose
             their
             Life-rent
             Escheats
             ;
             declarator
             being
             first
             past
             upon
             the
             receipt
             .
             It
             may
             be
             here
             doubted
             ,
             if
             these
             words
             ,
             
               the
               time
               of
               Divine
               Service
            
             ,
             may
             extend
             to
             slaughters
             ,
             committed
             the
             
             time
             of
             Preaching
             ,
             &c.
             
             Albeit
             there
             be
             no
             Preaching
             ,
             or
             Prayer
             for
             the
             time
             there
             :
             the
             reason
             of
             the
             doubt
             is
             ,
             seing
             the
             39.
             
             Act
             of
             the
             6.
             
             
               Par.
               Q.
               M.
            
             anent
             removing
             ,
             is
             so
             interpret
             :
             for
             by
             that
             Act
             ,
             warning
             of
             Tennents
             should
             be
             used
             at
             the
             Paroch
             Church
             ,
             the
             time
             of
             Preaching
             or
             Prayer
             :
             which
             words
             are
             thus
             interpret
             ,
             the
             time
             that
             Preaching
             uses
             to
             be
             ,
             though
             there
             be
             none
             at
             the
             time
             .
          
           
             By
             the
             219.
             
             
               Act
               Par.
            
             14.
             
             Ia.
             6.
             
             If
             either
             the
             pursuer
             or
             defender
             in
             civil
             pursuits
             ,
             kill
             one
             another
             ,
             during
             the
             dependence
             ,
             
               eo
               casu
            
             ;
             the
             killer
             being
             put
             to
             the
             Horn
             ,
             either
             for
             not
             compearance
             at
             the
             Dyet
             ,
             or
             for
             not
             finding
             Caution
             ,
             he
             loses
             his
             Life-rent
             Escheat
             immediatly
             upon
             the
             Denounciation
             .
          
           
             XXI
             .
             Murder
             is
             one
             of
             the
             four
             Plea's
             of
             the
             Crown
             ,
             Malcol
             .
             2.
             c.
             11.
             and
             therefore
             the
             cognition
             thereof
             belongs
             to
             the
             Justices
             ;
             and
             Commissions
             cannot
             be
             granted
             for
             tryal
             thereof
             ,
             Act
             74.
             
             Ia.
             6.
             
             Par.
             11.
             albeit
             it
             be
             now
             most
             ordinar
             ,
             to
             grant
             such
             Commissions
             :
             and
             yet
             this
             Act
             being
             alleadged
             against
             one
             of
             those
             Commissioners
             ,
             before
             the
             Council
             ,
             they
             did
             recall
             the
             same
             :
             but
             if
             the
             Murderer
             be
             taken
             
               red
               hand
            
             ,
             he
             may
             be
             judged
             by
             a
             Barron
             (
             having
             power
             of
             Pit
             and
             Gallows
             )
             by
             a
             Sheriff
             ,
             or
             any
             other
             Judge
             ordinar
             ;
             betwixt
             which
             ,
             there
             is
             likewise
             this
             difference
             ,
             that
             Murder
             is
             Bailable
             ,
             Ia.
             3.
             
             Par.
             6.
             c.
             42.
             
             But
             Slaughter
             taken
             red
             hand
             ,
             is
             not
             Bailable
             ;
             but
             the
             committer
             thereof
             should
             be
             judged
             within
             that
             Sun
             ,
             Ia.
             1.
             
             Par.
             6.
             c.
             89.95
             .
             And
             if
             the
             Barron
             or
             Sheriff
             proceed
             not
             within
             that
             time
             ,
             the
             Cognition
             belongs
             only
             to
             the
             Justices
             ,
             for
             they
             are
             Judges
             to
             Murder
             upon
             citation
             .
          
           
             XXII
             .
             By
             several
             old
             Acts
             ,
             I
             find
             that
             the
             Sheriff
             ,
             when
             a
             Murder
             is
             committed
             ,
             may
             raise
             the
             Kings
             Horn
             (
             
               id
               est
            
             ,
             the
             hue
             and
             cry
             ,
             hoesium
             ,
             as
             the
             Latine
             translation
             calls
             it
             )
             upon
             the
             Murder
             ,
             and
             follow
             him
             out
             of
             his
             Sheriffdom
             ,
             and
             send
             Letters
             to
             the
             next
             ,
             and
             he
             to
             a
             third
             ,
             and
             so
             till
             he
             
             be
             taken
             ,
             and
             that
             when
             he
             is
             taken
             ,
             Justice
             should
             be
             done
             upon
             him
             ,
             within
             fourty
             dayes
             ,
             and
             that
             he
             should
             be
             sent
             from
             Sheriff
             to
             Sheriff
             ,
             to
             the
             place
             where
             the
             Crime
             was
             committed
             ,
             which
             is
             now
             absolet
             ;
             for
             if
             he
             be
             not
             taken
             red
             hand
             ,
             the
             Sheriff
             cannot
             proceed
             against
             him
             ;
             albeit
             it
             would
             appear
             that
             he
             may
             ,
             if
             he
             be
             taken
             within
             fourty
             dayes
             ,
             Ia.
             1.
             
             Par.
             6.
             c.
             89.
             which
             I
             find
             no
             where
             abrogated
             ,
             nor
             any
             thing
             to
             the
             contrair
             ,
             except
             only
             Hops
             assertion
             ,
             in
             his
             lesser
             Practiques
             ,
             and
             that
             may
             be
             interpret
             also
             of
             Cognitions
             ,
             after
             the
             fourty
             dayes
             are
             expired
             .
          
           
             By
             the
             50.
             
             Act
             of
             the
             6.
             
             
               Par.
               Ia.
            
             1.
             
             It
             is
             Statuted
             ,
             that
             Sheriffs
             in
             the
             former
             case
             ,
             may
             proclaim
             the
             Murderer
             fugitive
             ,
             and
             forbid
             all
             the
             Lieges
             to
             receipt
             him
             ,
             under
             the
             pain
             of
             losing
             Life
             and
             Goods
             ;
             but
             this
             power
             is
             also
             absolet
             .
             And
             the
             receipting
             Murderers
             seems
             not
             any
             accession
             ,
             except
             other
             presumptions
             be
             adduced
             ,
             as
             if
             the
             Murder
             was
             committed
             upon
             the
             receipters
             account
             :
             in
             which
             case
             ,
             receipting
             ,
             may
             be
             arbitrarlily
             punisht
             ,
             but
             of
             this
             ,
             I
             find
             no
             formal
             Decision
             ,
             only
             the
             Registers
             mention
             ,
             that
             
               Thomas
               Brice
            
             ,
             being
             accused
             for
             receipting
             his
             own
             Son
             ,
             who
             had
             Murdered
             Fairhop
             :
             it
             was
             alledged
             ,
             that
             the
             receipting
             his
             own
             Son
             could
             be
             no
             Crime
             ,
             
               nam
               proximitas
               sanguinis
               tollit
               praesumptionem
               criminis
               hoc
               casu
               Clar.
               quest
               .
            
             110.
             num
             .
             54.
             
               &
               l.
            
             2.
             
               ff
               .
               de
               recept
            
             .
             And
             receipt
             could
             only
             be
             interpret
             to
             be
             a
             Crime
             .
             In
             our
             Law
             ,
             after
             the
             committers
             are
             Denounced
             ,
             and
             Letters
             of
             intercommuning
             obtained
             against
             them
             ▪
             which
             Defence
             was
             thought
             so
             relevant
             ,
             that
             the
             Justices
             demur'd
             upon
             it
             ,
             but
             this
             received
             no
             Decision
             .
          
           
             XXIII
             .
             When
             a
             man
             is
             killed
             by
             fore-thought
             fellony
             ,
             the
             King
             can
             by
             our
             Law
             grant
             no
             Remission
             for
             the
             Murder
             ,
             Ia.
             4.
             
             Par.
             6.
             cap.
             63.
             and
             Ia.
             6.
             cap.
             13.
             cap.
             169.
             
             But
             yet
             Remissions
             are
             daily
             granted
             ,
             for
             such
             Murderers
             ,
             
             and
             are
             admitted
             in
             the
             Justice
             Court
             ,
             notwithstanding
             of
             this
             objection
             ,
             as
             in
             the
             Earl
             of
             Caithnes
             case
             ,
             in
             anno
             1668.
             
             And
             it
             is
             alledged
             ,
             that
             these
             Acts
             are
             by
             the
             Stile
             ,
             but
             temporary
             Acts.
             But
             all
             such
             Remissions
             are
             null
             ,
             except
             the
             offender
             offer
             to
             Assith
             the
             Party
             :
             which
             Assithment
             is
             modified
             by
             the
             Council
             ,
             and
             the
             Party
             cannot
             propon
             upon
             his
             Remission
             ,
             till
             he
             find
             present
             Caution
             ,
             to
             satisfie
             what
             shall
             be
             modified
             ,
             within
             fourty
             dayes
             ,
             or
             else
             he
             must
             ,
             during
             these
             fourty
             dayes
             ,
             go
             to
             Prison
             ,
             and
             if
             payment
             be
             not
             made
             within
             fourty
             dayes
             ,
             his
             Remission
             is
             null
             ,
             Ia.
             2.
             
             Par.
             14.
             cap.
             75.
             
          
           
             
               Assassinii
               crimen
            
             ,
             or
             to
             kill
             a
             man
             by
             Assassination
             ,
             is
             to
             Murder
             a
             man
             for
             Money
             ;
             and
             this
             Species
             was
             introduced
             ,
             first
             ,
             by
             the
             Canon
             Law
             ,
             cap.
             1.
             
               de
               homicid
               .
               cap.
            
             6.
             and
             had
             its
             name
             from
             the
             Assassini
             ,
             who
             were
             a
             Tribe
             of
             the
             Phoenicians
             ;
             and
             who
             fain'd
             themselves
             to
             be
             Christians
             ,
             being
             truly
             Mahumetans
             ,
             that
             they
             might
             kill
             Christians
             ;
             and
             therefore
             ,
             and
             because
             the
             foresaid
             Canon
             speaks
             only
             of
             Christians
             ,
             it
             is
             still
             concluded
             ,
             that
             only
             such
             as
             kill
             Christians
             ,
             are
             to
             be
             repute
             Assassinats
             ;
             and
             the
             killer
             of
             a
             Jew
             was
             found
             no
             Assassinate
             ,
             
               Cavall
               .
               h.
               t.
               num
            
             .
             475.
             
             And
             yet
             Matheus
             thinks
             ,
             that
             all
             killing
             for
             Money
             ,
             is
             Assassination
             ;
             for
             this
             Crime
             being
             founded
             upon
             Nature
             ,
             to
             kill
             a
             Jew
             is
             as
             far
             against
             Nature
             ,
             as
             to
             kill
             a
             Christian
             .
             And
             it
             is
             a
             greater
             scandal
             upon
             our
             Religion
             ,
             to
             kill
             a
             Jew
             ,
             because
             it
             reproaches
             us
             amongst
             Infidels
             .
          
           
             The
             Specialities
             introduced
             in
             this
             Crime
             ,
             are
             ,
             that
             the
             endeavour
             to
             kill
             for
             Money
             ,
             is
             a
             Crime
             ,
             though
             death
             follow
             not
             :
             and
             that
             Assassination
             may
             be
             proved
             ,
             by
             presumptions
             ;
             and
             that
             they
             cannot
             enjoy
             the
             benefite
             of
             a
             Sanctuary
             ,
             or
             Girth
             ,
             
               Cabal
               .
               num
            
             .
             501.515.526
             .
             And
             though
             the
             foresaid
             Canon
             run
             only
             against
             such
             ,
             as
             
             undertake
             to
             kill
             for
             Money
             ,
             yet
             the
             Conducers
             ,
             or
             such
             as
             intreat
             them
             to
             kill
             ,
             are
             also
             Assassinats
             ,
             Gomez
             .
             3.
             resol
             .
             3.
             num
             .
             10.
             
             
               Math.
               pag.
            
             521.
             
             But
             these
             are
             not
             in
             observance
             with
             us
             ,
             except
             as
             to
             the
             Priviledge
             of
             a
             Sanctuary
             :
             from
             which
             ,
             all
             such
             as
             committed
             Murder
             under
             Trust
             ,
             or
             
               per
               insidias
            
             (
             which
             that
             Act
             calls
             Assassinium
             only
             )
             are
             expresly
             excluded
             ,
             Act
             35.
             part
             .
             5.
             
             I.
             3.
             
          
        
         
           
           
             TITLE
             XII
             .
             Of
             Duels
             .
          
           
             
               1.
               
               
                 The
                 several
                 kinds
                 of
                 Duels
                 ,
                 allowed
                 of
                 old
                 by
                 other
                 Nations
                 .
              
            
             
               2.
               
               
                 What
                 Duels
                 were
                 allowed
                 of
                 old
                 in
              
               Scotland
               .
            
             
               3.
               
               
                 How
                 the
                 giving
                 and
                 receiving
                 challenges
                 is
                 punishable
                 ,
                 though
                 no
                 Combat
                 follow
                 .
              
            
             
               4.
               
               
                 The
                 way
                 of
                 Libelling
                 used
                 in
                 this
                 case
                 .
              
            
             
               5.
               
               
                 Whether
                 Duels
                 for
                 reparation
                 of
                 honour
                 ;
                 be
                 lawful
                 ,
                 where
                 no
                 other
                 reparation
                 can
                 be
                 had
                 .
              
            
             
               6.
               
               
                 What
                 must
                 be
                 proved
                 in
                 this
                 Crime
                 .
              
            
             
               7.
               
               
                 Whether
                 he
                 be
                 not
                 punishable
                 who
                 kills
                 in
                 a
                 rancounter
                 only
                 ,
                 or
                 he
                 who
                 tells
                 the
                 provooker
                 that
                 he
                 is
                 going
                 to
                 such
                 a
                 place
                 .
              
            
             
               8.
               
               
                 The
                 punishment
                 of
                 Duels
                 ,
                 and
                 who
                 are
                 accompted
                 art
                 and
                 part
                 .
              
            
          
           
             DUels
             are
             but
             illustrious
             and
             honourable
             Murders
             .
             And
             therefore
             I
             have
             subjoyned
             this
             Title
             to
             the
             Title
             of
             Homicide
             :
             This
             is
             that
             imperious
             Crime
             ,
             which
             triumphs
             over
             both
             publick
             revenge
             ,
             and
             privat
             vertue
             ,
             and
             tramples
             proudly
             upon
             both
             the
             Law
             of
             the
             Nation
             ,
             and
             the
             life
             of
             our
             enemy
             .
             Courage
             thinks
             Law
             here
             to
             be
             but
             pedantrie
             ,
             and
             honour
             perswades
             men
             ,
             that
             obedience
             here
             is
             cowardliness
             .
          
           
             I.
             We
             find
             no
             such
             Crime
             as
             this
             among
             the
             Romans
             ,
             because
             that
             wise
             Nation
             employed
             their
             lives
             against
             their
             enemies
             ,
             and
             not
             against
             their
             fellow-Citizens
             :
             And
             the
             true
             tryal
             
             of
             courage
             among
             them
             ,
             was
             fighting
             against
             the
             enemies
             of
             Rome
             .
          
           
             Duels
             are
             either
             Judicial
             or
             Extrajudicial
             :
             Judicial
             Duels
             were
             these
             which
             were
             allowed
             by
             Law
             ,
             for
             trying
             the
             innocency
             of
             such
             as
             wanted
             other
             legal
             probations
             .
          
           
             The
             Longabards
             first
             did
             allow
             this
             way
             of
             Duelling
             ,
             by
             pulick
             authority
             ,
             who
             did
             regulat
             it
             by
             twenty
             several
             determinations
             :
             And
             thereafter
             it
             was
             renewed
             by
             Philip
             ,
             the
             fair
             King
             of
             
               France
               ,
               Anno.
            
             1360.
             but
             was
             bounded
             with
             these
             four
             conditions
             ,
             1.
             
             That
             it
             should
             only
             be
             allowed
             in
             Criminal
             and
             capital
             cases
             .
             2.
             
             That
             it
             should
             only
             be
             allowed
             in
             Crimes
             treacherously
             committed
             ,
             where
             the
             Truth
             could
             not
             be
             otherwayes
             found
             out
             .
             3.
             
             Where
             there
             did
             lye
             strong
             presumptions
             against
             the
             persons
             provocked
             .
             4.
             
             Where
             it
             was
             certain
             there
             was
             such
             a
             Crime
             committed
             against
             the
             provocker
             .
          
           
             II.
             With
             us
             in
             Scotland
             ,
             Duels
             were
             allowed
             not
             only
             for
             clearing
             of
             innocence
             ,
             as
             to
             Crimes
             ,
             but
             likewise
             in
             civil
             cases
             ,
             as
             when
             an
             Heir
             denyed
             that
             his
             predecessor
             granted
             a
             Conjunctfie
             .
             
               R.M.
               lib.
            
             2.
             cap.
             16.
             v.
             47.
             
             And
             when
             any
             thing
             was
             denyed
             to
             be
             lawfully
             bought
             by
             the
             owner
             ,
             Lib.
             3.
             cap.
             13.
             v.
             4.
             
             But
             thereafter
             I
             find
             that
             by
             the
             16.
             
               cap.
               Stat.
               Rob.
            
             3.
             
             All
             duels
             are
             discharged
             ,
             except
             in
             the
             four
             former
             cases
             allowed
             by
             Phillip
             the
             fair
             .
             The
             solemnity
             of
             Cartels
             used
             in
             such
             cases
             ,
             was
             the
             casting
             of
             Gloves
             to
             one
             another
             ,
             as
             is
             clear
             by
             
               Skeen
               ,
               ad
               cap.
            
             24.
             v.
             9.
             
             
               R.
               M.
               Duelliones
               in
               hoc
               regno
               hinc
               inde
               chiro
               thecas
               offerunt
               ,
            
             which
             custome
             had
             its
             origine
             from
             the
             Longohard
             Law
             above
             cited
             ,
             as
             is
             clear
             by
             
               Long.
               de
               duel
            
             :
             and
             
               Dumhaud
               .
               tit
               .
               cod
            
             .
             The
             place
             appointed
             by
             our
             Law
             for
             such
             Duels
             ,
             was
             the
             Bridge
             of
             
               Stirling
               .
               cap.
            
             28.
             
             
               Stat.
               David
            
             .
             2.
             
             And
             if
             the
             appealer
             in
             ordinar
             Crimes
             was
             foil'd
             and
             worsted
             his
             pledges
             payed
             the
             King
             nine
             Cowes
             and
             a
             Colpindach
             ,
             and
             satisfied
             for
             the
             calumny
             ,
             
               Stat.
               Alex.
               cap.
            
             11.
             
             But
             in
             Treason
             the
             appealer
             worsted
             became
             in
             the
             Kings
             will
             ,
             and
             the
             party
             appeased
             ,
             being
             worsted
             ,
             was
             disherished
             .
             
               R.
               M.
            
             L.
             4.
             
             c.
             1.
             
             But
             these
             Duels
             are
             Discharged
             by
             the
             Canon
             Law.
             
               cap.
               monomachia
            
             .
             2.
             quest
             .
             4.
             
               &
               cap.
               ultim
               Ext.
               de
               purg
               .
               vulg
               .
            
             though
             with
             us
             such
             judicial
             Combats
             ,
             by
             authority
             ,
             are
             not
             absolutly
             discharged
             ,
             for
             ,
             by
             the
             12.
             cap.
             16.
             
             
               Parl.
               I.
            
             6.
             
             Wherein
             singular
             Combats
             are
             discharged
             ,
             there
             is
             an
             exception
             made
             of
             such
             as
             are
             fought
             with
             His
             Higness
             licence
             .
          
           
             III.
             Duels
             undertaken
             without
             publick
             authority
             ,
             are
             thought
             by
             many
             Lawyers
             ,
             to
             be
             lawful
             ,
             when
             undertaken
             by
             a
             person
             who
             is
             injured
             in
             his
             honour
             ,
             if
             the
             party
             injured
             cannot
             be
             otherwayes
             repaird
             ;
             either
             because
             there
             is
             not
             a
             judge
             in
             the
             place
             ,
             or
             else
             the
             injurer
             will
             not
             appear
             before
             him
             ,
             or
             though
             he
             compear
             ,
             the
             Judges
             refuses
             to
             do
             Justice
             ,
             
               ubi
               enim
               deficit
               jus
               ibi
               suplet
               ensis
               &
               propria
               ultio
               .
               Bart.
               in
               L.
               hostes
               num
               .
            
             9.
             
               ff
               .
               de
               cap
               ,
               &
               postlin
               .
               revers
               .
            
             And
             many
             are
             of
             opinion
             that
             these
             privat
             Combats
             are
             lawful
             ,
             for
             defence
             of
             our
             honour
             ,
             and
             as
             we
             may
             defend
             our
             life
             by
             taking
             that
             of
             our
             neighbours
             ,
             so
             we
             may
             defend
             our
             honour
             by
             the
             hazard
             of
             his
             life
             .
          
           
             But
             that
             Duels
             are
             in
             themselves
             unlawful
             by
             all
             Law
             ,
             appears
             very
             clearly
             from
             these
             reasons
             .
          
           
             1.
             
             That
             the
             Law
             has
             justly
             thought
             fit
             that
             the
             Magistrat
             only
             should
             do
             justice
             to
             all
             ,
             and
             that
             no
             private
             man
             should
             revenge
             himself
             ;
             for
             in
             so
             far
             he
             commits
             treason
             ,
             in
             assuming
             the
             power
             of
             the
             Civil
             Magistrate
             .
             2.
             
             The
             power
             of
             taking
             and
             using
             Arms
             ,
             belongs
             only
             to
             the
             Common-wealth
             ,
             and
             consequently
             no
             private
             man
             should
             run
             to
             Armes
             ,
             upon
             an
             imagination
             that
             he
             is
             wronged
             in
             his
             honour
             .
             3.
             
             There
             is
             no
             proportion
             betwixt
             the
             injury
             and
             reparation
             ,
             in
             such
             cases
             a
             verbal
             injury
             being
             too
             severely
             punished
             ,
             when
             punished
             by
             death
             ,
             there
             being
             no
             proportion
             betwixt
             what
             may
             be
             helped
             ,
             and
             what
             may
             not
             .
             4.
             
             Revenge
             belonging
             to
             God
             ,
             it
             is
             an
             usurping
             of
             his
             power
             .
             It
             is
             the
             destroying
             that
             body
             which
             is
             the
             Temple
             of
             God
             ,
             the
             defaceing
             of
             his
             image
             (
             whereas
             to
             deface
             even
             a
             Princes
             ,
             Image
             ,
             designedly
             is
             Treason
             )
             and
             it
             is
             a
             spilling
             of
             that
             blood
             for
             which
             Christ
             shed
             his
             .
             5.
             
             It
             is
             
             a
             crime
             against
             a
             mans
             self
             ,
             and
             is
             in
             effect
             self-murder
             :
             Nor
             need
             those
             who
             resolve
             to
             kill
             themselves
             ,
             take
             a
             base
             way
             ,
             since
             this
             honourable
             way
             is
             easy
             and
             patent
             ,
             for
             he
             may
             soon
             make
             quarrels
             ,
             and
             so
             kill
             constantly
             till
             he
             be
             killed
             .
          
           
             It
             is
             a
             Crime
             against
             the
             common
             wealth
             ,
             because
             it
             destroys
             its
             subjects
             ,
             and
             makes
             the
             hateful
             sin
             of
             Murder
             a
             desireable
             effect
             of
             Glory
             .
             It
             is
             likewise
             a
             great
             offence
             against
             our
             friends
             ,
             since
             it
             drawes
             them
             ,
             though
             innocent
             ,
             into
             the
             same
             snare
             ,
             as
             seconds
             ,
             assisters
             ,
             and
             revengers
             :
             and
             it
             is
             dishonourable
             ,
             because
             it
             wrongs
             a
             mans
             wife
             ,
             by
             making
             her
             miserable
             ,
             and
             notwithstanding
             of
             his
             many
             obligations
             to
             her
             .
             6.
             
             It
             is
             an
             unjust
             decision
             of
             controversies
             ,
             since
             strength
             ,
             skill
             ,
             or
             accident
             ,
             prevail
             oftentimes
             against
             honour
             and
             innocence
             ,
             so
             that
             this
             tryal
             should
             neither
             be
             allowed
             ,
             by
             justice
             ,
             nor
             honour
             :
             and
             therefore
             Augustus
             being
             provoked
             by
             Anthony
             ,
             did
             nobly
             answer
             ,
             that
             if
             
               Anthony
               was
               weary
               of
               his
               life
               ,
               he
               might
               take
               any
               other
               way
               to
               dispatch
               himself
               .
            
             And
             Sertorius
             being
             provocked
             by
             Metellus
             ,
             answered
             ,
             
               it
               was
               below
               a
               General
               to
               dye
               like
               a
               common
               Souldier
               :
            
             And
             therefore
             it
             may
             be
             answered
             to
             the
             contrary
             arguments
             ,
             that
             it
             is
             to
             be
             presumed
             the
             Magistrate
             will
             do
             justice
             in
             repairing
             the
             fame
             of
             him
             who
             is
             wronged
             ,
             nor
             can
             a
             Duel
             restore
             the
             fame
             that
             is
             lost
             ;
             for
             a
             Duel
             shews
             only
             a
             man
             to
             be
             resolute
             ,
             or
             desperat
             ,
             without
             being
             innocent
             ,
             or
             generous
             :
             and
             it
             is
             more
             presumable
             ,
             that
             the
             provocke
             was
             justly
             defamed
             ,
             and
             finding
             himself
             unable
             to
             survive
             the
             shame
             ,
             resolves
             to
             dispatch
             himself
             by
             this
             plausible
             way
             of
             self-murder
             ,
             nor
             can
             a
             man
             take
             a
             more
             easy
             way
             of
             publishing
             that
             wherein
             he
             was
             defamed
             ,
             then
             by
             killing
             the
             defamer
             ,
             whereby
             he
             will
             both
             bring
             himself
             and
             the
             occasion
             of
             that
             accident
             into
             the
             mouths
             of
             the
             world
             .
             Though
             that
             act
             discharge
             only
             singular
             Combats
             :
             And
             that
             the
             word
             
               singular
               Combat
            
             is
             properly
             only
             applicable
             to
             the
             fighting
             of
             two
             single
             persons
             ,
             which
             is
             only
             properly
             called
             
               singulare
               certamen
            
             yet
             this
             
               singulare
               certamen
            
             ,
             or
             
               singular
               Combat
            
             is
             properly
             
             enough
             extended
             where
             moe
             fight
             on
             a
             side
             .
             
               Cagnol
               .
               in
               l.
               Favorabiliores
            
             86.
             
               ff
               .
               de
               reg
               .
               jur
               .
            
          
           
             V.
             Since
             fighting
             of
             singular
             combats
             is
             only
             declared
             punishable
             ,
             therefore
             the
             giving
             or
             receiving
             challenges
             is
             not
             punishable
             by
             death
             ,
             though
             even
             that
             be
             likewise
             punishable
             by
             the
             Council
             Arbitrarie
             ,
             as
             ending
             to
             disturb
             the
             peace
             ;
             but
             since
             the
             very
             fighting
             is
             declared
             punishable
             by
             death
             ,
             it
             follows
             necessarily
             ,
             that
             such
             as
             fight
             Combats
             ,
             are
             punishable
             by
             death
             ,
             though
             neither
             party
             be
             killed
             :
             And
             if
             only
             killing
             had
             been
             punishable
             by
             death
             ,
             this
             act
             had
             been
             unnecessary
             ,
             since
             that
             was
             punishable
             as
             Murder
             before
             this
             act
             .
          
           
             VI.
             If
             any
             person
             be
             killed
             ,
             the
             libel
             is
             founded
             both
             upon
             the
             Acts
             against
             murder
             ,
             and
             this
             act
             against
             Duels
             .
             But
             the
             difference
             betwixt
             the
             way
             of
             libelling
             is
             this
             ;
             that
             if
             the
             libel
             be
             only
             founded
             upon
             the
             acts
             against
             Murder
             ,
             then
             self-defence
             is
             receiveable
             by
             way
             of
             exculpation
             to
             eleid
             this
             libel
             ,
             because
             self-defence
             there
             ,
             is
             not
             contrair
             to
             any
             quality
             of
             the
             libel
             ,
             which
             must
             be
             expresly
             proved
             ,
             for
             the
             quality
             of
             fore-thought
             fellony
             must
             necessarily
             be
             libelled
             in
             Murder
             .
             Yet
             it
             needs
             not
             be
             proved
             ,
             and
             so
             the
             probation
             of
             the
             defence
             and
             lybel
             ,
             are
             not
             contrary
             .
             Whereas
             in
             Duels
             an
             express
             provocation
             must
             be
             lybel'd
             and
             proved
             ,
             and
             so
             the
             probation
             of
             the
             libel
             and
             defence
             would
             be
             contrary
             ,
             as
             was
             found
             in
             the
             case
             of
             Mackie
             ,
             in
             Iune
             ,
             1670.
             where
             it
             was
             likewise
             found
             that
             a
             challenge
             given
             and
             accepted
             ,
             did
             infer
             a
             Duel
             and
             it
             was
             not
             sufficient
             ,
             that
             the
             party
             provocked
             ,
             coming
             thereafter
             to
             the
             field
             ,
             was
             set
             upon
             ,
             and
             put
             in
             hazard
             of
             his
             life
             by
             the
             provocker
             ;
             for
             though
             
               primus
               insultus
            
             ,
             be
             sufficient
             to
             defend
             against
             fore-thought
             fellony
             in
             other
             cases
             ,
             yet
             where
             there
             preceeded
             a
             provocation
             ,
             it
             is
             not
             sufficient
             ,
             because
             he
             who
             was
             provocked
             by
             going
             to
             the
             place
             ,
             
               versabatur
               in
               illicito
            
             ,
             and
             so
             should
             not
             have
             the
             benefite
             of
             self-defence
             .
             And
             if
             this
             were
             allowed
             ,
             the
             party
             provocked
             might
             easily
             elude
             this
             statute
             ,
             because
             he
             might
             accept
             the
             challenge
             :
             And
             yet
             when
             he
             is
             upon
             the
             
             place
             ,
             refuse
             to
             fight
             ,
             untill
             he
             were
             set
             upon
             by
             the
             other
             ,
             and
             put
             even
             in
             hazard
             of
             his
             life
             by
             him
             ,
             which
             method
             being
             followed
             by
             one
             Robertson
             ,
             a
             Souldier
             in
             
             Linlithgow's
             Regement
             ,
             he
             was
             notwitstanding
             found
             guilty
             of
             Murder
             ,
             in
             Iuly
             1673.
             
          
           
             VII
             .
             From
             this
             it
             appears
             likewise
             that
             such
             as
             in
             answer
             to
             challenges
             ,
             do
             declare
             ,
             that
             they
             will
             be
             in
             such
             a
             place
             at
             such
             a
             time
             ,
             and
             if
             the
             provocker
             attaque
             ,
             they
             will
             defend
             themselves
             ,
             they
             fall
             within
             the
             compasse
             of
             this
             act
             ,
             since
             by
             declining
             a
             formal
             answer
             ,
             they
             designe
             to
             cheat
             the
             Law
             ,
             for
             by
             assigning
             place
             and
             time
             ,
             they
             in
             effect
             accept
             of
             the
             challenge
             ;
             &
             this
             can
             neither
             be
             called
             a
             meer
             rancounter
             ,
             nor
             self
             defence
             ,
             as
             is
             most
             justly
             debated
             by
             
               Voet.
               de
               duel
               .
               cap.
            
             33.
             quest
             .
             1.
             but
             if
             any
             man
             getting
             a
             challenge
             ,
             shall
             answer
             ,
             that
             he
             will
             not
             transgress
             the
             Law
             ,
             but
             if
             the
             challenger
             shall
             attaque
             him
             ,
             he
             will
             defend
             himself
             ,
             if
             this
             person
             thereafter
             in
             defence
             kill
             ,
             he
             will
             not
             be
             punishable
             by
             this
             act
             ,
             for
             self
             defence
             does
             not
             leave
             off
             to
             be
             a
             legal
             defence
             ,
             because
             the
             person
             attaqued
             promises
             he
             will
             defend
             himself
             .
          
           
             VIII
             .
             Both
             the
             provocker
             and
             provocked
             ,
             killing
             ,
             are
             by
             this
             act
             not
             only
             punishable
             with
             death
             ,
             but
             by
             confiscation
             of
             their
             moveables
             ;
             and
             the
             provocker
             is
             declared
             lyable
             to
             such
             arbitrary
             punishments
             as
             his
             Majesty
             shall
             think
             fit
             ,
             because
             his
             guilt
             is
             greatest
             ,
             for
             the
             party
             provocked
             hath
             still
             his
             guilt
             lessened
             with
             a
             shadow
             of
             self-defence
             .
          
           
             Not
             only
             are
             Seconds
             art
             and
             part
             ,
             but
             even
             those
             who
             carried
             the
             challenge
             ,
             though
             they
             were
             no
             Seconds
             :
             and
             yet
             it
             may
             be
             alledged
             ,
             that
             these
             cannot
             be
             punished
             with
             death
             ,
             except
             they
             were
             present
             ,
             since
             the
             carrying
             a
             challenge
             is
             but
             an
             incompleat
             act
             ,
             
               &
               nudus
               conatus
            
             .
             But
             yet
             it
             may
             be
             answered
             ,
             that
             if
             death
             follow
             upon
             a
             Combat
             ,
             wherein
             they
             carried
             the
             challenge
             ,
             they
             are
             punishable
             as
             murderers
             ,
             since
             the
             crime
             was
             compleated
             by
             their
             complices
             .
             In
             Iune
             .
             1676.
             
             
               David
               Hamiltoun
            
             was
             found
             guilty
             ,
             though
             it
             was
             alledged
             that
             albeit
             he
             had
             come
             to
             seek
             the
             length
             of
             his
             gear
             who
             was
             to
             fight
             
             with
             his
             Son
             ,
             yet
             that
             was
             done
             but
             upon
             designe
             to
             terrifie
             the
             other
             to
             fight
             ,
             as
             appears
             ,
             not
             only
             by
             the
             strangeness
             of
             the
             expression
             ,
             but
             because
             he
             did
             tear
             the
             challenge
             ,
             how
             soon
             ever
             he
             got
             it
             in
             his
             hands
             :
             and
             albeit
             it
             was
             proved
             that
             he
             did
             trip
             up
             the
             mans
             heels
             who
             was
             fighting
             with
             his
             son
             ,
             yet
             that
             was
             done
             meerly
             to
             end
             the
             Combat
             ,
             he
             having
             taken
             his
             own
             Son
             in
             his
             armes
             immediatly
             thereafter
             .
          
           
             In
             this
             case
             it
             was
             likewise
             alledged
             ,
             that
             those
             who
             were
             adduced
             witnesses
             could
             not
             be
             received
             ,
             because
             they
             had
             come
             out
             of
             the
             house
             with
             the
             other
             party
             to
             the
             field
             ;
             and
             being
             very
             many
             in
             number
             ,
             they
             might
             have
             stopt
             the
             Combat
             ,
             if
             they
             had
             pleased
             :
             notwithstanding
             of
             which
             objection
             ,
             they
             were
             received
             .
             But
             I
             conceive
             ,
             that
             since
             all
             men
             are
             oblieged
             ,
             as
             farr
             as
             in
             them
             lyes
             ,
             to
             keep
             the
             peace
             ,
             and
             hinder
             crimes
             ,
             it
             seems
             very
             reasonable
             ,
             that
             if
             many
             who
             might
             hinder
             ,
             do
             tamly
             look
             on
             ,
             without
             offering
             to
             redd
             or
             separat
             the
             parties
             ,
             they
             should
             be
             punished
             ;
             and
             this
             should
             hold
             not
             only
             in
             any
             of
             the
             Kings
             officers
             who
             are
             present
             ,
             or
             in
             any
             who
             are
             commanded
             by
             them
             whom
             Cook
             observes
             to
             be
             fineable
             ,
             pag.
             158.
             but
             even
             in
             all
             who
             are
             present
             ,
             though
             the
             punishment
             ,
             as
             to
             them
             ,
             sholud
             be
             lesse
             ,
             then
             as
             to
             the
             others
             ,
             
               idem
               est
               facere
               ,
               &
               nolle
               prohibere
               cum
               possis
               :
               &
               qui
               non
               prohibet
               cum
               prohibere
               possit
               in
               culpa
               est
               .
            
          
        
         
           
           
             TITLE
             XIII
             .
             Self-Murder
             .
          
           
             
               1.
               
               
                 Despair
                 ,
                 nor
                 Stoicism
                 ,
                 cannot
                 defend
                 against
                 Self-Murder
                 .
              
            
             
               2.
               
               
                 Furiosity
                 does
                 defend
              
               .
            
             
               3.
               
               
                 An
                 endeavour
                 to
                 commit
                 Self-Murder
                 ,
                 is
                 punishable
                 .
              
            
             
               4.
               
               
                 Self-Murder
                 may
                 be
                 committed
                 by
                 omission
                 ,
                 as
                 well
                 as
                 commission
                 .
              
            
             
               5.
               
               
                 What
                 Declarator
                 is
                 to
                 be
                 pursued
                 by
                 the
                 Donators
                 ,
                 of
                 the
                 Self-Murderers
                 Escheat
                 ,
                 and
                 how
                 it
                 is
                 to
                 be
                 proved
                 .
              
            
          
           
             I.
             GOD
             Almighty
             has
             placed
             every
             man
             at
             his
             Post
             here
             ,
             and
             he
             who
             violently
             tears
             himself
             from
             it
             ,
             deserves
             much
             worse
             ,
             and
             is
             more
             guilty
             then
             a
             Souldier
             ,
             who
             deserts
             his
             station
             :
             and
             since
             Princes
             punish
             as
             Criminals
             ,
             such
             as
             kill
             their
             Subjects
             ;
             much
             more
             may
             the
             Almighty
             punish
             him
             who
             kills
             himself
             ;
             for
             he
             who
             kills
             himself
             ,
             kills
             Gods
             Subject
             ,
             and
             therefore
             ,
             
               Nemo
               est
               dominus
               suorum
               membrorum
            
             .
             The
             Law
             likewise
             considers
             him
             who
             would
             kill
             himself
             ,
             as
             one
             who
             would
             spare
             none
             else
             ,
             and
             condemns
             an
             humour
             which
             is
             so
             dangerous
             .
          
           
           
             Upon
             these
             reasons
             ,
             but
             especially
             ,
             because
             God
             hath
             forbid
             man
             to
             kill
             ,
             without
             making
             a
             distinction
             of
             killing
             our selves
             ,
             or
             others
             ;
             all
             Christian
             Nations
             punish
             severely
             Self-murder
             ,
             as
             Murder
             ,
             for
             they
             confiscat
             their
             Moveables
             ,
             and
             deny
             them
             Christian
             Burials
             :
             to
             which
             some
             Nations
             ,
             for
             a
             further
             mark
             of
             Ignominy
             ,
             add
             the
             hanging
             them
             upon
             Gibbets
             :
             but
             this
             last
             ,
             our
             Nation
             uses
             not
             .
          
           
             This
             Crime
             was
             called
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             by
             the
             Greeks
             ,
             and
             it
             was
             condemned
             by
             
               Plato
               ,
               l.
            
             9.
             
               de
               leg
            
             .
             and
             was
             at
             first
             punished
             by
             the
             Heathens
             ,
             —
             
               Virgil.
               lib.
            
             6.
             
             Aeneid
             .
             speaking
             of
             Hell
             ,
             
               proxima
               deinde
               tenent
               maesti
               loca
               ,
               qui
               sibi
               laethum
               insontes
               peperere
               manu
               lumenque
               pero
               si
               projecere
               animas
               :
            
             the
             English
             call
             him
             ,
             
               felo
               de
               se.
            
             
          
           
             The
             Stoicks
             who
             had
             made
             their
             Reason
             their
             God
             ,
             and
             made
             their
             convenience
             their
             Reason
             ;
             allowed
             the
             killing
             of
             ones
             self
             ,
             either
             to
             shun
             thereby
             Torture
             ,
             or
             Shame
             ;
             and
             thought
             death
             a
             door
             ,
             which
             every
             man
             might
             open
             at
             his
             pleasure
             :
             for
             ,
             since
             death
             may
             surprise
             a
             man
             when
             he
             is
             not
             ready
             ,
             they
             resolved
             to
             be
             some
             way
             equal
             with
             it
             ,
             in
             forcing
             it
             to
             be
             ready
             ,
             whensoever
             they
             pleased
             .
             And
             from
             their
             practice
             (
             for
             most
             of
             the
             Romans
             ,
             especially
             the
             Gown-men
             ,
             were
             of
             that
             Sect
             )
             flow'd
             these
             Roman
             Laws
             ,
             l.
             3.
             
             §
             .
             
               sic
               autem
               ff
               .
               de
               bon
               .
               eor
               .
               l.
               siquis
               §
               .
               ult
               .
               ff
               .
               de
               pen.
            
             By
             which
             they
             distinguisht
             betwixt
             such
             as
             killed
             themselves
             ,
             to
             evite
             a
             just
             punishment
             of
             the
             Crimes
             for
             which
             they
             were
             accused
             ;
             and
             such
             as
             killed
             themselves
             ,
             
               taedio
               vitae
               ,
               vel
               doloris
               impatientia
               :
            
             for
             the
             first
             ,
             they
             punisht
             as
             Murder
             ,
             but
             the
             last
             ,
             they
             favoured
             with
             a
             lesser
             punishment
             .
             Nay
             ,
             and
             in
             the
             Primit●ve
             Church
             ,
             many
             for
             making
             themselves
             away
             ,
             to
             evite
             thereby
             Idolatry
             ,
             or
             Pollution●
             ,
             have
             been
             accounted
             as
             Martyres
             ▪
             thus
             the
             Wife
             and
             Children
             of
             Adauctus
             ,
             having
             killed
             themselves
             ,
             when
             
             they
             were
             to
             be
             defloured
             ;
             it
             was
             doubted
             ,
             if
             they
             ought
             not
             to
             have
             been
             numbered
             amongst
             the
             Martyres
             ;
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             
               Cedren
               .
               pag.
            
             220.
             and
             the
             like
             story
             is
             reported
             by
             
               Euseb.
               lib.
            
             8.
             cap.
             17.
             of
             a
             Noble
             Lady
             ,
             who
             was
             brought
             to
             Maxentius
             .
             But
             our
             Law
             is
             jealous
             ,
             that
             such
             pretexts
             might
             be
             brought
             ,
             to
             colour
             all
             base
             designs
             ;
             and
             allowing
             none
             to
             be
             their
             own
             Judges
             ,
             has
             made
             no
             such
             distinction
             ,
             as
             was
             found
             in
             the
             case
             of
             
               Thomas
               Dobbie
            
             ,
             cited
             by
             
               Craig
               .
               diages
               .
               de
               regal
               .
            
             and
             to
             allow
             this
             ,
             were
             to
             feed
             despair
             ,
             and
             to
             make
             patience
             ,
             and
             long-suffering
             ,
             to
             be
             no
             vertues
             .
          
           
             II.
             Yet
             furiosity
             and
             madness
             ,
             ought
             to
             defend
             against
             all
             Punishment
             in
             this
             case
             ,
             since
             a
             furious
             Person
             has
             no
             will
             in
             the
             construction
             of
             Law
             ;
             and
             the
             will
             is
             that
             which
             makes
             the
             Crime
             :
             nor
             should
             they
             be
             more
             punished
             then
             Infants
             are
             ,
             to
             whom
             the
             Law
             compares
             them
             .
             Fury
             also
             defends
             against
             Treason
             ,
             Blasphemy
             ,
             and
             Heresie
             ,
             which
             are
             more
             atrocious
             Crimes
             ,
             then
             Self-murder
             ,
             
               &
               facti
               infelicitas
               furiosum
               defendere
               dicitur
               ,
               l.
               infans
               ad
               l.
               Corn.
               de
               sic
               :
            
             and
             therefore
             I
             cannot
             well
             understand
             ,
             wherefore
             in
             Dobbies
             case
             (
             as
             Craig
             relates
             it
             )
             the
             Lords
             repelled
             the
             Defence
             of
             Furiosity
             ,
             and
             found
             that
             even
             furious
             Persons
             ought
             to
             lose
             their
             Moveables
             ,
             if
             they
             killed
             themselves
             ;
             but
             I
             think
             ,
             the
             fury
             there
             has
             not
             been
             strongly
             qualified
             ,
             and
             that
             it
             has
             been
             but
             a
             Species
             of
             Melancholy
             :
             for
             the
             reason
             given
             for
             that
             Decision
             is
             ,
             because
             the
             Lords
             thought
             no
             man
             would
             kill
             himself
             ,
             if
             he
             were
             not
             distracted
             :
             and
             so
             it
             distraction
             could
             defend
             such
             as
             killed
             themselves
             ,
             against
             confiscation
             of
             their
             Moveables
             ,
             it
             would
             defend
             all
             who
             kill'd
             themselves
             ,
             and
             so
             the
             Law
             should
             have
             no
             effect
             ;
             but
             this
             must
             be
             interpreted
             ,
             of
             some
             degrees
             of
             madness
             ,
             for
             sure
             no
             man
             kills
             himself
             ,
             except
             he
             who
             is
             somewhat
             mad
             .
             Nor
             does
             Hypocondrick
             fits
             ,
             or
             the
             first
             degrees
             of
             madness
             ,
             defend
             against
             this
             Confiscation
             ,
             but
             a
             total
             aberration
             from
             reason
             ,
             
             cannot
             but
             defend
             ;
             which
             is
             also
             clear
             from
             the
             Law
             of
             
               England
               ,
               Bolton
               .
               Cap.
            
             11.
             lib.
             1.
             and
             the
             difference
             betwixt
             these
             two
             must
             be
             inferred
             from
             the
             various
             circumstances
             ,
             which
             attends
             such
             diseases
             ,
             and
             from
             the
             declarations
             of
             Physicians
             ,
             who
             waited
             upon
             them
             .
          
           
             Whether
             one
             who
             is
             mad
             ,
             but
             has
             lucid
             intervals
             ,
             is
             presumed
             to
             have
             killed
             himself
             in
             his
             madness
             ,
             or
             lucid
             intervals
             ,
             is
             not
             so
             clear
             ,
             and
             depends
             much
             upon
             Circumstances
             :
             but
             since
             none
             use
             to
             kill
             themselves
             ,
             except
             under
             some
             distemper
             ;
             so
             therefore
             ,
             it
             is
             more
             humane
             to
             refer
             this
             killing
             ,
             to
             have
             been
             in
             the
             hours
             of
             madness
             ,
             except
             it
             can
             be
             proved
             that
             the
             killer
             used
             even
             in
             his
             lucid
             intervals
             ,
             to
             wish
             he
             were
             dead
             ,
             or
             to
             commend
             Self-Murder
             ,
             
               vid.
               Cabal
               .
               cas
            
             .
             289.
             
          
           
             III.
             An
             endeavour
             to
             kill
             ones
             self
             is
             punishable
             ,
             as
             Self-Murder
             ,
             if
             the
             killer
             did
             all
             that
             in
             him
             was
             ,
             to
             effectuat
             it
             ;
             as
             if
             he
             hang'd
             himself
             ,
             but
             was
             immediatly
             cut
             down
             .
             And
             by
             the
             Law
             of
             England
             ,
             if
             a
             man
             wound
             himself
             mortally
             ,
             though
             he
             live
             year
             and
             day
             thereafter
             ,
             his
             Goods
             falls
             to
             the
             King
             ,
             
               Bolton
               ,
               lib.
            
             1.
             cap.
             10.
             
          
           
             IV.
             Self-Murder
             may
             be
             committed
             by
             omission
             ,
             as
             well
             as
             commission
             ,
             thus
             if
             a
             man
             would
             starve
             himself
             to
             death
             ,
             he
             might
             be
             punisht
             by
             confiscation
             of
             his
             Moveables
             ;
             but
             the
             design
             must
             be
             clearly
             proved
             ,
             since
             as
             many
             innocent
             people
             might
             be
             alledged
             ,
             to
             have
             killed
             themselves
             ,
             whilst
             they
             have
             fasted
             ,
             either
             through
             pain
             or
             necessity
             .
          
           
             V.
             When
             a
             man
             kills
             himself
             ,
             his
             Majesty
             gifts
             his
             Escheat
             ,
             and
             the
             Donator
             pursues
             a
             general
             Declarator
             thereupon
             ,
             wherein
             he
             calls
             the
             nearest
             of
             kin
             ,
             and
             he
             must
             prove
             there
             ,
             that
             the
             Person
             ,
             whose
             Escheat
             he
             has
             got
             ,
             killed
             himself
             ;
             which
             must
             be
             proved
             ,
             by
             clear
             and
             convincing
             evidences
             ,
             such
             as
             the
             depositions
             of
             Witnesses
             ,
             or
             a
             Paper
             under
             
             the
             Defuncts
             hand
             ,
             wherein
             he
             declares
             the
             reasons
             of
             his
             discontent
             ,
             and
             why
             he
             killed
             himself
             ,
             which
             is
             very
             ordinary
             in
             these
             cases
             ,
             wherein
             they
             design
             thereby
             to
             justifie
             to
             the
             world
             ,
             this
             horrid
             Act
             :
             But
             I
             think
             ,
             presumptions
             are
             not
             sufficient
             here
             ,
             since
             this
             is
             a
             Crime
             except
             they
             be
             very
             strong
             and
             violent
             ;
             but
             if
             they
             be
             such
             ,
             it
             appears
             ,
             they
             are
             sufficient
             to
             infer
             Confiscation
             :
             for
             though
             presumptions
             be
             not
             sufficient
             to
             prove
             a
             Crime
             ,
             to
             infer
             Capital
             punishment
             ,
             yet
             they
             are
             oftimes
             sustained
             ,
             to
             infer
             Confiscation
             of
             Moveables
             ,
             or
             other
             civil
             effects
             .
             And
             if
             presumptions
             were
             not
             sufficient
             in
             this
             case
             ,
             Self-Murder
             could
             never
             be
             proved
             ,
             for
             the
             committers
             choose
             retired
             places
             ,
             and
             quiet
             times
             ,
             for
             executing
             their
             wicked
             designe
             :
             and
             who
             could
             say
             ,
             but
             that
             if
             a
             man
             were
             known
             ,
             to
             have
             exprest
             much
             dispair
             ,
             and
             thereupon
             to
             have
             entered
             into
             a
             Room
             ,
             and
             were
             found
             with
             the
             Door
             closed
             ,
             and
             hanging
             in
             his
             own
             Garter
             :
             but
             that
             these
             presumptions
             would
             infer
             Confiscation
             of
             his
             Moveables
             .
          
           
             By
             our
             practice
             ,
             thir
             Declarators
             have
             been
             sustained
             before
             the
             Lords
             ,
             upon
             probation
             of
             the
             Self-Murder
             ,
             led
             before
             themselves
             ,
             without
             any
             previous
             tryal
             before
             the
             Justices
             :
             and
             some
             think
             such
             a
             previous
             tryal
             not
             necessar
             ;
             for
             all
             tryals
             before
             them
             ,
             are
             by
             Assizers
             ,
             and
             dead
             men
             cannot
             be
             tryed
             by
             an
             Assize
             :
             but
             it
             might
             be
             alledged
             upon
             the
             other
             hand
             ,
             that
             such
             a
             previous
             tryal
             before
             the
             Justices
             ,
             is
             more
             suitable
             to
             the
             analogy
             of
             all
             other
             Crimes
             ,
             which
             are
             all
             tryed
             before
             the
             Justices
             ;
             and
             though
             it
             may
             be
             alledged
             ,
             that
             the
             Lords
             jurisdiction
             is
             here
             founded
             ,
             
               ratione
               incidentiae
            
             ,
             and
             that
             many
             Crimes
             are
             tryed
             before
             them
             ,
             as
             falling
             incidently
             in
             other
             civil
             cases
             ;
             yet
             even
             in
             falshood
             ,
             though
             the
             Lords
             of
             Session
             are
             Judges
             competent
             to
             the
             deed
             it self
             :
             Yet
             no
             mans
             Escheat
             falls
             upon
             their
             Decreet
             ,
             though
             he
             be
             found
             a
             falsary
             by
             them
             ,
             till
             he
             be
             also
             tryed
             by
             the
             Justices
             ,
             and
             
             the
             Escheat
             falls
             ,
             as
             an
             effect
             of
             their
             sentence
             only
             .
             Nor
             has
             this
             exception
             been
             yet
             repelled
             ,
             as
             to
             Self-Murder
             ,
             so
             that
             
               res
               est
               ad
               huc
               integrae
            
             ,
             especially
             if
             the
             persons
             whose
             Escheat
             is
             craved
             ,
             to
             be
             declared
             ,
             be
             yet
             alive
             ;
             so
             that
             he
             may
             be
             tryed
             before
             an
             Assize
             ,
             for
             having
             endeavoured
             to
             kill
             himself
             :
             for
             some
             endeavours
             to
             kill
             ones
             self
             ,
             are
             punishable
             by
             death
             ,
             though
             prevented
             ,
             as
             has
             been
             said
             formerly
             .
             And
             in
             that
             case
             ,
             I
             conceive
             that
             a
             previous
             tryal
             before
             the
             Justices
             ,
             is
             necessar
             .
          
        
         
           
           
             TITLE
             XIV
             .
             Paricide
             .
          
           
             
               1
               
                 To
                 what
                 degree
                 reaches
                 Paricide
                 by
                 the
                 Civil
                 Law.
                 
              
            
             
               2
               
                 To
                 what
                 degrees
                 by
                 our
                 Law
                 ?
              
            
             
               3
               
                 Whether
                 does
                 the
                 Act
              
               220.
               
               Ja.
               6.
               
               Par.
               14.
               
                 extend
                 to
                 descendents
              
               ?
            
             
               4
               
                 Whether
                 does
                 that
                 Statute
                 extend
                 to
                 Bastards
                 .
              
            
             
               5
               
                 The
                 punishment
                 of
                 Paricide
                 by
                 that
                 Statute
                 .
              
            
             
               6
               The
               20.
               
               Act
               Par.
               1.
               
               Ch.
               2.
               
                 concerning
                 beating
                 of
                 Parents
                 ,
                 explained
                 .
              
            
             
               7
               
                 How
                 the
                 murdering
                 of
                 Children
                 is
                 punished
                 .
              
            
             
               8
               
                 Who
                 are
                 repute
                 accessory
                 in
                 this
                 Crime
                 ,
                 and
                 how
                 punished
                 .
              
            
          
           
             I.
             PAricide
             is
             a
             Crime
             ,
             which
             is
             committed
             by
             killing
             our
             Parents
             ,
             against
             which
             ,
             Solon
             refused
             to
             make
             any
             Law
             ,
             lest
             he
             should
             by
             forbidding
             it
             ,
             teach
             the
             people
             it
             was
             possible
             .
             By
             the
             Civil
             Law
             ,
             Paricide
             was
             committed
             by
             killing
             Ascendents
             ,
             or
             Descendents
             ,
             in
             any
             degree
             :
             or
             collaterals
             to
             the
             fourth
             degree
             .
             The
             killing
             likewise
             of
             Wife
             ,
             Husband
             ,
             or
             Patron
             ,
             was
             Paricide
             by
             that
             Law
             ,
             l.
             1.
             
               ff
               .
               h.
               t.
            
             
          
           
             II.
             With
             us
             ,
             Paricide
             is
             by
             the
             Statute
             220.
             
             Ia.
             6
             Par.
             14.
             punished
             only
             in
             him
             who
             kills
             his
             Father
             ,
             Mother
             ,
             
             Good-sir
             ,
             or
             Good-dame
             ;
             and
             these
             are
             by
             that
             Act
             ,
             ordained
             to
             be
             disherished
             ,
             and
             their
             posterity
             ,
             
               in
               linea
               recta
            
             ,
             are
             incapable
             of
             succeeding
             to
             the
             person
             killed
             :
             but
             the
             succession
             is
             devolved
             upon
             the
             next
             Collateral
             ,
             or
             nearest
             of
             Blood
             ;
             the
             person
             guilty
             being
             convict
             by
             an
             Assize
             .
          
           
             From
             which
             Act
             ,
             it
             is
             observable
             ,
             that
             the
             Statute
             is
             not
             exclusive
             of
             other
             punishments
             :
             but
             supposes
             that
             Paricide
             is
             capitally
             punishable
             ,
             according
             to
             the
             Common
             Law
             ;
             for
             it
             were
             absurd
             to
             think
             ,
             the
             punishment
             here
             related
             ,
             should
             be
             the
             only
             punishment
             ,
             by
             which
             Paricide
             could
             be
             reached
             .
             And
             Women
             for
             murdering
             their
             Children
             ,
             are
             frequently
             either
             hanged
             ,
             or
             headed
             ,
             as
             other
             Murderers
             .
             2.
             
             This
             Act
             reaches
             only
             such
             ,
             as
             are
             convict
             by
             an
             Assize
             ;
             and
             therefore
             Ianuary
             1664.
             it
             was
             found
             ,
             that
             Sir
             
               Iames
               Oliphant
            
             being
             declared
             Fugitive
             ,
             for
             killing
             his
             Mother
             ,
             but
             not
             convict
             by
             an
             Assize
             ,
             his
             Estate
             could
             not
             be
             gifted
             by
             the
             King
             :
             and
             in
             effect
             ,
             though
             he
             had
             been
             found
             guilty
             by
             an
             Assize
             ,
             he
             could
             not
             have
             been
             forefaulted
             ,
             for
             the
             nearest
             Collateral
             would
             seclude
             the
             Fisk.
             It
             was
             likewise
             found
             in
             that
             case
             ,
             that
             the
             Son
             could
             not
             be
             forefaulted
             ,
             as
             having
             murdered
             his
             Mother
             ,
             under
             Trust
             ,
             for
             they
             found
             that
             ,
             not
             to
             be
             the
             Murder
             ,
             which
             is
             declared
             Treason
             by
             the
             11.
             
             
               Par.
               cap.
            
             51.
             
             Ia.
             6.
             
             For
             the
             trust
             there
             mentioned
             is
             ,
             when
             such
             as
             came
             under
             the
             trust
             of
             others
             ,
             were
             persons
             who
             would
             not
             have
             come
             within
             their
             reach
             ,
             without
             special
             assurance
             of
             indemnity
             ,
             and
             protection
             ;
             and
             it
             is
             related
             as
             a
             received
             tradition
             amongst
             us
             ,
             that
             this
             Act
             were
             first
             made
             upon
             Mack-donald
             ,
             his
             killing
             the
             Laird
             of
             Mack-clane
             ,
             who
             came
             to
             lodge
             with
             him
             ,
             upon
             such
             assurance
             ;
             notwithstanding
             of
             the
             feids
             which
             were
             amongst
             them
             .
             It
             were
             likewise
             improper
             to
             say
             ,
             that
             the
             Mother
             was
             under
             the
             power
             and
             assurance
             of
             the
             Son
             ;
             and
             if
             the
             power
             ,
             and
             assurance
             betwixt
             Parents
             and
             Children
             ,
             could
             fall
             under
             that
             Act
             ,
             Par.
             
             11.
             
             Ia.
             6.
             this
             Act
             had
             been
             unnecessar
             ,
             and
             there
             could
             have
             been
             no
             place
             for
             the
             pain
             therein
             contained
             ;
             for
             the
             Estate
             of
             the
             Traitor
             belongs
             to
             the
             Fisk
             ,
             and
             not
             to
             the
             nearest
             Collateral
             .
          
           
             III.
             It
             may
             be
             doubted
             ,
             if
             this
             Act
             should
             be
             extended
             to
             Parents
             killing
             their
             Children
             ;
             and
             albeit
             the
             Statute
             does
             not
             ,
             
               in
               terminis
            
             ,
             expresse
             Descendants
             :
             yet
             it
             is
             probable
             they
             may
             fall
             under
             its
             Sanction
             :
             Even
             as
             the
             foresaid
             Text
             ,
             in
             the
             Civil
             Law
             is
             extended
             to
             equal
             degrees
             ,
             with
             these
             exprest
             ,
             
               ob
               paritatem
               rationis
            
             .
             And
             by
             that
             Law
             ,
             the
             killing
             of
             Ascendents
             ,
             or
             Descendents
             ,
             is
             Paricide
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             the
             Rubrick
             of
             this
             Act
             ,
             runns
             generally
             against
             Paricide
             :
             nor
             can
             it
             be
             denyed
             ,
             but
             Paricide
             is
             committed
             by
             Mothers
             against
             their
             Children
             ,
             and
             Women
             dayly
             are
             convict
             thereof
             .
          
           
             Whether
             the
             foresaid
             Statute
             against
             Paricide
             can
             be
             extended
             ,
             to
             degrees
             of
             Affinity
             ,
             as
             well
             as
             degrees
             of
             Consanguinity
             ;
             so
             that
             to
             kill
             a
             father-in-law
             ,
             may
             be
             punished
             as
             Paricide
             ,
             as
             well
             as
             the
             killing
             a
             father
             may
             be
             doubted
             :
             but
             I
             conceive
             it
             extends
             not
             to
             degrees
             of
             Affinity
             ;
             because
             1.
             
             Laws
             against
             Crimes
             should
             not
             be
             extended
             .
             2.
             
             The
             statute
             discharging
             ,
             Fathers
             ,
             Brothers
             ,
             or
             Sons
             ,
             to
             judge
             in
             the
             causes
             of
             these
             relations
             ,
             is
             not
             extended
             to
             brothers-in-law
             &
             c.
             though
             that
             extension
             would
             be
             more
             favourable
             .
             3.
             
             Some
             of
             these
             relations
             in
             this
             statute
             ,
             cannot
             in
             propriety
             of
             speech
             ,
             be
             extended
             to
             degrees
             of
             Affinity
             ,
             for
             we
             say
             not
             good-sir
             ,
             or
             good-dame
             in
             Law
             ,
             and
             albeit
             .
             §
             .
             6.
             
               just
               .
               de
               publ
               .
               judic
               .
            
             uses
             the
             word
             adfinitatis
             in
             this
             crime
             ,
             yet
             Theoph.
             in
             his
             Greek
             
               instit
               .
               eod
            
             §
             .
             expresses
             the
             same
             ,
             by
             the
             words
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             which
             signifies
             
               affectionis
               &
               non
               adfini●atis
            
             ,
             and
             with
             Theophil
             agrees
             36.
             
               eclog.
               tit
            
             .
             40
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             and
             this
             shews
             advantages
             by
             the
             Greek
             Lawyers
             .
          
           
             IV.
             Whether
             it
             doth
             extend
             to
             Bastards
             ,
             may
             be
             doubted
             ;
             
             for
             though
             it
             be
             certain
             ,
             that
             since
             they
             know
             their
             Mother
             ,
             it
             may
             be
             therefore
             extended
             against
             them
             ,
             if
             they
             kill
             her
             ,
             or
             she
             them
             .
             Yet
             since
             their
             Father
             is
             uncertain
             ,
             
               nam
               sunt
               vulgo
               quaesiti
               ,
               &
               patrem
               demonstrare
               nequeunt
            
             ;
             and
             since
             they
             have
             no
             advantage
             by
             their
             Father
             in
             law
             ,
             it
             were
             hard
             the
             Law
             should
             punish
             them
             ,
             as
             Paricides
             .
             But
             yet
             Lawyers
             conclude
             they
             may
             be
             punisht
             ,
             for
             
               paricid
               .
               Allex.
               ad
               lib.
            
             2.
             
               de
               injur
               .
               voc
            
             .
             and
             since
             this
             is
             a
             Crime
             against
             the
             Law
             of
             Nature
             ,
             it
             may
             be
             punisht
             in
             Bastards
             ,
             who
             are
             natural
             Children
             .
          
           
             V.
             This
             Crime
             extends
             not
             to
             Moveables
             by
             the
             Act
             ,
             but
             by
             our
             Law
             ;
             wherever
             the
             Law
             punishes
             by
             death
             ,
             it
             implyes
             confiscation
             ,
             for
             Moveables
             followeth
             still
             the
             person
             .
             And
             by
             the
             Law
             of
             France
             ,
             (
             from
             which
             we
             have
             borrowed
             this
             ,
             and
             many
             other
             things
             )
             
               qui
               confisque
               le
               corps
               confisque
               les
               biens
               .
            
          
           
             It
             is
             probable
             that
             upon
             this
             Act
             ,
             even
             absents
             may
             be
             convict
             of
             this
             Crime
             ;
             as
             the
             Lords
             then
             thought
             ,
             if
             the
             certification
             of
             the
             Letters
             ,
             had
             born
             the
             Penalty
             here
             exprest
             .
             For
             albeit
             probation
             cannot
             be
             led
             ,
             in
             absence
             of
             the
             Party
             ,
             to
             fix
             a
             Crime
             upon
             him
             ,
             yet
             this
             seems
             to
             be
             a
             civil
             effect
             ,
             which
             strikes
             not
             against
             the
             person
             of
             the
             committer
             .
          
           
             By
             the
             Civil
             Law
             also
             ,
             all
             Murderers
             were
             debarred
             from
             succeeding
             to
             such
             whom
             they
             murdered
             .
             
               l.
               cum
               ratio
               .
               §
               .
               sin
               .
               ff
               .
               de
               bonis
               damnat
               ,
            
             which
             is
             yet
             observed
             in
             France
             ,
             but
             though
             with
             us
             there
             be
             no
             contrary
             decision
             ;
             yet
             with
             us
             they
             are
             not
             debarred
             ;
             and
             seeing
             this
             pain
             is
             only
             statuted
             in
             the
             case
             of
             Paricide
             ,
             we
             may
             by
             a
             natural
             consequence
             conclude
             ,
             that
             it
             should
             not
             be
             extended
             to
             ordinary
             Murders
             .
          
           
             VI.
             By
             the
             Act
             20.
             
             Parliament
             .
             1.
             
             Ses.
             1.
             
             Ch.
             2.
             
             Beating
             or
             Cursing
             of
             Parents
             ,
             is
             declared
             to
             have
             been
             punishable
             by
             the
             Law
             of
             God
             ,
             with
             death
             :
             And
             therefore
             ordains
             ,
             that
             whatsoever
             Son
             ,
             or
             Daughter
             ,
             above
             the
             age
             of
             Sixteen
             ,
             and
             
             not
             distracted
             ,
             shall
             beat
             or
             curse
             his
             Father
             or
             Mother
             ,
             he
             shall
             die
             without
             mercy
             ,
             but
             if
             they
             be
             within
             the
             age
             of
             Sixteen
             ,
             and
             past
             pupilarity
             ,
             they
             are
             to
             be
             punisht
             arbitrarily
             :
             From
             which
             it
             is
             to
             be
             observed
             ,
             1.
             
             That
             this
             Crime
             is
             meerly
             statutory
             ,
             and
             therefore
             should
             not
             extend
             beyond
             the
             degrees
             of
             the
             act
             to
             grand-fathers
             ,
             or
             grand-children
             ,
             albeit
             
               appellatione
               filii
               &
               nepos
               comprehenditur
               in
               favorabilibus
               .
            
             2.
             
             That
             arbitrary
             punishment
             is
             opposed
             to
             death
             ,
             and
             so
             never
             can
             be
             extended
             in
             other
             acts
             to
             death
             .
             3.
             
             That
             those
             who
             are
             not
             above
             the
             age
             of
             Pupilarity
             ,
             are
             not
             capable
             to
             commit
             crimes
             ,
             nor
             should
             be
             punished
             ,
             for
             they
             are
             here
             accompted
             as
             distracted
             persons
             ,
             and
             if
             they
             were
             punishable
             for
             any
             Crimes
             ,
             it
             behoved
             to
             be
             for
             such
             as
             are
             against
             the
             Law
             of
             God.
             
          
           
             VII
             .
             It
             is
             very
             easy
             ,
             and
             too
             ordinary
             for
             women
             who
             bear
             Bastards
             ,
             to
             murder
             them
             ;
             And
             therefore
             to
             obviat
             this
             ,
             the
             Law
             presumes
             so
             far
             ,
             a
             woman
             who
             has
             born
             a
             bastard
             ,
             and
             has
             conceal'd
             her
             being
             with
             child
             ,
             to
             be
             guilty
             of
             Paricide
             ,
             if
             the
             child
             be
             found
             dead
             ,
             that
             it
             punishes
             her
             by
             some
             extraordinary
             punishment
             ,
             (
             but
             not
             by
             death
             )
             except
             she
             can
             prove
             that
             the
             child
             was
             born
             dead
             :
             Thus
             it
             was
             decided
             in
             Savoy
             .
             1595
             
               vid.
               Cod.
               fab
               .
               de
               his
               qui
               parent
               occid
               .
               Def.
            
             11.
             
             And
             with
             us
             Lawson
             ,
             and
             Ramsey
             ,
             were
             both
             Scourged
             ,
             annis
             1661.
             and
             1662.
             even
             though
             they
             were
             assoylzied
             from
             the
             Murder
             :
             But
             I
             think
             that
             this
             were
             severe
             ,
             if
             the
             woman
             openly
             acknowledged
             that
             she
             was
             with
             child
             ,
             though
             none
             was
             present
             when
             she
             brought
             it
             forth
             .
             And
             in
             all
             such
             cases
             women
             are
             admitted
             to
             be
             witnesses
             .
          
           
             The
             taking
             potions
             also
             ,
             to
             make
             one
             part
             with
             child
             ,
             
               abortum
               procurans
            
             ,
             should
             be
             a
             species
             of
             Paricide
             ,
             in
             my
             opinion
             ,
             since
             she
             thus
             endeavours
             to
             kill
             her
             own
             child
             :
             and
             by
             the
             Civil
             Law
             ,
             it
             was
             punisht
             with
             death
             .
             
               L.
               Cicero
               .
               ff
               .
               de
               paenis
               .
            
             And
             though
             the
             Doctors
             distinguish
             here
             ,
             betwixt
             the
             using
             such
             means
             after
             the
             child
             is
             quick
             ,
             or
             before
             it
             ,
             making
             it
             capitall
             in
             the
             one
             case
             ,
             but
             not
             in
             the
             other
             ;
             yet
             they
             presume
             
             that
             the
             child
             was
             quick
             ,
             
               quod
               fetus
               erat
               animatus
            
             ,
             and
             that
             
               in
               odium
               delinquentis
            
             ,
             and
             burden
             the
             delinquent
             to
             prove
             the
             contrair
             ,
             
               Gomes
               :
               de
               delict
               cap.
            
             3.
             num
             .
             32.
             asserts
             that
             this
             is
             presumed
             not
             to
             inferr
             death
             ,
             but
             Ecclesiastick
             punishment
             ;
             and
             since
             to
             prove
             the
             contrair
             ,
             seems
             to
             me
             ,
             impossible
             ,
             I
             encline
             to
             Gomesius
             ,
             his
             opinion
             :
             but
             yet
             the
             using
             such
             means
             ,
             even
             before
             the
             birth
             be
             quick
             ,
             is
             arbitrarily
             punishable
             ,
             as
             is
             even
             the
             using
             means
             to
             h●nder
             conception
             .
             
               Marsil
               :
               ad
               l.
               si
               mulierem
               ff
               .
               de
               .
               sicar
               .
            
             And
             in
             these
             cases
             ,
             both
             the
             Physicians
             who
             administrats
             the
             cure
             ,
             and
             the
             woman
             who
             takes
             ,
             are
             equally
             punishable
             ,
             
               Marsil
               .
               ibid.
            
             
          
           
             VIII
             .
             So
             horrid
             is
             paricide
             ,
             that
             what
             would
             be
             but
             a
             degree
             of
             guilt
             in
             other
             crimes
             ,
             makes
             a
             compleat
             crime
             here
             ;
             and
             thus
             a
             childs
             endeavouring
             to
             poyson
             his
             father
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             l.
             1.
             
             Basil.
             
               h.
               t.
            
             and
             to
             kill
             parents
             by
             giving
             them
             wounds
             ,
             was
             punisht
             by
             death
             in
             
               Savoy
               ,
               C.
               fab
               .
               h.
               t.
            
             though
             the
             wounded
             parent
             interceeded
             to
             the
             contrair
             .
             And
             the
             Son
             who
             bought
             poyson
             to
             poyson
             his
             father
             ,
             though
             he
             was
             not
             able
             to
             give
             it
             :
             
               Carer
               .
               §
               .
               homicidium
               .
               num
               .
            
             128.
             for
             which
             crime
             ,
             suffered
             with
             the
             Son
             ,
             the
             Phisician
             who
             furnished
             the
             drugs
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             l.
             2.
             
             
               Basil
               :
               h.
               t.
            
             and
             the
             person
             who
             lent
             the
             son
             the
             mony
             to
             buy
             them
             :
             but
             regularly
             these
             strangers
             are
             not
             capitally
             punishable
             for
             such
             an
             accession
             ,
             except
             the
             crime
             take
             effect
             :
             and
             this
             is
             the
             present
             custom
             of
             nations
             ,
             though
             by
             the
             Roman
             Law
             ,
             and
             the
             Basilicks
             ,
             they
             who
             were
             conscious
             ,
             or
             lent
             the
             money
             ,
             or
             were
             surety
             for
             money
             to
             be
             so
             bestowed
             ,
             were
             guilty
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             yet
             he
             who
             commands
             a
             son
             to
             kill
             his
             father
             ,
             is
             not
             guilty
             of
             Paricide
             ,
             
               Caepol
               .
               Consil.
            
             36.
             which
             may
             seem
             strange
             ,
             since
             to
             give
             poyson
             to
             kill
             a
             father
             ,
             seems
             equal
             guilt
             ,
             to
             giving
             a
             Son
             command
             to
             kill
             his
             father
             .
             As
             these
             circumstances
             highten
             Paricide
             ,
             so
             there
             are
             some
             which
             restrict
             the
             punishment
             ,
             as
             if
             the
             father
             should
             find
             that
             his
             son
             had
             lyen
             with
             his
             own
             mother-in-law
             ,
             and
             had
             killed
             him
             upon
             that
             accompt
             ,
             
             though
             not
             in
             the
             very
             act
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             :
             Lawyers
             think
             ,
             that
             he
             should
             be
             only
             punisht
             by
             banishment
             ,
             but
             not
             by
             death
             ,
             and
             that
             generally
             for
             whatever
             crime
             ,
             or
             fault
             ,
             a
             father
             may
             exheredat
             a
             son
             ,
             that
             the
             same
             fault
             will
             excuse
             the
             father
             from
             death
             if
             he
             kill
             his
             son
             .
             
               l.
               divus
               ff
               .
               de
               paricid
               &
               Cabal
               .
               cas
               .
            
             15.
             
             Some
             also
             think
             that
             a
             woman
             killing
             her
             husband
             who
             is
             banished
             ,
             and
             upon
             whose
             head
             a
             Fyne
             is
             put
             ,
             is
             not
             punishable
             by
             death
             ,
             because
             her
             husband
             is
             ,
             
               nullus
               injure
            
             ,
             and
             Laws
             allow
             all
             to
             kill
             such
             a
             person
             ,
             without
             any
             distinction
             betwixt
             wives
             or
             others
             :
             yet
             other
             Lawyers
             have
             concluded
             ,
             that
             she
             should
             be
             punished
             by
             death
             ,
             since
             such
             sentences
             ,
             loose
             not
             the
             wife
             's
             natural
             obligations
             ,
             but
             he
             is
             still
             her
             husband
             ,
             and
             the
             Law
             owns
             so
             far
             the
             relations
             ,
             as
             not
             to
             punish
             her
             for
             omitting
             to
             kill
             him
             ,
             or
             for
             cohabiting
             with
             him
             ,
             
               Cub
               .
               consil
            
             .
             278.
             
             A
             father
             killing
             his
             son
             by
             accident
             ,
             ought
             not
             to
             dye
             ,
             and
             therefore
             ,
             much
             lesse
             he
             who
             kills
             him
             in
             defence
             of
             his
             own
             life
             ,
             for
             self-defence
             is
             a
             duty
             .
          
           
             This
             crime
             is
             so
             odious
             that
             is
             praescribes
             not
             .
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
          
        
         
           
           
             TITLE
             XIV
             .
             Incest
             ,
             Sodomy
             ,
             Bestiality
             .
          
           
             
               1.
               
               
                 What
                 Incest
                 is
                 ,
                 and
                 the
                 several
                 kinds
                 thereof
                 .
              
            
             
               2.
               
               
                 The
                 punishment
                 of
                 Incest
                 by
                 our
                 Law.
                 
              
            
             
               3.
               
               
                 Sodomy
                 ,
                 how
                 punished
              
               .
            
             
               4.
               
               
                 Bestiality
                 ,
                 how
                 punished
              
               .
            
          
           
             INcest
             is
             defined
             by
             the
             Civilians
             ,
             to
             be
             ,
             
               faeda
               &
               nefaria
               maris
               &
               f●minae
               commixtio
               ,
               contra
               reverentiam
               sanguini
               debitam
               .
            
          
           
             Incest
             is
             divided
             into
             two
             branches
             ,
             viz.
             that
             which
             is
             committed
             against
             the
             Law
             of
             Nature
             ;
             and
             into
             that
             which
             is
             committed
             against
             the
             Municipal
             Law
             of
             the
             Countrey
             .
             All
             copulation
             betwixt
             ascendants
             and
             descendants
             ,
             such
             as
             Grandfathe●
             ,
             Father
             ,
             Mother
             ,
             Son
             ,
             Daughter
             ,
             &c.
             is
             by
             all
             acknowledged
             to
             be
             Incest
             against
             the
             Law
             of
             Nature
             .
             But
             it
             is
             controverted
             ,
             whether
             the
             Brothers
             lying
             with
             the
             sister
             ,
             be
             incest
             against
             the
             Law
             of
             Nature
             :
             And
             the
             
               Roman
               Catholicks
            
             alledge
             it
             is
             not
             ,
             Because
             it
             was
             allowed
             at
             the
             beginning
             ;
             and
             therefore
             they
             conclude
             that
             the
             Pope
             may
             dispense
             therewith
             ;
             And
             this
             is
             the
             first
             difference
             betwixt
             that
             Incest
             which
             is
             committed
             against
             the
             Law
             of
             Nature
             ,
             and
             that
             which
             is
             committed
             against
             the
             Municipal
             Law.
             
          
           
             The
             second
             difference
             betwixt
             them
             is
             ,
             that
             the
             pain
             of
             incest
             when
             it
             is
             committed
             against
             the
             Law
             of
             Nature
             ,
             is
             death
             :
             but
             when
             against
             the
             Municipal
             Law
             ,
             it
             is
             only
             deportation
             ,
             l.
             5.
             
               ff
               .
               de
               quest
            
             .
          
           
           
             The
             third
             difference
             is
             ,
             that
             Incest
             committed
             only
             against
             the
             Municipal
             Law
             ,
             is
             excused
             (
             in
             a
             woman
             ,
             
               in
               figura
               matrimonii
            
             )
             but
             ignorance
             of
             the
             Law
             of
             Nature
             is
             not
             ;
             But
             the
             man
             is
             inexcusable
             in
             either
             ,
             
               Matheus
               hoc
               tit
               .
               Num.
            
             5.
             
          
           
             The
             fourth
             difference
             is
             ,
             that
             if
             a
             Marriage
             contracted
             ,
             be
             rescinded
             ,
             as
             incestuous
             ,
             all
             the
             committers
             goods
             are
             confiscat
             ,
             if
             the
             Incest
             be
             committed
             against
             the
             Law
             of
             Nature
             :
             but
             the
             Tocher
             and
             Joynter
             are
             only
             confiscat
             ,
             if
             the
             Incest
             be
             only
             committed
             against
             the
             Municipal
             Law
             ,
             Matheus
             .
          
           
             II.
             Our
             Law
             does
             not
             observe
             the
             above-written
             distinction
             ,
             but
             it
             is
             universally
             ,
             
               Statut.
               act
            
             14.
             p.
             1.
             
             I.
             6.
             
             That
             whosoever
             pollutes
             his
             body
             with
             such
             persons
             in
             degree
             ,
             as
             Gods
             word
             doeth
             contain
             in
             the
             18.
             of
             Leviticus
             ,
             shall
             be
             punished
             with
             death
             ;
             Albeit
             by
             these
             words
             of
             the
             act
             whosoever
             abuses
             his
             body
             ,
             it
             would
             seem
             that
             such
             as
             actually
             copulat
             ,
             are
             only
             punishable
             by
             this
             act
             :
             Yet
             I
             think
             
               nudus
               conatus
            
             ,
             or
             endeavour
             ,
             is
             punishable
             by
             death
             ,
             as
             it
             is
             in
             Sodomy
             ;
             in
             which
             ,
             endeavour
             is
             punishable
             ,
             by
             the
             opinion
             of
             the
             Doctors
             ,
             though
             by
             the
             Law
             of
             England
             ,
             Sodomy
             requires
             
               habuisse
               rem
               veneream
               ,
               &
               puerum
               carnaliter
               cognovisse
               ,
               Cook.
               p.
            
             59.
             albeit
             the
             manner
             of
             death
             is
             not
             exprest
             in
             this
             act
             ,
             yet
             practick
             hath
             determined
             the
             same
             ,
             to
             be
             hanging
             ;
             as
             in
             the
             case
             of
             Barnoch
             ,
             who
             was
             hanged
             for
             committing
             Incest
             with
             his
             own
             Sister
             ,
             Decemb.
             8.
             1641.
             
             And
             of
             
               Ioan
               Knox
            
             ,
             who
             was
             hanged
             for
             committing
             Incest
             with
             her
             husbands
             brother
             May
             1646.
             
             Sometimes
             it
             is
             likewise
             punished
             with
             heading
             ,
             as
             in
             the
             case
             of
             
               Iames
               Strang
            
             ,
             who
             was
             beheaded
             for
             committing
             Incest
             with
             his
             brothers
             daughter
             ,
             the
             4.
             of
             April
             .
             1649.
             
          
           
             III.
             Sodomy
             ,
             is
             when
             a
             man
             lyes
             with
             a
             man
             ,
             for
             which
             both
             are
             punishable
             by
             death
             ,
             
               l.
               cum
               vir
               nubit
               .
               C.
               de
               adult
               .
            
             they
             are
             burnt
             in
             France
             and
             Savoy
             ,
             as
             Gothofred
             observes
             .
             By
             the
             25.
             act
             :
             Henry
             the
             8.
             
             Sodomy
             is
             declared
             Fellony
             ,
             and
             the
             punishment
             of
             Fellony
             by
             the
             Law
             of
             England
             ,
             is
             in
             all
             cases
             to
             be
             
             hanged
             by
             the
             neck
             till
             death
             .
          
           
             Though
             Carpzovius
             ,
             and
             the
             other
             Doctors
             ,
             are
             of
             opinion
             ,
             that
             confession
             alone
             is
             not
             a
             sufficient
             probation
             in
             this
             Crime
             ,
             except
             other
             presumptions
             concur
             for
             clearing
             that
             the
             Crime
             was
             truly
             committed
             ,
             yet
             with
             us
             the
             confession
             it self
             ,
             without
             any
             other
             adminicles
             ,
             is
             sufficient
             to
             inferr
             the
             punishment
             of
             death
             except
             the
             confessor
             be
             known
             ,
             or
             at
             least
             suspected
             to
             be
             distempered
             .
          
           
             
               Mastrupatio
               est
               ubi
               quis
               propriis
               manibus
               aliove
               instrumento
               se
               polluit
               &
               punitur
               ut
               sodomia
               .
               Carp.
               Part.
            
             2.
             
             Quest
             :
             76.
             
               haec
               paena
               non
               est
               in
               usu
               apud
               nos
               .
            
          
           
             IV.
             Bestiality
             is
             ,
             when
             a
             man
             lyes
             with
             a
             beast
             ,
             which
             the
             Romans
             also
             punished
             with
             death
             ,
             and
             in
             which
             some
             Lawyers
             affirm
             the
             endeavour
             is
             as
             highly
             punishable
             ,
             as
             the
             crime
             it self
             ,
             
               effectus
               sine
               affectu
               ,
               Papon
               .
               lib.
            
             22.
             tit
             .
             7.
             art
             .
             1.
             
             
               Damhaud
               .
               cap.
            
             96.
             n.
             16.
             
             Which
             opinion
             they
             found
             upon
             the
             attrocity
             of
             the
             Crime
             :
             and
             it
             seems
             that
             he
             deserves
             not
             to
             live
             ,
             who
             could
             harbour
             such
             horrid
             thoughts
             ;
             but
             especially
             if
             he
             did
             all
             that
             was
             in
             his
             power
             to
             put
             his
             design
             in
             practice
             ,
             and
             was
             only
             letted
             by
             some
             interveening
             accident
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             But
             yet
             other
             Lawyers
             conclude
             ,
             that
             even
             in
             this
             crime
             the
             endeavour
             is
             punishable
             by
             a
             less
             severe
             punishment
             then
             death
             :
             which
             seems
             clear
             by
             l.
             1.
             
             §
             .
             
               fin
               .
               ff
               .
               de
               extraord
               .
               crim
               .
               qui
               puero
               struprum
               abducto
               ab
               eo
               vel
               corrupto
               comite
               ,
               persuaserit
               ,
               aut
               mulierem
               puellamve
               interpellaverit
               ,
               quidve
               impudicitiae
               gratia
               fecerit
               ,
               perfecto
               flagitio
               punitur
               capite
               ,
               imperfecto
               in
               insulam
               deportatur
               .
            
             And
             though
             in
             hotter
             Countreys
             .
             where
             Custome
             ,
             and
             Climat
             ,
             lessens
             this
             Crime
             ,
             the
             Crime
             is
             by
             their
             Lawyers
             thought
             punishable
             less
             severely
             ;
             yet
             with
             us
             death
             ought
             to
             punish
             it
             ,
             if
             the
             delinquent
             was
             only
             letted
             by
             others
             .
          
           
             And
             in
             both
             thir
             crimes
             of
             Sodomy
             and
             Bestiality
             ,
             witnesses
             who
             are
             lyable
             to
             exceptions
             will
             be
             received
             ,
             because
             of
             the
             attrocity
             of
             the
             crime
             .
             
               Bos.
               de
               judiciis
            
             .
          
           
             We
             have
             no
             particular
             statute
             for
             punishing
             either
             Sodomy
             ,
             
             or
             Bestiality
             ,
             for
             they
             are
             crimes
             extraordinar
             ,
             and
             rarely
             committed
             in
             this
             Kingdom
             :
             but
             our
             Libels
             bear
             ,
             That
             albeit
             by
             the
             Law
             of
             the
             Omnipotent
             God
             ,
             as
             it
             is
             declared
             in
             the
             20.
             c.
             of
             
               Leviticus
               .
               As
               well
               the
               man
               who
               lieth
               with
               mankind
               ,
               as
               the
               man
               who
               lieth
               with
               a
               beast
               ,
               be
               punishable
               by
               death
               .
            
             Yet
             &c.
             the
             ordinar
             punishment
             in
             both
             these
             ,
             is
             burning
             ,
             and
             the
             beast
             is
             also
             burnt
             ,
             with
             which
             the
             Bestiality
             is
             committed
             :
             as
             in
             the
             case
             of
             
               Iames
               Fiddes
            
             ,
             who
             being
             convict
             of
             Bestiality
             ,
             was
             ordained
             to
             be
             burnt
             in
             the
             last
             of
             May
             ,
             1650.
             
             And
             Major
             
               Weir
               ,
               April
            
             ,
             1670.
             
             Yet
             sometimes
             it
             is
             only
             punished
             by
             hanging
             ,
             and
             thus
             
               Iohn
               Logie
            
             was
             only
             hanged
             in
             Iuly
             ,
             1642.
             and
             
               Iames
               Wilson
            
             was
             only
             hanged
             for
             the
             same
             crime
             ,
             15.
             
             Feb.
             1649.
             which
             last
             Sentence
             bore
             ,
             that
             the
             execution
             should
             be
             very
             early
             in
             the
             morning
             ,
             and
             ordained
             the
             Mare
             with
             which
             the
             Buggery
             was
             committed
             ,
             to
             be
             drowned
             in
             any
             Mosse
             or
             Loach
             .
          
        
         
           
           
             TITLE
             .
             XVI
             .
             Raptus
             ,
             Ravishing
             .
          
           
             
               1.
               
               
                 The
                 nature
                 of
                 a
                 Rapt
                 described
                 ,
                 and
                 its
                 punishment
                 .
              
            
             
               2.
               
               
                 Whether
                 the
                 violent
                 lying
                 with
                 a
                 woman
                 ,
                 without
                 the
                 carrying
                 her
                 away
                 ,
                 be
                 a
                 Rapt
                 .
              
            
             
               3.
               
               
                 If
                 the
                 carrying
                 a
                 woman
                 away
                 upon
                 any
                 other
                 accompt
                 then
                 lust
                 ,
                 be
                 a
                 Rapt
                 .
              
            
             
               4.
               
               
                 If
                 the
                 carying
                 her
                 away
                 without
                 lying
                 with
                 her
                 ,
                 be
                 a
                 Rapt
                 .
              
            
             
               5.
               
               
                 If
                 a
                 womans
                 carying
                 away
                 a
                 man
                 ,
                 be
                 a
                 Rapt
                 .
              
            
             
               6.
               
               
                 Whether
                 a
                 subsequent
                 consent
                 purges
                 this
                 Crime
                 .
              
            
             
               7.
               
               
                 Some
                 instances
                 of
                 the
                 punishment
                 of
                 this
                 Crime
                 .
              
            
             
               8.
               
               
                 Whether
                 the
                 parents
                 consent
                 ,
                 not
                 being
                 obtained
                 ,
                 makes
                 a
                 Rapt
                 .
              
            
             
               9.
               
               
                 Whether
                 minors
                 ,
                 and
                 such
                 as
                 force
                 common
                 whores
                 be
                 punishable
                 for
                 a
                 Rapt
                 .
              
            
          
           
             RApt
             or
             Ravishing
             ,
             is
             that
             crime
             ,
             which
             is
             committed
             in
             the
             violent
             carrying
             away
             a
             woman
             from
             one
             place
             ,
             to
             another
             ,
             for
             satisfying
             the
             Ravishers
             lust
             :
             And
             is
             in
             the
             Civil
             Law
             punishable
             by
             death
             ,
             
               l.
               un
               .
               C.
               de
               Rapt
               .
               virgin
               ,
               &c.
               
            
             In
             our
             Law
             ,
             it
             is
             one
             of
             the
             four
             points
             of
             the
             Crown
             ,
             that
             is
             to
             say
             ,
             the
             cognition
             of
             it
             belongs
             only
             to
             his
             Majesties
             Justices
             ,
             and
             not
             to
             any
             other
             judge
             ;
             
               R.
               Maj.
               l.
            
             1.
             c.
             1.
             
             N.
             6.
             and
             is
             punishable
             by
             death
             ,
             and
             confiscation
             of
             the
             Committers
             movables
             .
             For
             albeit
             I
             remember
             not
             that
             the
             punishment
             of
             death
             be
             expresly
             appointed
             for
             it
             ;
             Yet
             in
             the
             8
             
               cap.
               l.
            
             4.
             
             
               R.
               M.
            
             It
             is
             said
             expresly
             that
             it
             shall
             be
             punished
             as
             the
             other
             Crimes
             above
             related
             ,
             and
             these
             are
             Murder
             ,
             Treason
             ,
             and
             fire-raising
             ;
             
             which
             are
             all
             capitally
             punished
             .
             And
             by
             the
             Act.
             4.
             
             P.
             21.
             
             I.
             6.
             it
             is
             declared
             ,
             that
             albeit
             the
             consent
             ,
             and
             declaration
             of
             the
             woman
             ravished
             ,
             declaring
             that
             she
             went
             away
             of
             her
             own
             free
             will
             ,
             may
             free
             the
             committer
             from
             capital
             punishment
             :
             Yet
             shall
             it
             not
             free
             him
             ,
             from
             such
             arbitrary
             punishment
             as
             His
             Majesty
             shall
             inflict
             ,
             by
             Warding
             ,
             confiscation
             of
             their
             goods
             ,
             or
             imposing
             upon
             them
             pecunial
             mulcts
             .
             Which
             act
             insinuats
             that
             the
             Crime
             is
             otherwayes
             Capital
             ,
             else
             that
             act
             had
             been
             unnecessar
             .
          
           
             II.
             The
             definition
             given
             of
             a
             Rapt
             ,
             l.
             4.
             c.
             8.
             
             R.M.
             is
             ,
             that
             it
             is
             the
             unjust
             oppressing
             of
             a
             woman
             ,
             by
             a
             man
             ,
             against
             the
             Kings
             peace
             ,
             in
             which
             it
             differs
             from
             the
             Civil
             Law
             ;
             at
             least
             from
             some
             Doctors
             ,
             who
             alledge
             ,
             that
             lying
             with
             a
             woman
             ,
             or
             abusing
             her
             body
             violently
             ,
             is
             not
             a
             Rapt
             ,
             except
             she
             be
             carryed
             from
             one
             place
             to
             another
             :
             Albeit
             they
             do
             confesse
             ,
             that
             this
             violence
             is
             punishable
             by
             deportation
             ,
             or
             banishment
             ,
             and
             is
             ,
             as
             some
             affirm
             ,
             
               non
               Raptus
               ,
               sed
               Stuprum
               ,
               l.
            
             3.
             
             
               C.
               de
               ad
               leg
               .
               Iu
               l.
               de
               vi
               .
            
             But
             yet
             other
             Lawyers
             ,
             and
             chiefly
             Mathaeus
             ,
             doe
             conclude
             ,
             that
             albeit
             the
             away
             taking
             ,
             and
             the
             forcing
             ,
             or
             violent
             abusing
             a
             womans
             body
             ,
             be
             differently
             punished
             ;
             yet
             they
             are
             degrees
             of
             the
             same
             crime
             ,
             and
             both
             are
             Rapts
             :
             But
             according
             to
             our
             Law
             ,
             both
             are
             Rapts
             ,
             and
             both
             punishable
             by
             death
             .
             Neither
             does
             our
             Law
             make
             any
             distinction
             ,
             
               inter
               Raptores
               ,
               &
               deforciatores
               mulierum
               ,
            
             betwixt
             Ravishers
             ,
             and
             Deforcers
             of
             women
             ;
             and
             it
             were
             most
             unreasonable
             ,
             that
             he
             who
             defloures
             a
             woman
             violently
             ,
             should
             not
             be
             as
             severely
             punished
             ,
             as
             he
             who
             only
             caries
             her
             from
             one
             place
             to
             another
             :
             for
             as
             the
             person
             ravished
             looses
             more
             by
             that
             abuse
             ,
             then
             by
             her
             transportation
             ;
             so
             it
             were
             absurd
             ,
             that
             
               apparatus
               ad
               crimen
            
             ,
             should
             be
             more
             severely
             punished
             ,
             then
             
               effectus
               criminis
            
             ;
             that
             the
             accomplishment
             of
             the
             crime
             should
             be
             a
             lesse
             guilt
             then
             the
             preparations
             to
             it
             :
             amongst
             which
             this
             transportation
             is
             but
             one
             .
          
           
             III.
             If
             the
             woman
             be
             taken
             away
             upon
             any
             other
             accompt
             
             then
             that
             of
             lust
             ,
             it
             is
             not
             a
             Rapt
             ,
             and
             so
             if
             she
             be
             very
             old
             ,
             or
             if
             the
             away-taker
             had
             a
             quarrel
             against
             her
             ,
             it
             is
             not
             a
             Rapt
             ,
             
               Decius
               concil
            
             .
             234.
             
          
           
             IV.
             Quae.
             What
             if
             the
             Ravisher
             did
             not
             carnally
             know
             the
             person
             Ravished
             ,
             whether
             in
             that
             case
             ,
             the
             away-taker
             be
             punishable
             as
             a
             Ravisher
             capitally
             ?
             and
             albeit
             the
             ordinar
             distinction
             be
             ,
             that
             if
             he
             did
             not
             ,
             because
             he
             could
             not
             ,
             then
             he
             is
             punishable
             :
             but
             if
             it
             was
             in
             his
             power
             to
             have
             defloured
             her
             ,
             but
             abstained
             ,
             then
             he
             is
             not
             to
             be
             punished
             capitally
             ,
             but
             only
             arbitrarily
             
               Clar.
               §
               .
               raptus
               num
            
             .
             4.
             
             Yet
             I
             think
             ,
             that
             in
             our
             Law
             he
             is
             in
             no
             case
             to
             be
             punished
             capitally
             ,
             except
             he
             defloured
             her
             :
             For
             1.
             
             In
             the
             foresaid
             1.
             
               cap.
               l.
            
             1.
             
             
               R.
               M.
            
             it
             is
             said
             ,
             that
             
               affectus
               sine
               effectu
            
             ,
             is
             punishable
             in
             Treason
             ,
             because
             of
             the
             great
             wrong
             done
             to
             the
             whole
             Kingdom
             :
             but
             this
             reason
             ceaseth
             in
             Rapts
             ,
             and
             when
             Rapts
             are
             spoken
             of
             ,
             in
             the
             immediat
             next
             Verse
             ,
             this
             is
             not
             repeated
             .
             2.
             
             The
             glosse
             upon
             the
             word
             ,
             oppressed
             by
             a
             man
             ,
             l.
             4.
             c.
             8.
             interprets
             oppression
             to
             be
             suppression
             ,
             or
             corruption
             ,
             and
             in
             the
             9.
             
             Verse
             of
             that
             Chapter
             ,
             it
             is
             rendered
             corruption
             ,
             and
             it
             is
             spoken
             of
             there
             ,
             as
             
               faedatio
               mulier
               is
               &
               pollutio
            
             .
             3.
             
             By
             the
             Norman
             Law
             ,
             with
             which
             our
             old
             customs
             have
             much
             contingency
             ,
             Rapt
             is
             called
             
               depucellement
               des
               femmes
               a
               force
               ,
               l.
            
             12.
             c.
             1.
             
             Yet
             I
             think
             that
             any
             such
             wrong
             done
             to
             a
             woman
             ,
             is
             punishable
             ,
             
               tanquam
               crimen
               in
               suo
               genere
            
             ,
             and
             after
             the
             crime
             of
             Rapts
             ,
             or
             Ravishing
             is
             spok
             of
             in
             that
             chapter
             ,
             it
             is
             said
             v.
             8.
             
             That
             if
             a
             woman
             accuse
             a
             man
             of
             any
             other
             wrong
             done
             to
             her
             body
             ,
             she
             will
             be
             heard
             .
          
           
             In
             that
             Chapter
             also
             ,
             it
             is
             appointed
             the
             woman
             Ravished
             go
             whilst
             the
             crime
             is
             recent
             to
             the
             next
             Town
             ,
             and
             there
             show
             to
             honest
             men
             the
             blood
             ,
             or
             other
             wrong
             done
             her
             ,
             and
             thereafter
             go
             to
             the
             Mair
             of
             the
             Lordship
             ,
             or
             to
             the
             Toscheoderoch
             ,
             which
             
               Skeen
               ,
               ad
               .
               R.
               M.
               l.
            
             1.
             c.
             6.
             interprets
             to
             be
             
               Serjandus
               curiae
            
             ,
             but
             Boeth
             .
             in
             his
             History
             calls
             them
             latrunculatores
             ,
             or
             the
             maker
             of
             thieves
             :
             And
             thereafter
             to
             the
             Sheriff
             ,
             and
             last
             of
             
             all
             to
             the
             Justice
             :
             But
             the
             form
             now
             is
             only
             to
             raise
             Letters
             ,
             as
             in
             other
             crimes
             ,
             before
             the
             Justice
             .
             And
             albeit
             of
             old
             ,
             she
             was
             obliedged
             to
             insist
             within
             24.
             hours
             ,
             
               intra
               unam
               noctem
            
             ,
             else
             not
             to
             be
             heard
             ,
             c.
             10.
             l.
             4.
             
             
               R.
               M.
            
             Yet
             that
             is
             now
             antiquated
             by
             custome
             ;
             Albeit
             it
             was
             a
             strong
             presumption
             in
             the
             opinion
             of
             the
             Doctors
             ,
             and
             is
             so
             in
             our
             practick
             ,
             that
             the
             pursuit
             is
             malicious
             ,
             when
             it
             is
             delayed
             ;
             for
             it
             is
             most
             presumable
             ,
             that
             a
             woman
             would
             not
             conceal
             any
             time
             such
             an
             injury
             .
          
           
             V.
             It
             is
             doubted
             much
             among
             the
             Doctors
             ,
             if
             women
             who
             ravish
             men
             are
             punishable
             as
             ravishers
             ;
             And
             albeit
             our
             Law
             speaks
             still
             of
             ravishing
             women
             ,
             yet
             I
             think
             that
             as
             women
             are
             guilty
             of
             man-slaughter
             ,
             so
             women
             may
             be
             guilty
             of
             this
             crime
             :
             and
             by
             the
             9.
             
               v.
               c.
            
             8.
             
             
               R.
               M.
            
             It
             will
             appear
             that
             this
             was
             designed
             for
             both
             Sexes
             :
             Albeit
             I
             think
             it
             be
             not
             punishable
             by
             death
             ,
             seing
             it
             cannot
             take
             effect
             ,
             except
             the
             man
             pleases
             ,
             
               &
               affectus
               sine
               effectu
               non
               punitur
               capitaliter
               ,
               in
               hoc
               crimine
               .
            
          
           
             VI.
             By
             the
             opinion
             of
             Lawyers
             ,
             the
             subsequent
             consent
             of
             the
             women
             ravished
             ,
             did
             not
             absolve
             the
             committers
             ,
             
               Cin.
               in
               l.
               un
               .
               h.
               t.
            
             And
             albeit
             by
             the
             Council
             of
             Trent
             ,
             Marriage
             may
             be
             contracted
             lawfully
             betwixt
             them
             ,
             yet
             the
             committer
             is
             still
             punishable
             ;
             and
             by
             the
             foresaid
             Law
             
               C.
               de
               raptu
            
             ,
             the
             words
             are
             ,
             
               nec
               sit
               facultas
               raptae
               raptorem
               suum
               sibi
               maritum
               exposcere
               .
            
             But
             by
             the
             foresaid
             Act.
             I.
             6.
             
             P.
             21.
             this
             question
             is
             determined
             with
             us
             ,
             for
             that
             consent
             only
             saves
             from
             capital
             punishment
             ,
             for
             the
             committer
             may
             be
             put
             to
             the
             knowledge
             of
             an
             inquest
             ,
             either
             at
             the
             instance
             of
             his
             
             Majestie
             's
             Advocat
             ,
             or
             the
             Parents
             or
             nearest
             kin
             ,
             from
             which
             Act
             it
             may
             be
             observed
             .
             1.
             
             That
             the
             Advocat
             or
             nearest
             of
             kin
             may
             insist
             ,
             without
             one
             anothers
             concurse
             .
             2.
             
             That
             if
             the
             nearest
             of
             kin
             do
             not
             insist
             ,
             they
             who
             are
             in
             remoter
             degrees
             cannot
             insist
             in
             this
             case
             ,
             and
             crave
             that
             the
             Ravisher
             may
             be
             put
             to
             the
             knowledge
             of
             an
             Assize
             ,
             although
             the
             woman
             declare
             that
             she
             was
             not
             ravished
             .
             Albeit
             I
             think
             that
             before
             any
             such
             consent
             be
             declared
             ,
             any
             of
             her
             friends
             may
             insist
             ,
             
             
               l.
               un
               .
               C.
               de
               rapt
               ,
               &
               si
               pater
               injuriam
               remiserit
               extraneus
               reum
               postulare
               poterat
               .
            
             3.
             
             Except
             it
             be
             proved
             that
             the
             rapt
             was
             committed
             at
             first
             ,
             without
             consent
             of
             the
             woman
             ,
             and
             nearest
             of
             kin
             ,
             it
             is
             most
             punishable
             .
             It
             may
             be
             argued
             ,
             that
             if
             either
             the
             nearest
             of
             kin
             ,
             or
             she
             ,
             consented
             before
             the
             rapt
             ,
             it
             is
             not
             punishable
             :
             and
             it
             is
             probable
             ,
             that
             if
             the
             nearest
             of
             kin
             consented
             ,
             though
             the
             woman
             did
             not
             ,
             the
             away-taking
             is
             not
             capitally
             punishable
             ;
             for
             where
             the
             nearest
             of
             kin
             ,
             and
             parents
             consent
             ,
             the
             ravisher
             deserves
             not
             so
             severe
             a
             punishment
             as
             death
             .
             4.
             
             Because
             the
             womans
             consent
             is
             so
             hard
             to
             be
             known
             ,
             for
             she
             might
             have
             at
             first
             consented
             ,
             albeit
             she
             cryed
             or
             resisted
             upon
             designe
             :
             Therefore
             I
             think
             her
             Oath
             should
             be
             first
             required
             ,
             and
             if
             she
             be
             content
             to
             swear
             that
             she
             went
             willingly
             alongst
             ,
             that
             should
             ,
             in
             my
             judgement
             ,
             preclude
             the
             pursuers
             from
             any
             further
             pursuit
             ;
             or
             if
             they
             can
             prove
             that
             there
             was
             any
             designe
             of
             marriage
             amongst
             them
             ,
             previous
             to
             the
             away-taking
             ,
             
               Marsil
               :
               consil
               .
               ibi
               &
               Boss.
               de
               rapt
               .
               N.
            
             17.5
             .
             Since
             by
             the
             foresaid
             Act
             ,
             it
             is
             said
             ,
             that
             if
             any
             be
             pursued
             as
             art
             and
             part
             of
             rapt
             ,
             the
             womans
             consent
             in
             that
             case
             shall
             free
             them
             from
             capital
             punishment
             :
             it
             may
             be
             doubted
             if
             the
             womans
             consent
             will
             free
             from
             capital
             punishment
             ,
             him
             who
             is
             pursued
             as
             principal
             actor
             ,
             since
             the
             act
             is
             not
             express
             as
             to
             him
             ,
             and
             since
             he
             deserves
             not
             so
             much
             favour
             as
             the
             complices
             do
             :
             But
             yet
             I
             conceive
             the
             same
             favour
             should
             be
             extended
             to
             him
             ,
             both
             because
             our
             Law
             equals
             principals
             and
             complices
             ,
             and
             because
             the
             Doctors
             ,
             and
             the
             Laws
             of
             other
             Nations
             extend
             this
             :
             Before
             this
             act
             by
             the
             8.
             
               cap.
               R.
               M.
               l.
            
             4.
             
             And
             yet
             it
             is
             declared
             there
             ,
             that
             it
             shall
             be
             Lawfull
             to
             the
             pairties
             to
             marry
             with
             His
             Majesties
             consent
             .
             The
             Arbitrary
             punishment
             allowed
             his
             Majesty
             by
             the
             foresaid
             Act
             of
             Parliament
             ,
             I.
             6.
             is
             not
             interpret
             so
             ,
             that
             his
             Majesty
             should
             be
             personally
             consulted
             ,
             but
             His
             Majesties
             council
             supplies
             that
             in
             his
             absence
             ;
             as
             was
             found
             in
             the
             Baxters
             case
             ,
             1666.
             
          
           
           
             Albeit
             this
             crime
             be
             capital
             ,
             and
             that
             
               William
               Bannatine
            
             was
             hanged
             for
             taking
             away
             the
             Laird
             of
             Achingters
             ,
             daughter
             ,
             5.
             
             Iuly
             1596.
             yet
             I
             find
             that
             
               Iohn
               Kincaid
            
             having
             come
             in
             the
             Kings
             will
             ,
             Feb.
             1601.
             for
             ravishing
             
               Isobel
               Hutchison
            
             ,
             a
             widow
             ,
             the
             King
             only
             fined
             him
             in
             2500
             Merks
             .
             
               Hary
               Speed
            
             was
             hang'd
             20.
             
             Feb.
             1639.
             
               quia
               laceravit
               pudenda
               pueri
            
             ,
             which
             crime
             ,
             
               Iul.
               Clar.
               Gothofred
            
             ,
             and
             others
             ,
             affirms
             to
             be
             also
             capital
             in
             their
             Countries
             .
          
           
             I
             find
             one
             Leivtenent
             Ker
             ,
             pursued
             for
             ravishing
             and
             away-taking
             
               Robert
               Cuninghame
            
             ,
             6.
             
             Feb.
             1640.
             but
             this
             is
             rather
             a
             species
             of
             Plagium
             then
             of
             Rapt
             .
          
           
             VII
             .
             Since
             minors
             are
             punishable
             by
             death
             for
             adultery
             ,
             much
             more
             ought
             they
             to
             be
             punishable
             by
             death
             for
             a
             rapt
             ,
             since
             the
             injury
             is
             there
             both
             more
             attorcious
             ,
             and
             more
             unnatural
             ;
             and
             
               Carp.
               part
            
             2.
             
             Quest.
             75.
             gives
             us
             several
             instances
             where
             this
             Crime
             was
             capitally
             punished
             in
             minors
             ,
             where
             he
             likewise
             tells
             us
             ,
             that
             to
             force
             even
             a
             common
             Whore
             is
             capitally
             punishable
             ,
             though
             it
             may
             seem
             that
             they
             are
             
               infralegum
               observantiam
            
             ,
             and
             they
             ought
             not
             to
             have
             the
             protection
             of
             the
             Law
             ,
             who
             offend
             against
             it
             .
          
        
         
           
           
             TITLE
             XVII
             .
             Adultery
             .
          
           
             
               1.
               
               
                 The
                 definition
                 of
                 Adultery
                 ,
                 and
                 whether
                 the
                 lying
                 with
                 an
                 unmaried
                 woman
                 ,
                 or
                 with
                 a
                 whore
                 ,
                 be
                 Adultery
                 .
              
            
             
               2.
               
               
                 The
                 punishment
                 of
                 Adultery
                 ,
                 by
                 the
                 Law
                 of
                 God
                 ,
                 and
                 our
                 Law.
                 
              
            
             
               3.
               
               
                 The
                 differences
                 betwixt
                 single
                 and
                 nottour
                 Adultery
                 .
              
            
             
               4.
               
               
                 Whether
                 death
                 can
                 be
                 inflicted
                 for
                 single
                 Adultery
                 in
              
               Scotland
               .
            
             
               5.
               
               
                 Whether
                 the
                 Mariage
                 ought
                 to
                 be
                 proved
                 .
              
            
             
               6.
               
               
                 Who
                 can
                 be
                 punished
                 as
                 accessories
                 in
                 Adultery
                 .
              
            
             
               7.
               
               
                 What
                 probation
                 is
                 requisite
                 in
                 Adultery
                 .
              
            
             
               8.
               
               
                 Whether
                 a
                 Dicreet
                 of
                 Devorce
                 before
                 the
                 Commissaries
                 is
                 sufficient
                 to
                 prove
                 Adultery
                 in
                 a
                 criminal
                 case
                 .
              
            
             
               9.
               
               
                 Whether
                 he
                 who
                 hearing
                 his
                 wife
                 was
                 dead
                 ,
                 maried
                 another
                 ,
                 be
                 punishable
                 as
                 an
                 Adulterer
                 .
              
            
             
               10.
               
               
                 Whether
                 a
                 pursuite
                 being
                 intended
                 for
                 nottour
                 Adultery
                 ,
                 and
                 single
                 Adultery
                 ,
                 only
                 proved
                 ,
                 if
                 the
                 single
                 Adultery
                 can
                 be
                 punished
                 in
                 that
                 case
                 .
              
            
             
               11.
               
               
                 How
                 adulterous
                 children
                 succeed
              
               .
            
          
           
             ADultery
             is
             a
             Sin
             ,
             whereby
             men
             not
             only
             violat
             the
             second
             Table
             ,
             in
             wronging
             their
             neighbour
             ,
             by
             stealing
             from
             him
             his
             quiet
             ,
             his
             good
             name
             ,
             the
             affection
             and
             person
             of
             his
             wife
             ,
             endeavouring
             also
             ofttimes
             to
             steal
             his
             estate
             for
             the
             adulterous
             
             children
             ;
             But
             is
             likewise
             a
             breach
             of
             the
             first
             ,
             in
             breaking
             of
             that
             vow
             which
             was
             made
             to
             God
             in
             marriage
             ,
             and
             contemning
             that
             holy
             and
             mighty
             Majesty
             ,
             who
             was
             then
             called
             upon
             ,
             as
             Judge
             and
             witnesse
             .
          
           
             I.
             
               Adulterium
               est
               vitiatio
               alterius
               thori
            
             ,
             the
             violation
             of
             anothers
             bed
             ,
             and
             is
             committed
             by
             a
             married
             persons
             lying
             with
             an
             unmarried
             ,
             or
             an
             unmarried
             person
             lying
             with
             one
             who
             is
             married
             .
             For
             albeit
             by
             the
             Civil
             Law
             when
             a
             man
             who
             was
             married
             ,
             did
             lye
             with
             a
             woman
             who
             was
             free
             ,
             that
             was
             judged
             to
             be
             no
             adultery
             ;
             And
             albeit
             the
             lying
             with
             a
             Whore
             ,
             by
             the
             Civil
             Law
             ,
             was
             judged
             no
             Adultery
             ,
             l.
             22.
             
             
               Cod.
               hoc
               tit
               .
               Si
               ea
               quae
               stupro
               tibi
               cognita
               est
               &
               passim
               venalem
               formam
               exhibuit
               ac
               prostitutam
               meritricio
               more
               vulgo
               se
               praebuit
               adulterii
               crimen
               in
               ea
               cessat
               .
            
             Upon
             which
             Law
             the
             Doctors
             conclude
             ,
             that
             though
             he
             who
             first
             debaushed
             a
             woman
             with
             adultery
             ,
             be
             punishable
             as
             an
             adulterer
             yet
             these
             who
             did
             thereafter
             debaush
             her
             ,
             cannot
             
               Farr
               .
               Quest.
            
             141.
             num
             .
             85.
             
             Yet
             this
             is
             against
             both
             the
             Law
             of
             God
             and
             our
             Law
             ,
             for
             the
             Lying
             with
             another
             mans
             wife
             is
             still
             Adultery
             ,
             but
             so
             it
             is
             ,
             that
             though
             she
             be
             a
             whore
             ,
             yet
             she
             is
             another
             mans
             Wife
             .
             Nor
             is
             the
             marriage
             disolved
             by
             the
             Adultery
             ;
             And
             yet
             I
             think
             ,
             that
             if
             the
             woman
             with
             whom
             the
             adultery
             is
             committed
             ,
             was
             at
             the
             time
             when
             the
             same
             was
             committed
             ,
             living
             as
             a
             common
             whore
             ,
             and
             the
             committer
             was
             a
             single
             man
             ,
             who
             knew
             not
             of
             her
             being
             married
             ,
             his
             punishment
             should
             be
             somewhat
             moderat
             upon
             that
             accompt
             ;
             But
             if
             the
             committer
             was
             married
             ,
             the
             crime
             is
             the
             same
             ,
             whether
             the
             woman
             was
             a
             Whore
             or
             not
             ,
             since
             it
             is
             still
             a
             violation
             upon
             the
             mans
             part
             .
             To
             lye
             likewise
             with
             a
             mans
             bethrothed
             ,
             or
             promised
             Spouse
             ,
             or
             as
             we
             say
             ,
             his
             affidat
             Spouse
             ,
             is
             Adultery
             ,
             
               nam
               .
               nec
               violare
               licet
               matrimonium
               ,
               nec
               spem
               matrimonii
               l.
            
             13.
             
             §
             .
             diu
             .
             6.
             
               ff
               .
               h.
               t.
            
             which
             agrees
             ,
             as
             I
             conceive
             ,
             with
             Deu.
             22.23
             .
             Where
             he
             who
             lies
             with
             a
             betrothed
             Virgin
             ,
             should
             be
             stoned
             as
             an
             adulterer
             ,
             because
             sayes
             verse
             24.
             he
             lies
             with
             his
             neighbors
             wife
             .
             And
             he
             who
             lies
             with
             a
             betrothed
             Virgin
             ,
             who
             is
             
             to
             be
             shortly
             married
             ,
             renders
             the
             succession
             as
             doubtful
             as
             he
             who
             lyes
             with
             a
             married
             wife
             .
          
           
             The
             punishment
             of
             Adultery
             by
             the
             Civil
             Law
             ,
             was
             death
             ,
             as
             some
             think
             ,
             by
             the
             Julian
             Law
             ,
             relegatio
             ,
             or
             banishment
             ,
             as
             others
             think
             ;
             but
             certainly
             the
             pain
             of
             death
             was
             the
             punishment
             to
             be
             inflicted
             ,
             by
             that
             excellent
             constitution
             ,
             
               leg
               .
               quamvis
               Cod.
               hoc
               .
               tit
               .
            
             Albeit
             thereafter
             Iustinian
             did
             by
             the
             134.
             
             N.
             cap.
             11.
             remit
             to
             the
             woman
             the
             pains
             of
             death
             ,
             and
             ordain
             her
             only
             to
             be
             imprisoned
             in
             a
             Monastry
             :
          
           
             By
             the
             Law
             likewise
             of
             most
             Nations
             ,
             adultery
             is
             only
             punishable
             by
             pecuniary
             mulcts
             :
             Albeit
             by
             the
             Law
             of
             God
             it
             was
             punishable
             by
             stoning
             both
             man
             and
             woman
             to
             death
             ,
             20.
             
             Deut.
             22.
             
             Which
             punishment
             some
             think
             likewise
             to
             have
             been
             abrogated
             by
             our
             Saviour
             ,
             because
             when
             the
             woman
             accused
             for
             adultery
             was
             brought
             before
             him
             ,
             he
             did
             dismisse
             her
             without
             any
             punishment
             ;
             but
             this
             is
             very
             groundless
             ,
             for
             our
             Saviour
             came
             not
             to
             be
             a
             Judge
             in
             such
             causes
             ,
             as
             himself
             declares
             :
             and
             though
             he
             had
             been
             a
             Judge
             ,
             yet
             she
             wanted
             an
             Accuser
             .
          
           
             III.
             Our
             Law
             divides
             Adultery
             ,
             in
             that
             which
             is
             notour
             Adultery
             ,
             and
             single
             Adultery
             .
             Notour
             Adultery
             is
             by
             the
             74.
             
             
               Act
               Parl.
            
             9
             
               Q.
               Mary
            
             ,
             declared
             to
             be
             punishable
             by
             death
             ,
             after
             premonition
             is
             made
             to
             abstain
             from
             the
             said
             manifest
             and
             notour
             Crime
             ;
             which
             premonition
             had
             its
             origin
             from
             
               Auth.
               si
               quis
               C.
               ad
               l.
            
             1.
             
               de
               adult
            
             .
             by
             which
             it
             was
             lawful
             for
             the
             Husband
             to
             kill
             him
             who
             was
             thrice
             premonish'd
             not
             to
             converse
             with
             his
             Wife
             .
             And
             in
             effect
             ,
             the
             design
             of
             that
             Act
             was
             only
             to
             punish
             a
             horrid
             abuse
             ,
             which
             was
             then
             ordinar
             ,
             viz.
             the
             taking
             away
             other
             mens
             wives
             ,
             and
             keeping
             them
             openly
             as
             their
             own
             ,
             to
             the
             great
             contempt
             of
             Law.
             Yet
             by
             the
             explication
             of
             this
             Act
             ,
             which
             is
             given
             by
             the
             105.
             
             Act
             ,
             7.
             
             
               Parl.
               I.
            
             6.
             
             That
             is
             only
             declared
             to
             be
             notour
             Adultery
             ,
             where
             ,
             1.
             
             There
             are
             Bairns
             one
             or
             moe
             procreated
             betwixt
             the
             Adulterers
             .
             2.
             
             When
             they
             keep
             company
             ,
             or
             bed
             together
             notoriously
             known
             .
             3.
             
             When
             they
             are
             suspected
             of
             Adultery
             ,
             
             and
             thereby
             gives
             slander
             to
             the
             Kirk
             ,
             whereupon
             being
             admonished
             to
             satisfie
             the
             Kirk
             ,
             they
             contemptuously
             refuse
             ,
             and
             for
             their
             refusal
             they
             are
             excommunicat
             :
             If
             either
             of
             which
             three
             degrees
             be
             proved
             before
             the
             Justices
             ,
             the
             committers
             are
             punishable
             by
             death
             .
             From
             which
             Act
             it
             is
             to
             be
             observed
             ,
             1.
             
             That
             though
             by
             the
             first
             Act
             premonition
             to
             abstain
             was
             still
             to
             be
             made
             in
             all
             cases
             ,
             yet
             in
             neither
             of
             the
             two
             first
             cases
             here
             related
             it
             is
             declared
             necessary
             .
             But
             since
             it
             was
             not
             lawful
             to
             kill
             him
             who
             was
             premonished
             ,
             and
             thereafter
             conversed
             ,
             except
             they
             conversed
             in
             suspect
             places
             ,
             
               Gribald
               .
               de
               homicid
               .
               num
               .
            
             11.
             
             It
             seems
             that
             in
             neither
             of
             these
             Statutes
             conversation
             should
             be
             criminal
             ,
             even
             after
             prohibition
             ,
             except
             it
             be
             in
             suspect
             places
             .
             2.
             
             The
             Justices
             are
             only
             declared
             to
             be
             Judges
             to
             the
             notoriety
             of
             Adultery
             ,
             and
             therefore
             it
             may
             be
             controverted
             ,
             if
             Lords
             of
             Regality
             be
             Judges
             competent
             to
             the
             cognition
             of
             it
             .
             3.
             
             This
             Act
             does
             not
             exclude
             capital
             punishments
             in
             other
             cases
             of
             Adultery
             ,
             but
             only
             ordains
             that
             these
             three
             degrees
             shall
             be
             punished
             by
             death
             .
             And
             since
             there
             are
             other
             cases
             more
             grievous
             to
             the
             party
             injured
             ,
             and
             more
             scandalous
             to
             the
             Common-wealth
             ;
             it
             may
             be
             argued
             ,
             that
             the
             punishment
             of
             death
             should
             likewise
             be
             extended
             to
             them
             ;
             as
             for
             instance
             ,
             to
             commit
             frequent
             Adulteries
             :
             And
             it
             appears
             it
             is
             upon
             this
             account
             that
             the
             sentence
             of
             death
             was
             pronounced
             against
             Sir
             
               Iohn
               Stewart
            
             ,
             for
             three
             Adulteries
             ,
             15.
             
             August
             ,
             1628.
             
             As
             also
             ,
             
               Isabel
               Hamiltoun
            
             being
             pursued
             in
             Iuly
             ,
             1647.
             for
             Adultery
             ,
             and
             having
             enacted
             her self
             never
             to
             return
             ,
             under
             the
             pain
             of
             death
             ;
             she
             having
             thereafter
             returned
             ,
             was
             immediatly
             ,
             without
             any
             other
             Process
             ,
             by
             an
             order
             from
             the
             Justices
             ,
             execute
             in
             Anno
             1649.
             
          
           
             IV.
             And
             albeit
             there
             be
             no
             express
             Law
             for
             inflicting
             death
             in
             other
             cases
             ,
             upon
             ordinary
             Adulterers
             ,
             yet
             I
             see
             no
             reason
             why
             the
             Justices
             may
             not
             as
             well
             ,
             for
             the
             good
             of
             the
             Common-wealth
             ,
             inflict
             death
             ,
             without
             any
             express
             Law
             here
             ,
             as
             they
             do
             in
             Theft
             ,
             and
             other
             less
             Crimes
             :
             And
             in
             effect
             ,
             Adultery
             
             includes
             Theft
             ,
             as
             I
             said
             formerly
             ;
             And
             albeit
             
               inclusio
               unius
               est
               exclusio
               alterius
            
             ,
             and
             that
             it
             may
             be
             argued
             ,
             that
             by
             the
             former
             Act
             ,
             appointing
             death
             in
             the
             cases
             above-cited
             ,
             the
             punishment
             of
             death
             is
             thereby
             excluded
             in
             other
             cases
             :
             yet
             to
             this
             it
             may
             be
             answered
             ,
             that
             the
             foresaid
             rule
             is
             only
             a
             Brocard
             ,
             and
             hath
             only
             the
             strength
             of
             a
             presumption
             and
             therefore
             take
             only
             place
             in
             favourable
             cases
             ,
             but
             should
             not
             be
             extended
             in
             prejudice
             of
             the
             Law
             of
             God
             ,
             which
             expresly
             ordains
             Adulterers
             to
             die
             .
             And
             in
             the
             foresaid
             74.
             
             Act
             ,
             9.
             
             
               Parl.
               Q.
               Mary
            
             ,
             It
             is
             declared
             that
             this
             Act
             shall
             be
             but
             prejudice
             of
             all
             other
             Acts
             and
             Laws
             already
             made
             ,
             with
             all
             rigour
             ;
             but
             I
             can
             find
             no
             other
             Act
             made
             prior
             to
             that
             anent
             Adultery
             ,
             whereby
             the
             punishment
             is
             limited
             ;
             and
             therefore
             I
             believe
             that
             that
             Act
             relates
             to
             the
             punishment
             related
             to
             by
             the
             Law
             of
             God
             :
             At
             the
             least
             I
             think
             that
             the
             Magistrate
             is
             left
             to
             his
             own
             freedome
             to
             consider
             circumstances
             .
             And
             whereas
             it
             may
             be
             alledged
             that
             if
             single
             Adultery
             were
             punishable
             by
             death
             ,
             these
             Acts
             had
             been
             needless
             .
             To
             this
             it
             may
             be
             answered
             ,
             that
             the
             design
             of
             the
             former
             Acts
             was
             to
             necessitat
             the
             Magistrate
             alwayes
             in
             the
             cases
             exprest
             in
             that
             Act
             to
             inflict
             death
             ,
             and
             not
             to
             impower
             them
             only
             to
             do
             so
             :
             And
             seing
             single
             Adultery
             is
             punishable
             by
             the
             Magistrate
             ,
             sometimes
             by
             banishment
             ,
             as
             in
             the
             case
             of
             an
             English
             woman
             ,
             in
             December
             1668.
             sometimes
             with
             scourging
             ,
             as
             in
             the
             case
             of
             
               Ridpath
               ,
               December
            
             1642.
             
             And
             sometime
             with
             fining
             ,
             as
             in
             the
             case
             of
             that
             woman
             who
             committed
             Adultery
             with
             
               George
               Swintoun
            
             ,
             in
             Anno
             1666.
             though
             there
             be
             no
             express
             Law
             warranting
             them
             to
             inflict
             these
             punishments
             ,
             and
             whereupon
             the
             Pursuer
             is
             forced
             to
             found
             his
             Summonds
             upon
             the
             Law
             of
             God
             ,
             and
             Law
             of
             Nature
             ,
             upon
             which
             Law
             they
             are
             sustained
             ,
             without
             citing
             any
             Municipal
             Law
             ,
             as
             in
             the
             case
             of
             that
             English
             woman
             :
             I
             see
             no
             reason
             why
             they
             may
             not
             by
             the
             same
             Laws
             inflict
             likewise
             the
             punishment
             of
             death
             .
             Albeit
             the
             foresaid
             punishment
             of
             death
             be
             appointed
             in
             cases
             of
             notour
             Adultery
             ;
             yet
             the
             Council
             does
             use
             to
             mitigate
             
             the
             punishment
             ,
             and
             so
             they
             ordained
             only
             Ridpath
             a
             Tinker
             ,
             though
             he
             was
             found
             guilty
             of
             double
             Adultery
             ,
             in
             keeping
             another
             Tinkers
             Wife
             two
             years
             ,
             to
             be
             only
             scourged
             ,
             banished
             ,
             and
             burnt
             on
             the
             cheek
             ,
             Decemb.
             4.
             1662.
             
             But
             the
             reason
             here
             was
             ,
             because
             Tinkers
             are
             in
             effect
             vile
             persons
             ,
             who
             are
             seldome
             ever
             lawfully
             married
             :
             And
             in
             such
             I
             find
             of
             old
             ,
             Adultery
             was
             not
             punished
             by
             death
             ,
             as
             l.
             29.
             
             
               C.
               h.
               t.
            
             where
             Adultery
             committed
             with
             a
             Taverner
             is
             not
             punished
             severely
             ,
             
               quas
               vitae
               vilitas
               dignas
               legum
               observatione
               non
               credidit
               ,
               &
               erant
               infra
               legum
               curam
               .
            
             And
             some
             respect
             was
             likewise
             had
             here
             to
             that
             absurd
             custome
             amongst
             Tinkers
             ,
             of
             living
             promiscuously
             ,
             and
             using
             one
             anothers
             Wives
             as
             Concubines
             .
             The
             Council
             sometimes
             do
             likewise
             banish
             persons
             for
             Adultery
             ,
             without
             suffering
             them
             to
             come
             before
             a
             Justice
             Court
             ,
             even
             where
             notour
             Adultery
             might
             be
             proved
             against
             them
             ,
             as
             in
             the
             case
             of
             
               Ieals
               Thyre
            
             an
             English
             man
             ,
             for
             committing
             Adultery
             with
             
               Margaret
               Hamiltoun
            
             ,
             who
             at
             her
             death
             confessed
             that
             the
             said
             Thyre
             had
             lyen
             several
             years
             with
             her
             ,
             and
             that
             he
             had
             alienat
             her
             affection
             from
             her
             Husband
             ,
             which
             induced
             her
             ,
             though
             without
             his
             accession
             ,
             to
             kill
             her
             Husband
             ,
             and
             that
             she
             had
             several
             Children
             by
             him
             ;
             all
             which
             in
             effect
             were
             great
             aggravations
             of
             the
             Crime
             ,
             and
             he
             deserved
             well
             to
             have
             dyed
             .
             From
             this
             it
             appears
             that
             the
             punishment
             of
             ordinary
             Adultery
             is
             arbitrary
             ,
             and
             useth
             to
             be
             inflicted
             ,
             either
             by
             banishment
             ,
             whiping
             ,
             fyning
             ,
             or
             imprisonment
             .
             If
             a
             person
             be
             only
             banished
             for
             Adultery
             ,
             and
             return
             again
             without
             leave
             here
             ,
             she
             may
             be
             execute
             ;
             and
             thus
             the
             Justices
             found
             by
             advice
             of
             the
             Council
             ,
             in
             the
             case
             of
             
               Grissel
               Hamiltoun
               ,
               Decemb.
            
             1649.
             
             Or
             if
             Adultery
             be
             complicated
             with
             any
             other
             Crime
             ,
             the
             guilt
             is
             thereby
             aggraged
             ,
             and
             the
             Crime
             may
             be
             capitally
             punished
             ;
             Thus
             
               Margaret
               Thomson
            
             was
             execute
             for
             committing
             Adultery
             with
             a
             Minister
             ,
             and
             for
             falsifying
             a
             Testimonial
             ,
             to
             the
             end
             she
             might
             get
             her
             Child
             Baptized
             ,
             May
             28.
             1646.
             
          
           
           
             V.
             Since
             Adultery
             is
             only
             committed
             betwixt
             married
             persons
             ,
             it
             is
             therefore
             requisite
             that
             the
             Libel
             in
             Adultery
             bear
             ,
             that
             such
             persons
             were
             married
             ;
             and
             one
             of
             the
             ordinary
             faults
             committed
             by
             the
             Pursuer
             in
             this
             Crime
             is
             ,
             they
             seldome
             ever
             lead
             Witnesses
             for
             proving
             the
             marriage
             ,
             without
             which
             be
             proved
             ,
             or
             be
             notour
             to
             the
             Assize
             ,
             they
             should
             not
             fyle
             the
             Pannel
             ,
             though
             Copulation
             be
             proved
             .
             But
             though
             the
             marriage
             be
             not
             just
             ,
             but
             only
             a
             supposed
             marriage
             ,
             or
             
               matrimonium
               putativum
            
             (
             as
             Lawyers
             call
             it
             )
             yet
             the
             violation
             even
             of
             that
             marriage
             ,
             will
             infer
             Adultery
             .
             As
             for
             instance
             ,
             if
             a
             man
             not
             knowing
             the
             relation
             ,
             should
             marry
             within
             the
             degrees
             
               de
               fendant
            
             ;
             though
             there
             be
             in
             that
             case
             no
             lawful
             marriage
             ,
             yet
             if
             either
             of
             these
             parties
             who
             are
             married
             ,
             should
             ly
             with
             any
             other
             ,
             they
             will
             be
             guilty
             of
             Adultery
             ,
             
               Cravet
               .
               Consilio
            
             205.
             num
             .
             36.
             
             The
             reason
             whereof
             is
             ,
             because
             the
             committer
             did
             all
             that
             lay
             in
             his
             power
             to
             commit
             Adultery
             ,
             which
             is
             the
             main
             thing
             to
             be
             looked
             to
             in
             Crimes
             ,
             
               nam
               proposita
               maleficia
               distinguant
            
             .
             And
             from
             this
             I
             am
             much
             inclined
             to
             think
             ,
             that
             conatus
             ,
             or
             an
             endeavour
             to
             commit
             Adultery
             ,
             if
             the
             Adulterer
             did
             all
             that
             in
             him
             lay
             to
             accomplish
             the
             said
             design
             ,
             makes
             the
             committer
             guilty
             of
             Adultery
             ,
             if
             that
             design
             was
             brought
             the
             length
             of
             being
             
               in
               actu
               proximo
            
             ,
             as
             Lawyers
             call
             it
             :
             though
             in
             that
             case
             I
             think
             the
             rigour
             of
             the
             ordinary
             punishment
             should
             be
             somewhat
             remitted
             :
             
               &
               haec
               attentatio
               est
               punienda
               paena
               extraordinaria
               judicis
               arbitrio
               .
               Tira-quell
               .
               de
               panis
               ,
               Cas.
            
             39.
             
             &
             40.
             
             He
             who
             allow'd
             his
             house
             to
             the
             Adulterers
             for
             perpetrating
             their
             Crime
             ,
             is
             punishable
             as
             an
             Adulterer
             ,
             and
             he
             who
             gave
             them
             the
             use
             of
             his
             house
             for
             consulting
             about
             the
             committing
             of
             it
             ,
             though
             it
             was
             not
             committed
             ,
             is
             punishable
             as
             an
             Adulterer
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             
               Basil.
               l.
            
             11.
             
               h.
               t.
            
             He
             who
             retains
             his
             wife
             ,
             after
             he
             finds
             her
             committing
             Adultery
             ,
             and
             le
             ts
             go
             the
             Adulterer
             ,
             is
             punishable
             as
             a
             Pimp
             ,
             l.
             30.
             ibid.
             but
             this
             is
             not
             in
             observance
             with
             us
             ,
             except
             the
             Husband
             took
             money
             to
             conceal
             the
             Adultery
             ,
             and
             therefore
             that
             Law
             doth
             
             well
             determine
             ,
             that
             he
             who
             remits
             the
             injury
             for
             money
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             is
             punishable
             as
             an
             Adulterer
             ,
             but
             not
             he
             who
             remits
             it
             freely
             .
          
           
             VI.
             He
             who
             gives
             warrand
             ,
             and
             order
             ,
             or
             hires
             others
             to
             commit
             Adultery
             ,
             is
             guilty
             ,
             and
             deserves
             the
             same
             punishment
             with
             the
             Adulterer
             ,
             according
             to
             the
             opinion
             of
             all
             Lawyers
             .
             And
             in
             effect
             ,
             he
             is
             more
             guilty
             ,
             seing
             he
             wants
             the
             natural
             tentation
             of
             the
             Adulterer
             ,
             and
             commits
             the
             Crime
             in
             effect
             out
             of
             meer
             malice
             ,
             and
             in
             contempt
             of
             the
             Law
             :
             And
             therefore
             Lawyers
             conclude
             ,
             that
             the
             Husband
             hounding
             out
             ,
             or
             hyring
             others
             to
             commit
             Adultery
             ,
             cannot
             pursue
             his
             Wife
             for
             that
             Adultery
             which
             he
             occasioned
             :
             and
             yet
             it
             being
             alledged
             against
             Rocheid
             that
             he
             could
             not
             pursue
             
               Elizabeth
               Muir
            
             his
             Wife
             ,
             because
             in
             effect
             he
             had
             hired
             others
             to
             lye
             with
             her
             ,
             and
             so
             was
             Leno
             .
             It
             was
             answered
             ,
             1.
             
             Lenocinium
             was
             only
             in
             the
             case
             ,
             
               ubi
               maritus
               quaestum
               facit
               de
               corpore
               uxoris
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             or
             keeps
             a
             Bordel
             ,
             or
             prostitutes
             her
             for
             money
             .
             2.
             
             This
             exception
             could
             only
             exclude
             the
             Husband
             from
             pursuing
             a
             Civil
             suit
             of
             Divorce
             ,
             but
             not
             from
             pursuing
             a
             Criminal
             suit
             for
             Adultery
             .
             3.
             
             Though
             it
             excludes
             the
             Husband
             from
             a
             Criminal
             pursuit
             ,
             it
             could
             only
             exclude
             him
             from
             such
             a
             Criminal
             pursuit
             ,
             as
             was
             intented
             upon
             these
             acts
             of
             Adultery
             to
             which
             she
             was
             tempted
             ,
             or
             which
             she
             committed
             with
             her
             Husbands
             consent
             ,
             but
             not
             from
             pursuing
             her
             upon
             such
             Acts
             as
             she
             had
             committed
             formerly
             ,
             without
             her
             Husbands
             knowledge
             .
             4.
             
             The
             Advocat
             concurred
             in
             this
             case
             ,
             who
             ,
             nor
             the
             publick
             interest
             could
             not
             be
             prejudged
             by
             any
             connivance
             or
             crime
             of
             the
             husband
             :
             In
             respect
             of
             which
             reply
             the
             defence
             was
             repelled
             .
             But
             to
             examine
             this
             Interloquutor
             ,
             It
             is
             certain
             that
             the
             fourth
             reply
             was
             
               per
               se
            
             relevant
             ,
             for
             certainly
             the
             Advocat
             might
             have
             concurred
             without
             the
             Husband
             ,
             the
             Lybel
             being
             conceived
             in
             the
             Advocats
             name
             ,
             as
             well
             as
             the
             Husbands
             ,
             but
             not
             other
             wayes
             :
             But
             as
             to
             the
             other
             replyes
             ,
             I
             think
             they
             
             were
             not
             relevant
             
               per
               se
            
             ,
             for
             it
             were
             most
             unjust
             that
             the
             Husband
             should
             have
             liberty
             to
             pursue
             that
             as
             an
             injury
             ,
             which
             he
             himself
             had
             occasioned
             ,
             nor
             should
             he
             be
             allowed
             to
             call
             that
             an
             injury
             done
             to
             his
             wife
             ,
             the
             like
             whereof
             he
             himself
             had
             solicited
             with
             money
             ;
             And
             seeing
             in
             Law
             ,
             that
             Husband
             who
             consents
             to
             his
             wifes
             adultery
             ,
             is
             called
             Leno
             ,
             or
             Pimp
             ,
             much
             more
             should
             he
             be
             repute
             guilty
             of
             being
             a
             Pimp
             or
             Baud
             ,
             who
             invites
             and
             hires
             others
             to
             lye
             with
             his
             wife
             ;
             and
             certainly
             as
             it
             is
             a
             greater
             crime
             to
             hire
             others
             to
             lye
             with
             a
             woman
             ,
             then
             to
             lye
             with
             her
             himself
             ,
             because
             there
             is
             not
             so
             great
             temptation
             in
             the
             one
             as
             in
             the
             other
             ,
             so
             certainly
             there
             is
             more
             of
             crime
             and
             malice
             in
             giving
             money
             ,
             then
             in
             taking
             money
             in
             this
             case
             ,
             since
             money
             may
             be
             taken
             out
             of
             poverty
             ,
             whereas
             it
             never
             can
             be
             given
             without
             malice
             .
          
           
             Lawyers
             relate
             ,
             the
             case
             of
             a
             French
             Man
             ,
             who
             to
             prove
             Adultery
             against
             his
             wife
             ,
             did
             geld
             himself
             ,
             and
             did
             let
             witnesses
             see
             he
             was
             gelded
             ,
             whereupon
             his
             wife
             being
             with
             child
             15.
             
             Moneths
             thereafter
             was
             pursued
             by
             him
             for
             adultery
             :
             but
             since
             this
             was
             an
             unlawful
             mean
             of
             probation
             ,
             I
             would
             not
             have
             allowed
             it
             ,
             if
             the
             pursuit
             had
             been
             at
             the
             Husbands
             instance
             ,
             and
             though
             it
             had
             been
             at
             the
             Fisks
             instance
             ,
             yet
             since
             the
             woman
             was
             so
             much
             tempted
             ,
             I
             would
             only
             have
             punished
             her
             moderatly
             .
          
           
             VII
             .
             Adultery
             is
             ordinarily
             committed
             so
             privatly
             ,
             and
             so
             removedly
             from
             all
             witnesses
             ,
             that
             the
             Law
             allowes
             it
             to
             be
             proved
             by
             strong
             and
             violent
             presumptions
             ,
             as
             the
             being
             in
             bed
             together
             alone
             ,
             and
             being
             naked
             ,
             
               Farin
               .
               quest
            
             .
             136.
             cap.
             1.
             
             And
             the
             ordinary
             presumptions
             probative
             in
             this
             case
             are
             ,
             the
             being
             oft
             alone
             together
             ,
             gifts
             ,
             love-letters
             ,
             closs
             doors
             ,
             the
             Wifes
             being
             abroad
             all
             night
             ,
             
               nudus
               cum
               nuda
               ,
               &
               solus
               cum
               sola
               ,
            
             the
             intertaining
             persons
             that
             are
             known
             to
             be
             Pimps
             ,
             cohabitation
             ,
             all
             which
             are
             presumptions
             ,
             which
             according
             to
             the
             opinion
             of
             the
             Civilians
             ,
             may
             inferr
             torture
             ,
             though
             it
             be
             not
             used
             with
             us
             ,
             yet
             it
             is
             most
             ordinary
             for
             Assizes
             to
             fyle
             
             Pannels
             upon
             those
             presumptions
             ,
             with
             the
             assistance
             of
             any
             other
             probation
             ;
             and
             in
             
               George
               Swintouns
            
             case
             ,
             a
             woman
             was
             there
             filed
             of
             adultery
             ,
             though
             nothing
             was
             proved
             but
             that
             the
             pairties
             were
             alone
             ,
             and
             that
             the
             witnesses
             heard
             them
             in
             bed
             together
             ,
             and
             the
             bed
             shake
             :
             And
             in
             the
             case
             likewise
             of
             
               Elizabeth
               Muir
            
             ,
             it
             may
             be
             seen
             that
             she
             was
             condemned
             upon
             pregnant
             presumptions
             ,
             without
             a
             formal
             probation
             .
          
           
             Albeit
             women
             cannot
             be
             admitted
             witnesses
             ,
             yet
             they
             are
             received
             in
             adultery
             ,
             as
             in
             the
             foresaid
             Process
             against
             
               Elizabeth
               Muir
            
             ,
             anno
             ,
             1668.
             and
             the
             Lords
             of
             Session
             after
             solemne
             debate
             ,
             found
             that
             two
             witnesses
             seeing
             successively
             the
             crime
             committed
             ,
             though
             they
             did
             not
             see
             it
             at
             one
             time
             ,
             yet
             they
             were
             sufficient
             witnesses
             to
             infer
             the
             crime
             ;
             albeit
             it
             was
             alledged
             they
             could
             not
             be
             called
             
               contestes
               ,
               Feb.
            
             1666.
             
             Lady
             Miltoun
             against
             the
             Laird
             .
          
           
             Adultery
             may
             be
             pursued
             either
             Civilly
             to
             obtain
             a
             Divorce
             ,
             or
             Criminally
             ,
             and
             when
             it
             is
             pursued
             Criminally
             the
             Pursuit
             tends
             either
             to
             a
             capital
             punishment
             ,
             or
             an
             extraordinar
             and
             arbitrary
             punishment
             ,
             and
             according
             to
             the
             different
             nature
             of
             these
             conclusions
             ,
             require
             different
             probation
             ,
             for
             in
             Civil
             pursuite
             Lawyers
             do
             allow
             :
             and
             the
             Commissaries
             have
             found
             in
             the
             foresaid
             case
             of
             the
             Lady
             Miltouns
             ,
             that
             Witnesses
             deponing
             that
             they
             saw
             the
             persons
             lying
             together
             naked
             in
             a
             bed
             ,
             and
             that
             one
             Witness
             deponing
             upon
             an
             Act
             at
             one
             time
             ,
             and
             another
             upon
             another
             Act
             committed
             at
             another
             time
             ,
             did
             prove
             sufficiently
             ,
             which
             (
             as
             some
             think
             )
             would
             hardly
             have
             been
             sufficient
             in
             a
             Criminal
             pursuit
             ,
             seing
             in
             effect
             these
             Witnesses
             were
             but
             single
             Witnesses
             ,
             and
             their
             senses
             did
             not
             here
             agree
             in
             one
             and
             the
             same
             object
             ,
             which
             is
             the
             reason
             why
             Witnesses
             are
             believed
             .
          
           
             VIII
             .
             It
             may
             be
             doubted
             here
             whether
             a
             Decreet
             of
             Divorce
             before
             the
             Commissaries
             be
             sufficient
             to
             prove
             Adultery
             in
             a
             criminal
             pursuite
             ,
             as
             a
             Decreet
             of
             improbation
             before
             the
             Lords
             ,
             is
             sufficient
             to
             inferr
             falshood
             :
             And
             for
             clearing
             of
             this
             question
             ,
             It
             is
             answered
             ,
             that
             1.
             
             Seeing
             the
             probation
             
             of
             Single
             adultery
             is
             sufficient
             to
             inferr
             a
             divorce
             ,
             it
             followes
             necessarily
             that
             the
             production
             of
             that
             Decreet
             cannot
             prove
             notour
             Adultery
             .
             And
             this
             was
             likewise
             found
             last
             Iuly
             ,
             anno
             .
             1598.
             in
             an
             Action
             pursued
             by
             the
             Kings
             Advocat
             against
             
               Alexander
               Hay
            
             of
             Dalgety
             :
             And
             certainly
             there
             was
             great
             reason
             for
             that
             verdict
             ,
             seeing
             as
             is
             very
             well
             urged
             there
             ,
             many
             probations
             will
             inferr
             single
             Adultery
             ,
             or
             a
             Divorce
             ,
             which
             will
             not
             inferr
             notour
             Adultery
             and
             capital
             punishment
             :
             but
             yet
             I
             see
             no
             reason
             why
             a
             Decreet
             of
             the
             Commissaries
             should
             not
             inferr
             the
             punishment
             of
             ordinar
             adultery
             ,
             and
             an
             arbitrary
             punishment
             ,
             seing
             no
             probation
             is
             sufficient
             in
             the
             one
             case
             which
             cannot
             be
             allowed
             in
             the
             other
             ,
             It
             beeing
             a
             rule
             amongst
             the
             Doctors
             ,
             that
             
               causa
               civilis
               &
               criminalis
               quo
               ad
               paenam
               arbitrariam
               aequiparantur
               quo
               ad
               probationem
            
             ;
             And
             whereas
             it
             may
             be
             objected
             ,
             that
             probation
             in
             Criminals
             ,
             should
             be
             led
             in
             presence
             of
             the
             Pannel
             ,
             and
             the
             Assize
             .
             To
             this
             it
             is
             answered
             ,
             1.
             
             The
             Decreet
             of
             Divorce
             is
             approbation
             2.
             
             This
             may
             be
             likewayes
             objected
             in
             the
             crime
             of
             falshood
             ,
             and
             yet
             the
             Lords
             Decreet
             is
             there
             admitted
             ;
             but
             betwixt
             these
             two
             Decreets
             there
             is
             this
             difference
             ,
             that
             the
             Lords
             may
             punish
             falshood
             themselves
             ,
             and
             so
             their
             Decreet
             should
             be
             a
             full
             Probation
             ,
             because
             they
             are
             Judges
             competent
             ,
             even
             to
             the
             Criminal
             part
             :
             But
             it
             is
             not
             so
             with
             the
             Commissaries
             ,
             who
             can
             inflict
             no
             Criminal
             punishment
             at
             all
             for
             Adultery
             .
          
           
             IX
             .
             The
             Civil
             Law
             did
             excuse
             a
             man
             from
             Adultery
             ,
             who
             apprehending
             upon
             just
             reasons
             that
             his
             Wife
             was
             dead
             ,
             married
             another
             ,
             or
             the
             Wife
             who
             married
             a
             second
             Husband
             ,
             l.
             11.
             
             §
             .
             12.
             
               ff
               .
               h.
               t.
               mulier
               cum
               audisset
               absentem
               virum
               defunctum
               esse
               alii
               se
               junxit
               ,
               &
               fa●sis
               rumoribus
               inducta
               ,
               &
               quia
               verisimile
               est
               deceptam
               eam
               fuisse
               nihil
               vindicta
               dignum
               videri
               potest
               ,
               &
               l.
               pen.
               dicit
               adulterium
               sine
               dolo
               malo
               non
               committi
               :
            
             Upon
             which
             arose
             a
             great
             debate
             ,
             Novemb.
             7.
             1673.
             for
             
               Iohn
               Frazer
            
             being
             indited
             for
             notour
             Adultery
             with
             
               Helen
               Guthrie
            
             ,
             alledged
             ,
             that
             he
             could
             not
             pass
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             
             as
             an
             Adulterer
             ,
             because
             he
             had
             married
             this
             Helen
             lawfully
             ,
             after
             he
             had
             got
             Testificats
             upon
             oath
             to
             prove
             that
             his
             first
             Wife
             was
             dead
             in
             Virginia
             ,
             whereupon
             he
             got
             a
             warrand
             from
             the
             Presbytery
             of
             Edinburgh
             to
             marry
             ,
             and
             was
             accordingly
             proclaimed
             and
             married
             :
             and
             if
             a
             false
             rumour
             was
             sufficient
             to
             clear
             from
             Adultery
             ,
             and
             that
             there
             could
             be
             no
             Adultery
             without
             Dole
             ,
             and
             a
             fraudulent
             design
             ,
             as
             is
             clear
             by
             the
             former
             Laws
             ,
             and
             by
             
               Farin
               .
               de
               delict
               .
               car
               .
               quest
               .
            
             140.
             he
             could
             not
             be
             guilty
             of
             Adultery
             who
             had
             married
             ,
             
               Authore
               Ecclesia
            
             ,
             who
             is
             Judge
             competent
             ,
             and
             who
             was
             induced
             thereto
             ,
             not
             only
             by
             report
             ,
             but
             by
             Testificats
             .
             To
             which
             it
             was
             replyed
             ,
             that
             he
             is
             an
             Adulterer
             who
             lyes
             with
             another
             Woman
             whilst
             his
             Wife
             lives
             ;
             and
             as
             rumours
             cannot
             dissolve
             marriage
             ,
             so
             neither
             can
             they
             defend
             against
             Adultery
             ,
             and
             if
             this
             were
             allowed
             ,
             it
             were
             easie
             for
             every
             man
             who
             were
             weary
             of
             his
             wife
             ,
             to
             raise
             rumours
             concerning
             her
             death
             ,
             and
             thereby
             authorize
             himself
             in
             marying
             another
             .
             2.
             
             Though
             rumours
             were
             sufficient
             ,
             they
             behoved
             to
             be
             rumors
             constantly
             and
             commonly
             reported
             ,
             but
             here
             was
             only
             one
             Testificar
             ,
             and
             this
             Testificat
             could
             be
             no
             warrand
             ,
             since
             it
             was
             but
             a
             single
             testimony
             ,
             nor
             did
             it
             bear
             that
             the
             said
             
               Margarat
               Haitly
            
             ,
             who
             died
             there
             ,
             was
             known
             to
             him
             to
             be
             spouse
             to
             
               Iohn
               Frazer
            
             ,
             but
             only
             in
             general
             ,
             that
             one
             
               Margaret
               Haitly
            
             died
             there
             ,
             and
             there
             might
             have
             been
             moe
             of
             that
             name
             .
             3.
             
             Though
             rumours
             might
             excuse
             ,
             yet
             that
             could
             only
             be
             after
             a
             long
             absence
             ,
             
               &
               longo
               tempore
               transacto
            
             as
             is
             clear
             by
             the
             Law
             cited
             by
             the
             Pannel
             ,
             whereas
             here
             she
             was
             only
             absent
             three
             years
             ;
             and
             the
             ignorance
             behoved
             to
             be
             invincible
             ,
             whereas
             here
             it
             was
             only
             
               ignorantia
               affectata
            
             ,
             for
             it
             is
             offered
             to
             be
             proved
             that
             she
             stayed
             within
             twelve
             Miles
             of
             the
             Pannels
             fathers
             house
             ,
             and
             was
             known
             by
             all
             the
             Countrey
             to
             live
             there
             ,
             and
             though
             her
             mother
             ,
             and
             relations
             lived
             at
             Edinburgh
             in
             one
             Town
             with
             the
             Pannel
             ,
             yet
             he
             never
             asked
             at
             her
             mother
             if
             she
             was
             dead
             .
             4.
             
             A
             man
             whose
             wife
             diverts
             from
             him
             ,
             ought
             to
             summond
             her
             to
             adher
             ,
             and
             so
             procure
             a
             divorce
             by
             
             the
             Commissaries
             ;
             and
             though
             rumours
             and
             praesumptions
             could
             inferr
             a
             full
             probation
             ,
             yet
             that
             must
             be
             only
             understood
             of
             what
             is
             led
             and
             proved
             before
             the
             judge
             ordinary
             ,
             and
             the
             warrand
             of
             the
             Presbytery
             is
             not
             sufficient
             ,
             since
             they
             are
             not
             Judges
             competent
             to
             the
             dissolution
             of
             mariages
             ,
             and
             this
             was
             procured
             
               periculo
               petentis
            
             ,
             no
             person
             being
             cited
             .
             Upon
             which
             debate
             ,
             the
             Justices
             repelled
             the
             defence
             ,
             and
             the
             said
             
               Iohn
               Frazer
            
             ,
             being
             remitted
             to
             the
             knowledge
             of
             an
             inquest
             ,
             was
             found
             guilty
             ,
             but
             did
             thereafter
             procure
             a
             remission
             ;
             and
             thus
             it
             is
             clear
             that
             Bigamie
             may
             be
             also
             pursued
             as
             notour
             adultery
             .
             But
             the
             woman
             who
             knew
             not
             the
             first
             marriage
             was
             not
             punished
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             
               Basil.
               l.
            
             85.
             
               hoc
               tit
            
             .
          
           
             X.
             It
             may
             be
             here
             doubted
             likewise
             ,
             whether
             a
             pursuite
             being
             intented
             for
             notour
             adultery
             ,
             and
             not
             for
             single
             adultery
             ,
             &
             the
             probation
             which
             is
             led
             ,
             be
             sufficient
             to
             inferr
             single
             adultery
             ,
             though
             not
             notour
             adultery
             ,
             if
             the
             assize
             should
             fyle
             or
             not
             .
             For
             the
             Negative
             ,
             it
             may
             be
             alledged
             ,
             that
             single
             and
             notour
             adultery
             are
             different
             crimes
             ,
             and
             the
             Libels
             are
             different
             ,
             and
             the
             lybell
             in
             this
             case
             is
             not
             proved
             ,
             and
             therefore
             the
             assize
             should
             not
             file
             ,
             and
             if
             they
             do
             ,
             their
             sentence
             is
             null
             ;
             even
             as
             in
             the
             case
             of
             
               George
               Grahame
            
             ,
             where
             the
             verdict
             of
             the
             Assize
             was
             reduced
             ,
             because
             Theft
             was
             lybelled
             and
             recept
             of
             Theft
             only
             proved
             .
             As
             also
             in
             that
             case
             the
             defender
             is
             precluded
             of
             his
             defences
             ,
             because
             he
             would
             have
             propounded
             defences
             against
             single
             adultery
             if
             it
             had
             been
             lybelled
             ,
             which
             would
             either
             not
             have
             been
             relevant
             against
             notour
             Adultery
             ,
             or
             else
             he
             thought
             himself
             ,
             
               in
               tuto
            
             ,
             not
             to
             propone
             them
             ,
             because
             he
             thought
             himself
             secure
             ,
             knowing
             that
             the
             notour
             Adultery
             libelled
             could
             never
             be
             proved
             :
             and
             it
             is
             an
             ordinar
             conclusion
             amongst
             the
             Doctors
             ,
             that
             
               si
               in
               libello
               qualificato
               omnes
               qualitates
               non
               sunt
               proba●ae
               reus
               est
               absolvendus
               .
            
             And
             albeit
             for
             eviting
             this
             difficulty
             ,
             the
             conclusion
             in
             thir
             libels
             uses
             to
             be
             alternative
             ,
             yet
             I
             think
             that
             the
             defender
             should
             be
             absolved
             ,
             
             he
             taking
             instruments
             upon
             the
             Libel
             as
             it
             is
             Libelled
             ,
             except
             the
             qualities
             be
             expresly
             proved
             ;
             though
             it
             be
             most
             ordinary
             to
             the
             Justices
             to
             allow
             the
             parties
             to
             declare
             that
             they
             insist
             alternatively
             as
             said
             is
             .
          
           
             By
             our
             Law
             ,
             such
             as
             are
             Divorced
             for
             the
             Crime
             of
             Adultery
             committed
             by
             themselves
             ,
             cannot
             thereafter
             marry
             the
             persons
             with
             whom
             they
             are
             declared
             by
             the
             sentence
             of
             a
             Judge
             to
             have
             committed
             Adultery
             ,
             and
             all
             such
             marriages
             are
             declared
             null
             ,
             by
             the
             Act.
             22.
             
             P.
             16.
             
             I.
             6.
             which
             hath
             been
             introduced
             by
             our
             Law
             ,
             not
             only
             as
             a
             punishment
             of
             the
             Adultery
             already
             committed
             ,
             by
             lessening
             and
             narrowing
             their
             choice
             :
             But
             likewise
             as
             a
             mean
             to
             hinder
             any
             from
             committing
             Adultery
             ,
             in
             expectation
             (
             as
             is
             too
             ordinary
             )
             of
             enjoying
             in
             a
             future
             marriage
             the
             persons
             with
             whom
             they
             have
             committed
             it
             .
             And
             upon
             which
             expectation
             ,
             the
             adulterers
             may
             be
             probably
             tempted
             to
             kill
             the
             Lawful
             husband
             or
             wife
             of
             that
             person
             ,
             with
             whom
             they
             have
             committed
             the
             same
             .
             In
             which
             our
             Law
             agrees
             with
             the
             Cannon
             Law
             ,
             by
             which
             
               non
               licebat
               ducere
               eam
               in
               uxorem
               ,
               quam
               quis
               polluit
               adulterio
               .
            
             But
             it
             must
             be
             observed
             ,
             that
             this
             only
             holds
             where
             there
             was
             an
             actual
             Divorce
             upon
             the
             adultery
             ,
             prior
             to
             the
             marriage
             .
             And
             therefore
             a
             present
             marriage
             could
             not
             be
             dissolved
             ,
             by
             offering
             to
             prove
             ,
             that
             the
             contracters
             had
             committed
             Adultery
             during
             their
             former
             marriage
             .
          
           
             This
             act
             of
             Parliament
             having
             declared
             such
             marriages
             unlawfull
             ,
             it
             did
             very
             consequentially
             declare
             ,
             the
             succession
             to
             be
             begotten
             by
             such
             unlawful
             conjunctions
             ,
             to
             be
             unhabile
             to
             succeed
             as
             Heirs
             to
             these
             Parents
             .
             And
             I
             have
             heard
             it
             it
             doubted
             ,
             whether
             they
             were
             capable
             to
             receive
             dispositions
             from
             their
             adulterous
             parents
             .
             But
             I
             conceive
             as
             to
             this
             there
             is
             no
             difficulty
             :
             For
             though
             the
             Law
             make
             them
             uncapable
             to
             succeed
             as
             Heirs
             ,
             yet
             it
             does
             not
             make
             them
             uncapable
             to
             receive
             a
             disposition
             :
             and
             though
             it
             may
             seem
             ,
             that
             this
             
             be
             a
             farther
             check
             upon
             the
             Adulterers
             ;
             whose
             children
             could
             no
             way
             be
             gratified
             by
             those
             with
             whom
             they
             committed
             the
             crime
             .
             Yet
             since
             
               quilibet
               est
               arbiter
               rei
               suae
            
             ,
             it
             were
             hard
             to
             deprive
             a
             man
             of
             the
             use
             of
             his
             property
             ,
             because
             he
             has
             committed
             Adultery
             .
          
           
             I
             find
             that
             by
             the
             Civil
             Law
             such
             Bastards
             as
             were
             born
             in
             Adultery
             ,
             or
             Incest
             (
             whom
             in
             the
             Civil
             Law
             calls
             
               nati
               ex
               damnato
               coitu
            
             )
             could
             neither
             succed
             to
             their
             vitious
             Parents
             ,
             nor
             were
             they
             capable
             of
             any
             thing
             by
             their
             Parents
             Testament
             ,
             
               cum
               ita
               facilius
               paterna
               libido
               coercere
               posses
               censeatur
               l.
               Fin.
               C.
               de
               nat
               .
               lib.
               Bald.
               ad
               l.
            
             1.
             
             
               C.
               de
               jur
               .
               Aur.
            
             Nor
             could
             they
             be
             adopted
             by
             their
             Parents
             ,
             
               l.
               legem
               C.
               de
               na
               .
               lib.
            
             Upon
             which
             principle
             our
             Parliament
             has
             been
             induced
             to
             make
             the
             117.
             
             
               Act.
               Par.
            
             12.
             
             I.
             6.
             but
             has
             streatched
             it
             a
             little
             further
             ,
             then
             the
             Civil
             Law
             did
             .
             For
             by
             that
             statute
             ,
             a
             woman
             divorced
             for
             her
             Adultery
             ,
             marrying
             thereafter
             the
             person
             with
             whom
             she
             committed
             the
             Adultery
             for
             which
             she
             was
             divorced
             :
             or
             dwelling
             and
             resorting
             in
             company
             with
             him
             at
             Bed
             ,
             and
             Buird
             ,
             cannot
             dispone
             her
             lands
             ,
             or
             set
             tacks
             thereof
             ,
             in
             prejudice
             of
             the
             Heirs
             ,
             who
             would
             otherwayes
             have
             succeded
             to
             her
             .
          
           
             From
             which
             statute
             it
             is
             observeable
             ,
             that
             since
             the
             woman
             is
             only
             incapacitat
             to
             dispone
             in
             this
             case
             ;
             that
             therefore
             a
             man
             though
             Divorced
             for
             Adultery
             ,
             may
             lawfully
             dispone
             his
             Land
             ,
             in
             favours
             of
             the
             Children
             Procreat
             in
             that
             Adultery
             ,
             this
             prohibition
             being
             restricted
             to
             the
             woman
             because
             of
             the
             Imbecility
             of
             her
             sex
             ,
             who
             may
             be
             tempted
             ,
             or
             seduced
             ,
             more
             easily
             then
             men
             can
             be
             :
             and
             yet
             since
             the
             presumption
             did
             only
             runn
             against
             the
             Adulterous
             Children
             ,
             procreat
             in
             the
             second
             marriage
             ,
             whom
             it
             was
             probable
             the
             mother
             would
             have
             preferred
             to
             the
             children
             of
             the
             first
             ,
             and
             slighted
             husband
             .
             It
             seems
             strange
             ,
             why
             any
             deed
             done
             by
             her
             ,
             in
             prejudice
             of
             not
             only
             those
             children
             ,
             but
             even
             of
             any
             of
             her
             Heirs
             :
             would
             be
             null
             ,
             though
             done
             in
             favours
             ,
             of
             neither
             the
             Adulterous
             Husband
             ,
             nor
             his
             Children
             ;
             but
             even
             in
             favours
             of
             meer
             strangers
             ,
             
             whom
             the
             Law
             needed
             not
             have
             suspected
             .
             But
             this
             was
             certainly
             done
             to
             prevent
             the
             mothers
             fraudulent
             convyances
             ,
             who
             might
             have
             transmitted
             the
             estate
             to
             the
             adulterous
             Husband
             ,
             or
             his
             posterity
             or
             friends
             under
             borrowed
             names
             ,
             the
             discovering
             of
             such
             contryvance
             being
             very
             difficult
             ,
             and
             the
             hazard
             of
             not
             discovering
             being
             very
             great
             .
             I
             conceive
             likewayes
             for
             the
             same
             reason
             ,
             that
             the
             granting
             of
             a
             personal
             Bond
             upon
             which
             the
             estate
             was
             thereafter
             comprised
             from
             the
             mother
             may
             be
             quarrelled
             upon
             this
             statute
             .
             For
             else
             the
             Law
             might
             be
             easily
             cheated
             :
             and
             the
             statute
             it self
             declares
             all
             deeds
             done
             to
             the
             prejudice
             of
             the
             saids
             Heirs
             directly
             ,
             or
             indirectly
             to
             be
             null
             ,
             and
             yet
             since
             the
             mother
             remains
             still
             fiar
             ,
             notwhithstanding
             of
             this
             prohibition
             ;
             I
             see
             not
             why
             a
             Bond
             ,
             and
             comprysing
             led
             thereon
             for
             debts
             truly
             owing
             by
             the
             Mother
             ,
             could
             be
             quarrelled
             ,
             where
             nothing
             was
             fraudulently
             designed
             against
             this
             act
             .
             And
             though
             this
             act
             be
             only
             conceived
             in
             favours
             of
             the
             Heirs
             of
             the
             prior
             Marriage
             ,
             or
             the
             womans
             Heirs
             whatsoever
             :
             yet
             I
             see
             no
             reason
             ,
             why
             this
             act
             would
             not
             militat
             in
             favours
             of
             the
             King
             ,
             to
             reduce
             deeds
             done
             to
             his
             prejudice
             as
             
               ultimus
               haeres
            
             ,
             since
             a
             last
             Heire
             in
             the
             construction
             of
             Law
             is
             a
             true
             Heire
             .
          
        
         
           
           
             TITLE
             .
             XVIII
             .
             Bigamie
             .
          
           
             
               1
               
                 What
                 is
                 Bigamie
                 by
                 our
                 Law
                 ,
                 and
                 how
                 punished
                 .
              
            
             
               2
               
                 Why
                 Bigamie
                 was
                 not
                 punished
                 as
                 Adultery
                 .
              
            
             
               3
               
                 Whether
                 Quakers
                 may
                 be
                 punished
                 for
                 Bigamie
                 .
              
            
             
               4
               
                 VVhether
                 long
                 absence
                 may
                 excuse
                 in
                 this
                 Crime
                 .
              
            
             
               5
               
                 VVhether
                 the
                 marriage
              
               sine
               concubitu
               
                 infers
                 Bigamie
              
               .
            
             
               6
               
                 VVhether
                 a
                 woman
                 devorced
                 for
                 Adultery
                 ,
                 marrying
                 again
                 ,
                 be
                 guilty
                 of
                 Bigamie
                 .
              
            
          
           
             THat
             a
             man
             might
             marry
             two
             wives
             ,
             was
             allowed
             by
             many
             Nations
             ,
             and
             Tacitus
             observed
             ,
             that
             only
             the
             Germans
             amongst
             all
             the
             Nations
             were
             content
             with
             one
             ;
             but
             no
             Nation
             allowed
             ,
             that
             a
             wife
             should
             marry
             two
             husbands
             ,
             which
             was
             done
             ,
             either
             because
             men
             were
             the
             only
             Legislators
             ,
             and
             so
             were
             kind
             to
             themselves
             ,
             in
             allowing
             themselves
             that
             liberty
             they
             denyed
             to
             poor
             women
             ,
             or
             else
             this
             was
             not
             allowed
             ,
             because
             a
             womans
             marrying
             two
             men
             prejudged
             the
             peopling
             the
             common-wealth
             ;
             Whereas
             a
             mans
             marrying
             moe
             wives
             ,
             was
             advantagious
             for
             it
             .
             And
             the
             Law
             sayes
             ,
             that
             more
             chastity
             is
             required
             in
             women
             then
             in
             men
             ,
             and
             men
             being
             by
             nature
             hotter
             then
             they
             ,
             Bigamie
             is
             therefore
             more
             unnatural
             in
             women
             .
          
           
           
             I.
             Yet
             in
             our
             Law
             ,
             either
             a
             man
             marrying
             two
             wives
             ,
             or
             a
             woman
             marrying
             two
             husbands
             ,
             commits
             Bigamy
             ;
             and
             this
             is
             accounted
             by
             the
             19.
             
             Act
             5.
             
             
               Par.
               Q.
               Mary
            
             ,
             a
             breach
             of
             the
             Oath
             made
             at
             marriage
             ,
             and
             therefore
             is
             punishable
             as
             Perjury
             ,
             by
             confiscation
             of
             all
             their
             Moveables
             ,
             warding
             of
             their
             persons
             for
             year
             and
             day
             ,
             and
             longer
             during
             the
             Queens
             will
             ,
             and
             as
             infamous
             persons
             ,
             never
             to
             bruik
             Office
             ,
             Honour
             ,
             Dignity
             ,
             or
             Benefice
             in
             time
             coming
             .
          
           
             II.
             It
             may
             be
             here
             doubted
             ,
             why
             Bigamie
             was
             not
             punisht
             as
             Adultery
             ,
             seing
             it
             may
             be
             notour
             Adultery
             ,
             and
             is
             ordinarly
             so
             :
             to
             which
             difficulty
             ,
             I
             think
             the
             answers
             are
             ,
             that
             it
             was
             contraverted
             amongst
             Lawyers
             ,
             whether
             Bigamie
             was
             punishable
             as
             Adultery
             ,
             or
             as
             Stuprum
             ,
             or
             Fornicatio
             ;
             that
             it
             was
             not
             Adultery
             ,
             they
             contended
             ,
             because
             God
             allowed
             Bigamie
             ,
             but
             he
             never
             allowed
             Adultery
             .
             2.
             
             Many
             Nations
             allowed
             Bigamie
             ,
             who
             condemned
             Adultery
             :
             and
             l.
             2.
             
             
               C.
               de
               incest
               .
               nupt
            
             .
             where
             it
             is
             said
             ,
             that
             
               uemini
               licet
               duas
               uxores
               ducere
            
             ,
             the
             punishment
             of
             Adultery
             is
             not
             subjoyned
             ,
             but
             it
             is
             only
             said
             ,
             that
             
               praefes
               provinciae
               hoc
               inultum
               non
               patietur
               ,
            
             and
             it
             may
             be
             added
             ,
             that
             their
             marrying
             shows
             some
             more
             respect
             to
             the
             Law
             then
             Adultery
             ,
             
               &
               obfiguram
               matrimonii
               multa
               non
               adeo
               puniuntur
               .
            
             3.
             
             When
             Bigamie
             was
             by
             this
             Act
             declared
             punishable
             ,
             only
             as
             Perju●y
             and
             not
             by
             death
             ,
             even
             incorrigible
             and
             manifest
             adulteres
             were
             only
             punishable
             by
             confiscation
             of
             their
             Moveables
             ,
             is
             clear
             as
             by
             the
             subsequent
             Act
             ,
             and
             the
             Act
             against
             notour
             adulterers
             to
             be
             punisht
             by
             death
             ,
             was
             not
             made
             till
             the
             9
             
               th
               .
               Parl.
               Q.
               Mary
            
             ;
             I
             know
             ,
             that
             
               Menoch
               .
               de
               arb
               .
               cas
               .
            
             420.
             thinks
             that
             Big●mie
             should
             be
             punisht
             as
             Adultery
             .
             And
             I
             do
             think
             ,
             that
             if
             the
             marriage
             be
             contracted
             ,
             upon
             design
             to
             palliate
             the
             Adultery
             ,
             it
             should
             be
             punisht
             more
             severely
             then
             Adultery
             ;
             and
             though
             the
             offender
             cannot
             be
             punisht
             with
             death
             ,
             as
             a
             bigamist
             ,
             yet
             he
             may
             be
             punisht
             with
             death
             as
             a
             notour
             
             adulterer
             .
             The
             same
             may
             be
             likewise
             said
             ,
             if
             the
             persons
             marry
             against
             express
             Prohibition
             of
             the
             Church
             ,
             or
             it
             may
             be
             of
             friends
             ,
             for
             thereby
             they
             are
             put
             
               in
               pessima
               fide
            
             ,
             and
             want
             the
             advantages
             arising
             ,
             
               figura
               matrimonii
            
             :
             and
             this
             Statute
             punisheth
             only
             simple
             Bigamie
             ,
             which
             was
             ,
             possibly
             contracted
             ,
             when
             the
             wife
             belived
             the
             husband
             to
             be
             dead
             ,
             or
             
               è
               contra
            
             ,
             or
             when
             there
             was
             some
             other
             pretext
             for
             it
             ,
             but
             excludes
             not
             a
             further
             punishment
             due
             from
             other
             circumstances
             ,
             or
             complext
             Crimes
             .
             And
             it
             were
             absurd
             to
             think
             ,
             that
             incestuous
             persons
             ,
             being
             forbidden
             to
             marry
             ,
             because
             of
             their
             contingency
             in
             blood
             ,
             or
             affinity
             ,
             should
             not
             be
             punishable
             for
             Incest
             .
          
           
             III.
             It
             may
             be
             doubted
             ,
             if
             Quakers
             can
             be
             punisht
             as
             perjurers
             ,
             seing
             they
             give
             no
             Oath
             at
             marriage
             ,
             and
             certainly
             they
             should
             ;
             seing
             marriage
             implyes
             a
             Vow
             ,
             though
             no
             implicit
             Oath
             be
             given
             .
          
           
             IV.
             The
             husbands
             long
             absence
             may
             be
             a
             cause
             why
             the
             punishment
             may
             be
             mitigated
             ,
             but
             takes
             not
             away
             the
             Crime
             ,
             seing
             death
             and
             not
             time
             dissolves
             marriage
             .
             And
             I
             remember
             of
             a
             Minister
             ,
             who
             was
             deposed
             for
             marrying
             a
             mans
             wife
             ,
             after
             he
             was
             sixteen
             years
             absent
             ,
             and
             albeit
             the
             first
             husband
             came
             home
             ,
             yet
             the
             second
             husband
             still
             retained
             the
             wife
             ,
             which
             certainly
             was
             Adultery
             in
             him
             ,
             after
             that
             knowledge
             ,
             that
             she
             was
             another
             mans
             wife
             ;
             seing
             he
             wanted
             that
             pretext
             ,
             for
             which
             Bigamie
             is
             not
             punishable
             as
             Adultery
             .
             From
             which
             likewise
             ,
             that
             general
             conclusion
             may
             be
             drawn
             ,
             that
             when
             the
             Bigamist
             knows
             that
             the
             other
             person
             is
             married
             ,
             if
             he
             continues
             ,
             he
             commits
             Adultery
             ,
             and
             if
             he
             know
             that
             it
             is
             incestuous
             ,
             he
             commits
             Incest
             .
          
           
             V.
             It
             may
             be
             doubted
             also
             ,
             if
             two
             persons
             marrying
             ,
             be
             guilty
             of
             Adultery
             ,
             
               eo
               ipso
            
             ,
             that
             they
             marry
             ,
             though
             because
             of
             any
             interveening
             accident
             ,
             as
             death
             ,
             they
             bed
             not
             ,
             and
             seing
             by
             the
             second
             marriage
             ,
             they
             give
             contrary
             Oaths
             ;
             certainly
             they
             are
             guilty
             of
             Perjury
             ;
             for
             Perjury
             being
             the
             
             
               medium
               peccati
            
             in
             this
             crime
             ,
             and
             not
             copulatio
             ,
             or
             coitus
             ,
             as
             in
             Adultery
             ,
             
               reatus
               contrahitur
               per
               contraria
               vota
            
             ,
             and
             he
             who
             lyes
             with
             another
             mans
             wife
             immediatly
             after
             they
             come
             from
             Church
             ,
             though
             before
             she
             hath
             bedded
             with
             her
             husband
             ,
             does
             in
             our
             Law
             commit
             adultery
             ,
             which
             shews
             that
             mariage
             is
             contracted
             with
             us
             per
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             or
             
               benedictionem
               ecclesiae
               &
               ante
               coitum
            
             .
             And
             if
             after
             coming
             from
             Church
             the
             persons
             are
             married
             ,
             certainly
             they
             are
             by
             that
             also
             guilty
             of
             Bigamie
             ,
             and
             from
             this
             principle
             also
             it
             may
             be
             inferred
             ,
             that
             though
             the
             first
             marriage
             was
             null
             
               per
               frigiditatem
            
             ,
             or
             maleficiationem
             ,
             yet
             the
             other
             person
             who
             might
             have
             declared
             that
             marriage
             to
             have
             been
             null
             ,
             marying
             another
             ,
             before
             the
             first
             marriage
             was
             declared
             to
             have
             been
             null
             ,
             though
             it
             was
             null
             
               ab
               initio
            
             ,
             will
             be
             guilty
             of
             Bigamie
             ,
             because
             there
             are
             
               contraria
               vota
            
             in
             that
             case
             ,
             and
             Because
             he
             was
             not
             lawfully
             Divorced
             ;
             for
             as
             a
             person
             who
             might
             have
             got
             a
             first
             marriage
             declared
             null
             
               ex
               capite
               adulterii
            
             ,
             marrying
             again
             would
             be
             punishable
             ,
             so
             it
             should
             be
             here
             ;
             And
             if
             it
             be
             urged
             that
             marriages
             are
             declared
             
               in
               frigidis
               &
               maleficiatis
            
             to
             have
             been
             null
             
               ab
               initio
            
             ,
             and
             therefore
             there
             having
             been
             no
             marriage
             at
             first
             ,
             the
             second
             was
             no
             Bigamie
             ,
             and
             the
             first
             Oath
             not
             binding
             
               ab
               initio
            
             ,
             for
             it
             was
             given
             upon
             the
             supposition
             that
             the
             other
             person
             was
             habilis
             to
             contract
             a
             marriage
             ,
             that
             vow
             was
             null
             ,
             and
             therefore
             there
             were
             no
             contrairy
             vowes
             in
             this
             case
             .
             It
             may
             be
             answered
             ,
             that
             the
             Law
             considers
             that
             first
             marriage
             as
             a
             sufficient
             marriage
             till
             it
             was
             declared
             null
             ,
             and
             the
             other
             person
             who
             might
             have
             got
             the
             marriage
             declared
             null
             ,
             would
             have
             been
             punished
             as
             an
             Adulterer
             if
             she
             had
             lyen
             with
             another
             ,
             ergo
             ,
             she
             may
             be
             likewise
             punished
             as
             a
             Bigamist
             .
          
           
             VI.
             The
             Act
             adds
             ,
             
               except
               the
               person
               were
               lawfully
               divorced
               ,
            
             From
             which
             two
             questions
             may
             arise
             ,
             1.
             
             Seing
             the
             party
             guilty
             cannot
             mary
             .
             
               v.
               g.
            
             If
             a
             woman
             be
             divorced
             for
             Adultery
             she
             cannot
             marry
             .
             Quaeritur
             ,
             then
             if
             she
             marrying
             again
             ,
             may
             be
             pursued
             as
             guilty
             of
             Bigamie
             ,
             and
             it
             may
             be
             alledged
             that
             it
             
             is
             not
             Bigamie
             ,
             seing
             the
             act
             sayes
             ,
             that
             if
             persons
             not
             lawfully
             Divorced
             marry
             ,
             they
             commit
             Bigamie
             ,
             
               ergo
               à
               contraria
            
             ,
             where
             the
             persons
             are
             lawfully
             Divorced
             ,
             they
             commit
             not
             Bigamie
             ,
             nor
             doth
             the
             Law
             speak
             any
             thing
             of
             the
             difference
             betwixt
             the
             nocent
             and
             innocent
             parties
             .
             2.
             
             If
             a
             person
             be
             divorced
             ,
             and
             thereafter
             he
             marry
             ,
             albeit
             thereafter
             that
             Decreet
             of
             Divorce
             be
             reduced
             ,
             certainly
             the
             other
             party
             who
             married
             the
             person
             divorced
             ,
             are
             not
             punishable
             ,
             except
             the
             Decreet
             were
             reduced
             upon
             his
             fault
             ,
             but
             the
             first
             Decreet
             of
             Divorce
             being
             reduced
             upon
             his
             fault
             who
             obtained
             it
             ,
             as
             if
             he
             had
             bribed
             the
             Witnesses
             or
             Judges
             ,
             
               &c.
               eo
               casu
            
             ,
             it
             may
             be
             alledged
             ,
             that
             he
             knew
             that
             the
             first
             marriage
             was
             not
             lawfully
             disolved
             ,
             and
             so
             the
             second
             marriage
             was
             Bigamie
             ,
             
               quo
               ad
               him
            
             ,
             albeit
             upon
             the
             other
             hand
             it
             may
             be
             debated
             ,
             that
             the
             first
             marriage
             being
             disolved
             
               authore
               praetore
            
             ,
             it
             was
             no
             marriage
             at
             the
             time
             the
             second
             marriage
             was
             contracted
             ,
             and
             so
             not
             Bigamie
             ,
             albeit
             the
             briber
             or
             forger
             may
             be
             punished
             for
             the
             crimes
             so
             committed
             .
          
        
         
           
           
             TITLE
             XIX
             .
             Theft
             .
          
           
             
               1.
               
               
                 The
                 definition
                 of
                 Theft
              
               .
            
             
               2.
               
               
                 In
                 what
                 things
                 can
                 Theft
                 be
                 committed
                 ,
                 and
                 whether
                 it
                 can
                 be
                 committed
                 ,
              
               in
               commodato
               &
               societate
               .
            
             
               3.
               
               
                 The
                 Law
                 of
                 Burdein-sack
                 ,
                 or
                 Theft
                 committed
                 for
                 necessity
                 .
              
            
             
               4.
               
               
                 Whether
                 the
                 taking
                 things
                 belonging
                 to
                 no
                 man
                 ,
                 be
                 punishable
                 as
                 Theft
                 .
              
            
             
               5.
               
               
                 The
                 division
                 of
                 Theft
              
               ,
               in
               furtum
               manifestum
               &
               non
               manifestum
               .
            
             
               6.
               
               
                 Whether
                 Theft
                 ought
                 to
                 be
                 punished
                 by
                 death
                 .
              
            
             
               7.
               
               
                 The
                 punishment
                 of
                 it
                 by
                 our
                 Law.
                 
              
            
             
               8.
               
               
                 How
                 three
                 Consecutive
                 Thefts
                 ought
                 to
                 be
                 punished
                 ,
                 and
                 how
                 inferiour
                 Iudges
                 proceed
                 ,
                 in
                 judging
                 Theft
                 .
              
            
             
               9.
               
               
                 How
                 the
                 Iustices
                 proceed
                 ,
                 in
                 judging
                 this
                 Crime
                 .
              
            
             
               10.
               
               
                 How
                 hareships
                 ,
                 or
              
               abigeatus
               
                 is
                 punished
              
               .
            
             
               11.
               
               
                 How
                 Sacriledge
                 is
                 punished
              
               .
            
             
               12.
               
               
                 Theft
                 in
                 landed
                 men
                 is
                 Treason
                 .
              
            
             
               13.
               
               
                 How
                 Theft
                 is
                 aggravated
                 from
                 frequency
                 ,
                 time
                 ,
                 place
                 ,
                 and
                 other
                 circumstances
                 .
              
            
             
               14.
               
               
                 Several
                 extenuations
                 of
                 Theft
              
               .
            
             
               15.
               
               
                 Statutory
                 Thefts
                 ,
                 such
                 as
                 breakers
                 of
                 Yards
                 ,
                 stealing
                 Fishes
                 out
                 of
                 Ponds
                 ,
                 Bees
                 ,
              
               &c.
               
            
             
               16.
               
               
                 Art
                 and
                 Part
                 of
                 Theft
                 ,
                 how
                 punished
                 .
              
            
          
           
           
             ALbeit
             at
             first
             ,
             every
             thing
             was
             made
             common
             ,
             so
             that
             then
             there
             could
             be
             no
             Theft
             ;
             yet
             since
             by
             the
             common
             consent
             of
             all
             Nations
             ,
             property
             is
             introduced
             ,
             Theft
             was
             forbidden
             as
             an
             enemy
             to
             this
             property
             ,
             and
             as
             destructive
             to
             that
             order
             and
             method
             ,
             whereby
             God
             resolved
             to
             govern
             the
             World
             :
             and
             therefore
             the
             Basilicks
             observe
             ,
             that
             this
             Crime
             is
             against
             the
             Law
             of
             Nature
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             I.
             Theft
             is
             defin'd
             by
             Lawyers
             ,
             to
             be
             
               fraudulosa
               contractatio
               lucri
               faciendi
               gratia
               vel
               ipsius
               rei
               ,
               vel
               etiam
               usus
               ejus
               possessionis
               ve
               ,
               quod
               lege
               naturali
               prohibitumest
               ,
            
             §
             .
             1.
             
             
               Inst
               de
               obl
               .
               ex
               del
               .
            
             By
             the
             word
             Contrectatio
             ,
             they
             understand
             ,
             not
             only
             the
             away
             taking
             of
             a
             thing
             ,
             for
             Theft
             is
             committed
             ,
             by
             concealing
             what
             was
             taken
             from
             another
             ;
             but
             likeways
             the
             using
             a
             thing
             depositat
             ,
             or
             impignorat
             to
             other
             ends
             and
             uses
             ,
             then
             was
             agreed
             upon
             :
             therefore
             Theft
             may
             be
             described
             ,
             to
             be
             a
             fraudulent
             away-taking
             ,
             or
             using
             what
             belongs
             to
             another
             man
             ,
             without
             the
             owners
             consent
             .
          
           
             II.
             Theft
             is
             only
             committed
             in
             Moveables
             ,
             and
             thence
             it
             is
             ,
             that
             by
             the
             Law
             of
             England
             ,
             the
             stealing
             Writs
             ,
             which
             concern
             Lands
             ,
             or
             Lead
             from
             a
             house
             ,
             or
             Fruit
             with
             the
             Trees
             whereon
             they
             grow
             ,
             is
             not
             punishable
             as
             Theft
             ,
             seing
             these
             things
             belong
             to
             Heretage
             .
             Nor
             is
             the
             taking
             away
             Dogs
             ,
             Birds
             ,
             or
             such
             things
             as
             serve
             for
             pleasure
             ,
             accounted
             Theft
             ,
             seing
             it
             is
             not
             committed
             oblucrum
             ,
             Bolton
             .
             cap.
             20.
             and
             Theft
             is
             never
             committed
             without
             fraud
             .
             And
             albeit
             by
             the
             Civil
             Law
             ,
             the
             keeping
             of
             a
             thing
             lent
             ,
             longer
             then
             the
             time
             allowed
             ,
             or
             imploying
             it
             for
             another
             use
             then
             that
             which
             it
             was
             first
             lent
             be
             Theft
             by
             the
             Civil
             Law
             ,
             
               just
               .
               de
               furt
               .
               autem
               ,
            
             yet
             in
             our
             Law
             it
             is
             not
             ,
             l.
             3.
             
             
               Reg.
               Maj.
               cap.
            
             9.
             num
             .
             5.
             and
             the
             reason
             there
             given
             is
             ,
             because
             the
             intromission
             ,
             and
             possession
             there
             ,
             flowed
             originally
             from
             the
             Master
             .
             And
             albeit
             it
             be
             a
             rule
             in
             the
             Civil
             Law
             ,
             that
             
               initium
               unius
               cujusque
               actionis
               semper
               est
               attendendum
            
             :
             yet
             the
             former
             
             reason
             is
             not
             valid
             ,
             because
             when
             a
             master
             gives
             Money
             to
             his
             own
             servant
             ,
             if
             he
             imploy
             it
             to
             any
             other
             use
             ,
             then
             is
             appointed
             by
             his
             master
             ,
             as
             if
             he
             should
             drink
             that
             which
             was
             given
             him
             to
             pay
             his
             masters
             Merchands
             ,
             or
             if
             he
             should
             sell
             his
             masters
             horse
             ,
             with
             which
             he
             was
             sent
             to
             a
             friend
             ;
             these
             misimployments
             would
             certainly
             infer
             punishment
             ,
             though
             the
             possession
             flow'd
             originally
             from
             the
             Master
             .
             And
             I
             think
             that
             Theft
             ,
             in
             the
             case
             of
             a
             misimployed
             lend
             ;
             and
             the
             other
             cases
             above
             exprest
             ,
             is
             more
             heinous
             then
             ordinary
             Thefts
             ,
             seing
             it
             is
             agradged
             by
             the
             breach
             of
             Trust
             ,
             or
             Friendship
             ,
             and
             it
             can
             likewise
             be
             less
             guarded
             against
             :
             For
             which
             two
             reasons
             ;
             Domestick
             Theft
             is
             still
             more
             heinously
             punished
             ,
             then
             ordinary
             Theft
             ;
             and
             servants
             committing
             Theft
             in
             the
             cases
             foresaid
             ,
             are
             hanged
             in
             these
             Countreys
             ,
             where
             ordinar
             Theft
             is
             not
             Capital
             .
             But
             I
             believe
             ,
             the
             reason
             of
             our
             Law
             above
             cited
             ,
             is
             ,
             because
             we
             thought
             that
             this
             
               furtum
               interpretativum
            
             ,
             deserved
             not
             to
             be
             accounted
             such
             with
             us
             ,
             where
             death
             is
             the
             punishment
             of
             Theft
             .
             Whereas
             ,
             because
             in
             the
             Roman
             Law
             ,
             Theft
             was
             less
             severely
             punisht
             :
             it
             was
             therefore
             allowable
             ,
             that
             it
             might
             be
             more
             extended
             ;
             and
             so
             I
             think
             that
             our
             Law
             is
             more
             just
             then
             the
             Civil
             Law.
             And
             even
             according
             to
             the
             Civil
             Law
             ,
             it
             were
             unjust
             that
             the
             person
             to
             whom
             the
             thing
             was
             lent
             ,
             should
             be
             guilty
             of
             Theft
             ,
             for
             using
             it
             longer
             then
             was
             prescribed
             by
             the
             lender
             ,
             except
             the
             lender
             had
             expresly
             required
             it
             ;
             for
             else
             by
             not
             requiring
             it
             ,
             it
             seems
             that
             he
             hath
             tacitly
             consented
             to
             the
             farther
             use
             ,
             
               sicut
               inta●itare
               locatione
            
             :
             and
             yet
             it
             may
             be
             answered
             ,
             that
             there
             is
             a
             difference
             betwixt
             
               locatum
               &
               commodatum
            
             ,
             as
             to
             this
             ,
             seing
             
               locatio
               contrahitur
               utriusque
               gratia
               &
               locantis
               ,
               &
               conductoris
               ,
            
             whereas
             
               comodatum
               respicit
               tantum
               comodum
               comodatarii
            
             ,
             and
             so
             he
             should
             religiously
             observe
             the
             conditions
             prescribed
             by
             the
             lender
             ;
             but
             yet
             I
             am
             clear
             ,
             that
             if
             a
             person
             should
             borrow
             any
             thing
             ,
             at
             first
             for
             an
             other
             use
             ,
             then
             what
             he
             pretended
             ,
             that
             
               eo
               casu
            
             ,
             he
             is
             punishable
             .
             And
             
             I
             remember
             to
             have
             read
             of
             a
             Banquier
             of
             Paris
             ,
             who
             was
             flea'd
             ,
             and
             then
             quartered
             ,
             for
             having
             borrowed
             vast
             sums
             ,
             upon
             design
             to
             break
             with
             it
             (
             which
             instance
             I
             have
             set
             down
             ,
             for
             the
             Merchants
             of
             our
             times
             )
             and
             seing
             the
             lender
             is
             as
             much
             wronged
             ,
             and
             the
             seeker
             of
             the
             loane
             shews
             as
             great
             fraud
             by
             this
             pretence
             ,
             as
             in
             other
             theft
             :
             I
             see
             not
             why
             the
             punishment
             should
             not
             be
             the
             same
             .
             I
             find
             it
             observed
             by
             
               Bolton
               ,
               cap.
            
             31.
             that
             though
             in
             Glanvels
             time
             (
             who
             is
             repute
             to
             be
             author
             of
             
               Regiam
               Maj.
               )
               à
               furto
               omni
               modo
               excusabatur
               qui
               initium
               habuerit
               suae
               detentionis
               per
               dominum
               illius
               rei
               ,
            
             yet
             it
             is
             not
             so
             now
             ,
             for
             if
             a
             Carrier
             take
             out
             a
             parcel
             of
             the
             things
             delivered
             to
             him
             ,
             and
             fell
             it
             ,
             he
             is
             guilty
             of
             Theft
             ;
             but
             it
             is
             not
             Theft
             in
             the
             Carrier
             to
             give
             away
             ,
             or
             embezle
             the
             whole
             as
             he
             received
             them
             ,
             because
             it
             was
             delivered
             him
             in
             the
             same
             kind
             ,
             Stomf
             .
             25.
             
             But
             this
             last
             part
             seems
             absurd
             ,
             for
             the
             offender
             designs
             equally
             to
             offend
             ,
             and
             the
             propriator
             is
             equally
             injured
             in
             both
             cases
             .
             It
             is
             doubted
             by
             Lawyers
             ,
             whether
             Theft
             can
             be
             committed
             by
             one
             of
             these
             who
             are
             in
             a
             society
             ,
             or
             who
             have
             right
             to
             a
             commonty
             of
             these
             things
             ,
             which
             is
             the
             subject
             matter
             of
             the
             commonty
             .
             It
             is
             answered
             ,
             that
             it
             can
             ,
             if
             fraud
             be
             proved
             in
             either
             of
             these
             cases
             ,
             
               l.
               si
               socius
               ff
               .
               de
               furto
               ,
            
             and
             the
             reason
             is
             ,
             because
             the
             using
             that
             which
             is
             common
             ,
             or
             that
             as
             in
             which
             the
             Society
             is
             constitute
             ;
             otherways
             then
             according
             to
             the
             rules
             ,
             is
             in
             effect
             to
             imploy
             for
             on
             s
             own
             use
             ,
             what
             belongs
             to
             another
             ,
             which
             is
             Theft
             ;
             and
             who
             doubts
             ,
             if
             one
             of
             these
             who
             is
             in
             a
             Society
             ,
             as
             in
             Beer
             brewing
             ,
             would
             steal
             away
             in
             the
             night
             ,
             considerable
             quantities
             of
             Beer
             ,
             out
             of
             the
             Society
             ,
             but
             he
             might
             be
             punished
             for
             Theft
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             l.
             46.
             
             
               Basil.
               h.
               t.
            
             
          
           
             III.
             According
             to
             the
             Law
             of
             Burden-sack
             ,
             or
             
               Ibur
               anaseca
            
             ,
             no
             man
             can
             be
             accused
             for
             The●t
             ,
             for
             as
             much
             meat
             as
             he
             can
             carry
             on
             his
             back
             ,
             
               R.
               M.
               l.
            
             4.
             cap.
             19.
             
             But
             I
             think
             this
             should
             be
             restricted
             ,
             by
             these
             two
             limitations
             ;
             1.
             
             If
             the
             
             said
             Theft
             was
             committed
             ,
             to
             satisfie
             his
             necessity
             ,
             
               l.
               verum
               ff
               .
               de
               furtis
               ,
            
             which
             is
             the
             meaning
             of
             that
             expression
             ,
             necessity
             has
             no
             law
             .
             And
             2.
             if
             he
             could
             not
             intertain
             himself
             another
             way
             .
             And
             whereas
             Skeen
             observes
             ,
             upon
             the
             Word
             Burden-sack
             ,
             the
             Thief
             should
             in
             this
             case
             ,
             pay
             a
             Cow
             ,
             or
             Sheep
             to
             him
             ,
             in
             whose
             Land
             he
             was
             taken
             .
             I
             think
             that
             also
             unreasonable
             ,
             seing
             that
             presupposes
             ,
             that
             the
             thief
             is
             not
             in
             that
             absolute
             necessity
             ,
             which
             should
             get
             him
             this
             priviledge
             :
             and
             whereas
             he
             observes
             ,
             that
             he
             should
             be
             scourged
             ,
             I
             th●nk
             ●t
             most
             unreasonable
             ,
             because
             his
             necessity
             ,
             makes
             it
             in
             effect
             ,
             to
             be
             no
             Theft
             :
             and
             it
             is
             contrair
             likewise
             ,
             to
             the
             foresaid
             16.
             
               cap.
               l.
            
             4.
             
             
               Reg.
               Maj.
            
             that
             no
             Court
             shall
             be
             holden
             upon
             Burden-sack
             .
             By
             the
             Civil
             Law
             likewise
             ,
             
               fraudantes
               filcum
            
             ,
             or
             gabellum
             ,
             the
             stealers
             of
             Customes
             were
             punishable
             as
             thieves
             ,
             
               Far.
               quest
            
             .
             173.
             but
             of
             this
             I
             shall
             treat
             hereafter
             .
          
           
             IV.
             By
             the
             Civil
             Law
             it
             was
             accounted
             no
             Theft
             to
             intromet
             with
             ,
             or
             abstract
             things
             that
             belonged
             to
             a
             succession
             ,
             to
             which
             none
             had
             entered
             ;
             because
             ,
             before
             the
             entering
             of
             an
             Heir
             ,
             these
             things
             could
             be
             called
             no
             mans
             ,
             
               l.
               Hereditarie
               ff
               .
               de
               furto
               .
            
             And
             for
             the
             same
             reason
             ,
             the
             taking
             away
             Rings
             ,
             and
             other
             Goods
             from
             off
             a
             dead
             person
             ,
             out
             of
             a
             Grave
             ,
             is
             not
             counted
             Theft
             by
             the
             Law
             of
             England
             ,
             as
             it
             was
             found
             in
             Notinghames
             case
             ,
             anno
             1617
             where
             this
             was
             only
             found
             a
             misdemeanour
             ,
             and
             the
             defender
             whipt
             :
             but
             this
             holds
             not
             now
             in
             our
             Practique
             ,
             which
             is
             most
             reason●ble
             ,
             for
             this
             is
             in
             effect
             greater
             then
             ordinary
             Theft
             ,
             because
             these
             things
             have
             none
             to
             guard
             them
             .
             And
             in
             our
             Law
             likewise
             ,
             he
             who
             finds
             a
             waise
             Beast
             ,
             which
             hath
             strayed
             from
             the
             owner
             ,
             should
             cause
             cry
             it
             either
             in
             the
             Court
             of
             his
             Over-Lord
             ,
             or
             in
             the
             Church
             ,
             or
             else
             he
             may
             be
             pursued
             for
             Theft
             ;
             and
             Theft
             is
             likewise
             punishable
             ,
             albeit
             the
             person
             be
             not
             known
             ,
             from
             whom
             the
             thing
             was
             stolen
             ,
             
               Alex.
               Concilio
            
             23.
             
             And
             yet
             
             
               furtum
               non
               fit
               nisi
               sit
               cui
               fiat
               ,
               
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
              
               .
               l.
            
             43.
             
             §
             .
             5.
             
               basil
               .
               h.
               t.
            
             
          
           
             V.
             Theft
             was
             divided
             by
             the
             Civil
             Law
             ,
             
               in
               manifestum
               &
               non
               manifestum
            
             ;
             Manifest
             Theft
             ,
             was
             when
             the
             Thief
             himself
             was
             deprehended
             ,
             in
             the
             very
             act
             ,
             or
             if
             he
             was
             seen
             with
             it
             before
             he
             did
             arive
             ,
             at
             the
             place
             ,
             to
             which
             he
             did
             destinat
             to
             carry
             it
             .
             Theft
             not
             manifest
             ,
             was
             ,
             when
             either
             the
             Thief
             was
             not
             taken
             ,
             or
             seen
             with
             it
             :
             and
             this
             distinction
             hath
             in
             my
             opinion
             ,
             given
             occasion
             to
             the
             difference
             in
             our
             Law
             ,
             betwixt
             in-fang-Thief
             ,
             and
             out-fang-Thief
             ,
             which
             concerns
             only
             the
             Jurisdiction
             where
             the
             Thief
             is
             punished
             ,
             but
             not
             the
             punishment
             it self
             ,
             as
             shall
             be
             said
             hereafter
             ;
             but
             there
             are
             several
             other
             vestiges
             of
             it
             in
             our
             Law
             ,
             as
             cap.
             21.
             l.
             4.
             
             
               Reg.
               Maj.
            
             It
             is
             said
             ,
             that
             he
             who
             is
             taken
             with
             nothing
             in
             his
             hand
             ,
             may
             purge
             himself
             by
             27
             men
             ,
             and
             three
             Thanes
             .
             and
             a
             Burgess
             being
             accused
             of
             manifest
             Theft
             ,
             may
             purge
             himself
             by
             the
             Oath
             of
             twelve
             ;
             the
             meaning
             whereof
             ,
             is
             ,
             that
             he
             shall
             give
             his
             own
             Oath
             he
             is
             innocent
             ,
             and
             shall
             get
             so
             many
             men
             to
             swear
             ,
             that
             they
             believe
             his
             innocence
             ,
             and
             this
             manifest
             Theft
             ,
             is
             called
             Theft
             with
             red
             hand
             ,
             
               Stat.
               Orcar
            
             .
             by
             a
             Metaphor
             borrowed
             from
             Murder
             .
             But
             with
             us
             ,
             Theft
             may
             be
             divided
             into
             common
             Theft
             (
             which
             is
             Theft
             so
             properly
             called
             ,
             or
             Stouth-rife
             ,
             which
             is
             violent
             Theft
             )
             and
             is
             a
             complex
             of
             Theft
             and
             Robbery
             .
             And
             receipt
             of
             Theft
             ,
             which
             distinction
             is
             hinted
             at
             ,
             in
             all
             our
             Laws
             ,
             but
             most
             specially
             50.
             
             
               Act.
               P.
            
             11.
             
             Ia.
             6.
             
          
           
             VI.
             As
             to
             the
             punishment
             of
             Theft
             ,
             it
             is
             much
             contraverted
             amongst
             Lawyers
             ,
             if
             the
             Law-givers
             can
             justly
             pun●sh
             Theft
             with
             death
             ,
             and
             though
             I
             will
             not
             dispute
             the
             power
             of
             Princes
             and
             States
             ,
             yet
             I
             incline
             to
             think
             ,
             that
             for
             simple
             Theft
             ,
             a
             Thief
             should
             not
             dye
             .
             For
             f●rst
             ,
             we
             find
             by
             the
             Law
             of
             God
             ,
             to
             which
             as
             the
             Scripture
             sayes
             ,
             nothing
             should
             be
             added
             ,
             or
             paired
             ,
             Theft
             is
             not
             punishable
             by
             death
             ,
             nor
             can
             this
             Law
             be
             
             called
             only
             a
             judicial
             Law
             fitted
             for
             the
             Common-wealth
             of
             the
             Jews
             :
             for
             that
             it
             is
             a
             Moral
             Law
             ,
             according
             to
             its
             statutory
             part
             ,
             forbidding
             Theft
             ,
             appears
             from
             its
             being
             insert
             amongst
             the
             commands
             ,
             and
             why
             it
             should
             not
             be
             so
             ,
             as
             to
             its
             Sanction
             ,
             and
             punishment
             like
             Murder
             ,
             Incest
             ,
             and
             these
             other
             crimes
             ,
             I
             cannot
             see
             a
             reason
             .
             2.
             
             We
             see
             that
             some
             Thefts
             are
             capitally
             punished
             ,
             as
             are
             the
             stealing
             things
             Sacred
             ,
             Iosh.
             7.
             
             And
             Theft
             committed
             in
             the
             night
             ;
             Exod.
             22
             ▪
             2.
             and
             stealers
             of
             men
             ,
             Deut.
             21.7
             .
             by
             which
             it
             appears
             ,
             that
             God
             Almighty
             intended
             not
             that
             single
             Theft
             should
             be
             punished
             by
             death
             .
             3.
             
             There
             is
             no
             proportion
             betwixt
             the
             life
             of
             a
             man
             ,
             and
             any
             mony
             ,
             for
             all
             that
             a
             man
             hath
             will
             he
             give
             for
             his
             life
             .
             4.
             
             The
             life
             of
             the
             Malefactor
             is
             ordinarily
             taken
             ,
             where
             the
             Crime
             cannot
             be
             repaired
             ,
             as
             in
             Murder
             ,
             Incest
             ,
             &c.
             
             But
             in
             Theft
             it
             may
             ,
             and
             the
             parties
             wronged
             ,
             would
             in
             all
             probability
             ,
             be
             far
             easier
             secured
             this
             way
             ,
             seing
             many
             will
             rather
             want
             their
             goods
             ,
             nor
             have
             a
             mans
             life
             taken
             .
             Many
             Thieves
             would
             restore
             ,
             if
             they
             thought
             restoration
             might
             be
             made
             with
             safty
             of
             their
             life
             ;
             and
             the
             Law
             would
             easilier
             sustain
             the
             pusuers
             probation
             ,
             if
             the
             event
             were
             only
             to
             reach
             goods
             ,
             and
             not
             life
             .
             5.
             
             It
             seems
             absurd
             ,
             that
             single
             Adultery
             ,
             which
             is
             the
             worst
             of
             Thefts
             (
             seeing
             the
             Husband
             thereby
             is
             robbed
             of
             his
             Estate
             ,
             quiet
             ,
             good
             name
             ,
             and
             Succession
             )
             should
             not
             be
             punishable
             by
             death
             ,
             and
             yet
             Theft
             should
             be
             made
             capital
             ,
             and
             that
             Theft
             and
             Murder
             which
             are
             not
             equal
             crimes
             ,
             should
             have
             equal
             punishments
             ,
             And
             albeit
             it
             be
             objected
             ,
             that
             
               Laban
               ,
               Gen.
            
             24.9
             .
             did
             vow
             that
             these
             who
             had
             stollen
             his
             goods
             ,
             should
             be
             punished
             by
             death
             :
             Yet
             the
             reason
             in
             that
             case
             will
             appear
             to
             be
             ,
             because
             that
             the
             Theft
             there
             mentioned
             ,
             was
             Sacriledge
             .
             And
             whereas
             Davids
             Oath
             to
             Nathan
             ,
             is
             ,
             that
             he
             who
             had
             stolne
             his
             Neighbours
             Lamb
             ,
             should
             die
             ,
             is
             objected
             .
             It
             is
             answered
             ,
             either
             that
             was
             spoken
             in
             passion
             ,
             which
             the
             Text
             bears
             ;
             or
             otherwayes
             that
             was
             suggested
             by
             a
             special
             providence
             to
             David
             ,
             
             to
             the
             end
             he
             might
             be
             his
             own
             accuser
             .
             Nor
             do
             I
             deny
             but
             there
             was
             a
             kind
             of
             Communion
             of
             goods
             amongst
             the
             Jews
             ,
             more
             then
             in
             other
             Nations
             ,
             as
             appears
             by
             their
             Jublee
             ,
             by
             their
             not
             taking
             Pledges
             ,
             nor
             anual
             rent
             ,
             so
             that
             there
             was
             less
             reason
             to
             make
             Theft
             capital
             amongst
             them
             ,
             then
             amongst
             us
             ;
             and
             that
             according
             as
             crimes
             grow
             more
             frequent
             ,
             the
             punishment
             may
             be
             augmented
             ,
             but
             I
             deny
             that
             they
             should
             be
             soaugmented
             ,
             that
             suitable
             proportion
             should
             not
             be
             keeped
             .
             And
             it
             is
             known
             from
             experience
             ,
             that
             many
             men
             fear
             hanging
             ,
             lesse
             then
             being
             constantly
             keeped
             in
             Correction-houses
             ,
             or
             in
             the
             places
             where
             they
             may
             be
             kept
             working
             ,
             as
             they
             do
             in
             Holland
             ,
             for
             the
             good
             of
             the
             Common-wealth
             .
          
           
             VII
             .
             To
             descend
             then
             to
             our
             Law
             ,
             the
             custom
             is
             ,
             that
             the
             justices
             do
             sometimes
             hang
             even
             for
             very
             small
             faults
             ,
             as
             
               Thomas
               Neilson
            
             for
             stealing
             a
             horse
             ,
             10
             December
             1661.
             
             Watson
             hanged
             for
             stealing
             40.
             
             Sheeps
             ,
             though
             there
             was
             no
             probation
             against
             him
             ,
             but
             his
             own
             confession
             ,
             and
             though
             he
             had
             restored
             ●he
             things
             stoln
             .
             Sometimes
             by
             banishment
             ,
             as
             
               Richard
               Lauder
            
             ,
             6.
             
             Febr.
             1639.
             and
             
               Alexander
               Cumming
            
             ,
             and
             
               Iohn
               Tailer
            
             ,
             25.
             
             Febr.
             1639.
             
             Sometimes
             they
             are
             Drowned
             ,
             as
             
               Grissel
               Mathow
            
             ,
             for
             stealing
             a
             Coffer
             with
             Writs
             ,
             23.
             
             Iune
             1599.
             
             Sometimes
             Scourged
             ,
             as
             
               Iames
               Wilson
            
             ,
             7.
             
             Feb.
             1608.
             
             Sometimes
             they
             are
             hanged
             in
             Chains
             ,
             if
             they
             be
             notorious
             Thieves
             ,
             As
             Patrick
             Roy
             
               Macgrigor
               ,
               May.
            
             1668.
             &c.
             
             It
             is
             thought
             that
             
               de
               jure
            
             there
             is
             no
             Law
             in
             Scotland
             for
             Hanging
             a
             man
             for
             Theft
             ,
             which
             is
             a
             great
             mistake
             ,
             for
             
               Leg.
               Burgorum
               .
               cap.
            
             121.
             
             It
             is
             said
             ,
             if
             a
             Thief
             be
             taken
             with
             bread
             worth
             a
             Farthing
             ,
             and
             from
             one
             Farthing
             to
             four
             ,
             he
             should
             be
             Scourged
             :
             for
             four
             Farthings
             he
             should
             be
             put
             in
             the
             Joggs
             ,
             and
             Banished
             ;
             from
             four
             to
             eight
             he
             should
             loose
             an
             ear
             :
             and
             if
             that
             same
             .
             Thief
             be
             thereafter
             ta●●●
             with
             eight
             Pennies
             ,
             he
             should
             be
             hanged
             ;
             but
             if
             any
             Thief
             should
             be
             taken
             with
             32.
             
             Pennies
             and
             an
             Farthing
             ,
             he
             may
             be
             hanged
             .
             2.
             
             By
             the
             7.
             
             
               Act
               stat
               .
               Da.
            
             2.13
             .
             ch
             .
             and
             cap.
             13.
             l.
             4.
             
             
               Reg.
               Maj.
            
             one
             defamed
             for
             Theft
             ,
             who
             cannot
             
             find
             caution
             ,
             should
             be
             hanged
             ,
             
               &
               cap.
            
             16.
             
             It
             is
             said
             that
             no
             man
             can
             be
             hanged
             for
             lesse
             then
             two
             Sheep
             :
             and
             by
             the
             Law
             likewayes
             of
             Birthinseck
             ,
             a
             Thief
             should
             not
             dye
             for
             as
             much
             meat
             as
             he
             can
             carry
             upon
             his
             back
             :
             and
             cap.
             18.
             a
             Thief
             being
             hanged
             and
             falling
             from
             the
             Gallows
             ,
             is
             no
             more
             to
             be
             punished
             .
             All
             which
             implyes
             clearly
             that
             Theft
             is
             of
             its
             own
             nature
             punishable
             by
             death
             .
             3.
             
             By
             the
             82.
             
               act
               .
               I.
            
             6.
             
             P.
             11.
             
             Stealers
             of
             Pleugh
             Graith
             ,
             or
             breakers
             of
             Mi●nes
             ,
             are
             to
             be
             punished
             therefore
             ,
             to
             the
             death
             ,
             as
             Thieves
             .
             But
             because
             our
             practiques
             ,
             is
             in
             this
             ,
             a
             little
             arbitrary
             and
             uncertain
             ,
             it
             will
             be
             fit
             to
             know
             that
             Theft
             in
             Scotland
             ,
             is
             either
             pur●ued
             by
             accusation
             ,
             which
             is
             at
             the
             instance
             of
             a
             private
             accuser
             ,
             or
             by
             way
             of
             inditement
             ,
             which
             is
             at
             the
             instance
             of
             the
             Procurator-Fiskal
             .
             If
             the
             pursuite
             be
             intented
             ,
             by
             way
             of
             Accusation
             ,
             it
             may
             be
             judged
             by
             Barrons
             having
             power
             of
             Pitt
             ,
             and
             Gallows
             ,
             or
             as
             our
             Charters
             call
             ,
             
               foffa
               &
               furca
            
             ,
             or
             by
             Sheriffs
             :
             but
             if
             it
             be
             pursued
             by
             way
             of
             inditement
             ,
             the
             Cognition
             thereof
             belongs
             to
             the
             Justice
             .
             
               Reg.
               Maj.
               cap.
            
             1.
             
             Num.
             7.
             
             But
             this
             distinction
             ,
             is
             not
             well
             observed
             ,
             for
             the
             Sheriffs
             do
             proceed
             to
             judge
             Thefts
             even
             by
             Citation
             ,
             &
             though
             the
             Thief
             be
             not
             taken
             with
             with
             the
             Fang
             ,
             which
             is
             certainly
             an
             error
             ,
             for
             all
             processes
             upon
             citation
             against
             a
             Thief
             ,
             should
             belong
             to
             the
             justices
             ,
          
           
             VIII
             .
             In
             the
             procedor
             before
             these
             inferiour
             Courts
             ,
             they
             do
             not
             condemn
             to
             death
             ,
             except
             upon
             three
             Thefts
             ,
             or
             that
             the
             person
             be
             taken
             with
             Fang
             ,
             and
             he
             be
             likewise
             
               famosus
               fur
            
             .
             As
             to
             the
             three
             Thefts
             ,
             I
             find
             no
             expresse
             Law
             for
             it
             only
             ,
             
               stat
               .
               Da.
            
             2.
             cap.
             17.
             where
             it
             is
             said
             ,
             if
             a
             Thief
             be
             defamed
             at
             three
             Barrons
             Courts
             ,
             and
             wants
             a
             Pledge
             ,
             or
             Cautioner
             ,
             then
             he
             may
             be
             hanged
             ,
             or
             if
             he
             be
             defamed
             ,
             and
             cited
             in
             two
             courts
             ,
             or
             in
             one
             ,
             and
             be
             of
             ill
             fame
             likewise
             ;
             or
             as
             we
             say
             ,
             there
             be
             publick
             bruits
             and
             open
             fame
             that
             he
             is
             a
             Thief
             ,
             then
             he
             may
             be
             hanged
             .
             But
             simple
             fame
             is
             said
             there
             ,
             not
             to
             be
             sufficient
             to
             infer
             death
             ,
             except
             that
             ill
             fame
             were
             found
             by
             an
             
             Assize
             upon
             Oath
             .
             Yet
             this
             is
             now
             absolet
             ,
             for
             fame
             is
             in
             no
             case
             sufficient
             to
             inferr
             death
             .
          
           
             As
             to
             the
             three
             Thefts
             ,
             I
             find
             the
             Civilians
             relate
             ,
             that
             the
             third
             The●t
             ,
             by
             the
             statutory
             Law
             of
             most
             places
             ,
             is
             capital
             ,
             and
             it
             seems
             to
             be
             grounded
             upon
             very
             good
             reasons
             ,
             for
             he
             who
             is
             oft
             found
             committing
             the
             same
             crime
             ,
             is
             presumed
             by
             the
             Law
             to
             designe
             to
             make
             it
             a
             trade
             ,
             
               Ang.
               ad
               l.
            
             8.
             
               devi
               publica
            
             ,
             where
             the
             committing
             of
             Theft
             twice
             ,
             inferrs
             this
             presumption
             .
             The
             Law
             of
             Holland
             provides
             ,
             that
             a
             Thief
             shall
             be
             hanged
             for
             the
             third
             Theft
             ,
             except
             it
             seem
             otherwayes
             just
             to
             the
             Judge
             because
             of
             his
             age
             ,
             or
             any
             other
             pregnant
             reason
             :
             and
             ordinarily
             three
             small
             Thefts
             ,
             are
             by
             Matheus
             said
             not
             to
             be
             construed
             such
             ,
             according
             to
             the
             Law
             of
             Holland
             ,
             as
             deserves
             death
             :
             the
             Civilians
             do
             upon
             supposition
             that
             the
             third
             Theft
             is
             Capital
             ,
             conclude
             ,
             that
             these
             three
             thefts
             should
             be
             distinct
             ,
             even
             as
             to
             to
             the
             time
             ,
             and
             that
             he
             is
             to
             be
             punished
             with
             death
             for
             the
             third
             theft
             ,
             though
             he
             had
             been
             formerly
             punished
             for
             both
             the
             other
             two
             ,
             or
             though
             the
             former
             two
             had
             been
             remitted
             to
             him
             by
             the
             Prince
             :
             and
             albeit
             they
             use
             many
             distinctions
             for
             clearing
             whether
             a
             Thief
             should
             be
             hanged
             for
             the
             third
             theft
             ,
             where
             the
             first
             two
             were
             not
             committed
             within
             his
             Territory
             or
             Jurisdiction
             ,
             and
             so
             could
             not
             be
             punished
             by
             him
             ,
             yet
             since
             Capital
             punishment
             is
             not
             inferred
             by
             a
             statute
             against
             the
             third
             Theft
             ,
             but
             that
             the
             third
             Theft
             is
             only
             punishable
             with
             death
             ,
             because
             the
             committer
             is
             presumed
             to
             be
             irreclaimable
             :
             therefore
             I
             think
             ,
             that
             where
             ever
             the
             Theft
             was
             committed
             ,
             yet
             for
             the
             third
             Theft
             ,
             the
             thief
             should
             be
             hanged
             ;
             for
             albeit
             there
             be
             no
             express
             statute
             for
             that
             with
             us
             ,
             yet
             ,
             seing
             
               Gomesius
               Chasaneus
            
             ,
             and
             other
             famous
             Lawyers
             ,
             attested
             this
             to
             be
             the
             general
             custome
             of
             the
             world
             ;
             I
             think
             it
             should
             be
             followed
             by
             our
             Sheriffs
             and
             inferiour
             Judges
             ,
             who
             being
             determined
             by
             that
             number
             ,
             have
             some
             certain
             rule
             whereby
             they
             may
             be
             both
             limited
             ,
             and
             warranded
             ,
             which
             is
             much
             safer
             
             then
             that
             they
             should
             be
             allowed
             scop
             ,
             to
             break
             out
             into
             the
             extreams
             of
             either
             cruelty
             ,
             or
             cowardliness
             .
          
           
             The
             Law
             of
             England
             divides
             Theft
             or
             Larcenry
             ,
             into
             petty
             Larcenry
             ,
             when
             the
             thing
             stoln
             ,
             exceeds
             not
             twelve
             pence
             ,
             and
             its
             punishment
             extends
             not
             to
             death
             ,
             and
             grand
             Larcenry
             ,
             when
             it
             exceeds
             twelve
             pence
             ,
             wherein
             the
             thief
             is
             punishable
             by
             death
             ,
             except
             he
             be
             saved
             by
             the
             book
             :
             and
             if
             one
             steal
             to
             the
             value
             of
             six
             pence
             ,
             at
             one
             time
             ,
             and
             six
             pence
             at
             another
             time
             ,
             then
             he
             is
             guilty
             of
             death
             ,
             but
             if
             two
             steal
             to
             the
             value
             of
             eighten
             pence
             joyntly
             ,
             each
             is
             guilty
             .
          
           
             Common
             bruit
             ,
             and
             open
             fame
             ,
             of
             being
             an
             ordinary
             thief
             ,
             is
             likewise
             a
             good
             ground
             of
             making
             theft
             puishable
             by
             death
             ,
             the
             thief
             being
             taken
             with
             the
             fang
             ,
             
               &
               hi
               fures
               famosi
               sive
               infamati
               de
               pluribus
               furtis
               ,
            
             are
             ordinarily
             hanged
             likewise
             ,
             as
             is
             clear
             by
             
               Clarus
               .
               Num.
            
             8.
             
               hoc
               tit
               .
               Menoch
               .
               arbitrariis
               Casu
               .
            
             295.
             
             And
             it
             is
             sufficient
             that
             witnesses
             depon
             of
             their
             credulity
             ,
             and
             that
             they
             are
             informed
             by
             others
             ,
             our
             Law
             calls
             such
             
               de
               famiati
               de
               latrocinio
            
             ;
             and
             if
             he
             cannot
             find
             caution
             ,
             the
             old
             Law
             appoints
             ,
             that
             he
             should
             be
             proceeded
             against
             as
             if
             he
             were
             a
             proven
             thief
             ;
             for
             
               latro
               defamatus
               &
               latro
               probatus
            
             ,
             are
             still
             aequipollent
             in
             our
             Law
             ;
             But
             I
             think
             these
             Laws
             too
             severe
             ,
             and
             they
             are
             not
             in
             use
             .
          
           
             IX
             .
             As
             to
             the
             procedor
             of
             the
             Justices
             ;
             it
             is
             because
             their
             power
             is
             more
             eminent
             ,
             that
             they
             are
             allowed
             to
             be
             more
             arbitrary
             ;
             but
             I
             think
             the
             distinction
             allowed
             by
             Civilians
             ,
             will
             be
             very
             reasonable
             ,
             which
             is
             that
             ,
             
               in
               furto
               simplici
            
             ,
             in
             simple
             theft
             ,
             the
             pain
             of
             death
             should
             never
             be
             imposed
             ,
             but
             in
             qualified
             theft
             ,
             if
             the
             quality
             be
             such
             as
             agredges
             the
             crime
             very
             much
             ;
             Which
             aggravations
             are
             either
             taken
             from
             the
             thing
             it self
             ,
             that
             is
             stoln
             ,
             as
             in
             our
             statutes
             ,
             the
             stealers
             of
             Pleugh-graith
             ,
             cutters
             and
             destroyers
             of
             Pleugh
             ,
             and
             Pleugh-graith
             ,
             in
             the
             time
             of
             telling
             ;
             and
             cutters
             and
             destroyers
             of
             growing
             trees
             ,
             or
             breakers
             of
             Milnes
             ,
             or
             of
             leading
             co●ns
             ,
             or
             fewel
             ,
             are
             to
             be
             punished
             to
             the
             death
             ,
             as
             thieves
             ,
             82.
             
             Act.
             11.
             
             
               P.
               I.
            
             6
             
             and
             hoche●s
             and
             killers
             of
             Oxen
             ,
             horses
             ,
             and
             other
             cattel
             ,
             are
             punishable
             by
             death
             ,
             and
             confiscation
             of
             movables
             ,
             as
             well
             committers
             as
             recepters
             ,
             Act.
             110.
             
               p.
               Ia.
            
             6.
             and
             upon
             this
             act
             were
             hanged
             ,
             for
             killing
             
             Drumlanerk's
             sheep
             ,
             20.
             
             Feb.
             1666.
             
             Albeit
             it
             would
             appear
             ,
             that
             that
             act
             is
             only
             to
             be
             extended
             to
             labouring
             cattel
             .
             Nota
             ,
             this
             is
             a
             case
             wherein
             Theft
             may
             be
             committed
             ,
             without
             carrying
             any
             thing
             away
             ;
             for
             the
             doing
             of
             these
             wrongs
             ,
             without
             carrying
             away
             the
             thing
             wronged
             ,
             is
             constantly
             declared
             to
             be
             Theft
             ,
             
               &
               per
               constitutionem
               Frederici
               Secundi
               de
               stat
               .
               §
               .
               agricultores
               ,
            
             the
             stealing
             Pleugh
             graith
             ,
             is
             punished
             ,
             as
             a
             particular
             crime
             .
          
           
             X.
             Herdships
             ,
             likewise
             ,
             which
             is
             ,
             the
             driving
             away
             a
             great
             many
             Cattle
             ,
             called
             by
             the
             Civilians
             ,
             
               crimen
               abigeatus
            
             ,
             is
             likewise
             by
             the
             Law
             of
             all
             Nations
             ,
             and
             particularly
             by
             ours
             ,
             punished
             with
             death
             ;
             but
             though
             
               lex
               prima
               dig
               .
               de
               abigeat
            
             :
             say
             that
             
               abigei
               ad
               gladium
               dentur
            
             .
             Yet
             Matheus
             doth
             interpret
             ,
             that
             not
             to
             be
             meant
             ,
             
               de
               ultimo
               supplicio
            
             ,
             but
             only
             
               de
               ludo
               gladiatorio
            
             ,
             and
             with
             this
             agrees
             .
             l.
             2.
             
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             :
             But
             if
             they
             went
             with
             arms
             ,
             they
             were
             punished
             with
             death
             ,
             as
             the
             Scolia
             of
             the
             Basilicks
             observe
             .
             It
             may
             be
             usefully
             observed
             ,
             that
             those
             who
             drive
             away
             Herdships
             ,
             
               cum
               gladio
            
             ,
             with
             arms
             ,
             are
             punished
             by
             death
             ,
             because
             they
             are
             rather
             Robbers
             then
             Thieves
             .
             2.
             
             These
             who
             drive
             away
             great
             Cattle
             ,
             are
             more
             to
             be
             punished
             ,
             then
             these
             who
             drive
             away
             the
             lesser
             ,
             l.
             1.
             
               ff
               .
               de
               abige
            
             .
             3.
             
             These
             are
             to
             be
             most
             severely
             punished
             ,
             who
             live
             in
             a
             countrey
             ,
             where
             that
             crime
             is
             most
             frequent
             ;
             and
             therefore
             our
             Highlanders
             are
             most
             severely
             punished
             .
             4.
             
             These
             that
             drive
             away
             cattle
             from
             the
             fields
             ,
             are
             more
             to
             be
             punished
             ,
             then
             these
             who
             drive
             out
             of
             the
             houses
             ,
             because
             Cattle
             in
             the
             fields
             have
             no
             guard
             but
             the
             Law.
             
          
           
             XI
             .
             The
             stealing
             likewise
             of
             a
             thing
             consecrated
             to
             God
             ,
             aggrages
             so
             the
             Theft
             ,
             as
             to
             make
             it
             punishable
             by
             death
             ,
             and
             this
             was
             called
             Sacriledge
             by
             the
             Civil
             ,
             and
             Cannon
             Laws
             ,
             
             and
             was
             distinguished
             into
             several
             degrees
             ,
             as
             1.
             
             If
             a
             thing
             Sacred
             was
             stoln
             out
             of
             a
             sacred
             place
             .
             2.
             
             If
             a
             thing
             sacred
             was
             stoln
             out
             of
             any
             place
             .
             3.
             
             If
             a
             thing
             not
             Sacred
             was
             stoln
             out
             of
             a
             Sacred
             place
             :
             But
             thir
             two
             last
             are
             not
             properly
             Sacriledge
             .
             With
             us
             there
             are
             no
             formal
             Consecrations
             used
             of
             Churches
             ,
             Vestments
             ,
             Cupps
             ,
             &c.
             and
             so
             we
             have
             no
             such
             formal
             crime
             ,
             as
             Sacriledge
             ;
             nor
             have
             we
             any
             act
             against
             it
             .
             Yet
             I
             think
             ,
             to
             steal
             any
             thing
             destinat
             to
             Gods
             service
             ,
             and
             even
             to
             steal
             any
             thing
             out
             of
             a
             Church
             ,
             deserves
             to
             be
             punished
             with
             death
             .
             And
             this
             Theft
             is
             aggraged
             with
             us
             ,
             not
             only
             from
             the
             nature
             of
             the
             thing
             stoln
             ,
             but
             more
             from
             the
             place
             ;
             and
             thus
             also
             Murder
             ,
             or
             mutilation
             ,
             committed
             within
             the
             Church
             or
             Church-yaird
             ,
             is
             more
             severely
             punished
             then
             other
             Murders
             ;
             and
             with
             us
             these
             who
             steal
             out
             of
             Churches
             ,
             are
             still
             hanged
             ,
             or
             who
             steal
             what
             is
             dedicated
             to
             ,
             or
             serves
             the
             Church
             ,
             as
             Basons
             .
             &c.
             
          
           
             XII
             .
             The
             next
             aggravation
             of
             Theft
             is
             from
             the
             person
             who
             commits
             it
             ,
             and
             thus
             Theft
             ,
             when
             committed
             by
             landed
             men
             ,
             is
             punished
             with
             us
             as
             Treason
             ,
             Act.
             50.
             p.
             11.
             
             I.
             6.
             the
             words
             are
             ,
             that
             if
             it
             shall
             happen
             any
             landed
             man
             to
             be
             lawfully
             and
             orderly
             convict
             of
             common
             Theft
             ,
             recept
             of
             theft
             ,
             or
             Stouthreif
             he
             shall
             incur
             the
             crime
             and
             the
             pain
             of
             Treason
             :
             The
             reason
             inductive
             of
             this
             act
             was
             ,
             because
             it
             was
             easier
             for
             landed
             men
             to
             commit
             theft
             ,
             then
             for
             any
             others
             ,
             and
             so
             it
             should
             be
             more
             severely
             punished
             ,
             and
             these
             also
             wanted
             all
             pretext
             of
             necessity
             ,
             or
             rusticity
             ,
             and
             must
             be
             presumed
             to
             be
             extreamly
             mean
             and
             malicious
             persons
             ,
             whom
             the
             Common-wealth
             might
             well
             want
             ,
             and
             whom
             they
             should
             not
             suffer
             :
             but
             it
             may
             be
             here
             doubted
             who
             are
             these
             ,
             who
             are
             by
             this
             act
             to
             be
             accompted
             landed
             men
             ;
             And
             it
             would
             appear
             ,
             1.
             
             That
             only
             such
             as
             have
             themselves
             ,
             or
             their
             Predecessors
             ,
             been
             Infest
             ,
             are
             only
             such
             ,
             for
             ,
             
               nulla
               sasina
               nulla
               terra
            
             ,
             and
             so
             a
             disposition
             or
             charter
             or
             a
             resignation
             
               in
               favorem
            
             ,
             makes
             not
             a
             thief
             to
             fall
             under
             the
             compasse
             of
             this
             Act.
             Yet
             some
             think
             an
             Heir
             served
             and
             retoured
             ,
             doth
             fall
             within
             this
             signification
             ,
             though
             
             he
             be
             not
             Infest
             ,
             because
             his
             lying
             out
             is
             his
             own
             fault
             ,
             and
             so
             should
             not
             defend
             him
             .
             2.
             
             I
             think
             that
             a
             person
             who
             was
             once
             a
             Barron
             ,
             if
             he
             be
             thereafter
             denuded
             ,
             falls
             not
             under
             it
             ,
             for
             albeit
             
               semel
               baro
            
             is
             
               semper
               baro
            
             in
             our
             Law.
             Yet
             that
             maxime
             holds
             only
             presumptive
             ;
             and
             if
             it
             be
             proved
             that
             he
             was
             actually
             denuded
             ,
             that
             will
             liberat
             him
             from
             vitious
             intromission
             ,
             much
             more
             a
             crime
             that
             deserves
             forfaulter
             and
             statutory
             crimes
             ,
             are
             not
             to
             be
             extended
             .
             By
             ordinary
             theft
             in
             this
             act
             is
             meant
             ,
             theft
             without
             any
             aggravation
             of
             violence
             ,
             herships
             ,
             &c.
             by
             stouthreif
             is
             meant
             violent
             and
             masterful
             theft
             .
             And
             as
             this
             kind
             of
             theft
             hath
             the
             disadvantage
             of
             being
             treason
             ,
             so
             it
             is
             just
             that
             it
             should
             participat
             of
             all
             the
             advantages
             which
             are
             allowed
             to
             those
             who
             are
             pursued
             ,
             as
             traitors
             ,
             (
             
               &
               quem
               sequuntur
               incommoda
               eum
               debent
               sequi
               commoda
            
             )
             and
             therefore
             no
             inferiour
             Judge
             is
             Judge
             competent
             to
             a
             process
             founded
             upon
             this
             species
             of
             theft
             ,
             as
             was
             found
             in
             Iuly
             ,
             1668.
             where
             a
             process
             intented
             against
             a
             landed
             man
             ,
             before
             the
             Sheriff
             of
             Wigtown
             ,
             was
             Advocat
             to
             the
             Justices
             upon
             this
             reason
             ;
             albeit
             it
             was
             alledged
             that
             this
             act
             being
             conceived
             
               in
               odium
            
             ,
             and
             for
             repressing
             of
             theft
             ,
             it
             was
             unreasonable
             that
             it
             should
             not
             be
             quarrellable
             before
             every
             Judge
             ,
             for
             thereby
             many
             would
             be
             deterred
             from
             pursuits
             against
             landed
             men
             .
             And
             albeit
             the
             punishment
             was
             in
             this
             theft
             ,
             greater
             then
             in
             others
             ;
             yet
             the
             relevancy
             and
             probation
             was
             no
             more
             intricat
             here
             then
             in
             other
             cases
             .
             2.
             
             It
             was
             alledged
             that
             the
             pursuer
             restricted
             his
             Libel
             to
             ordinary
             theft
             ,
             which
             the
             Justices
             found
             he
             could
             not
             do
             ,
             because
             the
             relevance
             ,
             and
             probation
             would
             be
             ,
             
               eadem
               utrobique
            
             ;
             and
             albeit
             the
             pairty
             would
             restrict
             as
             said
             is
             ,
             yet
             the
             Kings
             Advocat
             might
             ,
             at
             any
             time
             thereafter
             ,
             found
             a
             Process
             of
             forefaulter
             ,
             and
             needed
             no
             more
             probation
             :
             as
             in
             the
             case
             of
             
               Iohn
               Wauch
            
             ,
             though
             the
             Sheriff
             of
             Selkirk
             had
             only
             fyned
             the
             thief
             ,
             yet
             the
             Lords
             sustained
             a
             declarator
             of
             escheat
             upon
             that
             same
             verdict
             ,
             whereby
             the
             thief
             was
             found
             by
             them
             guilty
             of
             theft
             ;
             for
             the
             Lords
             thought
             that
             privat
             parties
             could
             by
             no
             
             declaration
             nor
             deed
             of
             theirs
             ,
             prejudge
             His
             
             Majestie
             's
             interest
             ,
             so
             that
             from
             this
             ground
             ,
             it
             may
             be
             debared
             ,
             that
             when
             a
             landed
             man
             is
             pursued
             for
             theft
             ,
             the
             pursuer
             cannot
             restrict
             his
             pursuite
             to
             a
             pursuite
             of
             common
             theft
             .
             As
             also
             ,
             that
             the
             pursuer
             failzieing
             to
             prove
             ,
             in
             this
             case
             commits
             Treason
             ,
             because
             he
             who
             pursues
             any
             man
             for
             treason
             ,
             if
             he
             be
             found
             calumnious
             ,
             commits
             treason
             .
             It
             may
             be
             doubted
             also
             if
             the
             Council
             can
             mitigat
             the
             punishment
             here
             ,
             seing
             they
             cannot
             remit
             Treason
             :
             Yet
             in
             thir
             Statutory
             Treasons
             the
             Council
             ordinarily
             mitigats
             or
             converts
             the
             punishment
             .
             Nor
             see
             I
             any
             reason
             ,
             why
             it
             may
             not
             be
             alledged
             that
             theft
             in
             landed
             men
             ,
             is
             not
             made
             treason
             by
             this
             Act
             ,
             but
             is
             only
             declared
             punishable
             as
             treason
             ,
             and
             Theft
             ,
             that
             is
             not
             to
             be
             judged
             as
             treason
             ,
             though
             it
             should
             be
             punished
             as
             such
             ,
             for
             these
             two
             are
             differrent
             .
          
           
             XIII
             .
             This
             crime
             of
             Theft
             becomes
             sometimes
             atrocious
             ,
             and
             so
             should
             be
             punishable
             by
             death
             ,
             because
             of
             the
             irreclaimablenesse
             of
             the
             offender
             ,
             and
             triple
             theft
             is
             capital
             in
             inferiour
             Courts
             ,
             though
             the
             things
             stoln
             be
             very
             inconsiderable
             ,
             because
             this
             shews
             a
             habit
             or
             double
             these
             ,
             if
             the
             thing
             stoln
             be
             of
             great
             moment
             .
             And
             by
             the
             first
             Statute
             ,
             Da
             2.
             
             §
             .
             4.
             
             A
             thief
             banished
             ,
             being
             taken
             again
             in
             these
             Territories
             ,
             from
             which
             he
             was
             banished
             ,
             may
             be
             proceeded
             against
             with
             all
             severity
             ;
             and
             the
             breaking
             of
             pink
             Dove
             coats
             ,
             &c.
             is
             punishable
             by
             death
             at
             the
             third
             rime
             ,
             Act.
             84.
             
             I.
             6.
             
             P.
             6.
             
          
           
             The
             way
             likewise
             whereby
             the
             Theft
             is
             committed
             ,
             makes
             it
             oft
             deserve
             to
             be
             capital
             ,
             as
             the
             stealing
             by
             false
             keys
             ,
             or
             breaking
             houses
             ,
             and
             inchantments
             ,
             and
             if
             it
             be
             committed
             masterfully
             ,
             (
             as
             we
             use
             to
             speak
             )
             which
             is
             called
             Stouthreif
             with
             us
             ,
             and
             Roboria
             ,
             by
             the
             Doctors
             then
             it
             dese●ves
             to
             be
             capitally
             punished
             ;
             but
             of
             this
             afterwards
             .
          
           
             Theft
             is
             likewise
             aggraged
             from
             the
             time
             ,
             as
             stealing
             in
             the
             night
             is
             punishable
             by
             death
             ,
             if
             the
             theif
             defend
             himself
             ,
             and
             be
             armed
             .
             
               l.
               furem
               .
               ff
               .
               ad
               l.
               Corn.
               de
               sicar
               ,
            
             but
             with
             us
             generally
             
             a
             thief
             breaking
             houses
             in
             the
             night
             may
             be
             killed
             by
             the
             person
             invaded
             ,
             Act
             22.
             
             Ch.
             2
             p.
             1.
             loss
             .
             1.
             which
             may
             be
             extended
             also
             to
             such
             thieves
             as
             are
             preparing
             to
             break
             the
             house
             ,
             of
             who
             have
             done
             it
             already
             ,
             and
             to
             steal
             any
             thing
             in
             the
             time
             a
             house
             is
             burning
             ,
             or
             when
             a
             Ship
             is
             wrackt
             ,
             or
             in
             time
             of
             tumults
             ,
             or
             general
             desolation
             ,
             were
             highly
             punishable
             by
             the
             Civil
             Law
             ,
             either
             
               paena
               fustium
               cum
               relegatione
               vel
               in
               metallum
               .
            
             And
             with
             us
             I
             think
             such
             thieves
             should
             dye
             ,
             for
             both
             they
             add
             affliction
             to
             the
             afflicted
             ,
             and
             so
             shew
             very
             much
             malice
             .
             As
             also
             the
             committing
             Theft
             is
             then
             very
             easy
             ,
             and
             to
             these
             cases
             I
             may
             adde
             theft
             committed
             in
             time
             of
             Pestilence
             .
          
           
             XIV
             .
             As
             theft
             is
             aggraged
             by
             these
             ,
             so
             it
             is
             extenuat
             by
             other
             circumstances
             ,
             as
             1.
             
             In
             case
             of
             necessity
             ,
             as
             said
             is
             ,
             2.
             
             A
             wife
             stealing
             from
             her
             own
             husband
             ,
             is
             not
             so
             severely
             to
             be
             punished
             as
             in
             other
             cases
             ,
             for
             in
             effect
             she
             hath
             some
             interest
             ,
             and
             therefore
             by
             the
             Common
             Law
             this
             was
             not
             pursuable
             as
             theft
             ,
             
               sed
               actione
               renum
               amotarum
               .
               l.
               qui
               servo
               .
               §
               .
               item
               placuit
               .
               ff
               .
               de
               furt
               .
            
             but
             with
             us
             ,
             the
             Kings
             Advocat
             may
             pursue
             either
             wife
             or
             husband
             stealing
             from
             one
             another
             ,
             though
             the
             parties
             cannot
             .
             For
             it
             is
             to
             be
             presumed
             that
             there
             is
             too
             much
             malice
             in
             such
             pursuites
             ,
             and
             that
             the
             pursuer
             designs
             in
             that
             case
             rather
             to
             be
             free
             from
             the
             marriage
             ,
             then
             to
             have
             the
             Crime
             punisht
             .
             3.
             
             He
             who
             steals
             from
             his
             debitor
             ,
             who
             will
             not
             pay
             him
             ,
             or
             steals
             what
             was
             robbed
             from
             him
             ,
             is
             punishable
             ,
             but
             not
             by
             death
             ,
             
               Clar.
               num
            
             .
             20.
             
               de
               furt
            
             .
             4.
             
             He
             who
             steals
             a
             thing
             of
             small
             value
             ,
             
               de
               minimis
               non
               curat
               lex
            
             ,
             of
             which
             formerly
             .
             5.
             
             If
             the
             party
             from
             whom
             the
             thing
             was
             stoln
             ,
             declare
             that
             it
             was
             not
             away-taken
             without
             his
             consent
             ;
             some
             Lawyers
             think
             the
             crime
             is
             thereby
             purged
             :
             Which
             opinion
             others
             allow
             not
             except
             it
             be
             also
             proven
             ,
             that
             there
             were
             presumptions
             of
             a
             prior
             consent
             ,
             as
             the
             stealers
             good
             fame
             ,
             his
             friendship
             to
             the
             party
             accused
             ,
             the
             relation
             by
             affinity
             ,
             or
             consanguinity
             ,
             &c.
             but
             with
             us
             if
             the
             
             informer
             swear
             not
             the
             Libel
             ,
             and
             depon
             that
             the
             thing
             was
             stoln
             ,
             for
             ought
             he
             knows
             ,
             the
             Libel
             will
             not
             be
             sustained
             .
             6.
             
             If
             the
             taker
             had
             probable
             reasons
             ,
             to
             presume
             the
             things
             taken
             by
             him
             to
             be
             his
             own
             ,
             then
             he
             is
             excused
             from
             Criminal
             punishment
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             
               ad
               civilem
               questionem
               transmittitur
               ,
               l.
            
             1.
             
             §
             .
             ult
             .
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             XV.
             There
             are
             with
             us
             other
             statutory
             thefts
             ,
             which
             are
             not
             so
             of
             their
             own
             nature
             ,
             but
             are
             to
             be
             punisht
             as
             such
             ,
             as
             the
             breaking
             of
             Milnes
             ,
             &c.
             
             Act.
             82.
             p.
             11.
             
             I.
             6
             A
             Salter
             ,
             or
             Coalyer
             also
             ,
             leaving
             his
             master
             without
             a
             sufficient
             Testimonial
             ,
             or
             at
             least
             a
             sufficient
             reason
             given
             for
             his
             removal
             ,
             and
             attested
             by
             the
             Bailie
             ,
             or
             Magistrat
             of
             the
             place
             ,
             are
             to
             be
             repute
             and
             punished
             as
             thieves
             ,
             Act.
             11.
             p.
             18.
             
             I.
             6.
             but
             it
             would
             appear
             that
             such
             only
             as
             receive
             fee
             and
             wages
             from
             others
             ,
             are
             only
             punishable
             as
             such
             ,
             but
             not
             otherwayes
             ;
             and
             really
             it
             were
             unreasonable
             ,
             that
             a
             poor
             Coalyer
             or
             Salter
             might
             not
             leave
             that
             trade
             ,
             either
             to
             take
             another
             trade
             ,
             or
             for
             sickness
             ,
             or
             any
             other
             cause
             ,
             and
             that
             act
             seems
             only
             to
             hinder
             their
             going
             from
             one
             master
             to
             another
             .
          
           
             Stealers
             of
             Pyks
             out
             of
             stanks
             ,
             breakers
             of
             Dove-coats
             ,
             Orchards
             or
             Yards
             ,
             stealers
             and
             destroyers
             of
             Hives
             ,
             are
             punishable
             as
             thieves
             ,
             and
             this
             is
             ordained
             to
             be
             a
             point
             of
             dittay
             ,
             and
             the
             unlaw
             to
             be
             ten
             Pound
             ,
             and
             mends
             to
             the
             party
             ,
             conform
             to
             the
             skaith
             ,
             Act.
             69.
             
             P.
             6.
             
             I.
             4.
             but
             by
             the
             33.
             
             Act.
             2.
             
             
               P.
               I.
            
             1.
             stealing
             of
             green
             wood
             by
             night
             ,
             or
             peilers
             of
             barks
             of
             trees
             ,
             should
             pay
             fourty
             shillings
             to
             the
             King
             ,
             and
             assyth
             the
             Party
             ,
             Act.
             33.2
             .
             P.I.
             1.
             
             But
             thereafter
             by
             the
             12
             Act.
             4.
             
             
               P.
               I.
            
             5.
             the
             breaking
             of
             Dove-coats
             ,
             Coney-gairs
             ,
             Parks
             ,
             or
             stanks
             
               (
               i.
               e.
            
             )
             Ponds
             ,
             is
             declared
             to
             be
             punisht
             as
             theft
             ;
             but
             seing
             that
             appoints
             not
             that
             it
             shall
             be
             theft
             ,
             it
             may
             be
             doubted
             if
             it
             should
             be
             repute
             as
             theft
             ,
             as
             to
             the
             other
             disadvantages
             .
          
           
             I
             find
             that
             upon
             the
             25.
             of
             Iuly
             ,
             1623.
             two
             fellows
             called
             Raith
             and
             Deane
             ,
             are
             ordained
             to
             be
             hanged
             for
             breaking
             of
             Yards
             ,
             stealing
             of
             Bee-skeps
             ,
             and
             stealing
             of
             Sybows
             .
             By
             the
             
             84.
             
             Act
             ,
             6.
             
             P.I.
             6.
             the
             destroyers
             of
             Planting
             ,
             haining-broom
             ,
             pollicie
             ,
             are
             for
             the
             first
             appointed
             to
             pay
             to
             the
             owner
             the
             avail
             ,
             and
             ten
             pound
             for
             the
             second
             ,
             the
             avail
             and
             twenty
             pound
             for
             the
             third
             ,
             the
             avail
             and
             fourty
             pound
             ,
             and
             if
             they
             be
             not
             responsal
             ,
             to
             be
             put
             in
             Prison
             ,
             and
             in
             the
             Irons
             for
             eight
             dayes
             ,
             for
             the
             second
             ,
             fifteen
             dayes
             ,
             for
             the
             third
             a
             Moneth
             ,
             and
             to
             be
             scourged
             at
             the
             end
             of
             the
             Moneth
             .
             By
             which
             Act
             likewise
             ,
             the
             breakers
             of
             Dove-coats
             ,
             Conyingairs
             ,
             and
             Parks
             ,
             are
             to
             be
             punished
             the
             same
             way
             ,
             if
             they
             be
             not
             responsal
             ,
             they
             are
             to
             hanged
             for
             the
             third
             fault
             .
             It
             is
             observable
             ,
             that
             though
             these
             persons
             abovenamed
             were
             hanged
             for
             breaking
             of
             Yards
             ,
             yet
             there
             is
             no
             warrant
             ,
             therefore
             by
             that
             Act
             ,
             though
             there
             be
             for
             breaking
             of
             Dove-coats
             and
             Parks
             ,
             and
             so
             we
             may
             perceive
             ,
             that
             the
             former
             act
             is
             not
             abrogated
             by
             this
             Act
             :
             And
             this
             Act
             declares
             ,
             that
             the
             punishment
             here
             prescribed
             shall
             be
             without
             prejudice
             to
             call
             the
             defenders
             at
             Justice
             Courts
             ,
             and
             all
             the
             innovation
             introduced
             by
             this
             act
             ,
             is
             that
             the
             offender
             may
             be
             tryed
             in
             thir
             cases
             ,
             by
             the
             Barron
             ,
             or
             Lands-lord
             ,
             within
             whose
             Lands
             the
             wrong
             was
             committed
             ,
             if
             the
             offender
             be
             taken
             reid
             hand
             ,
             (
             whereas
             Land-lords
             are
             not
             Judges
             competent
             )
             and
             by
             the
             Sheriff
             if
             they
             be
             not
             taken
             reid
             hand
             .
             2.
             
             There
             is
             allowed
             by
             this
             Act
             ,
             a
             power
             to
             Land-lords
             ,
             to
             Judge
             in
             the
             case
             of
             wrongs
             done
             to
             their
             own
             Tennants
             ,
             which
             regulariter
             was
             not
             lawful
             .
             It
             is
             likewise
             observable
             ,
             that
             this
             and
             the
             12
             
               Act
               ,
               I.
            
             5.
             p.
             4.
             adds
             still
             without
             the
             good-will
             of
             the
             owner
             .
             So
             that
             I
             think
             ,
             that
             albeit
             the
             owners
             declaration
             be
             not
             sufficient
             to
             absolve
             the
             thief
             in
             other
             cases
             ,
             yet
             I
             think
             it
             is
             in
             this
             case
             ,
             and
             that
             for
             these
             two
             reasons
             ,
             because
             this
             statutory
             theft
             ,
             is
             only
             introduced
             in
             favours
             of
             the
             owners
             ,
             and
             this
             Clause
             had
             else
             been
             uncnecessar
             .
             2.
             
             It
             is
             presumable
             that
             the
             owner
             would
             not
             refuse
             his
             consent
             to
             kill
             a
             Deer
             or
             Coney
             ,
             and
             this
             we
             may
             observe
             ,
             that
             the
             words
             
               invito
               domino
            
             ,
             in
             the
             definition
             of
             theft
             ,
             are
             not
             absolutly
             ●●●ecessary
             ,
             as
             many
             Lawyers
             carpingly
             observe
             ,
             and
             that
             in
             some
             cases
             ,
             the
             consent
             
             of
             the
             owner
             may
             defend
             the
             Party
             .
             8.
             
             It
             may
             be
             observed
             from
             this
             Act
             ,
             that
             theft
             should
             be
             proved
             by
             confession
             or
             witnesses
             ,
             and
             though
             other
             crimes
             may
             be
             proved
             by
             presumptions
             ,
             yet
             this
             should
             not
             ,
             seing
             death
             is
             so
             exorbitant
             a
             punishment
             .
             4.
             
             It
             is
             observable
             ,
             that
             the
             Sheriff-depute
             ,
             or
             other
             Deputs
             ,
             may
             sit
             in
             cases
             belonging
             to
             the
             Sheriff
             himself
             ,
             and
             that
             the
             Declinatur
             which
             is
             sufficient
             against
             the
             one
             ,
             excludes
             not
             the
             other
             .
             To
             take
             Doves
             also
             ,
             which
             belongs
             to
             their
             Dove-coats
             ,
             or
             to
             kill
             them
             ,
             is
             repute
             theft
             ,
             
               l.
               Pomponius
               .
               §
               .
               Pomponius
               ff
               .
               fam
               .
               erisc
               .
            
             and
             by
             the
             Doctors
             ,
             
               Chass
               .
               fol.
            
             1484.
             for
             seing
             these
             creatures
             are
             ordinarly
             tame
             now
             ,
             and
             that
             by
             the
             custome
             especially
             of
             the
             low
             Countries
             there
             are
             few
             or
             no
             wild
             Doves
             ,
             it
             follows
             that
             it
             should
             be
             unlawful
             to
             kill
             or
             shoot
             them
             ,
             as
             it
             is
             to
             shoot
             or
             hunt
             other
             wild
             beasts
             :
             The
             stealing
             likewise
             of
             Bees
             ,
             which
             are
             kept
             in
             hives
             ,
             was
             accompted
             theft
             ,
             
               l.
               Pomponius
               .
               §
               .
               Pomponius
               .
               ff
               .
               fam
               .
               erisc
               .
            
             and
             by
             the
             Law
             of
             
               Germanie
               ,
               Berlich
               .
               conclus
            
             .
             50.
             
             For
             which
             though
             an
             arbitrary
             punishment
             should
             be
             regularly
             inflicted
             ,
             yet
             if
             the
             Bees
             stoln
             be
             of
             great
             value
             ,
             or
             if
             the
             committer
             has
             been
             frequently
             deprehended
             in
             the
             like
             guilt
             ,
             then
             the
             Doctors
             are
             of
             opinion
             ,
             that
             even
             stealing
             of
             Bees
             may
             be
             punished
             by
             death
             ,
             
               Iac.
               de
               Bellovis
               .
               pract
               .
               crim
               .
               Cap.
            
             20.
             num
             .
             32.
             but
             I
             think
             our
             Law
             juster
             ,
             which
             considers
             more
             the
             habit
             of
             the
             offender
             ,
             then
             the
             greatnesse
             of
             the
             offence
             .
             Stealers
             likewise
             of
             Pyks
             out
             of
             stanks
             ,
             was
             forbidden
             ,
             but
             not
             punished
             by
             the
             Civil
             Law
             ,
             but
             by
             the
             custom
             of
             all
             Nations
             ,
             it
             is
             now
             punished
             arbitrarly
             according
             to
             the
             differing
             circumstances
             .
             
               Berlich
               .
               conclus
            
             .
             51.
             
          
           
             XVI
             .
             Art
             and
             part
             depends
             in
             this
             ,
             as
             in
             other
             crimes
             ,
             upon
             circumstances
             ,
             but
             the
             ordinary
             rules
             prescribed
             by
             
               Farinaicius
               quest
            
             .
             168.
             are
             ,
             1.
             
             That
             he
             who
             gives
             counsel
             ,
             or
             perswades
             to
             steal
             ,
             ●●●unishable
             as
             the
             Thief
             .
             2.
             
             He
             who
             assists
             ,
             especiall●
             〈◊〉
             partake
             of
             the
             Theft
             ,
             is
             guilty
             ,
             though
             he
             be
             not
             actually
             present
             .
             3.
             
             He
             who
             recepts
             the
             thing
             stoln
             
             by
             the
             Civil
             Law
             ,
             conatus
             ,
             or
             a
             designe
             and
             essay
             to
             steal
             ,
             if
             no
             theft
             was
             committed
             ,
             was
             not
             punishable
             as
             Theft
             ,
             
               l.
               vulgaris
               ff
               .
               de
               furt
               .
            
             where
             it
             is
             said
             ,
             that
             he
             who
             entred
             another
             mans
             Closet
             upon
             designe
             to
             steal
             ,
             if
             he
             touched
             nothing
             ,
             is
             only
             punishable
             
               actione
               injuriarum
               si
               sine
               vi
               ,
               vel
               de
               visi
               ,
               vi
               intravit
               .
            
             And
             with
             us
             ,
             I
             think
             that
             essaying
             to
             steal
             ,
             should
             not
             be
             punished
             with
             death
             ,
             seing
             the
             essayer
             might
             have
             repented
             ,
             and
             seing
             
               furtum
               est
               contrectatio
               rei
               alienae
            
             ,
             so
             before
             he
             touch
             any
             thing
             ,
             I
             think
             he
             cannot
             be
             called
             ,
             nor
             conscionably
             punished
             as
             a
             Thief
             .
             He
             who
             shews
             the
             way
             to
             a
             Thief
             is
             not
             a
             Thief
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             But
             with
             us
             this
             might
             be
             esteemed
             art
             and
             part
             by
             that
             Law
             likewise
             ,
             if
             one
             broke
             the
             gate
             upon
             revenge
             ,
             and
             another
             entered
             and
             stole
             ,
             the
             breaker
             of
             the
             gate
             would
             not
             be
             lyable
             for
             Theft
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             l.
             53.
             
             
               Basil.
               h.
               t.
            
             and
             yet
             I
             think
             ,
             that
             he
             who
             brake
             the
             gate
             would
             be
             lyable
             for
             the
             price
             of
             the
             things
             so
             stoln
             ,
             because
             he
             occasioned
             by
             unlawfull
             means
             the
             things
             to
             be
             stoln
             :
             Law
             has
             determined
             generally
             ,
             that
             
               ut
               furtum
               nemo
               facit
               sine
               dolo
               malo
               ita
               nec
               opem
               ,
               &
               consilium
               fert
               sine
               dolo
               malo
               ,
               &
               is
               consilium
               dat
               qui
               furtum
               persuadet
               ,
               &
               is
               opem
               fert
               qui
               ministerium
               furto
               praebet
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             And
             I
             conceive
             that
             there
             is
             in
             Law
             and
             reason
             ,
             a
             great
             difference
             to
             be
             put
             betwixt
             these
             crimes
             ,
             which
             are
             only
             committed
             against
             our
             fortunes
             ,
             and
             in
             cases
             which
             may
             be
             repaired
             ;
             wherein
             actual
             loss
             should
             be
             more
             considered
             then
             attempts
             ,
             and
             these
             which
             are
             irrepairable
             ,
             when
             committed
             ,
             and
             are
             attrocious
             ,
             and
             concern
             the
             safety
             of
             our
             persons
             ,
             wherein
             attempts
             should
             be
             highly
             punished
             .
          
           
             If
             he
             whose
             goods
             are
             stoln
             ,
             does
             require
             the
             master
             of
             the
             Thief
             ,
             or
             him
             in
             whose
             obeisance
             he
             is
             or
             with
             whom
             he
             is
             found
             ,
             to
             deliver
             him
             up
             to
             him
             ,
             tha●●●●tice
             may
             be
             done
             
             upon
             him
             ,
             the
             master
             or
             sustainer
             of
             the
             Thief
             ,
             should
             either
             deliver
             him
             up
             ,
             or
             present
             him
             to
             justice
             ,
             else
             he
             is
             guilty
             of
             the
             crime
             ,
             and
             art
             and
             part
             thereof
             ,
             I.
             5.
             p.
             2.
             
             Act.
             2.
             
             And
             albeit
             the
             word
             obeisance
             ,
             here
             used
             ,
             would
             seem
             to
             include
             vassals
             ,
             yet
             it
             should
             not
             extend
             to
             these
             ,
             seing
             it
             is
             restricted
             by
             the
             act
             to
             masters
             and
             sustainers
             ,
             and
             by
             sustainers
             ,
             are
             meant
             such
             as
             entertain
             the
             Thief
             at
             bed
             and
             board
             .
          
        
         
           
           
             TITLE
             XX.
             Theft-boot
             and
             Recept
             .
          
           
             
               1.
               
               
                 What
                 is
                 Theft-boot
                 ,
                 and
                 by
                 whom
                 committed
                 .
              
            
             
               2.
               
               
                 What
                 is
                 recept
                 of
                 Theft
              
               .
            
             
               3.
               
               
                 How
                 recept
                 of
                 Theft
                 is
                 punished
                 .
              
            
             
               4.
               
               
                 The
                 principal
                 Thief
                 ought
                 to
                 be
                 discust
                 before
                 the
                 Receptor
                 .
              
            
             
               5.
               
               
                 How
                 the
                 husband
                 is
                 to
                 be
                 punished
                 for
                 what
                 is
                 found
                 with
                 the
                 wife
                 ,
              
               &
               è
               contra
               .
            
             
               6.
               
               
                 How
                 Servants
                 are
                 punishable
                 for
                 the
                 Masters
                 theft
                 .
              
            
             
               7.
               
               
                 How
                 buyers
                 of
                 stoln
                 goods
                 are
                 lyable
                 .
              
            
          
           
             THeft-boot
             is
             committed
             by
             securing
             a
             Thief
             against
             the
             punishment
             due
             by
             Law
             ,
             and
             properly
             it
             is
             when
             Sheriffs
             and
             other
             Judges
             who
             sell
             a
             Thief
             ,
             or
             fyne
             with
             him
             in
             Theftdome
             ,
             committed
             ,
             or
             to
             be
             committed
             .
             P.
             13.
             
             I.
             6.
             
             Act
             137.
             and
             the
             Lord
             of
             regality
             ,
             committing
             this
             crime
             ,
             losses
             his
             Regalities
             and
             Barronies
             ,
             
               id
               est
            
             ,
             his
             Offices
             and
             Jurisdictions
             ,
             as
             Lord
             of
             Regality
             ,
             and
             as
             Barron
             ,
             and
             the
             Justices
             and
             the
             Sheriffs
             loss
             life
             and
             goods
             .
             Theft-boot
             is
             also
             committed
             by
             any
             other
             person
             who
             takes
             a
             ransome
             from
             a
             Thief
             ,
             when
             he
             finds
             him
             with
             the
             fang
             .
             3.
             
             When
             a
             party
             who
             was
             leas'd
             ,
             transacts
             with
             the
             Thief
             ,
             and
             passing
             from
             the
             pursuite
             which
             is
             punishable
             ,
             because
             the
             publick
             being
             by
             the
             crime
             wronged
             as
             
             well
             as
             he
             ,
             and
             his
             Majesty
             having
             
               jus
               quaesitum
            
             to
             the
             moveables
             of
             the
             offender
             ;
             it
             is
             unjust
             ,
             that
             any
             private
             Party
             should
             have
             it
             in
             his
             power
             to
             indemnify
             the
             transgressor
             :
             and
             albeit
             thir
             two
             last
             species
             of
             Theft
             be
             not
             expresly
             contained
             in
             the
             Act
             ,
             yet
             seeing
             the
             act
             bears
             ,
             that
             Lords
             of
             regalities
             ,
             Sherriffs
             ,
             nor
             others
             ,
             shall
             not
             sell
             ,
             &c.
             under
             the
             word
             :
             others
             generally
             all
             transgressors
             are
             comprehended
             ,
             and
             by
             the
             2.
             
             Act
             1.
             
             
               P.
               I.
            
             5.
             it
             is
             declared
             ,
             that
             he
             who
             transacts
             with
             a
             Thief
             ,
             for
             Theft
             committed
             against
             himself
             ,
             shall
             be
             guilty
             of
             Theft-boot
             ,
             and
             shall
             be
             punishable
             as
             the
             principal
             Thief
             ,
             from
             which
             it
             appears
             ,
             that
             the
             punishment
             of
             Theft-boot
             in
             private
             persons
             ,
             is
             the
             same
             with
             the
             punishment
             of
             the
             thief
             ,
             whereas
             in
             the
             first
             
               Act.
               P.
            
             13.
             
             I.
             6.
             there
             is
             no
             punishment
             statuted
             against
             private
             persons
             who
             are
             guilty
             of
             Theft-boot
             ,
             only
             against
             Judges
             transacting
             or
             ransoming
             ,
             and
             
               Skeen
               ,
               verb.
               Bote.
            
             defines
             .
             Theft-boot
             to
             be
             when
             any
             person
             agrees
             with
             a
             Thief
             ,
             or
             puts
             him
             from
             the
             Law.
             And
             yet
             I
             remember
             that
             in
             Ian.
             1665.
             
             
               Angus
               Mackintosh
            
             ,
             being
             pursued
             by
             the
             Sheriffe
             Depute
             of
             Inverness
             ,
             for
             Theft-boot
             ,
             as
             he
             who
             had
             componed
             with
             a
             Thief
             who
             had
             stoln
             some
             meal
             from
             him
             ;
             the
             Lords
             of
             Session
             did
             Advocat
             this
             pursuite
             to
             themselves
             ,
             because
             they
             thought
             this
             crime
             of
             Theft-boot
             in
             desuetude
             ,
             and
             therefore
             they
             resolved
             to
             hear
             it
             themselves
             ,
             that
             they
             might
             clearly
             determine
             what
             Theft-boot
             was
             ,
             and
             how
             far
             it
             was
             to
             be
             extended
             .
          
           
             II.
             The
             Civil
             Law
             knew
             not
             such
             distinct
             crime
             as
             recept
             of
             Theft
             ,
             but
             it
             was
             comprehended
             under
             the
             definition
             of
             Theft
             ,
             for
             recept
             is
             defined
             to
             be
             
               occultatio
               latronum
               vel
               malt
               ●●oorum
               ab
               eo
               qui
               latronem
               apprehendere
               poterat
               pecunia
               vel
               surreptorum
               parte
               accepta
               ,
               l.
            
             1.
             
               ff
               .
               de
               recept
            
             :
             it
             is
             the
             wilful
             concealing
             or
             protecting
             a
             Thief
             by
             him
             who
             might
             have
             taken
             and
             apprehended
             him
             ,
             and
             that
             either
             for
             money
             ,
             or
             a
             part
             of
             the
             stoln
             goods
             ,
             from
             which
             definition
             it
             may
             be
             inferred
             ,
             1.
             
             That
             such
             as
             lodge
             Thieves
             in
             Inns
             ,
             are
             not
             lyable
             for
             recept
             ,
             
             except
             it
             be
             likewise
             proved
             that
             they
             knew
             the
             person
             lodged
             to
             have
             stoln
             goods
             ,
             which
             ignorance
             will
             not
             excuse
             ,
             if
             it
             be
             affected
             and
             designed
             ignorance
             ,
             as
             if
             all
             the
             neighbours
             knew
             ,
             or
             if
             it
             was
             intimat
             to
             them
             ,
             or
             if
             any
             person
             offered
             to
             inform
             ,
             and
             the
             Inn-keeper
             would
             not
             know
             ,
             or
             if
             the
             guest
             offered
             an
             extraordinary
             reward
             ,
             or
             offered
             to
             bribe
             servants
             ,
             or
             kept
             a
             very
             jealous
             watch
             ,
             which
             presumptions
             may
             infer
             an
             arbitrary
             punishment
             ,
             but
             not
             death
             .
             2.
             
             It
             may
             be
             inferred
             that
             the
             lodging
             a
             kinsman
             ,
             a
             wife
             or
             husbands
             entertaining
             one
             another
             ,
             will
             not
             inferr
             recept
             ,
             because
             that
             is
             presumed
             to
             be
             done
             rather
             ,
             out
             of
             love
             ,
             then
             avarice
             or
             
               dole
               ,
               l.
            
             2
             
               ff
               .
               de
               recept
            
             ,
             which
             was
             extended
             as
             Chassan
             .
             observes
             ,
             rubr
             .
             1.
             
             §
             .
             5.
             
             N.
             13.
             to
             a
             Mistris
             concealing
             her
             sweet-heart
             :
             In
             all
             which
             cases
             the
             receptors
             are
             only
             to
             be
             excused
             ,
             if
             they
             communicat
             not
             in
             the
             Theft
             ,
             for
             else
             they
             are
             to
             be
             punished
             as
             Thieves
             ,
             for
             that
             is
             not
             the
             effect
             of
             love
             ,
             but
             of
             fraud
             .
          
           
             III.
             Recept
             of
             theft
             with
             us
             ,
             is
             punishable
             as
             the
             principal
             thief
             ,
             Stat.
             21.
             
             Alex.
             2.
             
             Where
             it
             is
             said
             ,
             that
             whosoever
             shall
             recept
             the
             thing
             stoln
             willingly
             and
             knowingly
             ,
             he
             shall
             be
             punished
             as
             the
             principal
             Thief
             ;
             and
             from
             this
             it
             may
             be
             concluded
             ,
             that
             recept
             with
             us
             ,
             is
             properly
             ,
             when
             the
             thing
             stoln
             is
             recepted
             ,
             and
             not
             when
             the
             stealer
             without
             the
             Theft
             is
             receipted
             ;
             for
             to
             as
             the
             recepting
             of
             the
             Thief
             ,
             it
             appears
             only
             to
             be
             punishable
             ,
             when
             Letters
             of
             Intercommuning
             are
             published
             ,
             prohibiting
             all
             the
             Leidges
             to
             recept
             or
             fortifie
             a
             malefactor
             ,
             else
             Letters
             of
             Intercommuning
             were
             unnecessary
             ;
             nor
             see
             I
             why
             the
             receptor
             of
             a
             Thief
             should
             be
             in
             a
             worse
             condition
             then
             the
             receptor
             of
             a
             Murderer
             ;
             and
             our
             practice
             speaks
             still
             of
             recept
             of
             Theft
             ,
             not
             of
             Thieves
             ,
             at
             least
             recept
             of
             this
             nature
             falls
             not
             under
             this
             special
             crime
             ,
             but
             only
             under
             the
             Thief
             general
             crime
             of
             recepting
             malefactors
             ,
             but
             if
             the
             receptor
             of
             a
             take
             money
             ,
             or
             good
             deed
             ,
             for
             the
             recepting
             even
             his
             person
             ,
             
               eo
               casu
            
             ,
             he
             is
             guilty
             of
             Theft-boot
             ,
             but
             by
             the
             21.
             
             
               Act
               P.
            
             1.
             
             I.
             6.
             
             
             It
             is
             declared
             ,
             that
             whosoever
             intercommuns
             with
             Thieves
             ,
             or
             assists
             them
             in
             their
             theftous
             stealings
             ,
             or
             deeds
             ,
             either
             in
             going
             ,
             or
             coming
             ,
             or
             gives
             them
             meat
             ,
             harbour
             ,
             or
             assistance
             ,
             or
             trysts
             with
             them
             any
             manner
             of
             way
             ,
             they
             shall
             be
             pursued
             ,
             either
             Civilly
             ,
             or
             Criminally
             ;
             but
             this
             act
             strikes
             not
             against
             such
             as
             have
             entertained
             the
             Thief
             any
             considerable
             time
             ,
             after
             the
             committing
             of
             the
             Theft
             ,
             and
             before
             Letters
             of
             Intercommuning
             were
             execute
             .
          
           
             IV.
             The
             receptor
             with
             us
             cannot
             be
             punished
             ,
             or
             thole
             an
             Assize
             ,
             till
             the
             principal
             thief
             be
             first
             convict
             ;
             for
             if
             he
             be
             assoilzied
             ,
             the
             receptor
             cannot
             be
             punished
             ,
             
               Stat.
               David
            
             2.
             cap.
             29.
             but
             by
             the
             83.
             
               cap.
               quon
               .
               attach
            
             .
             it
             was
             only
             declared
             that
             the
             receptor
             should
             not
             be
             punished
             till
             the
             principal
             was
             either
             convict
             or
             attained
             ,
             
               i.
               e.
            
             accused
             with
             us
             .
             Now
             it
             is
             inviolably
             observed
             ,
             that
             the
             principal
             thief
             should
             be
             first
             discussed
             ,
             as
             was
             found
             〈…〉
             and
             in
             Anno
             1663.
             a
             verdict
             against
             
               George
               Grahame
            
             ,
             before
             the
             Justices
             ,
             finding
             him
             guilty
             of
             fraudulent
             using
             of
             a
             Bond
             ,
             was
             rescinded
             ,
             because
             the
             principal
             thief
             was
             not
             first
             discussed
             :
             the
             case
             was
             this
             ,
             Achmuty
             ,
             granted
             a
             Bond
             to
             the
             Lady
             Bairfoot
             ,
             for
             eight
             hundreth
             Merks
             ,
             she
             assigned
             it
             to
             George
             ,
             but
             thereafter
             payed
             him
             another
             way
             ,
             and
             retired
             the
             Assignation
             ,
             and
             after
             this
             she
             put
             both
             Bond
             and
             Assignation
             in
             a
             Bonnet
             case
             ;
             and
             George
             having
             come
             by
             the
             bond
             (
             as
             he
             pretended
             from
             Mistris
             Billing
             ,
             Daughter
             to
             the
             Lady
             ,
             who
             alledged
             she
             had
             got
             it
             from
             her
             Mother
             for
             debt
             )
             he
             sends
             it
             to
             Ireland
             ,
             and
             recovers
             payment
             ,
             whereupon
             he
             was
             pursued
             for
             fraudulent
             using
             ,
             and
             recept
             ,
             and
             his
             discharge
             of
             the
             former
             assignation
             was
             produced
             ,
             and
             the
             Bond
             was
             proven
             to
             have
             been
             in
             the
             Ladies
             custody
             .
             Whereupon
             he
             was
             convict
             by
             the
             Assize
             ,
             but
             this
             verdict
             was
             rescinded
             with
             the
             Justices
             Interloquutor
             ,
             because
             the
             Libel
             was
             not
             relevant
             ,
             till
             Master
             and
             Mistris
             Billings
             ,
             had
             been
             first
             discust
             ,
             and
             the
             verdict
             was
             unjust
             ,
             because
             it
             was
             not
             proved
             that
             they
             saw
             
               George
               Grhame
            
             
             deliver
             back
             the
             Bond
             ,
             and
             the
             general
             discharge
             might
             have
             been
             given
             ,
             
               spenumerandae
               pecuniae
            
             :
             and
             if
             such
             using
             as
             this
             might
             be
             termed
             Theft
             ,
             all
             actions
             of
             exhibitions
             would
             be
             turned
             in
             pursuits
             for
             theft
             .
          
           
             But
             it
             may
             be
             doubted
             ,
             whether
             if
             the
             Principal
             Thief
             dye
             ,
             the
             receptor
             may
             be
             punished
             ,
             seeing
             after
             death
             the
             Principal
             theft
             cannot
             be
             enquired
             into
             ,
             for
             though
             that
             priviledge
             be
             granted
             ,
             
               quo
               ad
            
             the
             discussion
             ,
             yet
             it
             inferrs
             no
             indemnity
             to
             the
             receptor
             ;
             and
             we
             see
             ,
             that
             where
             the
             benefite
             of
             discussion
             is
             granted
             to
             Heirs
             or
             Cautioners
             ,
             he
             who
             hath
             the
             benefite
             may
             be
             pursued
             ,
             if
             the
             party
             who
             would
             have
             been
             first
             discust
             ,
             be
             ,
             
               in
               solvendo
            
             ,
             and
             the
             reason
             of
             this
             maxim
             should
             hold
             ,
             when
             the
             Principal
             Thief
             is
             alive
             ,
             and
             not
             when
             he
             is
             dead
             ,
             is
             ,
             because
             it
             is
             presumable
             that
             the
             pursuer
             is
             malicious
             against
             the
             receptor
             ,
             for
             else
             he
             would
             doubtlesse
             pursue
             the
             Malefactor
             who
             did
             the
             most
             immediat
             wrong
             to
             him
             ,
             which
             it
             is
             probable
             the
             receptor
             knew
             not
             .
             It
             may
             be
             also
             doubted
             ,
             if
             the
             Thief
             dwell
             in
             England
             ,
             or
             in
             France
             ,
             whether
             the
             pursuer
             must
             first
             discusse
             him
             .
          
           
             V.
             If
             the
             thing
             stoln
             by
             the
             wife
             ,
             be
             found
             with
             the
             husband
             ,
             he
             is
             not
             to
             be
             punished
             ,
             except
             he
             expresly
             promise
             to
             defend
             his
             wife
             ,
             or
             warrand
             her
             ;
             but
             if
             the
             thing
             stoln
             by
             the
             husband
             be
             found
             under
             the
             wifes
             keys
             ,
             or
             under
             her
             care
             ,
             she
             is
             punishable
             as
             a
             thief
             ,
             
               Stat.
               Wil.
               c.
            
             19.
             
               &
               quon
               .
               attach
               .
               c.
            
             12.
             but
             these
             Chapters
             are
             confused
             ,
             and
             
               de
               practica
            
             both
             man
             and
             wife
             are
             lyable
             ,
             if
             they
             were
             accessory
             to
             any
             other
             Thefts
             ,
             but
             no
             otherwise
             .
          
           
             Albeit
             the
             concealing
             of
             Theft
             be
             Criminal
             in
             others
             ,
             yet
             it
             is
             not
             so
             in
             a
             wife
             ,
             ibid.
             And
             yet
             the
             husbands
             authority
             is
             said
             not
             to
             be
             sufficient
             ,
             to
             defend
             her
             in
             atrocious
             crimes
             ,
             though
             she
             be
             obliedged
             ,
             generally
             to
             obey
             him
             ,
             ibid.
             From
             which
             it
             may
             be
             observed
             ,
             first
             ,
             That
             theft
             is
             accompted
             an
             atrocious
             crime
             ,
             for
             that
             Chapter
             treats
             of
             Theft
             ,
             albeit
             this
             
             be
             much
             controverted
             amongst
             the
             Doctors
             ,
             who
             after
             a
             long
             debate
             ,
             whether
             Statutes
             ordering
             the
             procedor
             in
             atrocious
             crimes
             ,
             generally
             should
             be
             extended
             to
             Theft
             ,
             which
             they
             refer
             to
             the
             arbitration
             of
             the
             Judge
             ,
             who
             is
             to
             Judge
             according
             to
             circumstances
             .
             And
             certainly
             ,
             picking
             ,
             or
             petty
             Theft
             ,
             is
             not
             an
             atrocious
             crime
             ,
             except
             where
             the
             Thief
             made
             a
             trade
             of
             it
             ▪
             amongst
             other
             instances
             of
             this
             ,
             I
             shall
             only
             cite
             
               Robert
               Lauder
            
             ,
             who
             was
             only
             banished
             for
             theft
             and
             pickry
             ,
             anno
             1638.
             but
             theft
             joyned
             with
             violence
             and
             rapin
             ,
             stouth-reif
             is
             atrocious
             .
             2.
             
             It
             is
             observable
             from
             that
             text
             ,
             that
             in
             crimes
             that
             are
             not
             atrocious
             ,
             
               per
               argumentum
               à
               contrario
            
             ,
             obedience
             to
             the
             husband
             ,
             excuses
             the
             wife
             .
          
           
             VI.
             It
             is
             statuted
             ,
             v.
             9.
             that
             servants
             are
             obliedged
             to
             reveal
             their
             masters
             theft
             ,
             else
             they
             are
             guilty
             .
             From
             which
             it
             may
             be
             debated
             ,
             that
             a
             servant
             who
             left
             his
             masters
             service
             immediatly
             ,
             though
             he
             was
             in
             company
             with
             him
             at
             the
             cōmitting
             of
             theft
             ,
             is
             not
             punishable
             for
             his
             being
             in
             company
             ,
             since
             he
             might
             have
             been
             brought
             upon
             the
             place
             without
             knowing
             his
             Masters
             design
             ,
             and
             being
             there
             ,
             durst
             not
             to
             have
             refused
             concurse
             upon
             such
             accompt
             .
             I
             saw
             some
             servants
             Assoilzied
             by
             the
             Council
             from
             death
             ,
             they
             having
             left
             their
             Masters
             service
             ,
             as
             said
             is
             ,
             though
             they
             revealed
             not
             the
             Theft
             ,
             which
             they
             might
             have
             omitted
             ,
             either
             through
             fear
             ,
             or
             want
             of
             probation
             .
          
           
             VII
             .
             Recept
             then
             is
             punished
             as
             Theft
             ,
             which
             must
             be
             meant
             only
             of
             immediat
             recept
             ,
             for
             the
             mediat
             sellers
             of
             goods
             belonging
             to
             thieves
             or
             inobedient
             persons
             ,
             who
             dare
             not
             come
             to
             Mercat
             themselves
             ,
             are
             only
             punishable
             by
             banishment
             ,
             and
             confiscation
             of
             their
             moveables
             ,
             the
             half
             whereof
             is
             to
             belong
             to
             the
             King
             ,
             and
             the
             other
             half
             to
             the
             Suiter
             .
             And
             from
             this
             act
             may
             be
             raised
             these
             two
             doubts
             ,
             1.
             
             If
             this
             act
             should
             strike
             against
             the
             receptors
             of
             any
             other
             goods
             ,
             then
             these
             of
             Highland
             Thieves
             ,
             seing
             the
             act
             speaks
             of
             thieves
             who
             cannot
             come
             themselves
             to
             Lowland
             Mercats
             ,
             whereby
             the
             acts
             made
             against
             Sornars
             of
             Clans
             ,
             cannot
             be
             put
             to
             execution
             ,
             yet
             surely
             
             this
             Act
             strikes
             against
             all
             sellers
             of
             goods
             belonging
             to
             any
             thieves
             ,
             seing
             the
             reason
             is
             the
             same
             ,
             Theft
             being
             thereby
             promoved
             ,
             and
             the
             statuto●y
             words
             run
             disjunctively
             against
             the
             Sellers
             of
             goods
             belonging
             to
             Thieves
             in
             general
             ,
             
               &
               ubi
               lex
               non
               distinguit
               nec
               nos
               ,
            
             or
             inobedient
             persons
             and
             Clanns
             .
             2.
             
             It
             may
             be
             doubted
             ,
             if
             this
             act
             should
             reach
             the
             sellers
             of
             goods
             belonging
             to
             any
             other
             Malefactors
             ,
             seing
             the
             Rubrick
             speaks
             generally
             of
             sellers
             of
             goods
             belonging
             to
             Malefactors
             :
             And
             some
             think
             ,
             that
             if
             any
             Malefactor
             be
             at
             the
             Horn
             ,
             the
             sellers
             of
             his
             goods
             may
             be
             punished
             by
             this
             act
             .
          
        
         
           
           
             TITLE
             XXI
             .
             Hame-sucken
             .
          
           
             
               1.
               
               
                 What
                 priviledge
                 the
              
               Romans
               
                 gave
                 to
                 a
                 mans
                 own
                 house
                 .
              
            
             
               2.
               
               
                 What
                 is
                 Hame-sucken
                 ,
                 and
                 the
                 several
                 kinds
                 thereof
                 .
              
            
             
               3.
               
               
                 The
                 punishment
                 of
                 this
                 crime
              
               .
            
             
               4.
               
               
                 How
                 Hame-sucken
                 is
                 punished
                 ,
                 when
                 it
                 is
                 only
                 pursued
                 by
                 way
                 of
                 aggravation
                 .
              
            
          
           
             BY
             how
             much
             the
             person
             offended
             lives
             securely
             ,
             by
             so
             much
             all
             invasions
             made
             upon
             that
             security
             are
             the
             more
             severely
             punishable
             ;
             and
             therefore
             ,
             seeing
             a
             man
             expects
             more
             security
             ,
             and
             is
             least
             guarded
             against
             violence
             ,
             whilst
             he
             lives
             peaceable
             at
             home
             ,
             the
             Law
             punishes
             more
             severely
             injuries
             done
             him
             there
             then
             elsewhere
             :
             and
             it
             is
             very
             presumable
             ,
             that
             no
             person
             would
             enter
             anothers
             house
             ,
             with
             a
             designe
             to
             offend
             him
             ,
             or
             would
             offend
             him
             there
             upon
             any
             accompt
             ,
             except
             he
             who
             had
             very
             much
             malice
             and
             prejudice
             against
             him
             :
             For
             by
             injuries
             committed
             against
             a
             person
             in
             his
             own
             house
             ,
             not
             only
             the
             publick
             peace
             ,
             but
             even
             the
             Lawes
             of
             hospitality
             are
             offended
             .
          
           
             I.
             According
             to
             the
             Civil
             Law
             ,
             no
             man
             could
             have
             been
             drawn
             out
             of
             his
             ownhouse
             ,
             nor
             could
             have
             been
             cited
             therein
             ,
             
               l.
               ff
            
             .
             18.
             
               de
               injus
               vocando
               plerique
               putaverunt
               nullum
               de
               domo
               sua
               injus
               vocare
               licere
               &
               quia
               domus
               tutissimum
               cuique
               refugium
               receptaculum
               est
               eumquequi
               inde
               in
               jus
               vocaret
               vim
               inferre
               videri
               .
            
             But
             
             I
             believe
             the
             reason
             of
             this
             Law
             was
             ,
             because
             
               vocatio
               in
               jus
            
             ,
             was
             at
             that
             time
             used
             ,
             not
             by
             a
             simple
             citation
             ,
             as
             now
             ,
             but
             
               obterto
               collo
            
             ,
             and
             by
             dragging
             the
             defender
             to
             the
             Court.
             For
             else
             it
             is
             not
             imaginable
             how
             the
             citing
             a
             person
             at
             his
             house
             could
             infer
             violence
             ,
             or
             ryot
             against
             the
             citer
             :
             but
             though
             this
             Law
             is
             now
             so
             farr
             antiquated
             by
             custom
             ,
             that
             any
             person
             whatsoever
             ,
             may
             be
             cited
             in
             his
             own
             house
             ,
             and
             may
             be
             violently
             drawn
             forth
             thereof
             by
             Captions
             in
             Civil
             cases
             ,
             and
             warands
             in
             Criminal
             :
             Yet
             so
             pungent
             is
             the
             reason
             insert
             in
             that
             Law
             ,
             that
             
               domus
               cuique
               tutissimum
               refugium
               atque
               receptaculum
               est
               ,
            
             which
             is
             likewise
             repeated
             ,
             l.
             1.
             
             
               C.
               de
               pretor
               &
               honor
               ,
               pretor
               :
            
             That
             it
             being
             joyned
             with
             the
             former
             reasons
             above
             expressed
             ,
             hath
             introduced
             that
             by
             the
             statutes
             of
             the
             greatest
             part
             of
             the
             world
             ,
             
               gravior
               estimatur
               injuria
               alicui
               facta
               in
               domo
               sua
               quam
               alibi
               &
               ideo
               ut
               plurimum
               duplicatur
               paena
               malificii
               commissi
               in
               domo
               offensi
               ,
               Cabal
               .
               consil
               .
               criminal
               .
               casu
            
             13.
             
             Which
             is
             likewise
             consonant
             to
             the
             Civil
             Law
             ,
             whereby
             of
             old
             ,
             the
             entering
             another
             mans
             house
             ,
             
               invito
               domino
            
             ,
             was
             punishable
             as
             a
             crime
             ,
             
               l.
               Corn.
               de
               injuriis
            
             ,
             and
             thereafter
             was
             punishable
             ,
             
               actione
               injuriarum
               ,
               l.
            
             23.
             
               ff
               .
               de
               injur
            
             .
          
           
             II.
             The
             invading
             a
             person
             in
             his
             own
             house
             ,
             with
             us
             is
             called
             Hame-sucken
             ,
             and
             is
             defined
             to
             be
             ,
             when
             any
             person
             violently
             enters
             into
             another
             mans
             house
             without
             licence
             ,
             or
             contrary
             to
             the
             Kings
             peace
             ,
             or
             seeks
             him
             ,
             or
             assaults
             him
             there
             ,
             and
             comes
             from
             a
             Dutch
             word
             Haime
             ,
             which
             signifies
             a
             house
             ,
             and
             Sucken
             ,
             which
             signifies
             to
             seek
             or
             pursue
             :
             Concerning
             which
             crime
             it
             is
             observable
             ,
             That
             1.
             
             It
             either
             may
             be
             pursued
             as
             a
             seperat
             crime
             ,
             or
             as
             the
             aggravation
             of
             another
             crime
             ;
             when
             it
             is
             pursued
             as
             a
             formal
             crime
             ,
             the
             pursuer
             must
             Libel
             that
             he
             was
             invaded
             violently
             ,
             or
             sought
             after
             in
             his
             own
             house
             :
             for
             if
             the
             offender
             did
             come
             in
             upon
             invitation
             ,
             or
             accidentally
             ,
             and
             thereafter
             upon
             an
             emergent
             offended
             or
             invaded
             the
             Master
             of
             the
             house
             ,
             this
             is
             not
             properly
             Hame-sucken
             ,
             seing
             the
             offender
             did
             not
             invade
             or
             sease
             .
             2.
             
             The
             wrong
             
             must
             be
             done
             to
             a
             person
             in
             his
             own
             house
             ,
             that
             is
             to
             say
             ,
             where
             the
             pursuer
             was
             staying
             ,
             lying
             or
             rising
             night
             and
             day
             ,
             
               Reg.
               Maj.
               l.
            
             4.
             cap.
             9.
             v.
             1.
             
             Upon
             which
             place
             Skeen
             observes
             ,
             
               &
               qui
               insultum
               fecitjuxta
               domum
               hac
               lege
               punitur
               Bartol
               ,
               in
               authent
               .
               de
               appell
               .
               §
               .
               ad
               haec
               .
            
             And
             I
             find
             that
             
               Clar.
               quest
            
             .
             82.
             determins
             that
             a
             Statute
             which
             doubles
             the
             pain
             of
             invasion
             ,
             when
             the
             invasion
             is
             made
             in
             the
             house
             of
             a
             Judge
             ,
             or
             Magistrat
             ,
             takes
             place
             not
             only
             against
             invasions
             made
             in
             the
             house
             it self
             ,
             but
             likewise
             made
             in
             the
             confines
             thereof
             ;
             And
             
               Albericus
               de
               statutis
               ,
               l.
            
             2.
             quest
             .
             35.
             extends
             to
             crimes
             forbidden
             in
             places
             ,
             to
             crimes
             committed
             within
             the
             confines
             thereof
             ,
             which
             though
             it
             be
             contradicted
             by
             
               Vincen.
               de
               fran
               .
               decisione
            
             .
             402.
             
             Because
             rigid
             and
             special
             Laws
             are
             strictly
             to
             be
             interpret
             ;
             yet
             I
             think
             ,
             that
             if
             the
             invasion
             was
             made
             in
             any
             place
             that
             properly
             belonged
             to
             the
             house
             ,
             such
             as
             the
             Porch
             ,
             Court
             ,
             Inner
             Court
             ,
             or
             Office-houses
             ,
             that
             invasion
             should
             be
             punished
             as
             Hame-sucken
             ,
             because
             a
             man
             is
             said
             to
             be
             at
             home
             there
             ,
             and
             expects
             as
             much
             security
             there
             (
             which
             is
             the
             reason
             inductive
             of
             the
             Law
             )
             as
             any
             other
             else
             .
             And
             thus
             the
             ordinary
             form
             of
             Libels
             with
             us
             bears
             ,
             that
             the
             pursuer
             was
             invaded
             within
             his
             dwelling
             house
             ,
             or
             precinct
             thereof
             .
             
               Thomas
               Crumbie
            
             ,
             was
             hanged
             ,
             and
             his
             movables
             escheat
             ,
             for
             offering
             to
             strike
             my
             Lady
             Traquair
             with
             a
             drawn
             Sword
             in
             her
             Garden
             ,
             23.
             
             Feb.
             1638.
             but
             if
             the
             place
             wherein
             the
             invasion
             was
             made
             ,
             was
             no
             inclosure
             ,
             and
             so
             adjoyned
             to
             the
             house
             ,
             I
             think
             that
             though
             it
             was
             at
             the
             very
             doore
             of
             the
             house
             ,
             that
             Bart.
             his
             oppinion
             of
             
               juxta
               dominum
            
             ,
             does
             not
             hold
             :
             And
             thus
             a
             Gentle-man
             being
             pursued
             upon
             the
             24.
             of
             Iuly
             1663.
             for
             Hame-sucken
             ,
             in
             swa
             far
             as
             he
             came
             to
             
               Alexander
               Provests
            
             dwelling
             house
             ,
             and
             there
             called
             him
             out
             ,
             and
             forced
             him
             to
             yoak
             his
             Carts
             ,
             and
             scourged
             him
             ;
             The
             Justices
             would
             not
             sustain
             the
             Libel
             as
             Hame-sucken
             ,
             because
             it
             was
             not
             committed
             in
             the
             pursuers
             house
             ,
             though
             it
             was
             done
             at
             the
             house
             door
             ,
             but
             sustained
             it
             as
             oppression
             :
             And
             yet
             I
             think
             that
             if
             it
             had
             been
             
             alledged
             in
             this
             case
             ,
             that
             this
             invasion
             was
             Hamesucken
             ,
             because
             the
             person
             injured
             was
             called
             out
             of
             his
             own
             house
             by
             the
             offender
             ,
             and
             so
             
               quo
               ad
               him
            
             must
             be
             repute
             as
             if
             he
             had
             been
             in
             it
             ;
             The
             Justices
             would
             have
             sustained
             this
             to
             have
             been
             Hame-sucken
             ,
             if
             it
             could
             have
             been
             proved
             that
             the
             wrong
             was
             done
             immediatly
             without
             any
             preveining
             provocation
             ;
             for
             the
             Law
             would
             have
             presumed
             that
             the
             person
             was
             called
             out
             of
             designe
             to
             evite
             the
             quality
             of
             that
             crime
             ,
             
               nec
               debet
               fraus
               sua
               quem
               libet
               adjuvare
               .
            
          
           
             It
             is
             doubted
             if
             a
             mans
             Shop
             is
             to
             be
             accompted
             his
             house
             ,
             to
             inferre
             this
             crime
             ,
             and
             though
             it
             may
             be
             alledged
             ,
             that
             the
             security
             is
             to
             be
             expected
             ,
             as
             well
             in
             the
             one
             ,
             as
             in
             the
             other
             ;
             And
             that
             it
             is
             as
             much
             the
             publicks
             interest
             ,
             that
             Shops
             be
             not
             entered
             ,
             and
             persons
             disturbed
             therein
             ,
             as
             houses
             ,
             for
             thereby
             publick
             commerce
             is
             leised
             ,
             as
             well
             as
             privat
             safety
             ;
             yet
             upon
             the
             other
             hand
             it
             may
             be
             alledged
             ,
             that
             by
             the
             foresaid
             c.
             19.
             v.
             1.
             
             That
             is
             only
             called
             a
             mans
             house
             ,
             where
             he
             uses
             to
             rise
             and
             lye
             :
             And
             amongst
             the
             different
             opinion
             of
             Lawyers
             ,
             I
             find
             this
             reconcealing
             distinction
             used
             ,
             that
             if
             the
             Shop
             be
             adjoyned
             to
             the
             house
             ,
             and
             be
             not
             repute
             a
             different
             house
             ,
             that
             
               eo
               casu
            
             ,
             invasions
             in
             the
             Shop
             inferr
             Hame-sucken
             ,
             otherwayes
             not
             ,
             
               Cabal
               .
               ibid.
            
             where
             he
             likewise
             cites
             
               Saliset
               ,
               Albericus
            
             ,
             and
             others
             ,
             determining
             ,
             that
             if
             a
             man
             have
             two
             houses
             ,
             in
             one
             whereof
             he
             dwells
             not
             with
             his
             family
             ,
             that
             his
             being
             invaded
             in
             that
             house
             makes
             it
             not
             Hame-sucken
             ,
             which
             is
             most
             consonant
             to
             our
             own
             Law
             above-cited
             ,
             which
             requires
             lying
             and
             rising
             ;
             And
             thus
             I
             remember
             that
             in
             Iune
             1669.
             
             
               Thomas
               Sydserf
            
             ,
             having
             pursued
             
               Mungo
               Murray
            
             ,
             &c.
             for
             invading
             him
             in
             his
             Play-house
             ,
             that
             invasion
             was
             not
             punished
             as
             Hame-sucken
             ,
             but
             with
             imprisonment
             .
             Nota
             ,
             the
             former
             Law
             against
             Hame-sucken
             takes
             place
             as
             well
             when
             the
             invasion
             is
             committed
             in
             a
             mans
             hyred
             house
             ,
             as
             his
             own
             ,
             if
             he
             and
             his
             family
             live
             there
             ,
             
               Skeen
               ibid.
               &
               Bartol
               le
               .
               ad
               legem
               jul
               .
               de
               adulteriis
               .
            
          
           
             It
             may
             be
             likewayes
             doubted
             ,
             whether
             the
             beating
             a
             man
             in
             his
             own
             Ship
             ,
             can
             be
             punished
             as
             Hame-sucken
             ,
             since
             a
             man
             
             has
             not
             his
             Family
             there
             ,
             and
             so
             it
             cannot
             be
             called
             properly
             his
             name
             .
             But
             yet
             ,
             I
             belive
             it
             should
             be
             punished
             as
             such
             ,
             since
             it
             is
             the
             ordinary
             place
             of
             a
             Sea-mans
             residence
             :
             And
             thus
             it
             hath
             been
             found
             with
             us
             ,
             that
             a
             Skipper
             may
             prove
             an
             injury
             done
             to
             him
             in
             his
             own
             Ship
             ,
             by
             his
             own
             Servants
             ;
             though
             Servants
             cannot
             prove
             regulariter
             for
             their
             Master
             ,
             except
             in
             the
             case
             of
             Hame-sucken
             .
          
           
             It
             hath
             been
             likewise
             doubted
             ,
             whether
             an
             injury
             done
             to
             an
             Inn-keeper
             ,
             can
             be
             punished
             as
             Hame-sucken
             ,
             when
             done
             to
             him
             by
             such
             as
             lodged
             in
             his
             own
             Inn
             ?
             And
             though
             it
             was
             alalledged
             ,
             that
             this
             was
             a
             greater
             Crime
             ,
             then
             if
             it
             had
             been
             done
             by
             a
             person
             who
             lodged
             not
             there
             ,
             because
             that
             was
             a
             Hame-sucken
             against
             Hospitality
             :
             yet
             because
             an
             Inn
             is
             a
             publick
             House
             ,
             and
             belongs
             as
             well
             to
             the
             Lodgers
             as
             to
             the
             Master
             .
             The
             Justices
             did
             only
             sustain
             this
             as
             a
             great
             Ryot
             ,
             but
             not
             as
             Hame-sucken
             ,
             in
             the
             case
             of
             Meor
             of
             
               Penniglen
               ,
               Anno
            
             1675.
             
          
           
             III.
             The
             punishment
             of
             this
             crime
             is
             the
             same
             with
             the
             ravishing
             of
             women
             ,
             
               R.
               M.
               L.
            
             4.
             cap.
             9
             and
             10.
             
             And
             therefore
             the
             Laws
             made
             against
             ravishing
             of
             women
             ,
             are
             ordinarily
             libelled
             upon
             ,
             there
             being
             no
             special
             punishment
             exprest
             in
             the
             Laws
             against
             Hame-sucken
             ,
             should
             be
             pursued
             within
             a
             night
             after
             it
             is
             committed
             ,
             which
             time
             is
             allowed
             for
             getting
             the
             advice
             of
             friends
             ,
             ibid.
             And
             yet
             in
             the
             former
             case
             of
             the
             Lady
             Traquairs
             ,
             it
             was
             sustained
             after
             two
             moneths
             time
             ,
             and
             doubtlesse
             that
             short
             prescription
             is
             now
             absolet
             ,
             and
             the
             reason
             of
             it
             has
             been
             ,
             because
             it
             being
             punishable
             as
             ravishing
             of
             women
             ,
             it
             hath
             borrowed
             from
             that
             crime
             ,
             the
             necessity
             of
             being
             recently
             pursued
             .
             And
             I
             think
             ,
             that
             though
             the
             foresaid
             short
             prescription
             be
             not
             allowed
             by
             present
             custome
             ,
             yet
             the
             Judge
             should
             consider
             whether
             any
             considerable
             time
             hath
             interveined
             ,
             for
             else
             ,
             
               per
               intervallum
               tempóris
               videtur
               dissimulari
               sicut
               injuria
               dissimulatur
               .
            
             Nor
             is
             it
             probable
             that
             the
             person
             offended
             would
             have
             sitten
             long
             with
             such
             a
             wrong
             ,
             and
             since
             that
             
             crime
             which
             was
             not
             Capital
             of
             its
             own
             nature
             ,
             does
             become
             such
             by
             the
             circumstance
             of
             the
             place
             ,
             it
             is
             reasonable
             that
             the
             person
             accused
             should
             not
             lye
             long
             under
             the
             hazard
             ,
             
               &
               gravatus
               in
               uno
               levandus
               in
               alio
               :
            
             This
             crime
             hath
             likewise
             this
             priviledge
             ,
             that
             it
             may
             be
             proved
             by
             the
             pursuers
             own
             servants
             ,
             friends
             ,
             or
             other
             witnesses
             ,
             who
             are
             otherwise
             lyable
             to
             exception
             ,
             which
             is
             introduced
             not
             only
             upon
             the
             accompt
             of
             necessity
             ,
             but
             likewise
             
               in
               odium
            
             of
             the
             offender
             :
             Not
             were
             it
             possible
             to
             prove
             crimes
             of
             that
             nature
             by
             others
             then
             are
             in
             the
             family
             .
          
           
             IV.
             When
             Hame-sucken
             is
             pursued
             only
             as
             an
             aggravation
             ,
             it
             is
             libelled
             that
             such
             a
             thing
             was
             done
             by
             way
             of
             Hame-sucken
             ,
             and
             the
             punishment
             thereof
             is
             arbitrary
             ,
             
               eo
               casu
            
             ,
             and
             this
             is
             so
             old
             an
             aggravation
             of
             a
             crime
             ,
             that
             David
             ,
             2
             
               Sam.
               chap.
            
             4.
             vers
             .
             11.
             aggravats
             the
             death
             of
             Ishbosheth
             ,
             because
             they
             had
             slain
             him
             in
             his
             own
             house
             ,
             and
             upon
             his
             own
             bed
             .
             The
             Libel
             in
             Hame-sucken
             runs
             thus
             ,
             that
             albeit
             by
             the
             Municipal
             Law
             of
             this
             Kingdom
             ,
             the
             committers
             of
             the
             crime
             of
             Hame-sucken
             ,
             that
             is
             to
             say
             ,
             who
             ever
             invades
             any
             of
             our
             peaceable
             Subjects
             and
             Liedges
             violently
             with
             weapons
             ,
             within
             their
             own
             dwelling
             houses
             ,
             or
             precinct
             thereof
             ,
             contrair
             to
             our
             peace
             ,
             shall
             incur
             and
             underly
             the
             pain
             and
             punishment
             of
             death
             ,
             as
             our
             saids
             Laws
             and
             Acts
             of
             Parliament
             in
             themselves
             proports
             ;
             Notwithstanding
             whereof
             ,
             it
             is
             of
             verity
             ,
             that
             upon
             last
             by-past
             the
             forenamed
             persons
             above-complained
             upon
             ,
             being
             bodden
             in
             fear
             of
             war
             ,
             with
             Sword
             ,
             and
             other
             weapons
             invasive
             ,
             came
             under
             silence
             and
             cloud
             of
             night
             ,
             about
             ten
             hours
             at
             even
             ,
             to
             the
             said
             
               A.
               B.
            
             his
             dwelling
             house
             ,
             where
             he
             was
             quiet
             and
             in
             a
             sober
             manner
             for
             the
             time
             ,
             &c.
             
          
        
         
           
           
             TITLE
             XXII
             .
             Breaking
             of
             Prison
             .
          
           
             
               1.
               
               
                 The
                 punishment
                 of
                 breaking
                 of
                 Prison
                 by
                 the
                 Civil
                 Law
                 ,
                 and
                 ours
                 .
              
            
             
               2.
               
               
                 How
                 the
                 going
                 out
                 of
                 Prison
                 ,
                 when
                 broke
                 by
                 another
                 ,
                 is
                 punishable
                 .
              
            
             
               3.
               
               
                 Whether
                 he
                 is
                 punishable
                 ,
                 if
                 he
                 return
                 .
              
            
             
               4.
               
               
                 How
                 an
                 endeavour
                 to
                 break
                 Prison
                 is
                 punishable
                 .
              
            
             
               5.
               
               
                 How
                 the
                 Master
                 of
                 the
                 Prison
                 is
                 punished
                 ,
                 if
                 the
                 Prisoner
                 escape
                 .
              
            
          
           
             PRisons
             are
             ordained
             to
             keep
             prisoners
             till
             they
             be
             tryed
             ,
             and
             therefore
             he
             who
             breaks
             them
             ,
             does
             more
             then
             tacitely
             acknowledge
             the
             guilt
             ,
             since
             it
             is
             to
             be
             presumed
             that
             if
             he
             were
             innocent
             ,
             he
             would
             think
             himself
             oblidged
             in
             honour
             ,
             as
             well
             as
             interest
             ,
             to
             wait
             till
             he
             were
             absolved
             judicially
             :
             and
             since
             Prisons
             are
             the
             greatest
             securities
             of
             the
             publick
             peace
             ,
             therefore
             to
             break
             them
             is
             a
             kind
             of
             sacriledge
             :
             And
             as
             the
             Walls
             of
             our
             Cities
             are
             sacred
             ,
             because
             they
             defend
             us
             against
             our
             enemies
             ,
             so
             should
             Prisons
             ,
             because
             they
             defend
             us
             against
             our
             wicked
             Countrey-men
             ,
             who
             are
             the
             greatest
             enemies
             of
             the
             Common-wealth
             .
             His
             Majesties
             Advocat
             did
             also
             in
             the
             case
             of
             Hiltoun
             ,
             well
             call
             breaking
             of
             Prison
             a
             publick
             Hame-sucken
             .
          
           
             I.
             The
             breakier
             of
             Prison
             (
             whom
             the
             Civil
             Law
             ,
             calls
             
               effractor
               
               carceris
            
             )
             was
             punished
             
               paena
               capitali
               ,
               l.
            
             1.
             
               ff
               .
               de
               effractor
            
             :
             But
             by
             that
             punishment
             was
             meant
             not
             death
             ,
             for
             that
             were
             too
             severe
             ,
             but
             
               capitis
               diminutio
               est
               mors
               civilis
            
             ;
             and
             in
             effect
             he
             was
             arbitrarly
             punishable
             ,
             except
             he
             were
             a
             Souldier
             ,
             for
             Souldiers
             breaking
             Prison
             were
             punished
             by
             death
             ,
             l.
             13.
             
               ff
               .
               de
               re
               milit
            
             .
             because
             Souldiers
             having
             ordinarily
             more
             courage
             ,
             require
             that
             they
             should
             be
             over-awed
             by
             greater
             punishments
             .
             And
             yet
             I
             know
             ,
             the
             learned
             Matheus
             thinks
             ,
             that
             
               quilibet
               effractor
               carceris
            
             ,
             is
             punishable
             by
             death
             :
             But
             I
             think
             not
             his
             Arguments
             concluding
             ,
             for
             though
             
               Ulp.
               l.
            
             1.
             
               ff
               .
               de
               effract
            
             .
             says
             that
             
               suplicium
               est
               sumendum
            
             ,
             yet
             it
             follows
             not
             ,
             that
             by
             supplicium
             is
             meant
             death
             ,
             since
             all
             the
             glossators
             make
             supplicium
             a
             genus
             ;
             and
             when
             Lawyers
             mean
             death
             by
             it
             ,
             they
             say
             ,
             
               ultimum
               simplicium
            
             .
             And
             though
             Cicero
             sayes
             ,
             that
             
               exilium
               non
               est
               supplicium
               sed
               perfugium
               &
               portus
               supplicii
               ,
            
             he
             speaks
             there
             as
             an
             Orator
             ;
             and
             indeed
             as
             to
             these
             who
             deserv'd
             to
             die
             ,
             banishment
             is
             a
             harbour
             and
             happiness
             .
             Nor
             does
             his
             other
             Argument
             brought
             from
             the
             above-written
             Law
             ,
             concerning
             Souldiers
             ,
             conclude
             ,
             for
             Souldiers
             ,
             as
             I
             observ'd
             ,
             are
             more
             severely
             punishable
             then
             others
             ,
             because
             of
             the
             hazard
             of
             the
             event
             ,
             and
             strictness
             of
             Discipline
             ,
             and
             because
             ,
             as
             I
             observ'd
             ,
             they
             fearless
             ,
             and
             so
             ought
             to
             be
             more
             threatned
             then
             others
             ;
             but
             what
             need
             was
             there
             to
             have
             made
             a
             special
             Law
             for
             Souldiers
             ,
             if
             all
             breakers
             of
             Prison
             were
             punishable
             by
             death
             ?
             And
             it
             is
             against
             the
             nature
             of
             Arbitrary
             Crimes
             (
             such
             as
             this
             is
             confessed
             to
             be
             )
             to
             be
             punishable
             by
             death
             :
             and
             the
             word
             
               capite
               punire
            
             ,
             should
             alwayes
             be
             interpret
             in
             the
             meekest
             sense
             it
             can
             bear
             :
             Nor
             see
             I
             why
             the
             Law
             would
             have
             spoke
             so
             generally
             ,
             if
             it
             had
             design'd
             that
             severity
             .
             By
             our
             Law
             breakers
             of
             Prison
             are
             punish'd
             by
             banishment
             ,
             or
             fyning
             ,
             according
             to
             the
             nature
             of
             the
             offence
             ,
             but
             there
             is
             no
             express
             Statute
             determining
             the
             punishment
             .
          
           
             II.
             He
             who
             fled
             out
             of
             Prison
             ,
             when
             it
             was
             broke
             by
             another
             ,
             should
             in
             the
             judgement
             of
             
               Iulius
               Clarus
            
             ,
             be
             punished
             
             in
             the
             same
             way
             ,
             as
             if
             he
             had
             been
             found
             guilty
             of
             the
             Crime
             it self
             ,
             because
             he
             confesses
             the
             Crime
             ,
             and
             flight
             is
             a
             presum'd
             acknowledgment
             ,
             
               Far.
               quest
            
             .
             21.
             num
             .
             25.
             but
             this
             seems
             to
             me
             too
             severe
             ,
             for
             flight
             is
             a
             presumption
             ;
             and
             it
             is
             unjust
             to
             condemn
             upon
             presumptions
             ,
             and
             were
             it
             not
             absurd
             to
             condemn
             a
             man
             to
             die
             for
             a
             Crime
             of
             which
             he
             is
             found
             by
             the
             tryal
             of
             others
             to
             be
             innocent
             :
             And
             men
             may
             flee
             out
             of
             prison
             ,
             rather
             because
             of
             the
             inconveniencies
             of
             restraint
             ,
             then
             out
             from
             the
             conscience
             of
             guilt
             ,
             
               vid.
               Pegner
               .
               quest
            
             .
             1.
             crim
             But
             if
             there
             had
             been
             no
             violence
             used
             ,
             a
             person
             imprisoned
             for
             a
             Criminal
             Cause
             ,
             may
             escape
             lawfully
             ,
             
               Perez
               .
               ad
               tit
               .
               C.
               de
               custod
               .
               reor
               .
            
             because
             he
             may
             redeem
             lawfully
             his
             own
             blood
             from
             hazard
             .
             If
             the
             person
             incarcerat
             was
             incarcerat
             only
             for
             a
             civil
             debt
             ,
             he
             going
             out
             of
             prison
             ,
             was
             even
             in
             that
             case
             found
             punishable
             only
             by
             an
             arbitrary
             punishment
             ,
             Iuly
             3.
             1673.
             
             In
             the
             case
             of
             
               Francis
               Irving
            
             of
             Hiltoun
             ,
             who
             was
             pursued
             for
             breaking
             the
             Prison
             of
             Aberdene
             ,
             where
             the
             Libel
             was
             founded
             upon
             the
             common
             Law
             ,
             and
             the
             Laws
             of
             Nations
             ,
             and
             upon
             our
             Municipal
             Law
             and
             custome
             ,
             without
             citing
             any
             particular
             Law
             :
             And
             subsuming
             that
             he
             being
             incarcerat
             for
             a
             civil
             debt
             ,
             he
             and
             others
             brake
             the
             Prison
             ,
             at
             least
             escap'd
             ,
             the
             Prison
             being
             broken
             ,
             and
             therefore
             concluded
             an
             arbitrary
             punishment
             ,
             and
             payment
             of
             the
             dammage
             done
             to
             the
             Tolbuith
             .
             Against
             which
             Libel
             it
             was
             alledg'd
             ,
             1.
             
             That
             it
             was
             not
             relevant
             ,
             since
             it
             condescended
             upon
             no
             Statute
             ;
             nor
             had
             we
             any
             Statute
             or
             Practick
             making
             the
             going
             out
             of
             Prison
             ,
             when
             it
             was
             broke
             by
             another
             ,
             punishable
             ,
             and
             when
             the
             imprisonment
             was
             only
             for
             a
             civil
             debt
             :
             Nor
             was
             this
             a
             Crime
             by
             the
             Civil
             Law
             ,
             which
             punisht
             only
             
               effractores
               carcerum
            
             ,
             but
             not
             
               eos
               qui
               evaserunt
            
             :
             For
             
               nigrum
               nunquam
               excedere
               debet
               rubram
            
             ,
             that
             is
             to
             say
             ,
             nothing
             in
             the
             Title
             should
             exceed
             the
             Rubrick
             ,
             and
             therefore
             the
             Inscription
             or
             Rubrick
             being
             
               de
               effractoribus
            
             ,
             only
             such
             were
             criminal
             by
             that
             Title
             ,
             as
             were
             effractores
             .
             And
             as
             Perez
             .
             observes
             ,
             num
             .
             16.
             
             
               Si
               absit
               violentia
               potest
               reus
               aufugere
               
               à
               carcere
               quem
               apertum
               vidit
            
             :
             And
             the
             reason
             of
             punishing
             
               effractores
               carcerum
            
             does
             not
             militat
             here
             ,
             since
             there
             is
             no
             prejudice
             done
             to
             the
             Prison
             ,
             nor
             violence
             committed
             against
             Authority
             .
             And
             it
             is
             lawful
             ,
             because
             natural
             to
             every
             man
             to
             recover
             his
             natural
             liberty
             ;
             nor
             was
             it
             ever
             heard
             that
             a
             man
             running
             away
             from
             a
             Messenger
             ,
             was
             punish'd
             as
             
               effractor
               carceris
            
             ,
             and
             yet
             that
             is
             the
             same
             guilt
             with
             what
             is
             here
             pursued
             .
             2.
             
             The
             Libel
             concluding
             art
             and
             part
             of
             the
             breaking
             of
             Prison
             ,
             because
             he
             escap'd
             out
             of
             Prison
             ,
             when
             broken
             ,
             is
             most
             irrelevant
             ,
             since
             the
             one
             may
             exist
             without
             the
             other
             ;
             for
             one
             may
             escape
             and
             not
             break
             ,
             and
             therefore
             the
             one
             cannot
             be
             necessarily
             illative
             of
             the
             other
             .
             3.
             
             The
             paying
             dammage
             cannot
             be
             concluded
             against
             one
             who
             only
             went
             out
             ,
             since
             he
             who
             goes
             only
             out
             of
             Prison
             occasions
             no
             dammage
             ,
             and
             consequently
             ought
             to
             pay
             none
             .
             To
             which
             it
             was
             replyed
             ,
             that
             as
             to
             the
             first
             ,
             it
             hath
             been
             the
             constant
             opinion
             of
             Lawyers
             ,
             that
             going
             out
             of
             Prison
             that
             is
             broken
             is
             a
             crime
             ,
             since
             the
             Prisoner
             ought
             to
             have
             taken
             no
             advantage
             of
             another
             mans
             crime
             ,
             but
             ought
             rather
             to
             have
             hindered
             the
             breaking
             of
             the
             Prison
             ,
             and
             to
             have
             cryed
             and
             advertised
             the
             Keeper
             ,
             whereas
             here
             the
             Prison
             was
             broke
             by
             a
             long
             and
             daily
             work
             ,
             and
             yet
             no
             notice
             was
             given
             ;
             likeas
             ,
             Skeen
             in
             his
             Annotations
             upon
             the
             1.
             
             
               Chap.
               Stat.
               David
            
             2.
             observes
             ,
             that
             
               qui
               effracto
               carcere
               aufugerit
               capite
               punitur
               ,
            
             which
             is
             consonant
             to
             13.
             
               ff
               de
               re
               milit
               .
               &
               l.
            
             36.
             
               ff
               .
               de
               paen
            
             .
             To
             the
             2.
             it
             was
             replyed
             ,
             that
             the
             Prison
             being
             broke
             in
             the
             night
             time
             ,
             the
             pursuer
             could
             not
             distinguish
             who
             broke
             it
             :
             And
             if
             it
             were
             necessary
             to
             prove
             breaking
             ,
             it
             should
             be
             impossible
             to
             prove
             the
             crime
             ;
             and
             since
             the
             Pannel
             might
             have
             stayed
             and
             have
             cleared
             his
             own
             innocence
             ,
             it
             was
             just
             that
             the
             Law
             should
             conclude
             him
             guilty
             ;
             and
             except
             the
             Pannel
             could
             by
             way
             of
             exculpation
             alledge
             that
             it
             was
             broke
             by
             another
             ,
             and
             offer
             to
             prove
             by
             whom
             it
             was
             broke
             ,
             he
             who
             goes
             out
             should
             be
             concluded
             to
             be
             art
             and
             part
             .
             Upon
             which
             debate
             the
             Justices
             sustain'd
             the
             
             Libel
             to
             infer
             an
             arbitrary
             punishment
             :
             But
             yet
             the
             Assize
             assoilzied
             the
             Pannel
             ,
             though
             it
             was
             proved
             that
             he
             was
             in
             Prison
             ,
             and
             that
             the
             Prison
             was
             broke
             ,
             and
             that
             he
             came
             down
             upon
             a
             Rope
             ,
             for
             they
             thought
             that
             since
             his
             breaking
             of
             Prison
             was
             not
             proved
             ,
             he
             ought
             not
             to
             be
             concluded
             guilty
             ,
             but
             here
             the
             verdict
             was
             contrair
             to
             the
             Interloquutor
             .
          
           
             If
             the
             Prisoner
             was
             unjustly
             detained
             in
             Prison
             ,
             Clarus
             thinks
             that
             he
             is
             not
             to
             be
             punish'd
             ,
             though
             he
             break
             Prison
             ,
             ques●
             .
             21.
             num
             .
             26.
             
             But
             this
             opinion
             is
             most
             absurd
             ,
             for
             he
             ought
             not
             to
             be
             Judge
             to
             the
             lawfulness
             of
             his
             own
             imprisonment
             ,
             but
             ought
             to
             apply
             to
             the
             lawful
             Authority
             for
             redress
             .
             And
             l.
             13.
             
               ff
               .
               de
               custod
               .
               reor
               .
            
             doth
             expresly
             determine
             ,
             
               eos
               puniendis
               esse
               quamvis
               innocentes
               inveniantur
               ex
               eo
               crimine
               propter
               quod
               in
               carcerem
               impacti
               sunt
               .
            
             As
             also
             ,
             it
             is
             very
             clear
             ,
             that
             
               l.
               nihil
               interest
               ,
               C.
               de
               captiv
               .
            
             Upon
             which
             the
             Doctors
             found
             their
             opinion
             ,
             is
             only
             to
             be
             understood
             of
             such
             as
             broke
             the
             enemies
             Prison
             .
          
           
             III.
             He
             who
             fled
             ,
             having
             broke
             Prison
             ,
             is
             not
             thought
             punishable
             as
             a
             breaker
             of
             Prison
             ,
             if
             he
             return
             ,
             
               Boer
               .
               decis
            
             .
             215.
             
             
               Clar.
               num
            
             .
             28.
             
             But
             this
             also
             seems
             debateable
             ,
             since
             no
             man
             can
             give
             himself
             a
             remission
             :
             And
             there
             being
             
               jus
               quaesitum
               fisco
            
             ,
             by
             the
             guilt
             once
             committed
             ,
             it
             cannot
             be
             taken
             off
             without
             some
             deed
             of
             the
             power
             offended
             ;
             and
             we
             see
             that
             Murderers
             and
             others
             as
             punishable
             by
             death
             ,
             though
             they
             put
             themselves
             in
             Prison
             ,
             
               liminuit
               non
               tollit
               crimen
            
             .
          
           
             IV.
             These
             who
             broke
             not
             Prison
             ,
             but
             essayed
             to
             break
             ,
             are
             to
             be
             more
             meekly
             punished
             then
             these
             who
             broke
             Prison
             ,
             
               Clar.
               num
            
             .
             27.
             which
             is
             also
             observed
             in
             Scotland
             .
             Not
             only
             these
             who
             break
             Prison
             ,
             but
             these
             who
             assisted
             them
             ,
             and
             the
             Keepers
             ,
             by
             whose
             contrivance
             or
             negligence
             they
             escaped
             ,
             are
             punishable
             ,
             l.
             8.10
             .
             &
             12.
             
               ff
               .
               de
               cust
               .
               reor
               .
            
          
           
             V.
             If
             a
             Prisoner
             escape
             ,
             the
             Master
             of
             the
             Prison
             is
             oblidged
             to
             purge
             himself
             by
             Oath
             ,
             that
             he
             escaped
             without
             his
             will
             or
             consent
             ,
             
               Stat.
               David
            
             2.
             cap.
             1.
             num
             .
             6.
             
             And
             by
             the
             19.
             
             
               chap.
               num
            
             .
             2.
             
             
               Stat.
               Rob.
            
             1.
             the
             Keeper
             of
             the
             Prison
             is
             to
             answer
             for
             the
             Malefactor
             ,
             either
             in
             body
             or
             goods
             ;
             which
             takes
             only
             place
             where
             the
             Keeper
             was
             negligent
             in
             his
             duty
             ,
             for
             else
             he
             is
             not
             lyable
             ,
             as
             was
             found
             the
             23.
             of
             November
             ,
             1675.
             in
             the
             case
             of
             Captain
             Martine
             ,
             who
             being
             imprisoned
             by
             the
             Lords
             of
             Session
             ,
             for
             not
             finding
             Caution
             in
             a
             pursuit
             before
             the
             Admiral
             against
             him
             ,
             for
             taking
             free
             Ships
             ,
             he
             escaped
             in
             Womens
             Cloaths
             ;
             and
             the
             Keepers
             being
             pursued
             ,
             it
             was
             alledg'd
             for
             him
             ,
             that
             Keepers
             were
             only
             depositarii
             ,
             Prisoners
             being
             depositat
             in
             their
             hands
             ,
             that
             they
             might
             thereby
             be
             reserved
             to
             a
             publick
             tryal
             ,
             
               &
               depositarii
               tenentur
               tantum
               ,
               de
               dolo
               ,
               &
               lata
               culpa
               .
            
             And
             Farinacius
             tells
             us
             ,
             that
             it
             was
             so
             decided
             at
             Rome
             ,
             where
             a
             person
             escaped
             thus
             in
             Womens
             Cloaths
             .
             To
             which
             ,
             though
             it
             was
             answered
             ,
             that
             Servants
             ,
             getting
             a
             Fee
             ,
             are
             lyable
             ,
             
               ad
               exactissimam
               diligentiam
            
             ,
             without
             which
             ,
             privat
             diligence
             ,
             and
             publick
             revenge
             ,
             might
             easily
             be
             disappointed
             :
             Yet
             the
             Lords
             ,
             upon
             tryal
             of
             the
             Keepers
             innocence
             and
             diligence
             ,
             did
             assoilzie
             him
             .
             But
             I
             have
             seen
             that
             Sisters
             have
             assisted
             their
             Brothers
             ,
             and
             Wives
             their
             Husbands
             ,
             to
             escape
             ,
             even
             for
             crimes
             ,
             without
             being
             punished
             ;
             and
             
               per
               l.
            
             2.
             
               ff
               .
               de
               recept
            
             .
             the
             receptors
             of
             such
             near
             relations
             are
             conniv'd
             at
             ,
             so
             gentle
             is
             the
             Law
             ,
             and
             so
             much
             it
             both
             follows
             and
             pardons
             nature
             .
             Breaking
             Prison
             in
             the
             night
             ,
             is
             a
             great
             aggravation
             of
             this
             Crime
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             
               l.
               ult
               .
               Basil.
               h.
               t.
               
            
          
        
         
           
           
             TITLE
             XXIII
             .
             De
             Dardanariis
             ,
             OR
             ,
             Fore-stallers
             .
          
           
             
               1.
               
               
                 What
                 Fore-stallers
                 are
                 ,
                 and
                 the
                 several
                 species
                 of
                 this
                 Crime
                 by
                 the
                 Civil
                 Law.
                 
              
            
             
               2.
               
               
                 The
                 difference
                 betwixt
                 Fore-stallers
                 and
                 Regraters
                 .
              
            
             
               3.
               
               
                 The
                 first
                 branch
                 of
                 this
                 Crime
                 ,
                 by
                 our
                 Law
                 ,
                 is
                 the
                 buying
                 up
                 Corns
                 to
                 a
                 dearth
                 .
              
            
             
               4.
               
               
                 The
                 second
                 is
                 ,
                 the
                 buying
                 Corns
                 coming
                 to
                 a
                 Mercat
                 .
              
            
             
               5.
               
               
                 The
                 third
                 is
                 ,
                 the
                 advising
                 others
                 to
                 commit
                 these
                 Crimes
                 .
              
            
             
               6.
               
               
                 The
                 fourth
                 is
                 ,
                 the
                 buying
                 Commodities
                 in
                 a
                 Mercat
                 ,
                 upon
                 design
                 to
                 sell
                 the
                 same
                 again
                 at
                 any
                 other
                 Mercat
                 within
                 four
                 Miles
                 .
              
            
             
               7.
               
               
                 The
                 punishment
                 of
                 this
                 Crime
              
               .
            
          
           
             MEn
             having
             gathered
             themselves
             into
             Societies
             ,
             they
             did
             for
             their
             own
             conveniency
             and
             provision
             grant
             many
             priviledges
             to
             Mercats
             and
             to
             such
             as
             frequented
             them
             ,
             and
             that
             all
             persons
             might
             be
             the
             more
             equally
             provided
             ,
             they
             did
             lay
             such
             restrictions
             both
             upon
             buyers
             and
             sellers
             ,
             as
             they
             thought
             fit
             for
             that
             design
             .
             For
             albeit
             it
             be
             lawfull
             for
             every
             man
             to
             use
             his
             own
             as
             he
             thinks
             fit
             ,
             and
             to
             sell
             his
             commodities
             where
             
             and
             to
             whom
             he
             pleases
             ,
             yet
             seeing
             common
             justice
             is
             to
             be
             preferred
             to
             private
             advantage
             ,
             it
             was
             the
             interest
             of
             the
             Common-wealth
             ,
             as
             upon
             that
             accompt
             ,
             they
             will
             not
             suffer
             any
             man
             to
             abuse
             his
             own
             ,
             to
             the
             detriment
             of
             the
             Common-wealth
             ,
             (
             as
             is
             to
             be
             seen
             in
             these
             Laws
             which
             concerns
             interdictions
             )
             so
             much
             lesse
             will
             they
             allow
             men
             to
             wrong
             the
             Common-wealth
             for
             their
             own
             private
             gain
             .
             The
             great
             instance
             whereof
             is
             seen
             in
             this
             crime
             of
             Fore-stalling
             ,
             or
             regrateing
             .
          
           
             I.
             Fore-stallers
             were
             by
             the
             Romans
             called
             
               Dardanarii
               à
               Dardano
            
             ,
             (
             a
             Merchant
             who
             was
             famous
             for
             that
             crime
             )
             And
             by
             the
             Civil
             Law
             these
             were
             accompted
             dardanarii
             properly
             ,
             who
             huirded
             up
             their
             own
             Corns
             or
             bought
             up
             the
             Corns
             of
             others
             ,
             of
             design
             to
             keep
             them
             to
             a
             dearth
             ,
             but
             improperly
             these
             were
             likewise
             called
             Dardanarii
             ,
             who
             did
             buy
             up
             any
             other
             commodity
             unlawfully
             upon
             that
             design
             ,
             which
             kind
             of
             Merchants
             were
             more
             properly
             called
             
               panto
               poli
            
             ,
             by
             the
             novel
             of
             Valentinian
             ,
             which
             crime
             as
             it
             was
             punished
             
               per
               legem
               juliam
               de
               anona
            
             ,
             so
             the
             punishment
             of
             it
             
               per
               L.
               sextam
               ,
               ff
               .
               de
               extra
               .
               crim
               .
               est
            
             20.
             
               aurei
               &
               puniri
               extra
               ordinem
            
             .
          
           
             A
             third
             sort
             of
             Dardanarii
             ,
             numbered
             amongst
             the
             Doctors
             ,
             are
             these
             who
             properly
             are
             called
             
               revenditores
               &
               qui
               emunt
               ut
               carius
               vendant
               ex
               raritate
               raritatis
               raritatem
               affectantis
               Tholosanus
               cap.
            
             135.
             num
             .
             10.
             
             Matheus
             also
             makes
             monopolist
             a
             fourth
             branch
             of
             these
             ,
             and
             surely
             they
             are
             equally
             guilty
             of
             prejudging
             the
             Common-wealth
             with
             these
             above
             relaited
             .
          
           
             II.
             Though
             Fore-stallers
             and
             Regraters
             be
             ordinarily
             taken
             for
             one
             and
             the
             same
             ,
             yet
             there
             is
             this
             difference
             betwixt
             them
             ,
             that
             Regraters
             are
             only
             those
             who
             buy
             goods
             ,
             that
             they
             may
             sell
             them
             again
             at
             a
             dearer
             rate
             :
             But
             Fore-stallers
             are
             such
             as
             buy
             goods
             before
             they
             come
             to
             an
             open
             Mercat
             ;
             but
             seeing
             custom
             uses
             these
             words
             promiscuously
             ,
             we
             shall
             divide
             Fore-stallers
             or
             Regraters
             into
             these
             several
             species
             or
             branches
             ,
          
           
           
             III.
             The
             first
             species
             or
             kind
             of
             Fore-stallers
             ,
             is
             of
             such
             ,
             who
             either
             privatly
             ,
             or
             by
             entering
             into
             Societies
             ,
             buy
             up
             all
             goods
             upon
             designe
             ,
             that
             by
             making
             themselves
             Master
             of
             the
             commodity
             ,
             they
             may
             exact
             such
             rates
             for
             them
             as
             they
             think
             fit
             .
             And
             this
             is
             very
             fitly
             made
             a
             crime
             ,
             because
             it
             is
             absolutely
             destructive
             to
             the
             conveniency
             of
             the
             people
             .
             But
             because
             this
             (
             as
             all
             designs
             are
             )
             a
             latent
             act
             of
             the
             mind
             ,
             and
             so
             is
             hard
             to
             be
             proved
             ,
             where
             the
             Fore-stallers
             have
             not
             entered
             into
             a
             Society
             ,
             therefore
             this
             guilt
             is
             
               quo
               ad
            
             this
             qualification
             and
             design
             inferred
             from
             presumptions
             ,
             as
             if
             a
             person
             should
             offer
             to
             buy
             all
             the
             Salmond
             in
             Scotland
             ,
             and
             deal
             with
             all
             persons
             who
             have
             any
             to
             sell
             ,
             that
             they
             should
             not
             sell
             to
             any
             other
             .
             2.
             
             If
             any
             of
             these
             universal
             buyers
             should
             give
             extraordinary
             prices
             ,
             which
             is
             presumed
             he
             would
             not
             do
             but
             upon
             some
             design
             .
             3.
             
             If
             he
             should
             boast
             that
             none
             else
             had
             that
             Commodity
             to
             sell
             ,
             or
             such
             other
             words
             as
             might
             be
             ground
             for
             a
             Judge
             to
             infer
             the
             design
             ;
             yet
             it
             may
             be
             doubted
             here
             ,
             if
             the
             universal
             buying
             of
             any
             of
             these
             Commodities
             ,
             in
             order
             to
             a
             forraign
             transportation
             ,
             and
             where
             none
             of
             them
             are
             vended
             at
             home
             within
             the
             Countrey
             ,
             can
             inferr
             the
             Crime
             of
             Fore-stalling
             ,
             seing
             strangers
             are
             only
             prejudged
             by
             hightening
             the
             prices
             in
             that
             case
             :
             But
             seing
             the
             Countrey
             would
             be
             likewise
             thereby
             prejudged
             by
             being
             absolutely
             deprived
             of
             that
             Commodity
             ,
             certainly
             the
             guilt
             will
             be
             extended
             even
             in
             that
             case
             ,
             which
             will
             hold
             likewise
             in
             strangers
             ,
             who
             buy
             up
             the
             Commodities
             of
             the
             Countrey
             upon
             that
             design
             ,
             who
             may
             be
             likewise
             therefore
             punished
             within
             the
             Countrey
             where
             they
             commit
             the
             guilt
             ,
             being
             lyable
             to
             that
             Jurisdiction
             ,
             
               ratione
               loci
               delicti
            
             .
          
           
             IV.
             The
             second
             kind
             of
             Fore-stallers
             is
             of
             these
             who
             buy
             any
             Goods
             coming
             to
             Mercats
             ,
             before
             they
             come
             to
             the
             publick
             stall
             or
             place
             where
             they
             should
             be
             vended
             ,
             and
             this
             is
             the
             reason
             of
             the
             denomination
             :
             And
             the
             reason
             why
             this
             is
             made
             a
             Crime
             ,
             is
             ,
             because
             Mercats
             being
             institute
             for
             the
             good
             of
             the
             Common-wealth
             ,
             every
             thing
             by
             consequence
             behoved
             
             to
             be
             discharged
             ,
             which
             is
             absolutely
             destructive
             to
             it
             ;
             and
             the
             buying
             any
             thing
             before
             it
             come
             to
             the
             Mercat
             ,
             is
             such
             .
             But
             it
             may
             be
             doubted
             here
             ,
             whether
             Commodities
             may
             not
             be
             bought
             by
             Merchands
             in
             publick
             Burgh
             ,
             though
             they
             be
             going
             to
             the
             Mercat
             of
             another
             publick
             Burgh
             ?
             As
             for
             instance
             ,
             if
             a
             Merchand
             in
             Burntisland
             may
             not
             buy
             Skins
             there
             from
             one
             who
             sayes
             he
             is
             carrying
             them
             to
             the
             Mercat
             of
             Kinghorn
             :
             And
             if
             this
             were
             not
             allowed
             ,
             it
             would
             occasion
             much
             trouble
             both
             to
             sellers
             and
             buyers
             .
             2.
             
             It
             may
             be
             upon
             the
             same
             ground
             doubted
             ,
             if
             one
             may
             sell
             ,
             finding
             that
             he
             is
             not
             able
             to
             stay
             to
             a
             Mercat
             day
             ,
             which
             it
             may
             be
             ,
             will
             be
             but
             once
             in
             a
             week
             in
             some
             places
             .
             As
             to
             which
             difficulty
             ,
             my
             opinion
             is
             ,
             that
             these
             can
             only
             be
             accounted
             Fore-stallers
             ,
             against
             whom
             something
             of
             design
             against
             the
             common
             good
             can
             be
             proved
             :
             As
             if
             the
             Burgesses
             of
             one
             Town
             should
             be
             proved
             to
             have
             entered
             into
             a
             Contract
             to
             buy
             up
             the
             Commodities
             which
             were
             going
             to
             another
             adjacent
             Town
             ,
             or
             should
             stand
             in
             the
             way
             every
             Mercat
             day
             upon
             deesign
             to
             buy
             up
             the
             Commodities
             that
             were
             going
             to
             the
             next
             adjacent
             Town
             .
             And
             I
             know
             this
             to
             have
             been
             the
             opinion
             of
             some
             learned
             Lawyers
             ,
             in
             a
             case
             betwixt
             the
             New
             and
             Old
             Towns
             of
             Aberdene
             ;
             but
             to
             make
             ,
             that
             the
             buying
             of
             things
             generally
             before
             they
             come
             to
             a
             Mercat
             ,
             should
             infer
             a
             Crime
             ,
             were
             most
             hard
             and
             inconvenient
             .
             And
             because
             the
             design
             is
             the
             great
             thing
             to
             be
             look'd
             to
             ,
             
               non
               effectus
               sed
               affectus
            
             ,
             therefore
             both
             the
             Act
             of
             Parliament
             and
             Criminal
             dittay
             in
             this
             case
             ,
             speak
             only
             of
             Fore-stalling
             and
             Regrating
             ;
             for
             by
             the
             doing
             any
             thing
             of
             this
             nature
             commonly
             and
             frequently
             ,
             
               animus
               delinquendi
            
             ,
             is
             most
             probably
             inferred
             .
             And
             by
             the
             same
             reason
             ,
             I
             conclude
             it
             probable
             alwayes
             for
             the
             defenders
             in
             this
             case
             to
             alledge
             by
             way
             of
             exculpation
             ,
             that
             what
             they
             did
             ,
             was
             done
             either
             ignorantly
             ,
             or
             necessarily
             ,
             or
             generally
             ,
             
               alio
               animo
               quam
               delinquendi
               ,
               v.
               g.
            
             If
             one
             in
             Burntisland
             were
             pannel'd
             for
             buying
             Skins
             that
             were
             coming
             to
             the
             Mercat
             of
             Edinburgh
             ,
             he
             might
             alledge
             ,
             that
             being
             
             oblieged
             under
             a
             failzie
             to
             deliver
             such
             a
             number
             of
             Skins
             betwixt
             and
             such
             a
             day
             ,
             that
             therefore
             he
             was
             necessitate
             to
             buy
             ●hefe
             :
             Or
             if
             any
             were
             alledged
             to
             have
             bought
             Stockings
             that
             were
             coming
             for
             a
             Mercat
             ,
             he
             might
             alledge
             that
             he
             bought
             them
             for
             his
             own
             use
             ,
             or
             that
             he
             knew
             not
             there
             was
             a
             Mercat
             upon
             the
             place
             .
             And
             I
             conclude
             generally
             ,
             that
             the
             buying
             any
             thing
             for
             our
             own
             privat
             use
             ,
             makes
             not
             the
             buyer
             in
             no
             case
             culpable
             of
             this
             Crime
             ,
             since
             he
             does
             that
             
               tanquam
               qui
               libet
               &
               non
               tanquam
               Mercator
               ,
            
             and
             Fore-stalling
             is
             a
             Crime
             in
             Merchandizing
             .
          
           
             V.
             The
             third
             degree
             of
             it
             is
             ,
             the
             advising
             these
             who
             are
             to
             sell
             ,
             to
             hight
             the
             price
             ,
             or
             the
             disswading
             the
             sellers
             to
             come
             to
             any
             particular
             Mercat
             .
          
           
             VI.
             The
             fourth
             is
             ,
             the
             buying
             Commodities
             in
             a
             Mercat
             ,
             of
             design
             to
             sell
             the
             same
             again
             in
             the
             same
             Mercat
             ,
             or
             in
             any
             other
             Mercat
             within
             four
             Miles
             thereof
             .
          
           
             VII
             .
             All
             which
             species
             are
             expresly
             enumerat
             ,
             Cap.
             20.
             
             Parl.
             4.
             
             K.
             Ia.
             5.
             
             By
             which
             the
             punishment
             is
             appointed
             to
             be
             imprisoning
             of
             their
             persons
             ,
             and
             the
             Escheating
             of
             their
             goods
             bought
             and
             sold
             ,
             the
             two
             part
             thereof
             belongs
             to
             the
             King
             ,
             and
             the
             third
             to
             the
             Sherriffs
             ,
             or
             other
             Judge
             by
             whom
             they
             are
             condemned
             .
             From
             which
             Act
             it
             may
             be
             concluded
             ,
             that
             any
             Judges
             are
             competent
             to
             punish
             Fore-stalling
             albeit
             of
             old
             ,
             the
             Chamberlain
             was
             ,
             in
             his
             chamberlain
             air
             ,
             the
             proper
             Judge
             of
             Fore-stallers
             ,
             as
             is
             clear
             by
             the
             Chap.
             35.
             
               st
               .
               K.
               Wil.
               vid.
            
             &
             .
             cap.
             78.
             
               leg
               .
               burg
            
             .
             And
             in
             the
             143.
             
             
               Act
               ,
               Par.
            
             12.
             
             
               K.
               I.
            
             6.
             where
             the
             punishment
             is
             ordained
             to
             be
             40.
             
             Pound
             for
             the
             first
             fault
             ,
             100.
             
             Pound
             for
             the
             2
             ,
             And
             Escheat
             of
             all
             his
             moveables
             for
             the
             third
             .
          
           
             I
             find
             several
             persons
             convict
             of
             this
             crime
             ,
             as
             Cairncrosse
             and
             others
             ,
             9.
             
             Iune
             1596.
             
             Anderson
             12.
             
             
               Iune
               ,
               Young
            
             and
             others
             ,
             11.
             of
             Iune
             ,
             that
             Year
             ;
             And
             Halyday
             ,
             6.
             
             August
             ,
             1596.
             
             But
             I
             find
             no
             punishment
             to
             have
             followed
             in
             this
             ,
             or
             any
             other
             case
             :
             Though
             this
             crime
             cannot
             be
             said
             to
             be
             in
             desuetude
             ,
             
             seing
             thre
             are
             some
             instances
             of
             it
             .
             Yet
             
               mitius
               puniri
               debent
            
             ,
             Because
             these
             cases
             are
             so
             few
             ,
             and
             no
             punishment
             has
             followed
             upon
             them
             .
          
           
             I
             find
             it
             was
             alledged
             for
             Young
             ,
             11
             Iune
             ,
             And
             Halyday
             ,
             11.
             
             August
             ,
             foresaid
             ,
             that
             the
             Lybel
             was
             not
             relevant
             ,
             not
             condescending
             upon
             the
             persons
             to
             whom
             the
             goods
             Fore-stalled
             were
             sold
             ,
             nor
             the
             place
             ,
             nor
             time
             ,
             which
             was
             repelled
             ,
             because
             Fore
             stalling
             was
             unlawful
             in
             all
             places
             ,
             and
             all
             times
             .
             But
             certainly
             this
             reply
             was
             not
             relevant
             ,
             for
             else
             neither
             time
             ,
             place
             ,
             nor
             person
             needed
             be
             condescended
             on
             ,
             seing
             these
             are
             still
             unlawful
             at
             all
             times
             .
             But
             I
             think
             the
             true
             reason
             why
             it
             should
             have
             been
             repelled
             ,
             was
             ,
             seing
             common
             Fore-stalling
             and
             Regrating
             was
             libelled
             ,
             which
             is
             
               nomen
               habitus
            
             ,
             and
             not
             founded
             upon
             any
             particular
             Act
             ,
             and
             therefore
             the
             particular
             Acts
             needed
             not
             be
             libelled
             ,
             though
             even
             in
             this
             case
             they
             must
             be
             expresly
             proved
             .
             But
             certainly
             ,
             sometimes
             the
             time
             ,
             and
             place
             is
             necessary
             ,
             as
             where
             it
             is
             Libelled
             ,
             that
             goods
             were
             bought
             ,
             and
             presently
             sold
             ,
             or
             within
             four
             Miles
             of
             the
             place
             where
             they
             were
             bought
             :
             for
             the
             crime
             in
             this
             case
             is
             inferred
             from
             the
             speciality
             of
             time
             and
             place
             .
          
           
             It
             was
             alledged
             ,
             that
             confiscation
             of
             Moveables
             could
             not
             be
             inferred
             ,
             though
             for
             the
             third
             and
             fourth
             fault
             ,
             except
             the
             Pannel
             had
             been
             convict
             for
             the
             first
             two
             :
             Which
             was
             spelled
             likewise
             ,
             because
             the
             King
             could
             not
             be
             prejudged
             in
             his
             interest
             ,
             
               quo
               ad
            
             ,
             the
             confiscation
             by
             the
             negligence
             of
             his
             Advocat
             ,
             or
             any
             privat
             informer
             ,
             by
             not
             pursuing
             :
             Nor
             could
             that
             negligence
             purge
             their
             guilt
             ,
             or
             procure
             them
             an
             impunity
             .
             And
             it
             were
             absurd
             ,
             (
             seing
             crimes
             and
             punishments
             are
             to
             be
             commensurat
             )
             that
             these
             who
             had
             continued
             in
             that
             guilt
             for
             many
             years
             ,
             should
             be
             no
             more
             punished
             ,
             then
             these
             who
             had
             but
             once
             incurred
             the
             same
             .
          
        
         
           
           
             TITLE
             XXIV
             .
             Usury
             .
          
           
             
               1.
               
               
                 In
                 what
                 Contracts
                 Usury
                 may
                 be
                 committed
                 .
              
            
             
               2.
               
               
                 The
                 taking
                 of
                 more
                 annualrent
                 then
                 the
              
               quota
               
                 stated
                 by
                 Law
                 ,
                 is
                 the
                 first
                 branch
                 of
                 Usury
                 .
              
            
             
               3.
               
               
                 The
                 second
                 is
                 ,
                 to
                 take
                 annualrents
                 before
                 the
                 term
                 of
                 payment
                 .
              
            
             
               4.
               
               
                 The
                 third
                 is
                 ,
                 to
                 take
                 Wodsets
                 in
                 defraud
                 of
                 the
                 Law.
                 
              
            
             
               5.
               
               
                 Whether
                 a
                 Clause
                 not
                 to
                 redeem
                 for
                 a
                 long
                 time
                 ,
                 be
                 Usury
                 .
              
            
             
               6.
               
               
                 The
                 probation
                 of
                 this
                 Crime
              
               .
            
             
               7.
               
               
                 The
                 punishment
                 of
                 it
              
               .
            
          
           
             USury
             is
             that
             Crime
             ,
             which
             is
             committed
             by
             taking
             more
             annualrent
             for
             any
             sum
             lent
             ,
             then
             what
             is
             allowed
             by
             the
             Law
             of
             the
             Kingdom
             .
          
           
             I.
             This
             Crime
             is
             committed
             properly
             in
             Money
             ,
             
               &
               in
               mutuo
            
             :
             but
             yet
             it
             is
             both
             by
             our
             Law
             ,
             and
             the
             Civil
             ,
             and
             Canon
             Laws
             ,
             extended
             to
             other
             Contracts
             :
             for
             with
             us
             ,
             it
             is
             committed
             in
             bargains
             of
             Victual
             ,
             or
             Tacks
             ,
             as
             shall
             be
             cleared
             by
             the
             subsequent
             Acts
             ;
             and
             therefore
             Lawyers
             divide
             Usury
             ,
             into
             that
             which
             they
             call
             
               direct
               Usury
               ,
               quae
               
               obtinet
               tantum
               in
               mutuo
            
             ;
             and
             
               indirect
               Usury
            
             ,
             which
             takes
             place
             in
             other
             Contracts
             .
          
           
             Usury
             is
             also
             divided
             ,
             
               in
               usuram
               manifestam
               &
               velatam
            
             ;
             which
             co-incides
             almost
             with
             the
             former
             distinction
             .
          
           
             By
             our
             old
             Law
             ,
             Usury
             could
             not
             have
             been
             pursued
             in
             the
             Usurers
             own
             life
             ,
             but
             he
             might
             have
             repented
             him
             of
             it
             ,
             at
             any
             time
             before
             his
             death
             ;
             so
             that
             it
             was
             not
             the
             commission
             of
             the
             Crime
             ,
             but
             the
             continuance
             in
             it
             ,
             which
             was
             punishable
             :
             but
             if
             he
             repented
             not
             ,
             his
             Heirs
             might
             be
             forefaulted
             ,
             l.
             2.
             
             
               Reg.
               Maj.
               cap.
            
             24.
             
             And
             this
             ,
             Skeen
             observes
             ,
             to
             be
             consonant
             to
             the
             Law
             of
             England
             ,
             whereby
             the
             penalty
             of
             a
             living
             Usurer
             ,
             belongs
             to
             the
             King
             ,
             but
             of
             a
             dead
             Usurer
             ,
             to
             the
             Church
             .
          
           
             II.
             The
             true
             method
             in
             this
             Title
             ,
             is
             ,
             to
             clear
             the
             several
             kinds
             of
             Usury
             ,
             determined
             by
             our
             Statutes
             .
             The
             first
             Species
             thereof
             is
             ,
          
           
             Whoever
             receives
             more
             annualrent
             ,
             then
             ten
             for
             each
             hundred
             ,
             shall
             be
             punished
             as
             Ockerers
             ,
             or
             Usurers
             ,
             conform
             to
             the
             Laws
             of
             the
             Realm
             ,
             already
             made
             ,
             Par.
             11.
             
             
               K.
               Ia.
            
             6.
             cap.
             52.
             
             And
             yet
             I
             find
             no
             prior
             Law
             to
             this
             ,
             expressing
             the
             punishment
             of
             Usury
             ;
             only
             it
             is
             said
             ,
             Par.
             6.
             
             Ia.
             2.
             
             Act
             23.
             that
             keepers
             of
             Victual
             to
             a
             dearth
             ,
             shall
             be
             punished
             as
             Ockerers
             ,
             and
             this
             is
             properly
             Usury
             .
          
           
             By
             Act
             of
             Parliament
             ,
             1649.
             it
             is
             appointed
             ,
             that
             the
             annualrent
             of
             Money
             ,
             should
             be
             at
             six
             
               per
               cent
            
             ,
             conform
             to
             which
             Act
             ,
             all
             annualrents
             were
             payed
             in
             Scotland
             ,
             till
             1661.
             
             At
             which
             time
             the
             Parliament
             ,
             1649.
             was
             rescinded
             ;
             whereupon
             it
             was
             debated
             ,
             in
             
               Hugh
               Roxburghs
            
             case
             ,
             March
             23.
             1668.
             whether
             the
             taking
             of
             more
             annualrent
             ,
             then
             six
             
               per
               cent
            
             ,
             after
             the
             year
             1649.
             could
             infer
             Usury
             ;
             and
             that
             it
             could
             not
             ,
             was
             urged
             from
             these
             reasons
             ,
             1.
             
             That
             where
             there
             was
             no
             Law
             ,
             there
             could
             be
             no
             contempt
             :
             but
             so
             it
             was
             ,
             that
             the
             Acts
             of
             Parliament
             1649.
             were
             no
             Laws
             ,
             
             that
             Parliament
             being
             rescinded
             ,
             
               ob
               defectum
               authoritatis
            
             ,
             and
             without
             any
             salvo
             ,
             as
             to
             what
             was
             past
             .
             2.
             
             The
             Liedges
             might
             as
             well
             be
             punisht
             now
             for
             transgressing
             the
             penal
             Statutes
             ,
             made
             by
             the
             usurpers
             ,
             seing
             these
             were
             binding
             ,
             the
             time
             of
             the
             transgression
             ,
             and
             both
             want
             authority
             equally
             .
             3.
             
             By
             the
             Act
             betwixt
             Debitor
             and
             Creditor
             ,
             1.
             
             Session
             1.
             
             
               Parl.
               K.
               Ch.
            
             2.
             
             Such
             pactions
             are
             only
             declared
             usurious
             ,
             
               quo
               ad
               futura
               &
               inclusio
               unius
               est
               exclusio
               altetius
               .
            
             To
             this
             it
             was
             answered
             ,
             that
             the
             Parliament
             1649.
             was
             in
             vigor
             till
             the
             year
             1661.
             
             Ergo
             ,
             before
             that
             time
             it
             was
             Usury
             ,
             to
             take
             more
             then
             the
             annualrent
             therein
             prohibited
             ;
             and
             albeit
             the
             defect
             of
             Authority
             might
             be
             pleaded
             ,
             where
             the
             Crime
             committed
             ,
             depended
             meerly
             upon
             the
             Authority
             contraverted
             .
             Yet
             in
             this
             case
             it
             could
             not
             ;
             seing
             Usury
             was
             a
             Crime
             ,
             which
             was
             prohibited
             by
             all
             Laws
             .
             And
             as
             to
             the
             quota
             ,
             which
             was
             all
             that
             was
             determined
             by
             the
             Parliament
             ,
             1649.
             
             It
             was
             no
             such
             thing
             as
             concerned
             the
             Rebellion
             ,
             for
             which
             that
             Parliament
             was
             rescinded
             ;
             but
             was
             a
             reasonable
             ,
             and
             universal
             good
             for
             the
             Kingdom
             ,
             and
             approved
             by
             the
             present
             Parliament
             .
             And
             those
             who
             took
             annualrent
             during
             that
             time
             ,
             at
             more
             then
             six
             
               per
               cent
            
             ,
             did
             in
             so
             far
             oppresse
             their
             Debitors
             beyond
             others
             ,
             and
             so
             should
             be
             punished
             .
             2.
             
             By
             the
             Act
             anent
             penal
             Statutes
             ,
             1661.
             
             Usury
             is
             excepted
             from
             the
             penal
             Statutes
             therein
             abridged
             ,
             which
             needed
             not
             ,
             if
             the
             taking
             more
             then
             six
             
               per
               cent
            
             ,
             for
             the
             years
             immediatly
             preceeding
             ,
             had
             not
             been
             Usury
             .
             3.
             
             The
             Lords
             of
             Session
             did
             still
             restrict
             the
             annualrents
             ,
             even
             during
             these
             years
             ,
             to
             six
             
               per
               cent
            
             ,
             which
             they
             could
             not
             have
             done
             ,
             if
             that
             Law
             had
             not
             warranted
             them
             ;
             as
             in
             the
             case
             betwixt
             Wauchop
             and
             Lawder
             ,
             1665.
             for
             if
             that
             Act
             was
             in
             force
             then
             ,
             it
             was
             a
             Crime
             to
             take
             more
             then
             was
             therein
             commanded
             ,
             if
             it
             was
             not
             abrogated
             ;
             then
             the
             former
             Act
             ,
             1648.
             appointing
             eight
             
               per
               cent
            
             ,
             was
             in
             vigour
             ,
             and
             so
             the
             Lords
             could
             not
             restrict
             the
             annualrent
             to
             six
             ,
             against
             an
             expresse
             Law.
             This
             
             case
             was
             not
             decided
             ,
             but
             the
             Justices
             inclined
             to
             think
             ,
             that
             though
             the
             Act
             1649.
             was
             abrogated
             ;
             yet
             it
             was
             a
             sufficient
             warrand
             ,
             to
             regulat
             the
             Decision
             of
             civil
             cases
             ,
             because
             all
             bargains
             were
             then
             made
             ,
             with
             respect
             to
             the
             quota
             ,
             thereby
             determined
             ,
             
               &
               erat
               lex
               habita
               &
               reputata
               :
            
             but
             that
             being
             abrogated
             ,
             it
             could
             not
             found
             sufficiently
             a
             criminal
             Action
             ,
             to
             infer
             so
             severe
             a
             punishment
             ,
             as
             that
             of
             Usury
             ;
             for
             a
             Crime
             is
             mainly
             such
             ,
             because
             Authority
             is
             contemned
             ,
             and
             contempt
             is
             the
             essence
             of
             a
             Crime
             ;
             but
             so
             it
             is
             ,
             there
             could
             be
             no
             contempt
             where
             there
             was
             no
             Authority
             .
             But
             it
             may
             be
             doubted
             ,
             if
             a
             Merchant
             who
             was
             to
             imploy
             his
             stock
             upon
             Merchandize
             ,
             whereby
             he
             might
             have
             got
             far
             more
             then
             the
             annualrent
             of
             his
             stock
             ,
             should
             at
             the
             desire
             of
             his
             friend
             ,
             then
             in
             great
             straits
             ,
             lend
             him
             his
             Money
             ,
             for
             more
             then
             the
             ordinar
             profit
             ;
             if
             in
             that
             case
             he
             could
             be
             punishable
             as
             an
             Usurer
             ?
             And
             albeit
             our
             Law
             be
             general
             ,
             yet
             here
             
               ab
               est
               animus
               faenerandi
            
             :
             and
             there
             was
             no
             advantage
             taken
             of
             the
             Debitors
             necessity
             ;
             for
             which
             ,
             Usury
             is
             mainly
             punishable
             .
             And
             I
             find
             ,
             that
             
               Abbas
               c.
               Naviganti
               de
               usur
               .
               num
               .
            
             13.
             
             
               &
               Socin
               .
               tract
               de
               usur
               .
               num
               .
            
             75.
             do
             conclude
             this
             to
             be
             no
             Usury
             .
             Yet
             I
             know
             ,
             that
             some
             judicious
             Lawyers
             with
             us
             ,
             did
             at
             a
             consultation
             upon
             this
             same
             case
             ,
             conclude
             ,
             that
             the
             Justices
             could
             not
             receive
             this
             exception
             ,
             seeing
             they
             were
             tyed
             to
             strict
             Law
             ;
             but
             they
             thought
             that
             the
             Council
             might
             allow
             some
             mitigation
             .
          
           
             III.
             Another
             Species
             of
             Usury
             by
             our
             Law
             ,
             is
             ,
             to
             take
             annualrent
             before
             hand
             ;
             that
             is
             to
             say
             ,
             before
             the
             term
             of
             payment
             ,
             which
             was
             ordinarly
             done
             ,
             by
             retaining
             a
             years
             annualrent
             ,
             when
             the
             Money
             was
             first
             lent
             ,
             and
             this
             is
             determined
             to
             be
             Usury
             ,
             by
             the
             222.
             
             
               Act
               Parl.
            
             14.
             
             
               K.
               Ia.
            
             6.
             and
             thereafter
             by
             the
             28.
             
             
               Act.
               Parl.
            
             23.
             
             
               K.
               Ia.
            
             6.
             by
             which
             last
             ,
             it
             was
             likewise
             Statute
             ,
             that
             whosoever
             shall
             detain
             the
             time
             of
             the
             lending
             ,
             or
             shall
             exict
             ,
             crave
             ,
             or
             receive
             from
             the
             Debitors
             ,
             annualrent
             at
             the
             time
             of
             the
             lending
             ,
             or
             add
             the
             same
             
             to
             their
             principal
             summes
             ,
             or
             whosoever
             shall
             exact
             ,
             or
             crave
             annualrent
             ,
             shall
             commit
             Usury
             .
             And
             this
             seems
             to
             be
             founded
             upon
             that
             principal
             of
             the
             Civil
             Law
             ,
             whereby
             
               puniebantur
               qui
               plus
               petebant
               &
               plus
               tempore
               petere
               dicebatur
               qui
               petebas
               ante
               tempus
               debito
               constitutum
               .
            
          
           
             Upon
             these
             last
             words
             of
             the
             Act
             of
             Parliament
             ,
             forbidding
             the
             exacting
             ,
             or
             craving
             annualrents
             before
             the
             term
             of
             payment
             ,
             there
             was
             a
             dittay
             founded
             against
             Purdie
             ,
             in
             the
             year
             1666.
             for
             taking
             ten
             pounds
             Scots
             ,
             as
             the
             annualrents
             of
             fifty
             merks
             ,
             upon
             the
             18.
             of
             Iuly
             ,
             whereas
             no
             annualrents
             was
             due
             ,
             till
             Martimas
             that
             year
             .
             Against
             which
             dittay
             ,
             it
             was
             alledged
             ,
             1.
             
             That
             this
             Species
             of
             the
             dittay
             was
             meerly
             Statuto●y
             ,
             and
             so
             was
             not
             to
             be
             extended
             ,
             either
             beyond
             the
             interest
             of
             the
             Leidges
             ,
             to
             salve
             which
             ,
             it
             was
             inferred
             ,
             or
             beyond
             the
             expresse
             words
             of
             the
             Act
             ;
             but
             so
             it
             is
             ,
             that
             it
             was
             only
             the
             interest
             of
             the
             Leidges
             ,
             that
             they
             should
             not
             be
             forced
             to
             pay
             interest
             before
             hand
             ;
             but
             that
             they
             might
             voluntarly
             pay
             their
             annualrents
             ,
             without
             any
             danger
             to
             the
             receiver
             ,
             which
             may
             sometimes
             be
             for
             the
             advantage
             of
             the
             payer
             ;
             as
             for
             instance
             ,
             if
             a
             person
             who
             were
             lyable
             for
             annualrents
             at
             Martimas
             ,
             might
             be
             for
             his
             own
             advantage
             desirous
             that
             his
             Creditor
             might
             receive
             his
             annualrents
             in
             September
             ,
             because
             he
             would
             not
             have
             the
             conveniency
             of
             paying
             them
             at
             Martimas
             ,
             and
             might
             be
             either
             at
             expences
             ,
             or
             in
             hazard
             to
             send
             them
             .
             And
             therefore
             ,
             seeing
             the
             receiver
             here
             had
             raised
             no
             charge
             of
             Horning
             ,
             nor
             used
             no
             other
             diligence
             for
             compelling
             the
             Debitors
             to
             pay
             the
             annualrents
             ,
             his
             voluntar
             offer
             of
             them
             should
             not
             prejudge
             the
             receiver
             ,
             especially
             seeing
             by
             the
             narrative
             of
             the
             Act
             ,
             it
             will
             appear
             that
             the
             eviting
             of
             oppression
             ,
             in
             exacting
             Money
             before
             the
             term
             ,
             was
             that
             against
             which
             the
             Act
             of
             Parliament
             intended
             only
             to
             guard
             .
             2.
             
             Though
             by
             the
             first
             part
             of
             the
             Act
             ,
             exacting
             ,
             craving
             ,
             or
             receiving
             annualrents
             at
             the
             time
             of
             the
             lending
             ,
             be
             expresly
             forbidden
             :
             Yet
             when
             the
             craving
             annualrents
             before
             
             the
             term
             of
             payment
             (
             which
             is
             the
             clause
             founded
             upon
             ,
             in
             this
             dittay
             )
             the
             Act
             speaks
             only
             thereof
             ,
             craving
             ,
             or
             exacting
             ,
             but
             doth
             not
             forbid
             simply
             receiving
             .
             3.
             
             
               Consuetudo
               etiam
               mala
               &
               injusta
               excusat
               usurarium
               à
               pena
               Bar.
               in
               lege
               siquis
               fugitivus
               ,
               ff
               .
               edil
               .
               edict
               .
               Socinus
               consilio
            
             170.
             
             And
             it
             was
             very
             notour
             ,
             that
             in
             this
             caise
             there
             was
             nothing
             more
             ordinar
             ,
             then
             for
             honest
             and
             just
             men
             in
             Scotland
             ,
             to
             take
             annualrent
             before
             the
             term
             ,
             from
             willing
             Debitors
             ,
             either
             to
             supplie
             their
             own
             necessity
             ,
             or
             to
             gratify
             their
             Debitor
             upon
             occasions
             .
             And
             it
             were
             very
             unjust
             ,
             that
             the
             Pannel
             who
             was
             a
             poor
             Merchant
             should
             ensnare
             himself
             ,
             
               in
               apicibus
               juris
            
             ,
             thinking
             himself
             warranted
             in
             what
             he
             did
             ,
             by
             the
             practice
             of
             the
             countrey
             ,
             and
             of
             the
             most
             intelligent
             persons
             therein
             .
             4.
             
             
               De
               minimis
               non
               curat
               praetor
            
             ,
             nor
             should
             severe
             and
             statutory
             punishment
             be
             inflicted
             for
             errours
             ,
             where
             no
             person
             is
             any
             way
             considerably
             prejudged
             .
             And
             in
             which
             ,
             it
             cannot
             be
             presumed
             there
             was
             any
             guilt
             ,
             seeing
             the
             advantage
             was
             so
             small
             ,
             for
             the
             only
             share
             the
             Pannel
             reapt
             of
             this
             ,
             was
             the
             annualrent
             of
             ten
             pound
             ,
             from
             Iuly
             to
             Martimas
             ,
             which
             could
             not
             exceed
             three
             shilling
             scots
             ;
             so
             that
             to
             conclude
             ,
             an
             honest
             sincere
             Merchant
             ,
             who
             was
             otherwise
             
               intigerrimae
               famae
            
             ,
             guilty
             of
             Usury
             ;
             and
             to
             infer
             confiscation
             of
             all
             his
             Moveables
             ,
             and
             Infamy
             ,
             which
             is
             the
             punishment
             of
             Usury
             ,
             is
             against
             all
             sense
             and
             reason
             ,
             who
             are
             not
             (
             as
             the
             justices
             )
             tied
             to
             strict
             Law.
             
          
           
             Notwithstanding
             of
             all
             which
             ,
             the
             Justices
             did
             find
             the
             dittay
             relevant
             ,
             as
             founded
             upon
             the
             above-written
             clause
             of
             the
             foresaid
             Act
             ;
             but
             the
             grounds
             above
             related
             ,
             being
             represented
             to
             the
             Council
             ,
             they
             rescinded
             the
             Justices
             Interloquutor
             ;
             and
             yet
             the
             Justice
             did
             again
             condemn
             
               Hugh
               Roxburgh
            
             ,
             28.
             of
             November
             ,
             1668.
             upon
             the
             same
             Act
             ,
             and
             like
             dittay
             ;
             but
             that
             Interloquutor
             was
             likewise
             stopt
             by
             the
             Council
             .
          
           
             IV.
             The
             third
             Species
             of
             Statutory
             Usury
             with
             us
             ,
             is
             committed
             by
             these
             ,
             who
             to
             cheat
             the
             Law
             ,
             colour
             their
             fraud
             
             by
             taking
             ,
             not
             more
             anualrent
             directly
             ,
             then
             that
             is
             prescribed
             by
             the
             Lew
             ,
             but
             taking
             wodsets
             of
             Land
             from
             the
             borrower
             ,
             for
             more
             then
             their
             annualrent
             can
             extend
             to
             ,
             and
             set
             back-tacks
             to
             them
             for
             payment
             of
             what
             is
             agreed
             upon
             .
             To
             prevent
             which
             ,
             and
             all
             such
             Usury
             (
             which
             is
             called
             by
             the
             Law
             ,
             
               usura
               velata
            
             )
             it
             is
             statute
             by
             the
             247.
             
             
               Act
               Parl.
            
             15.
             
             
               K.
               Ia.
            
             6.
             that
             whoever
             receives
             such
             wodsets
             ,
             or
             enters
             into
             any
             such
             bargains
             ,
             for
             which
             more
             is
             taken
             ,
             either
             in
             Money
             ,
             or
             by
             any
             other
             transactions
             ,
             whereby
             any
             thing
             that
             is
             taken
             ,
             may
             be
             reduced
             in
             Money
             ,
             to
             more
             then
             the
             ordinar
             annualrent
             ,
             upon
             whatsoever
             colour
             or
             pretext
             ,
             shall
             be
             guilty
             of
             Usury
             .
             And
             by
             the
             62.
             
             
               Act
               Par.
            
             1.
             
               K.
               Ch.
            
             2.
             
             It
             is
             declared
             ,
             that
             for
             the
             future
             ,
             it
             shall
             be
             Usury
             to
             receive
             proper
             wodsets
             of
             Lands
             ,
             and
             others
             ,
             exceeding
             the
             annualrents
             of
             the
             sums
             ,
             and
             bearing
             by
             expresse
             provision
             ,
             that
             the
             lender
             shall
             not
             be
             lyable
             to
             any
             hazards
             of
             the
             Fruits
             ,
             Tennents
             ,
             Warr
             ,
             or
             Trouble
             ;
             for
             clearing
             of
             which
             Act
             ,
             it
             is
             necessar
             to
             know
             ,
             that
             wodsets
             with
             us
             ,
             are
             either
             proper
             ,
             or
             improper
             ;
             proper
             are
             these
             ,
             wherein
             the
             wodsetter
             runs
             all
             hazard
             of
             the
             Lands
             wodset
             to
             him
             ,
             and
             is
             to
             expect
             no
             more
             annualrent
             for
             his
             Money
             ,
             then
             what
             Fruits
             of
             the
             Lands
             remains
             after
             all
             hazards
             .
             Improper
             wodsets
             are
             these
             ,
             wherein
             the
             wodsetter
             is
             only
             countable
             for
             what
             rent
             he
             receives
             from
             the
             lender
             ;
             nor
             is
             he
             lyable
             to
             the
             hazard
             of
             Bankrupt-tennents
             ,
             Warrand
             Pestilence
             ,
             which
             distinction
             ,
             founded
             upon
             these
             hazards
             ,
             is
             very
             agreable
             to
             reason
             ,
             and
             the
             common
             Law
             ;
             for
             Usury
             being
             a
             certain
             gain
             ,
             he
             who
             gets
             for
             his
             Money
             but
             a
             hazard
             of
             gain
             ,
             commits
             not
             Usury
             ,
             for
             that
             is
             
               emptio
               jactus
               retis
            
             ,
             as
             if
             I
             should
             lend
             Money
             ,
             and
             get
             for
             my
             security
             the
             hazard
             of
             what
             rent
             could
             be
             collected
             from
             a
             loading
             of
             Timber
             coming
             from
             Norway
             ,
             &c.
             
             And
             upon
             this
             ground
             ,
             the
             Law
             allowed
             
               fenus
               nauticus
            
             ,
             to
             be
             much
             greater
             then
             all
             others
             ,
             seeing
             the
             lender
             run
             the
             risk
             therein
             of
             all
             Sea
             hazards
             .
             But
             if
             the
             hazard
             be
             not
             so
             great
             as
             may
             compense
             the
             
             excess
             of
             the
             annualrent
             taken
             beyond
             what
             the
             Law
             allows
             ,
             
               eo
               casu
            
             ,
             it
             excuses
             not
             from
             Usury
             ,
             as
             if
             a
             wodset
             be
             granted
             of
             a
             Miln
             ,
             or
             Salmond
             fishing
             ,
             if
             the
             said
             rents
             do
             ordinarly
             exceed
             the
             annualrents
             ,
             by
             any
             considerable
             excess
             ,
             then
             the
             receivers
             of
             the
             wodset
             commit
             Usury
             ,
             notwithstanding
             of
             the
             hazard
             .
             And
             this
             brings
             to
             my
             memory
             ,
             a
             case
             debated
             upon
             the
             22.
             of
             Ianuary
             ,
             1672.
             wherein
             a
             Gentleman
             being
             pursued
             as
             an
             Usurer
             ,
             in
             so
             far
             as
             he
             had
             taken
             his
             Debitor
             obliedged
             to
             pay
             him
             a
             Boll
             ,
             for
             the
             annualrent
             of
             every
             hundred
             Merk
             ,
             which
             according
             to
             the
             feir
             of
             the
             year
             did
             ,
             for
             the
             two
             years
             of
             his
             wodset
             ,
             extended
             to
             five
             Pound
             the
             Boll
             ,
             and
             so
             exceeded
             the
             annualrent
             ,
             by
             twenty
             Shilling
             every
             Boll
             ;
             yet
             this
             was
             found
             no
             Usury
             ,
             because
             he
             in
             that
             case
             ,
             took
             his
             hazard
             of
             the
             feir
             of
             the
             year
             ,
             which
             might
             have
             been
             much
             lower
             :
             and
             because
             that
             the
             price
             of
             Victual
             varies
             much
             ,
             according
             to
             the
             several
             Shires
             ,
             and
             Years
             .
             And
             lest
             the
             people
             should
             be
             at
             an
             uncertainty
             in
             criminal
             cases
             ,
             which
             were
             dangerous
             ;
             therefore
             by
             the
             122.
             
             
               Act
               Ia.
            
             6.
             
             Par.
             14.
             it
             is
             appointed
             ,
             that
             no
             man
             shall
             take
             more
             profite
             ,
             then
             according
             to
             ten
             Pound
             ,
             for
             the
             hundred
             Pound
             ,
             or
             five
             Bolls
             of
             Victual
             ,
             which
             the
             annualrent
             being
             then
             ,
             at
             ten
             of
             the
             hundred
             ,
             and
             now
             at
             six
             ,
             doth
             allow
             according
             to
             that
             probation
             ,
             two
             Bolls
             for
             the
             hundred
             Merks
             ,
             whereas
             there
             was
             but
             only
             one
             Boll
             taken
             here
             ,
             for
             the
             annualrent
             for
             the
             hundred
             Merk
             ;
             nor
             was
             this
             Act
             abrogat
             by
             the
             Act
             247.
             
             Par.
             15.
             because
             ,
             though
             that
             be
             posterior
             ,
             yet
             it
             doth
             not
             expresly
             abrogat
             this
             Act
             ,
             nor
             ought
             it
             to
             have
             been
             abrogat
             for
             avoiding
             of
             uncertainty
             ,
             as
             said
             is
             .
             And
             for
             the
             same
             reason
             ,
             the
             undertaking
             of
             hazard
             hinders
             the
             taking
             of
             advantagious
             Tacks
             ,
             to
             infer
             Usury
             ,
             as
             was
             decided
             September
             1668.
             wherein
             
               Robert
               Lawder
            
             was
             pursued
             as
             an
             Usurer
             ,
             because
             he
             had
             taken
             a
             tack
             of
             two
             Buts
             of
             Land
             ,
             and
             a
             Dovecoat
             for
             four
             years
             ,
             which
             payed
             fifty
             Merks
             yearly
             ,
             
               communibus
               annis
            
             ,
             
             and
             that
             for
             satisfaction
             of
             the
             annuulrents
             of
             an
             hundred
             Merks
             ,
             which
             Tack
             did
             bear
             this
             clause
             ,
             that
             if
             the
             first
             year
             Robert
             were
             payed
             ,
             he
             should
             defalck
             so
             much
             of
             the
             annualrent
             proportionally
             ;
             notwithstanding
             of
             which
             clause
             ,
             he
             refused
             to
             compt
             :
             It
             was
             alledged
             for
             the
             defender
             ,
             that
             the
             Tacks-man
             had
             run
             a
             hazard
             ,
             because
             he
             might
             have
             been
             disappointed
             of
             all
             duty
             ,
             
               quo
               casu
            
             ,
             he
             would
             have
             got
             no
             releif
             .
             To
             which
             it
             was
             duplyed
             ,
             that
             the
             same
             hazard
             was
             in
             wodsets
             ;
             and
             yet
             the
             taking
             a
             wodset
             for
             more
             then
             the
             ordinary
             annualrent
             ,
             made
             the
             wodsetter
             incur
             the
             Crime
             of
             Usury
             .
             Nor
             could
             this
             hazard
             defend
             ,
             because
             it
             was
             not
             great
             ,
             and
             there
             was
             scarce
             any
             hazard
             in
             it
             ;
             not
             could
             the
             danger
             be
             here
             objected
             ,
             seing
             after
             expiring
             of
             the
             years
             ,
             the
             receiver
             offered
             to
             compt
             with
             the
             lender
             ,
             and
             to
             allow
             him
             both
             principal
             sum
             ,
             and
             annualrents
             ;
             to
             which
             it
             was
             triplyed
             ,
             that
             the
             Act
             of
             Parliament
             ,
             discharging
             Usurary
             ,
             wodsets
             doth
             not
             discharge
             Tacks
             ;
             and
             there
             is
             a
             great
             difference
             ,
             as
             to
             Usury
             betwixt
             tacks
             and
             wodsets
             :
             for
             wodsetters
             have
             the
             liberty
             to
             require
             their
             Money
             from
             the
             debitor
             ,
             so
             that
             they
             lose
             not
             the
             sum
             ,
             though
             they
             lose
             their
             rents
             ;
             but
             Tacksmen
             lose
             all
             ,
             if
             their
             tack
             duty
             be
             not
             payed
             :
             and
             as
             to
             their
             offer
             of
             compting
             ,
             that
             being
             only
             competent
             after
             the
             first
             year
             ,
             it
             could
             not
             be
             objected
             thereafter
             ,
             and
             the
             danger
             was
             past
             before
             the
             offer
             .
          
           
             The
             fourth
             degree
             of
             usury
             with
             us
             ,
             is
             to
             take
             budd
             or
             bribe
             for
             the
             loan
             of
             money
             ,
             or
             for
             continuing
             it
             ,
             when
             it
             is
             lent
             ,
             whereupon
             many
             debates
             do
             arise
             .
             The
             cause
             why
             the
             debitor
             gives
             a
             gratuity
             to
             his
             Creditor
             ,
             being
             oft
             ,
             
               actus
               animi
            
             ,
             is
             hard
             to
             be
             proven
             .
             But
             generally
             it
             is
             sustained
             that
             a
             proceeding
             Treatie
             must
             be
             proved
             ,
             or
             else
             it
             must
             be
             proved
             ,
             that
             the
             receiver
             is
             manifestus
             ,
             that
             is
             an
             ordinar
             Usurer
             ,
             for
             else
             to
             receive
             a
             gratuity
             is
             no
             crime
             ;
             And
             it
             were
             against
             reason
             ,
             
             that
             by
             lending
             money
             to
             my
             friend
             ,
             I
             should
             become
             uncapable
             of
             a
             donation
             from
             him
             .
          
           
             V.
             The
             common
             Law
             also
             sustains
             it
             to
             be
             Usury
             ,
             if
             a
             man
             Wodset
             his
             Lands
             ,
             and
             in
             the
             Wodset
             provide
             that
             it
             shall
             not
             be
             lawful
             to
             Redeem
             betwixt
             and
             a
             definit
             time
             ,
             for
             in
             that
             case
             it
             presumes
             that
             the
             wodset
             granter
             adjects
             this
             because
             of
             some
             known
             advantage
             ,
             and
             this
             is
             to
             take
             more
             advantage
             for
             money
             then
             the
             Annualrent
             .
             
               Molm.
               de
               Censu
            
             .
             But
             this
             the
             Lords
             would
             not
             sustain
             to
             be
             Usury
             .
             Nor
             did
             they
             find
             it
             an
             unlawful
             paction
             ,
             in
             the
             Action
             betwixt
             ,
             Sir
             
               Iohn
               Drummond
            
             ,
             and
             Achtertyr
             .
             And
             in
             effect
             these
             pactions
             are
             allowed
             by
             Act
             62.
             
             P.
             1.
             
             
               K.
               C.
            
             1.
             
             S.
             1.
             
          
           
             By
             the
             Civil
             Law
             ,
             it
             was
             Usury
             to
             take
             Annualrent
             for
             Annualrent
             ;
             at
             least
             it
             was
             declared
             unlawful
             ,
             
               l.
               ult
               .
               C.
               de
               usur
            
             And
             I
             conceive
             that
             to
             swell
             up
             Annualrents
             thus
             ,
             beyond
             what
             the
             Law
             allows
             ,
             would
             infer
             Usury
             with
             us
             :
             for
             else
             the
             Law
             might
             be
             thus
             cheated
             .
             But
             though
             by
             the
             Civil
             Law
             it
             was
             unlawful
             ,
             and
             Usury
             ,
             to
             accumulat
             Annualrents
             with
             the
             principal
             sums
             ;
             and
             to
             make
             both
             bear
             Annualrent
             ;
             which
             was
             called
             Anatocismus
             ,
             and
             is
             discharged
             ,
             l.
             28.
             
             
               C.
               de
               usur
            
             .
             yet
             with
             us
             ,
             such
             pactions
             are
             most
             lawful
             :
             for
             since
             ,
             if
             the
             Annuals
             had
             been
             payed
             ,
             they
             had
             born
             Annuals
             ,
             why
             may
             they
             not
             be
             lent
             out
             to
             the
             debitor
             ,
             as
             well
             as
             to
             others
             .
          
           
             VI.
             The
             probation
             of
             Usury
             is
             ,
             either
             by
             writ
             ,
             witnesses
             ,
             or
             Oath
             ,
             as
             to
             writ
             it
             may
             be
             doubted
             ,
             how
             the
             pursuer
             may
             recover
             it
             for
             instructing
             his
             Libel
             ,
             the
             writs
             being
             ordinarily
             in
             the
             Usurers
             own
             hand
             ,
             and
             
               nemo
               tenetur
               edere
               instrumenta
               contra
               se.
            
             And
             yet
             I
             find
             Lawyers
             very
             clear
             ,
             that
             
               hoc
               casu
               tenetur
               edere
               contra
               se
               Bartol
               .
               &
               doctores
               ad
               l.
               praetor
               §
               .
               Is
               etiam
               ff
               .
               de
               edendo
               Arelat
               .
               de
               heretic
               .
               notabil
               .
            
             21.
             and
             seing
             with
             us
             ,
             Usurers
             are
             obliedged
             to
             swear
             against
             the
             common
             Criminal
             rules
             ,
             because
             of
             the
             obscurity
             of
             the
             crime
             ,
             why
             should
             they
             not
             be
             oblieged
             to
             produce
             ther
             writs
             ,
             for
             the
             same
             reason
             ?
             and
             as
             to
             the
             former
             maxime
             ,
             that
             
               nemo
               tenetur
               edere
            
             ,
             &c.
             
             It
             may
             
             be
             answered
             ,
             that
             it
             holds
             not
             
               in
               criminalibus
            
             ,
             for
             we
             see
             that
             in
             improbations
             ,
             the
             Pursuer
             will
             force
             the
             Defender
             upon
             an
             alledgeance
             of
             falshood
             to
             produce
             all
             his
             writs
             ,
             and
             why
             not
             in
             Usury
             ?
             Yet
             I
             know
             that
             it
             is
             ordinarily
             advised
             in
             such
             cases
             to
             raise
             an
             exhibition
             .
          
           
             As
             to
             the
             probation
             by
             witnesses
             ,
             It
             is
             doubted
             if
             the
             Debitor
             who
             lent
             the
             money
             may
             be
             received
             as
             witnesse
             ?
             seing
             he
             is
             
               socius
               criminis
            
             ,
             it
             being
             unlawful
             to
             take
             as
             well
             as
             to
             give
             upon
             Usury
             ,
             but
             with
             us
             these
             are
             received
             ,
             as
             Hissleside
             in
             
             Somervel's
             case
             ,
             18.
             
             Ian.
             1667.
             
             But
             thereafter
             the
             Justices
             declared
             that
             they
             would
             not
             sustain
             the
             Debitor
             to
             be
             a
             witnesse
             11.
             
             November
             ,
             1667.
             
             His
             Majesties
             Advocat
             
               contra
               Wilson
            
             ,
             And
             that
             because
             by
             the
             7.
             
             
               Act
               ,
               P.
            
             16.
             
             
               K.
               I.
            
             6.
             
             It
             is
             appointed
             that
             usury
             shall
             be
             proved
             by
             the
             Oath
             of
             the
             party
             receiver
             of
             the
             unlawful
             Annualrent
             ,
             and
             witnesses
             insert
             ,
             without
             receiving
             the
             Oath
             of
             the
             giver
             of
             the
             unlawful
             Annualrent
             ,
             for
             eviting
             perjury
             .
             Nor
             will
             the
             Justices
             sustain
             as
             a
             reply
             ,
             that
             the
             giver
             of
             the
             unlawful
             .
             Annualrent
             in
             this
             case
             had
             payed
             the
             sum
             ,
             and
             so
             was
             no
             more
             debitor
             ,
             and
             could
             expect
             no
             advantage
             ,
             and
             so
             the
             fear
             of
             perjury
             ceased
             .
             And
             as
             to
             the
             foresaid
             seventh
             Act
             ,
             It
             was
             answered
             ,
             that
             it
             was
             only
             made
             not
             to
             exclude
             the
             debitor
             absolutely
             ,
             but
             to
             correct
             the
             257.
             
             Act
             ,
             15.
             
             
               P.
               K.
               I.
            
             6.
             whereby
             the
             Oath
             of
             Party
             was
             declared
             to
             be
             receivable
             as
             decisive
             of
             the
             cause
             .
             As
             to
             other
             witnesses
             ,
             our
             ordinary
             distinction
             is
             ,
             that
             pactions
             in
             Usury
             are
             either
             extrinsick
             to
             the
             Bond
             ,
             or
             writ
             ,
             as
             are
             the
             taking
             Bud
             or
             Bribe
             for
             continuing
             a
             Sum
             ,
             and
             these
             may
             be
             proved
             by
             any
             witnesses
             ;
             albeit
             by
             the
             foresaid
             7.
             
             Act.
             It
             is
             said
             that
             Usury
             shall
             be
             proved
             by
             the
             Oath
             of
             the
             Party
             ,
             and
             witnesses
             insert
             .
             But
             pactions
             which
             concern
             the
             writ
             it self
             ,
             as
             that
             whereby
             more
             is
             promised
             then
             is
             contained
             in
             the
             bond
             ,
             these
             cannnot
             be
             proven
             ,
             but
             by
             the
             Witnesses
             insert
             ,
             for
             else
             writ
             might
             be
             taken
             away
             by
             Witnesses
             .
             As
             to
             oath
             of
             Party
             ,
             it
             
             is
             ordained
             to
             be
             taken
             by
             the
             former
             acts
             against
             the
             common
             rules
             of
             Law
             ,
             by
             which
             ,
             
               nemo
               tenetur
               jurare
               in
               suam
               turpitudinem
            
             :
             And
             the
             Justices
             accordingly
             do
             force
             the
             Pannels
             to
             swear
             ,
             as
             in
             the
             case
             of
             Wilson
             above
             cited
             .
             But
             it
             may
             be
             doubted
             if
             this
             act
             should
             not
             extend
             only
             to
             Civil
             ,
             and
             not
             Criminal
             cases
             ;
             For
             that
             act
             sayes
             ,
             that
             litis-contestation
             being
             made
             ,
             it
             shall
             be
             lawful
             to
             receive
             :
             But
             so
             it
             is
             that
             there
             is
             no
             litis-contestation
             in
             Criminals
             .
             go
             .
             This
             Act
             cannot
             be
             extended
             to
             these
             cases
             .
          
           
             VII
             .
             Usury
             was
             allowed
             by
             the
             Civil
             Law
             ,
             as
             the
             proper
             product
             ,
             or
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             pecuniae
             ,
             but
             by
             the
             Canon
             Law
             it
             was
             punished
             ,
             and
             most
             Lawyers
             think
             it
             may
             be
             punished
             criminally
             ,
             
               Decius
               Consil.
            
             130.
             
             And
             it
             is
             called
             
               crimen
               utriusque
               fori
            
             ,
             because
             it
             is
             punishable
             Civilly
             and
             Ecclesiastically
             .
          
           
             The
             pain
             of
             Usury
             with
             us
             ,
             is
             ,
             That
             the
             debitor
             shall
             be
             free
             from
             his
             obligation
             ,
             or
             have
             back
             his
             pledge
             ,
             or
             if
             the
             debitor
             conceal
             ,
             then
             the
             revealer
             shall
             have
             right
             to
             the
             sums
             ,
             Act
             ,
             222.
             
             
               K.
               I.
            
             6.
             
             Par.
             14.
             
             And
             by
             the
             248
             
               Act
               ,
               P.
            
             15.
             
             
               K.
               I.
            
             6.
             
             It
             is
             appointed
             that
             the
             Usurary
             Bond
             or
             Contract
             shall
             be
             reduced
             ,
             and
             being
             reduced
             ,
             the
             sums
             shall
             belong
             to
             His
             Majesty
             ,
             or
             his
             Donator
             ;
             and
             the
             Party
             to
             have
             repetition
             of
             the
             unlawful
             Annualrent
             payed
             by
             him
             ,
             in
             case
             only
             he
             concur
             with
             the
             Donator
             in
             the
             reduction
             .
          
        
         
           
           
             TITLE
             XXV
             .
             The
             Dribing
             ,
             Partiality
             ,
             and
             Negligence
             of
             Judges
             .
          
           
             
               1.
               
               
                 What
                 is
                 bribing
                 by
                 the
                 Civil
                 Law.
                 
              
            
             
               2.
               
               
                 What
                 by
                 our
                 Law
                 ,
                 and
                 how
                 our
                 Law
                 punisheth
                 it
                 .
              
            
             
               3.
               
               Crimen
               repecundarum
               &
               Barratriae
               .
            
             
               4.
               
               
                 Whether
                 Arbiters
                 ,
                 Deligats
                 ,
                 or
                 Assessors
                 ,
                 be
                 punishable
                 for
                 taking
                 Bribes
                 .
              
            
             
               5.
               
               
                 How
                 negligent
                 Iudges
                 are
                 punishable
              
               .
            
          
           
             IT
             is
             to
             no
             purpose
             to
             make
             good
             Laws
             ,
             if
             the
             execution
             of
             them
             be
             not
             committed
             to
             just
             and
             diligent
             persons
             ,
             as
             it
             is
             to
             no
             purpose
             to
             have
             an
             exact
             ballance
             ,
             if
             that
             ballance
             be
             not
             put
             in
             a
             good
             hand
             :
             and
             therefore
             ,
             as
             the
             Law
             hath
             been
             very
             liberal
             of
             its
             priviledges
             ,
             to
             just
             Judges
             ,
             and
             severe
             in
             punishing
             such
             as
             offended
             them
             ;
             so
             it
             hath
             punish'd
             with
             the
             same
             rigour
             ,
             such
             Judges
             as
             transgress
             either
             by
             bribing
             ,
             negligence
             ,
             or
             partiality
             ,
             which
             are
             three
             distinct
             species
             forbidden
             by
             the
             common
             Law
             and
             ours
             .
          
           
             I.
             Bribing
             is
             the
             taking
             of
             money
             ,
             or
             other
             good
             deed
             ,
             either
             for
             doing
             of
             justice
             ,
             or
             committing
             of
             unjustice
             .
          
           
             There
             are
             indeed
             some
             Lawyers
             who
             think
             ,
             that
             a
             Judge
             taking
             money
             in
             a
             Civil
             Cause
             ,
             to
             do
             justice
             ,
             doth
             not
             thereby
             commit
             a
             Crime
             ,
             but
             is
             only
             lyable
             to
             restitution
             ,
             Menoch
             .
             2.
             
             Arb.
             342.
             n.
             6.
             but
             this
             is
             expresly
             contrary
             to
             sound
             reason
             ,
             since
             if
             taking
             upon
             any
             terms
             be
             allowed
             ,
             the
             Law
             may
             
             be
             eluded
             ,
             and
             Judges
             will
             be
             thereby
             tempted
             ,
             not
             only
             to
             take
             bribes
             ,
             but
             to
             take
             pains
             to
             justifie
             what
             they
             have
             done
             :
             but
             yet
             I
             think
             that
             this
             opinion
             is
             neither
             proved
             ,
             
               per
               l.
            
             4.
             
               ff
               .
               de
               l.
               jul
               .
               repetund
               .
            
             For
             there
             it
             is
             not
             only
             said
             ,
             
               non
               excipiet
               quo
               magis
               aut
               minus
               quid
               ex
               officio
               suo
               fecerit
               ,
            
             which
             prohibits
             only
             an
             excess
             in
             justice
             ,
             and
             not
             the
             doing
             justice
             for
             money
             ,
             nor
             perl
             .
             3.
             
               c.
               eod
            
             .
             since
             that
             Law
             doth
             only
             in
             the
             general
             forbid
             the
             taking
             of
             money
             ,
             but
             this
             is
             expresly
             forbidden
             ,
             l.
             2.
             
             §
             .
             2
             
               ff
               .
               de
               condict
               .
               obturp
               .
               caus
               .
            
             where
             it
             is
             declared
             a
             Crime
             ,
             but
             the
             punishment
             there
             seems
             only
             to
             be
             
               litem
               suam
               facere
            
             ,
             and
             
               Skeen
               ad
               Stat.
            
             25.
             
             Wil.
             says
             ,
             that
             
               non
               licet
               judici
               vendere
               judicium
               justum
               .
            
          
           
             II.
             By
             our
             Law
             ,
             the
             Kings
             Judges
             were
             to
             those
             an
             Assize
             upon
             what
             they
             had
             done
             as
             Judges
             ;
             and
             if
             they
             were
             convict
             ,
             they
             were
             to
             be
             punished
             by
             the
             King
             and
             his
             Council
             ,
             according
             to
             the
             measure
             of
             their
             fault
             ,
             Cap.
             13.
             
             
               Stat.
               Rob.
            
             2.
             and
             the
             Judges
             of
             inferior
             Courts
             ,
             such
             as
             Regalities
             ,
             were
             to
             those
             an
             Assize
             before
             the
             Justices
             ,
             and
             if
             they
             were
             found
             either
             culpable
             or
             remiss
             ,
             they
             were
             to
             escheat
             their
             moveables
             ,
             and
             their
             life
             to
             be
             in
             the
             Kings
             will
             ,
             or
             in
             the
             will
             of
             the
             Lords
             of
             the
             Regality
             ,
             cap.
             14.
             ibid.
             
          
           
             And
             by
             the
             26.
             
             
               Act
               ,
               Ia.
            
             3.
             
             Parl.
             5.
             a
             Sheriff
             ,
             or
             any
             other
             Officer
             of
             Fee
             ,
             that
             is
             to
             say
             ,
             any
             Heritable
             Officer
             ,
             is
             to
             be
             put
             from
             his
             Office
             for
             three
             years
             ,
             if
             he
             be
             found
             partial
             ,
             and
             an
             ordinary
             Judge
             ,
             if
             he
             be
             found
             partial
             ,
             loseth
             his
             Office
             forever
             .
             And
             though
             his
             person
             's
             being
             punished
             at
             the
             King's
             will
             ,
             and
             the
             paying
             of
             the
             expence
             of
             the
             party
             injured
             ,
             be
             only
             added
             to
             the
             pun●shment
             ,
             expressed
             against
             a
             Judge
             who
             is
             not
             Heritable
             yet
             I
             conceive
             ,
             that
             being
             added
             in
             the
             last
             place
             ,
             it
             is
             applicable
             ,
             both
             to
             the
             Heritable
             Judges
             ,
             and
             others
             .
             Likeas
             ,
             it
             is
             observable
             ,
             that
             though
             by
             all
             these
             Acts
             ,
             the
             King
             and
             His
             Council
             are
             only
             exprest
             to
             be
             the
             Judges
             competent
             ;
             yet
             
               de
               practica
            
             ,
             the
             Justices
             are
             Judges
             competent
             ,
             if
             partiality
             be
             committed
             in
             any
             criminal
             cause
             ,
             
             as
             for
             instance
             ,
             if
             a
             Sheriff
             should
             execute
             any
             Pannel
             ,
             upon
             a
             Crime
             proved
             only
             against
             him
             ,
             by
             the
             pursuers
             brothers
             ,
             or
             other
             inhabile
             witnesses
             ,
             or
             upon
             a
             Libel
             ,
             which
             were
             palpably
             irrelevant
             ;
             in
             these
             and
             in
             such
             other
             criminal
             cases
             ,
             the
             Justices
             and
             not
             the
             Council
             ,
             would
             be
             only
             Judges
             competent
             ;
             nor
             is
             partiality
             in
             civil
             cases
             ,
             a
             Crime
             by
             our
             Law
             ,
             though
             it
             be
             punishable
             by
             this
             Act
             ,
             
               paena
               arbitraria
            
             :
             and
             by
             resounding
             of
             the
             dammage
             sustained
             by
             the
             pursuer
             .
          
           
             The
             foresaid
             Laws
             strike
             only
             against
             partiality
             ,
             in
             general
             ,
             but
             bribing
             is
             expresly
             discharged
             ,
             by
             the
             25.
             
             
               Chap.
               Stat.
               K.
               William
            
             ,
             but
             there
             is
             no
             punishment
             there
             exprest
             ;
             and
             therefore
             Skeen
             adds
             in
             his
             observations
             ,
             the
             punishment
             of
             l.
             1.
             
               cum
               aut
               hent
               .
               c.
               de
               paen
               .
               judic
               .
            
             And
             thereafter
             ,
             by
             the
             22.
             
             Chap.
             1.
             
             
               Stat.
               Rob.
            
             1.
             all
             Judges
             are
             forbidden
             to
             take
             Land
             ,
             or
             any
             thing
             else
             ,
             to
             Champart
             ,
             either
             for
             giving
             ,
             deferring
             ,
             or
             prolonging
             of
             justice
             :
             and
             the
             offenders
             are
             to
             be
             in
             the
             Kings
             will
             ,
             and
             to
             lose
             their
             office
             for
             all
             their
             life
             ,
             Champart
             is
             a
             
               French
               word
            
             ,
             signifying
             
               part
               .
               du
               champs
            
             ,
             a
             part
             of
             any
             Land
             ;
             so
             that
             by
             a
             Metaphor
             ,
             the
             taking
             any
             part
             of
             the
             advantage
             ,
             arising
             by
             any
             plea
             ,
             is
             forbidden
             by
             this
             Statute
             ,
             which
             the
             Civilians
             call
             
               pactum
               de
               quota
               litis
            
             ,
             by
             the
             104.
             
             Act
             7.
             
             
               Parl.
               I.
            
             5.
             consulting
             ,
             or
             giving
             partial
             judgement
             ,
             is
             declared
             bribing
             in
             a
             Judge
             ,
             and
             such
             as
             diffame
             them
             as
             bribers
             ,
             are
             punisht
             ,
             legetalionis
             .
          
           
             But
             because
             these
             Acts
             were
             not
             clear
             against
             bribing
             ;
             therefore
             by
             the
             93.
             
             Act.
             6.
             
             
               Parl.
               I.
            
             6.
             the
             taking
             of
             bribes
             ,
             is
             discharged
             to
             the
             Lords
             of
             Session
             ,
             their
             Wives
             ,
             and
             Servants
             ,
             under
             the
             pain
             of
             infamy
             ,
             deprivation
             ,
             and
             confiscation
             of
             all
             their
             Moveables
             ;
             to
             all
             which
             ,
             an
             arbitrary
             punishment
             is
             adjected
             .
          
           
             It
             is
             very
             observable
             ,
             that
             by
             this
             Act
             ,
             not
             only
             the
             taking
             of
             bribes
             is
             discharged
             ,
             but
             even
             the
             taking
             any
             goods
             or
             gear
             ,
             during
             the
             depending
             of
             a
             Plea
             ;
             or
             from
             such
             ,
             as
             shall
             
             have
             causes
             depending
             for
             the
             future
             :
             and
             though
             it
             seem'd
             very
             reasonable
             ,
             that
             men
             should
             not
             be
             discharged
             of
             the
             effects
             of
             their
             friends
             liberality
             ,
             and
             should
             not
             be
             ,
             by
             being
             elected
             Lords
             of
             Session
             ,
             put
             in
             a
             worse
             condition
             ,
             then
             the
             other
             subjects
             ;
             yet
             so
             jealous
             is
             the
             Law
             of
             bribing
             ,
             that
             it
             is
             afraid
             ,
             that
             if
             Judges
             be
             allowed
             ,
             to
             take
             at
             any
             rate
             ,
             or
             upon
             pretext
             of
             their
             friends
             liberality
             ,
             they
             might
             abuse
             this
             pretext
             ,
             to
             meer
             bribing
             ,
             
               l.
               ult
               .
               c.
               h.
               t.
               l.
            
             4.
             
               ff
               .
               eod
            
             .
             And
             yet
             the
             Glosse
             ,
             
               ad
               l.
            
             1.
             
               ff
               .
               h.
               t.
            
             allows
             a
             Judge
             to
             take
             from
             his
             relations
             ,
             within
             the
             sixth
             degree
             ;
             nor
             is
             it
             lawful
             to
             take
             any
             thing
             ,
             even
             by
             way
             of
             remuneration
             ,
             though
             remuneration
             be
             rather
             a
             paying
             then
             a
             gilting
             ,
             
               Matheus
               P.
            
             619.
             
             But
             I
             conceive
             ,
             that
             this
             must
             be
             understood
             ,
             of
             a
             remuneration
             made
             for
             services
             ,
             done
             during
             a
             Plea
             ,
             or
             upon
             the
             accompt
             of
             a
             Plea
             ,
             or
             upon
             any
             publict
             accompt
             .
             But
             it
             seems
             against
             reason
             to
             think
             ,
             that
             if
             a
             brother
             ,
             or
             brother
             in
             Law
             ,
             should
             entertain
             his
             brothers
             family
             ,
             whilst
             he
             is
             a
             Judge
             ,
             that
             he
             may
             not
             receive
             a
             remuneration
             for
             that
             ,
             or
             the
             like
             kindnesse
             .
          
           
             The
             second
             observation
             from
             this
             Act
             ,
             is
             ,
             that
             it
             is
             not
             lawful
             for
             their
             wives
             ,
             or
             servants
             ,
             to
             take
             bribes
             ,
             or
             good
             deeds
             ,
             which
             is
             consonant
             to
             l.
             1.
             
             
               C.
               h.
               t.
            
             by
             which
             the
             Judge
             is
             lyable
             to
             pay
             the
             quadruple
             of
             what
             his
             servants
             take
             ;
             but
             it
             would
             appear
             ,
             that
             none
             is
             lyable
             by
             this
             Statute
             ,
             for
             what
             his
             servants
             take
             ,
             except
             he
             know
             that
             his
             servants
             take
             by
             command
             ,
             or
             ratihabition
             ;
             for
             this
             Statute
             discharges
             Judges
             to
             take
             by
             themselves
             ,
             or
             their
             wives
             ,
             or
             their
             servants
             ,
             which
             implyes
             some
             Act
             of
             the
             masters
             ;
             for
             
               qui
               facit
               per
               alium
               facit
               per
               se
               ,
            
             but
             he
             who
             is
             absolutely
             ignorant
             of
             what
             his
             servants
             doth
             ,
             cannot
             be
             punished
             for
             anothers
             fault
             ,
             against
             the
             common
             rules
             of
             Law
             ,
             else
             the
             master
             should
             be
             made
             a
             slave
             to
             his
             servants
             ,
             who
             might
             at
             his
             pleasure
             force
             him
             to
             what
             he
             decided
             ,
             or
             else
             by
             taking
             bribes
             ,
             might
             ruine
             both
             his
             masters
             estate
             and
             reputation
             .
          
           
           
             Since
             this
             Statute
             discharges
             only
             the
             Lords
             of
             Session
             ,
             it
             may
             be
             doubted
             ,
             if
             it
             should
             extend
             to
             bribes
             ,
             taken
             by
             other
             Judges
             .
             For
             Laws
             in
             criminal
             cases
             ,
             use
             not
             to
             be
             extended
             ;
             and
             since
             the
             Lords
             of
             Session
             may
             by
             bribing
             ,
             do
             mo●e
             unjustice
             ,
             and
             prejudge
             the
             Leidges
             more
             then
             others
             ,
             it
             may
             be
             alledged
             ,
             that
             other
             Judges
             ought
             not
             to
             be
             so
             severely
             punished
             as
             they
             ;
             and
             yet
             since
             the
             Crime
             of
             bribing
             is
             punished
             by
             the
             Civil
             Law
             ,
             and
             Law
             of
             Nations
             ,
             in
             all
             Judges
             ,
             it
             seems
             just
             to
             extend
             this
             Act
             to
             all
             Judges
             ;
             and
             the
             other
             ,
             because
             though
             ,
             
               lex
               julia
            
             was
             made
             
               contra
               principales
               magistratus
            
             ,
             yet
             it
             was
             by
             the
             Roman
             customes
             ,
             extended
             ,
             
               ad
               magistratus
               urbanos
               ,
               Math.
               P.
            
             617.
             
          
           
             III.
             The
             taking
             of
             bribes
             ,
             or
             good
             deeds
             ,
             was
             punished
             by
             the
             Civil
             Law
             ,
             
               Per.
               l.
               jul
               .
               Repetundarum
            
             .
             By
             which
             ,
             
               tenebatur
               qui
               in
               magistratu
               ,
               potestate
               ,
               curatione
               legatione
               vel
               quo
               alio
               officio
               munere
               ministeriove
               publico
               quid
               acciperit
               quo
               magis
               aut
               quo
               minus
               officium
               faceret
               ,
               l.
            
             1
             ,
             3
             ,
             4
             ,
             6.
             
               ff
               .
               de
               l.
               jul
               .
               Repet
               .
            
          
           
             The
             punishment
             of
             
               crimen
               repetundarum
            
             ,
             was
             death
             ,
             if
             Money
             was
             taken
             ,
             to
             pronounce
             a
             capital
             sentence
             unjustly
             ,
             l.
             7.
             or
             banishment
             ,
             and
             confiscation
             of
             goods
             ,
             in
             case
             no
             such
             criminal
             effect
             followed
             ,
             ff
             .
             38.
             
               de
               paenis
            
             ,
             and
             though
             some
             Doctors
             teach
             ,
             that
             albeit
             it
             be
             capital
             to
             condemn
             an
             innocent
             man
             ,
             yet
             to
             absolve
             a
             guilty
             man
             who
             deserved
             death
             ,
             is
             only
             punishable
             by
             banishment
             :
             But
             if
             the
             Judge
             received
             Money
             ,
             or
             committed
             gross
             iniquity
             ,
             that
             should
             be
             punishable
             by
             death
             also
             ,
             for
             l.
             7.
             
               h.
               t.
            
             doth
             not
             distinguish
             these
             two
             cases
             .
          
           
             This
             Crime
             is
             by
             the
             Doctors
             ,
             called
             
               banatria
               ,
               nam
               baratriam
               committit
               qui
               propter
               pecuniam
               justitiam
               baractat
               .
               Farin
               .
               Q.
            
             3.
             art
             .
             10.
             
             And
             they
             conclude
             ,
             that
             by
             the
             present
             customes
             of
             Nations
             ,
             it
             is
             only
             punished
             arbitrarily
             ,
             not
             exceeding
             banishment
             ,
             
               Boss.
               de
               offic
               .
               corrupt
               .
               num
               .
            
             6.
             
          
           
           
             He
             also
             who
             corrupts
             the
             Judges
             ,
             is
             punishable
             with
             the
             punishment
             of
             falshood
             ,
             
               gloss
               .
               ad
               l.
               qui
               explicandi
               ,
               C.
               de
               accus
               .
            
             which
             holds
             ,
             though
             the
             Judge
             accept
             not
             the
             bribe
             ,
             he
             is
             punishable
             ,
             if
             the
             endeavour
             
               pervenit
               ad
               actum
               proximum
               ,
               Menoch
               de
               arb
               .
               cas
               .
            
             343.
             
             He
             also
             who
             corrupts
             the
             Judge
             ,
             or
             Clerk
             ,
             loses
             the
             cause
             ,
             
               Far.
               num
            
             .
             126.
             
             But
             I
             differ
             from
             him
             ,
             in
             that
             he
             thinks
             ,
             that
             a
             Pannel
             who
             corrupts
             the
             Judge
             in
             a
             criminal
             cause
             ,
             ought
             not
             there
             after
             to
             be
             allowed
             a
             liberty
             of
             proponing
             a
             defence
             :
             for
             an
             innocent
             man
             may
             by
             fear
             ,
             be
             driven
             to
             offer
             to
             redeem
             his
             own
             life
             ,
             to
             which
             inclination
             ,
             the
             Law
             indulges
             very
             much
             .
          
           
             The
             Judge
             who
             judges
             unskilfully
             ,
             
               per
               imperitiam
            
             ,
             is
             punishable
             by
             a
             fine
             ,
             beside
             that
             ,
             he
             payes
             the
             expences
             of
             the
             plea
             ,
             
               l.
               fin
               .
               de
               var.
               &
               extr
               .
               crim
               .
            
             But
             Bossius
             and
             others
             ,
             are
             of
             opinion
             ,
             that
             he
             is
             never
             to
             be
             corporally
             punished
             ;
             and
             by
             the
             17.
             
             Act
             6.
             
             
               P.
               Ia.
            
             2.
             only
             such
             Judges
             are
             to
             be
             punished
             ,
             as
             trespasse
             wilfully
             in
             their
             office
             .
          
           
             Arbiters
             bribing
             ,
             are
             punished
             as
             other
             Judges
             ;
             but
             some
             Docto●s
             do
             justly
             conclude
             ,
             that
             arbiters
             are
             not
             liable
             for
             their
             unskilfulnesse
             ,
             since
             they
             were
             choosed
             by
             the
             parties
             ,
             who
             should
             blame
             their
             own
             election
             .
          
           
             Delegat
             Judges
             ,
             such
             as
             these
             ,
             to
             whom
             the
             Lords
             recommend
             perambulating
             of
             Marches
             ,
             are
             punishable
             for
             bribing
             ,
             but
             for
             the
             same
             reason
             ,
             they
             are
             not
             punishable
             for
             their
             unskilfulnesse
             .
          
           
             Assessors
             taking
             bribes
             ,
             are
             also
             punishable
             ,
             but
             some
             think
             them
             not
             pun●shable
             for
             unskilfulnesse
             ,
             since
             the
             Judge
             is
             not
             obliedged
             to
             follow
             their
             opinion
             :
             and
             though
             some
             think
             ,
             that
             an
             Assessor
             ,
             gett●ng
             a
             sallary
             ,
             is
             liable
             even
             for
             his
             unskilfulnesse
             ,
             
               Curt.
               Iun.
               ad
               l.
            
             2.
             
               ff
               .
               quod
               quisque
               juris
            
             ,
             and
             he
             should
             have
             known
             that
             he
             was
             named
             Assessor
             ,
             to
             supplie
             the
             unskilfulnesse
             of
             the
             Judge
             .
             Yet
             I
             differ
             ,
             for
             he
             gives
             only
             his
             advice
             ,
             and
             so
             is
             liable
             only
             as
             an
             Advocat
             is
             .
          
           
           
             V.
             Judges
             negligent
             in
             putting
             Laws
             to
             execution
             ,
             are
             punishable
             for
             their
             remissnesse
             and
             negligence
             ,
             c.
             14.
             
             R.
             2.
             by
             the
             escheating
             of
             their
             moveables
             ,
             and
             their
             life
             is
             to
             be
             in
             the
             Kings
             will
             ,
             which
             seems
             too
             severe
             a
             punishment
             for
             meer
             negligence
             ;
             but
             by
             the
             26.
             
             Act
             5.
             
             
               Par.
               Ia.
            
             3.
             a
             Iudge
             found
             culpable
             (
             which
             word
             may
             comprehend
             negligence
             )
             is
             to
             be
             put
             from
             his
             office
             for
             three
             years
             ,
             if
             he
             be
             an
             Heritable
             Officer
             :
             and
             if
             he
             be
             not
             Heritable
             ,
             he
             loses
             his
             office
             .
             Which
             distinction
             ,
             I
             find
             also
             observed
             by
             
               Bald.
               ad
               l.
               manicipia
               ,
               ff
               .
               de
               serv.
               fugit
               ,
            
             where
             he
             says
             ,
             that
             
               pro
               negligentia
               judex
               removetur
               ab
               officio
               ,
               sed
               hoc
               non
               tenet
               in
               judice
               perpetuo
               ,
            
             and
             
               Farin
               .
               Q.
            
             3.
             n.
             423.
             ,
             is
             of
             opinion
             ,
             that
             
               majores
               officiales
               non
               removetur
               sed
               minores
               facile
               removeri
               possunt
               .
            
          
        
         
           
           
             TITLE
             XXVI
             .
             Deforcement
             .
          
           
             
               1.
               
               
                 To
                 whom
                 was
                 the
                 execution
                 of
                 Law
                 committed
                 by
                 the
              
               Romans
               
                 and
                 to
                 whom
                 by
                 our
                 Law.
                 
              
            
             
               2.
               
               
                 What
                 is
                 D●forcement
                 ,
                 and
                 what
                 are
                 the
                 several
                 degrees
                 thereof
                 .
              
            
             
               3.
               
               
                 The
                 Messenger
                 must
                 have
                 his
                 Blason
                 ,
                 and
                 give
                 an
                 execution
                 of
                 Deforcement
                 .
              
            
             
               4.
               
               
                 Whether
                 may
                 a
                 Messenger
                 be
                 deforced
                 ,
                 who
                 wants
                 his
                 Caption
                 ,
                 or
                 transgresses
                 his
                 power
                 .
              
            
             
               5.
               
               
                 What
                 witnesses
                 can
                 prove
                 a
                 Deforcement
                 ,
                 or
                 if
                 the
                 Messengers
                 execution
                 can
                 prove
                 it
                 .
              
            
             
               6.
               
               
                 These
                 who
                 deforce
                 ,
                 may
                 be
                 pursued
                 Civilly
                 for
                 the
                 debt
                 .
              
            
          
           
             LAws
             are
             only
             the
             idea
             or
             picture
             of
             Justice
             ,
             but
             execution
             is
             its
             life
             ;
             and
             though
             those
             who
             have
             the
             execution
             of
             Laws
             and
             Sentences
             committed
             to
             them
             ,
             be
             ranked
             but
             amongst
             the
             lowest
             servants
             of
             Justice
             ;
             yet
             they
             have
             the
             happinesse
             to
             be
             these
             who
             compleat
             that
             great
             work
             ,
             and
             amongst
             whose
             hands
             it
             becomes
             perfect
             ;
             and
             therefore
             the
             Laws
             having
             committed
             its
             most
             excellent
             part
             to
             them
             ;
             it
             should
             be
             ,
             and
             is
             ,
             in
             a
             most
             eminent
             way
             careful
             of
             them
             ,
             and
             in
             providing
             for
             their
             safty
             ,
             it
             secures
             its
             own
             honour
             .
          
           
             I.
             The
             execution
             of
             sentences
             was
             committed
             amongst
             the
             Romans
             to
             the
             apparitors
             mention'd
             of
             the
             Codex
             ,
             in
             three
             several
             Titles
             ,
             and
             these
             were
             erected
             in
             a
             Colledge
             ,
             which
             was
             stiled
             ,
             collegium
             ,
             or
             
               familia
               apparitorum
            
             ,
             as
             our
             Heraulds
             are
             in
             a
             
             fraternity
             ,
             by
             the
             125.
             
             
               Act.
               Parliament
            
             ,
             12.
             
             
               K.
               I.
            
             6.
             
             The
             Italian
             Doctors
             call
             them
             now
             ,
             Beroarii
             ,
             so
             that
             these
             who
             would
             know
             what
             the
             doctors
             hold
             in
             cases
             of
             deforcement
             ,
             must
             look
             to
             the
             Indexes
             ,
             at
             these
             words
             .
             According
             to
             the
             Roman
             Law
             ,
             it
             was
             a
             species
             of
             laesae-majestie
             ,
             to
             resist
             the
             execution
             of
             sentences
             ,
             
               l
               ,
               quisquis
               ad
               l.
               Iub
               .
               majest
               .
               l.
               Iulianus
               .
               ff
               .
               de
               officio
               ejus
               cui
               mandata
               est
               jurisdictio
            
             and
             
               Guid.
               Pap.
               quest
            
             .
             557.
             observes
             ,
             that
             from
             these
             Laws
             does
             rise
             the
             practique
             of
             
               France
               ,
               qua
               puniuntur
               capitaliter
               verberantes
               apparitores
               ,
               in
               exe
               cutione
               officii
               nam
               qui
               mandata
               principum
               exaequuntur
               videntur
               vivae
               principium
               imagines
               ac
               adeo
               graviter
               puniri
               debent
               ac
               injuriantes
               Statuas
               principum
               .
            
          
           
             With
             us
             the
             execution
             of
             sentences
             ,
             is
             committed
             to
             Heraulds
             ,
             Pursevants
             ,
             Messengers
             ,
             Macers
             ,
             and
             the
             execution
             of
             sentences
             of
             inferiour
             Courts
             ,
             to
             the
             respective
             officers
             of
             these
             Courts
             ;
             and
             the
             resisting
             ,
             beating
             ,
             or
             wounding
             ,
             of
             these
             ,
             in
             the
             execution
             of
             their
             office
             ,
             is
             in
             our
             Law
             that
             Crime
             which
             we
             call
             Deforcement
             ,
             
               Leg.
               Burgal
               .
               cap.
            
             135.
             
          
           
             II.
             Deforcement
             then
             is
             defined
             to
             be
             that
             Crime
             which
             is
             committed
             in
             opposing
             Macers
             ,
             Messengers
             ,
             or
             any
             others
             ,
             who
             use
             to
             execute
             sentences
             ,
             whilst
             they
             are
             executing
             their
             office
             ;
             And
             upon
             that
             accompt
             ,
             so
             that
             if
             either
             the
             Officer
             was
             not
             in
             execution
             of
             his
             office
             ,
             or
             if
             the
             Officer
             be
             beat
             upon
             any
             other
             accompt
             ,
             as
             if
             a
             scuffle
             should
             arise
             ,
             occasioned
             unjustly
             by
             himself
             ,
             this
             would
             not
             infer
             a
             deforcement
             ,
             as
             shall
             be
             said
             hereafter
             .
          
           
             Though
             this
             crime
             be
             amongst
             the
             most
             attrocious
             ,
             because
             the
             King
             and
             Soveraign
             power
             is
             in
             their
             person
             despised
             ,
             and
             therefore
             this
             crime
             is
             called
             
               Dispectus
               Regis
               stat
               .
               Williel
               .
               cap.
            
             4.
             verse
             5.
             
             And
             Justice
             is
             after
             much
             pains
             taken
             by
             the
             Judges
             ,
             and
             expences
             layed
             out
             by
             the
             Parties
             disappointed
             ;
             yet
             it
             is
             only
             punished
             by
             confiscation
             of
             moveables
             ,
             and
             an
             arbitrary
             imprisonment
             ,
             and
             the
             one
             half
             of
             the
             Moveables
             so
             escheated
             ,
             falls
             to
             the
             King
             ,
             and
             the
             other
             half
             to
             the
             Party
             at
             whose
             
             instance
             the
             Letters
             were
             execute
             ,
             I.
             6.
             
             P.
             12.
             cap.
             150.
             
             The
             words
             whereof
             are
             ,
             If
             an
             Officer
             of
             Armes
             ,
             or
             Sheriffs
             in
             that
             part
             ,
             or
             other
             person
             whatsoever
             be
             deforced
             ,
             molested
             ,
             invaded
             ,
             or
             pursued
             ,
             to
             the
             effusion
             of
             their
             blood
             ,
             by
             any
             person
             or
             persons
             ,
             whom
             they
             shall
             Summond
             ,
             or
             others
             of
             his
             causing
             and
             command
             ,
             the
             time
             he
             is
             executing
             of
             any
             Summonds
             ,
             Letters
             ,
             or
             Precept
             direct
             by
             His
             Highnesse
             ,
             or
             other
             Judges
             that
             he
             shall
             loss
             ,
             &c.
             
          
           
             From
             which
             Act
             it
             is
             to
             be
             observed
             ,
             1.
             
             That
             Deforcement
             is
             committed
             by
             troubling
             of
             any
             Officer
             belonging
             to
             any
             Court.
             2.
             
             That
             those
             words
             ,
             (
             to
             effusion
             of
             their
             blood
             )
             seem
             to
             be
             a
             quality
             put
             in
             a
             sentence
             by
             it self
             ,
             and
             so
             may
             be
             thought
             to
             relate
             to
             all
             the
             former
             words
             ,
             
               molested
               ,
               invaded
               ,
               or
               pursued
               ,
            
             yet
             the
             words
             of
             the
             Act
             are
             only
             wrong
             pointed
             ,
             and
             these
             words
             ,
             
               or
               pursued
               to
               the
               effusion
               of
               their
               blood
               ,
            
             should
             all
             be
             put
             in
             one
             sentence
             ,
             for
             ,
             
               de
               practica
            
             ,
             simple
             opposing
             ,
             or
             molesting
             the
             Messenger
             ,
             though
             without
             blood
             ,
             will
             infer
             a
             Deforcement
             .
             2.
             
             Though
             by
             the
             Act
             it
             would
             seem
             only
             these
             against
             whom
             Letters
             ,
             and
             Charges
             are
             raised
             ,
             or
             such
             as
             they
             hound
             out
             ,
             can
             be
             guilty
             of
             Deforcement
             ,
             yet
             if
             any
             others
             do
             deforce
             a
             Messenger
             ,
             though
             they
             be
             neither
             the
             parties
             interested
             themselves
             ,
             or
             hounded
             out
             by
             them
             ,
             yet
             they
             are
             likewise
             guilty
             of
             Deforcement
             :
             As
             is
             clear
             by
             the
             4.
             
               cap.
               stat
               .
               Williell
               .
               vers
               .
            
             1.
             
             And
             by
             the
             84.
             
             Act
             ,
             11.
             
             
               Parliament
               K.
               I.
            
             6.
             
             And
             seeing
             the
             crime
             lies
             in
             the
             opposition
             to
             the
             Messenger
             ,
             whoever
             is
             guilty
             of
             that
             act
             commits
             this
             Crime
             .
             3.
             
             Though
             this
             act
             make
             only
             causing
             or
             commanding
             a
             crime
             ,
             yet
             certainly
             if
             any
             person
             interested
             does
             ratihabit
             the
             Deforcement
             committed
             by
             any
             other
             person
             ,
             by
             either
             giving
             him
             good
             deed
             ,
             or
             by
             receiving
             his
             Letters
             ,
             or
             Blason
             taken
             from
             him
             ,
             he
             is
             
               eo
               ipso
            
             guilty
             of
             Deforcement
             :
             As
             the
             Council
             found
             in
             the
             case
             of
             the
             Earl
             of
             Seafort
             ,
             against
             the
             Lord
             
               Mackdonald
               ,
               anno
            
             .
             1669.
             upon
             full
             debate
             :
             In
             which
             〈…〉
             
             lords
             in
             the
             Highlands
             should
             be
             lyable
             for
             deforcement
             committed
             upon
             the
             grounds
             ,
             if
             they
             did
             not
             deliver
             up
             the
             offenders
             .
             4.
             
             Though
             the
             execution
             be
             disappointed
             and
             stopped
             ,
             yet
             is
             declared
             by
             the
             Parliament
             to
             be
             as
             sufficient
             as
             perfected
             :
             and
             it
             were
             unjust
             ,
             that
             the
             party
             having
             done
             all
             that
             in
             him
             say
             ,
             that
             the
             disappointment
             ,
             
               eo
               casu
            
             ,
             should
             be
             prejudicial
             to
             him
             .
             5.
             
             Seing
             the
             punishment
             of
             this
             act
             ,
             is
             only
             confiscation
             of
             Moveables
             ,
             and
             imprisonment
             ;
             whereas
             by
             the
             Act
             84.11
             .
             
               Parl.
               K.
               I.
            
             6.
             
             The
             lives
             and
             goods
             of
             the
             offenders
             were
             to
             be
             in
             the
             Kings
             will
             ;
             It
             may
             be
             doubted
             whether
             the
             Judge
             may
             punish
             by
             either
             of
             the
             Acts
             ,
             seing
             the
             last
             does
             not
             expresly
             abrogat
             the
             first
             ;
             or
             whether
             both
             should
             stand
             in
             vigour
             and
             force
             .
             Concerning
             which
             question
             ,
             the
             general
             Lawyers
             have
             very
             many
             learned
             debates
             ,
             but
             the
             most
             solid
             and
             approven
             conclusions
             are
             ,
             that
             when
             a
             crime
             is
             punished
             by
             several
             pains
             ,
             in
             several
             Laws
             ,
             or
             Acts
             ,
             which
             Acts
             do
             not
             derogat
             one
             from
             another
             expresly
             ,
             that
             it
             is
             in
             the
             election
             of
             the
             Judge
             ,
             to
             punish
             the
             delinquent
             ,
             by
             either
             of
             the
             pains
             ,
             
               l.
               quoties
               ff
               .
               de
               actionibus
               &
               obligationibus
               .
            
             But
             the
             Judge
             making
             election
             of
             one
             of
             the
             pains
             ,
             cannot
             thereafter
             make
             use
             of
             the
             other
             :
             
               l.
               ff
               .
               senatus
               de
               acusationibus
               ,
               vid.
               Cabal
               .
               resol
               .
               criminal
               .
               cap.
            
             3.
             where
             this
             general
             question
             is
             fully
             handled
             ;
             and
             to
             the
             considerations
             there
             adduced
             by
             him
             ,
             I
             would
             adde
             this
             ,
             that
             where
             there
             are
             several
             punishments
             appinted
             by
             Laws
             ,
             whereof
             the
             one
             derogats
             not
             from
             the
             other
             ,
             that
             the
             Judge
             should
             follow
             that
             of
             the
             two
             which
             is
             most
             in
             use
             :
             And
             therefore
             seing
             Confiscation
             of
             moveables
             and
             imprisonment
             ,
             is
             alwayes
             used
             in
             this
             case
             ,
             that
             punishment
             should
             be
             certainly
             followed
             by
             the
             Juge
             :
             for
             since
             custom
             may
             antiquat
             Laws
             ,
             and
             is
             a
             warrand
             for
             a
             Judge
             ,
             to
             proceed
             criminally
             where
             there
             is
             no
             Law
             ;
             it
             should
             much
             more
             determine
             betwixt
             two
             Laws
             ,
             which
             of
             them
             should
             be
             followed
             :
             But
             there
             is
             the
             less
             difficulty
             in
             this
             case
             ,
             that
             none
             of
             the
             acts
             makes
             deforcement
             to
             be
             capital
             .
             And
             these
             words
             ,
             
             
               that
               their
               lives
               shall
               be
               in
               the
               Kings
               will
               ,
            
             do
             not
             infer
             ,
             
               de
               jure
            
             ,
             the
             pain
             of
             death
             ,
             as
             is
             elsewhere
             fully
             debated
             :
             but
             it
             may
             be
             doubted
             ,
             if
             their
             persons
             may
             not
             likewise
             be
             punishable
             ,
             seing
             not
             only
             by
             the
             former
             act
             are
             their
             lives
             to
             be
             in
             the
             Kings
             will
             ,
             but
             likewise
             by
             the
             seventh
             Act
             ,
             17.
             
             
               Parliament
               ,
               I.
            
             6.
             
             It
             is
             declared
             ,
             that
             deforcement
             of
             Officers
             shall
             be
             punished
             by
             the
             escheat
             of
             their
             moveable
             goods
             ,
             and
             punishment
             of
             their
             person
             according
             to
             the
             Laws
             of
             before
             :
             So
             that
             there
             is
             
               geminatio
               legum
            
             ,
             which
             makes
             the
             Law
             much
             stronger
             :
             And
             I
             remember
             that
             some
             Sea
             men
             in
             Bruntisland
             ,
             having
             rowed
             off
             their
             Boat
             when
             the
             Customers
             Officers
             were
             about
             to
             poynd
             some
             unfree
             goods
             ,
             bought
             out
             of
             Captain
             Dewars
             Ship
             ,
             by
             rowing
             off
             ,
             of
             which
             Boat
             the
             Messenger
             who
             was
             to
             Poynd
             ,
             fell
             in
             the
             Sea
             :
             The
             Commissioners
             of
             the
             Thesaury
             did
             summarly
             in
             Iuly
             ,
             1669.
             ordain
             the
             Sea-men
             to
             be
             whipt
             ,
             which
             was
             accordingly
             done
             .
          
           
             III.
             Messengers
             have
             as
             the
             Badge
             of
             their
             Office
             ,
             a
             Blason
             bearing
             the
             Kings
             Armes
             ,
             and
             a
             Wand
             of
             Peace
             if
             they
             bear
             not
             the
             Blason
             ,
             it
             is
             believed
             (
             and
             that
             is
             the
             first
             objection
             against
             the
             conception
             and
             relevancy
             of
             the
             Lybel
             )
             they
             may
             be
             deforced
             ,
             because
             by
             that
             act
             only
             people
             are
             obleidged
             to
             know
             that
             they
             are
             Messengers
             ,
             and
             the
             Wand
             of
             Peace
             is
             that
             whereby
             they
             touch
             a
             Rebel
             ,
             and
             declares
             him
             to
             be
             their
             Prisoner
             ,
             and
             when
             they
             are
             deforced
             ,
             they
             use
             to
             break
             the
             Wand
             of
             Peace
             ;
             but
             though
             their
             Libel
             bear
             alwayes
             that
             the
             Wand
             of
             peace
             is
             broken
             ,
             yet
             if
             the
             troubling
             of
             the
             Messenger
             be
             proven
             ,
             though
             this
             quality
             be
             not
             proven
             ,
             the
             assize
             will
             still
             find
             guilty
             ,
             as
             was
             found
             in
             the
             case
             betwixt
             Murray
             and
             French
             ,
             13.
             
             Iuly
             ,
             1669.
             where
             it
             was
             likewise
             found
             that
             albeit
             ordinarily
             the
             Messenger
             who
             was
             deforced
             ,
             doth
             give
             in
             with
             his
             Libel
             ,
             an
             exemption
             of
             deforcement
             ,
             wherein
             after
             the
             ordinary
             form
             ,
             he
             relates
             how
             he
             execute
             the
             Letters
             ,
             and
             how
             and
             by
             whom
             he
             was
             deforced
             ,
             yet
             that
             execution
             is
             not
             absolutely
             
             necessary
             for
             proving
             the
             deforcement
             ,
             but
             that
             the
             deforcement
             may
             be
             proven
             by
             witnesses
             ;
             for
             else
             there
             could
             be
             no
             deforcement
             ,
             if
             the
             Messenger
             were
             killed
             ,
             so
             that
             he
             could
             make
             no
             execution
             :
             or
             if
             he
             were
             bribed
             by
             the
             deforcer
             ,
             and
             so
             would
             give
             none
             ,
             but
             that
             an
             execution
             of
             deforcement
             was
             only
             necessary
             to
             the
             effect
             the
             Letters
             might
             be
             repute
             as
             validly
             execute
             ,
             as
             if
             they
             had
             been
             really
             execute
             .
          
           
             It
             uses
             sometimes
             to
             be
             alledged
             against
             the
             relevancy
             of
             the
             Libel
             in
             this
             crime
             ,
             that
             the
             Libel
             is
             not
             relevant
             ,
             because
             it
             bears
             not
             that
             the
             Messenger
             had
             the
             letters
             of
             Caption
             in
             his
             hand
             ,
             and
             shew
             them
             to
             the
             Party
             whom
             he
             apprehended
             be
             vertue
             of
             that
             Caption
             ,
             for
             without
             seeing
             of
             the
             Letters
             ,
             the
             Party
             is
             not
             obliedged
             to
             obey
             ,
             and
             if
             it
             were
             otherwayes
             ,
             any
             man
             might
             take
             a
             free
             Liedge
             ,
             and
             keep
             him
             till
             he
             should
             get
             a
             Caption
             ,
             though
             he
             had
             none
             at
             the
             time
             of
             the
             execution
             .
             But
             upon
             the
             19.
             of
             February
             ,
             1672.
             
             Gordoun
             of
             Braco
             was
             found
             guilty
             of
             deforcement
             ,
             though
             the
             Messenger
             his
             having
             a
             Caption
             ,
             was
             neither
             libelled
             nor
             proved
             ,
             and
             that
             because
             the
             Rebel
             did
             not
             crave
             to
             see
             a
             warrand
             ,
             and
             the
             Messenger
             was
             answerable
             if
             he
             did
             execute
             without
             a
             warrand
             :
             Neither
             did
             the
             Lords
             think
             that
             the
             Messenger
             was
             bound
             to
             put
             the
             warrand
             in
             the
             Rebels
             hands
             ,
             left
             he
             should
             destroy
             it
             :
             But
             he
             was
             bound
             to
             shew
             it
             to
             any
             disinteressed
             person
             who
             was
             present
             .
             In
             the
             same
             Process
             it
             was
             likewise
             found
             ,
             that
             a
             Messenger
             might
             execute
             a
             Caption
             under
             silence
             of
             night
             ,
             though
             it
             was
             pretended
             that
             this
             might
             give
             a
             colour
             to
             Robbers
             to
             enter
             in
             to
             honest
             mens
             houses
             under
             night
             ,
             upon
             pretext
             of
             executing
             of
             Captions
             ;
             though
             Poyndings
             indeed
             cannot
             be
             execute
             after
             the
             Sun
             is
             set
             ,
             because
             a
             Poynding
             is
             a
             sentence
             ,
             and
             requires
             
               formam
               judicii
            
             ;
             and
             no
             Court
             can
             be
             kept
             under
             silence
             of
             night
             .
             Some
             Judges
             ordain
             Officers
             to
             take
             Raes
             from
             a
             Mast
             ,
             and
             arrest
             Ships
             ,
             without
             a
             written
             order
             ,
             the
             haste
             of
             the
             execut●on
             so
             requiring
             ;
             and
             therefore
             I
             think
             
             that
             though
             such
             have
             not
             a
             written
             warrand
             ,
             they
             cannot
             lawfully
             be
             opposed
             :
             for
             it
             is
             the
             duty
             of
             all
             good
             Subjects
             to
             enquire
             first
             if
             he
             who
             pretends
             to
             have
             authority
             ,
             have
             it
             already
             ,
             though
             he
             see
             no
             written
             warrand
             ,
             but
             not
             rashly
             to
             oppose
             what
             may
             be
             lawful
             .
          
           
             Another
             ordinary
             objection
             against
             the
             Libel
             is
             ,
             that
             the
             Messenger
             and
             his
             assisters
             did
             transgress
             their
             power
             and
             warrand
             ,
             and
             so
             it
             was
             lawful
             to
             resist
             them
             :
             and
             thus
             upon
             the
             18.
             of
             Novemb.
             1667.
             
             Mr.
             
               Archibald
               Borthwick
            
             being
             pursued
             for
             deforcement
             ,
             it
             was
             alledged
             ,
             that
             he
             compeared
             as
             Procurator
             for
             the
             Lord
             Borthwick
             ,
             who
             had
             arrested
             Sandilands
             ,
             and
             the
             Tennents
             Corns
             ,
             as
             Master
             of
             the
             Ground
             ,
             and
             so
             alledg'd
             the
             Messenger
             could
             not
             poynd
             the
             Corns
             till
             the
             Master
             was
             payed
             ,
             wherein
             the
             Messenger
             did
             unjustly
             ,
             and
             so
             he
             had
             good
             reason
             to
             stop
             the
             poynding
             :
             This
             alledgiance
             was
             found
             relevant
             ,
             but
             if
             justly
             ,
             it
             may
             be
             doubted
             .
             And
             Lawyers
             are
             very
             positive
             ,
             that
             no
             man
             can
             stop
             any
             execution
             ,
             upon
             such
             pretence
             of
             unjustice
             ,
             where
             the
             unjustice
             can
             be
             no
             otherwise
             redressed
             ,
             by
             appellation
             ,
             or
             otherwise
             :
             which
             they
             call
             
               resistentia
               licita
               per
               subsidium
               ,
               Menoch
               .
               de
               recup
               .
               possess
               .
               remed
               .
            
             8.
             num
             .
             30.
             
             &
             31.
             
             
               Cabal
               .
               resol
               .
               crim
               .
               cas
               .
            
             132.
             
             And
             their
             opinion
             seems
             most
             just
             ;
             for
             it
             were
             dangerous
             ,
             to
             make
             private
             persons
             ,
             and
             such
             also
             as
             are
             interessed
             ,
             Judges
             to
             the
             justice
             of
             what
             is
             done
             against
             themselves
             .
             2.
             
             
               Nunquam
               recurrendum
               est
               ad
               remedium
               extraordinarium
               ,
               quamdiu
               locus
               est
               ordinario
            
             ;
             but
             so
             it
             is
             ,
             that
             if
             a
             Messenger
             do
             any
             wrong
             in
             the
             execution
             of
             his
             Office
             ,
             he
             is
             lyable
             therefore
             ,
             
               ad
               damnum
               &
               interesse
            
             ,
             and
             finds
             caution
             for
             that
             effect
             to
             the
             Lyon
             at
             his
             entry
             .
             3.
             
             Messengers
             are
             Judges
             in
             poyndings
             ,
             and
             it
             is
             not
             lawful
             to
             resist
             Judges
             upon
             pretence
             that
             they
             judge
             unjustly
             :
             And
             this
             suggests
             to
             me
             another
             distinction
             ,
             which
             is
             ,
             that
             either
             a
             Messenger
             or
             Executer
             doth
             wrong
             the
             party
             interessed
             ,
             
               via
               juris
            
             ,
             as
             in
             omitting
             formalities
             ,
             and
             repelling
             just
             allegiances
             ,
             
               &
               eo
               casu
            
             he
             cannot
             be
             resisted
             :
             or
             
             else
             he
             does
             wrong
             ,
             
               via
               facti
            
             ,
             by
             beating
             the
             party
             he
             cites
             ,
             or
             giving
             him
             opprobrious
             speeches
             ,
             by
             apprehending
             him
             without
             a
             Caption
             ,
             or
             after
             a
             Suspension
             is
             produced
             by
             him
             ,
             or
             otherwise
             giving
             rise
             to
             the
             violence
             used
             against
             him
             ,
             
               &
               eo
               casu
            
             he
             may
             be
             resisted
             ,
             as
             was
             found
             ,
             Mart.
             166●
             .
             And
             is
             clear
             from
             the
             Doctors
             ,
             
               Cabal
               .
               ibid.
            
             It
             hath
             been
             alledged
             that
             there
             could
             be
             no
             deforcement
             at
             the
             Messengers
             instance
             against
             the
             Pannel
             ,
             for
             stopping
             him
             to
             poynd
             goods
             ,
             because
             the
             Messenger
             was
             the
             person
             at
             whose
             instance
             the
             Letters
             of
             Poynding
             was
             raised
             ,
             and
             therefore
             he
             could
             not
             execute
             them
             himself
             ,
             seing
             no
             man
             can
             be
             Judge
             in
             his
             own
             cause
             ,
             and
             the
             Messenger
             is
             Judge
             in
             all
             Poyndings
             ;
             but
             this
             was
             repelled
             ,
             because
             the
             Letters
             of
             Poynding
             are
             alwayes
             blank
             in
             the
             p●rsons
             name
             to
             whom
             they
             are
             direct
             ,
             and
             so
             the
             Messenger
             might
             fill
             up
             his
             own
             name
             ,
             and
             no
             Messenger
             was
             excluded
             ,
             and
             if
             the
             Executer
             did
             any
             wrong
             ,
             he
             was
             lyable
             to
             a
             spoilzie
             ,
             and
             his
             sentence
             was
             reduceable
             ;
             but
             this
             wants
             not
             its
             own
             scruple
             ,
             seing
             Messengers
             are
             Judges
             when
             they
             poynd
             ,
             and
             no
             man
             can
             judge
             in
             his
             own
             cause
             .
             2.
             
             It
             was
             here
             alledged
             ,
             that
             the
             Letters
             upon
             which
             Execution
             were
             used
             ,
             were
             suspended
             ,
             and
             so
             could
             not
             be
             put
             to
             execution
             ,
             which
             alledgiance
             was
             repelled
             ,
             because
             the
             Suspension
             was
             not
             intimate
             ,
             and
             so
             the
             Messenger
             nor
             Party
             was
             not
             thereby
             put
             in
             
               mala
               fide
               ,
               Mart.
            
             1662.
             
          
           
             Though
             this
             be
             the
             punishment
             of
             deforce
             ,
             when
             it
             is
             purely
             such
             ,
             and
             is
             not
             aggraged
             with
             other
             hainous
             circumstances
             ,
             yet
             if
             a
             Messenger
             were
             executing
             Letters
             of
             Caption
             against
             a
             Traitor
             for
             Treason
             ,
             any
             who
             would
             deforce
             him
             would
             commit
             Treason
             ,
             and
             that
             were
             to
             be
             art
             and
             part
             of
             Treason
             :
             and
             so
             in
             other
             Crimes
             ;
             but
             whether
             deforcement
             may
             be
             punished
             in
             our
             Law
             ,
             as
             breaking
             of
             Prison
             ,
             I
             doubt
             very
             much
             ,
             though
             it
             be
             a
             rule
             amongst
             the
             Doctors
             ,
             that
             
               eximens
               aliquem
               ex
               manu
               familiae
               ,
               &
               ex
               carcere
               à
               pari
               procedunt
               ,
               &
               carceratus
               
               dicitur
               non
               solum
               qui
               in
               carceris
               mansione
               dagit
               ,
               sed
               &
               qui
               satellitum
               custodia
               ,
               &
               in
               familiae
               manu
               reperitur
               :
               nam
               eodem
               modo
               utribique
               leditur
               majestas
               principis
               ,
               &
               offenditur
               ministerium
               justitiae
               ,
               Cabal
               .
               resol
               .
               crim
               .
               cent
               .
            
             1.
             casu
             .
             8.
             
          
           
             V.
             Deforcement
             then
             is
             proven
             as
             other
             crimes
             ,
             by
             witnesses
             ,
             and
             who
             ever
             may
             be
             witnesses
             for
             proving
             other
             crimes
             ,
             are
             admitted
             here
             ,
             but
             it
             hath
             been
             oft
             doubted
             ,
             whether
             the
             witnesses
             who
             were
             carryed
             along
             with
             the
             Messenger
             for
             verifying
             his
             executions
             ,
             may
             be
             sustained
             as
             witnesses
             to
             prove
             the
             Deforcement
             :
             and
             the
             reason
             of
             the
             doubt
             was
             ,
             because
             ordinarily
             they
             are
             injured
             themselves
             in
             such
             cases
             ,
             yet
             at
             last
             it
             was
             decided
             in
             March
             ,
             1662.
             that
             they
             were
             very
             receiveable
             witnesses
             ,
             because
             without
             these
             ,
             deforcements
             could
             not
             be
             proved
             :
             And
             since
             the
             execution
             could
             be
             proved
             by
             them
             ,
             why
             not
             deforcement
             .
             But
             it
             is
             a
             necessary
             caution
             in
             that
             case
             ,
             that
             no
             injury
             be
             pursued
             as
             done
             to
             the
             witnesses
             ,
             for
             if
             that
             be
             once
             libelled
             ,
             they
             become
             parties
             ,
             and
             will
             not
             thereafter
             be
             received
             as
             witnesses
             ,
             though
             they
             should
             offer
             to
             pass
             from
             the
             injuries
             ,
             as
             done
             to
             themselves
             .
             And
             these
             witnesses
             are
             so
             receivable
             ,
             that
             in
             the
             case
             betwixt
             Murray
             &
             French
             ,
             13
             Iuly
             ,
             1669.
             
             It
             was
             found
             that
             though
             they
             were
             within
             the
             degrees
             defendant
             to
             the
             pursuer
             ,
             yet
             they
             might
             be
             received
             ,
             because
             in
             effect
             they
             were
             
               testes
               instrumentarii
            
             ,
             beeing
             witnesses
             contained
             in
             the
             execution
             of
             the
             deforcement
             ;
             but
             I
             think
             ,
             this
             is
             debateable
             ,
             because
             
               testes
               instrumentarii
            
             are
             only
             allowed
             in
             obligations
             ,
             though
             within
             degrees
             ,
             
               quo
               casu
            
             ,
             they
             are
             to
             be
             presumed
             to
             be
             chosen
             with
             mutual
             consent
             ,
             which
             cannot
             be
             alledged
             here
             ,
             seing
             the
             Messenger
             only
             chooses
             such
             witnesses
             as
             he
             pleases
             .
          
           
             Whether
             the
             execution
             of
             deforcement
             ,
             will
             prove
             that
             the
             Messenger
             was
             deforced
             ,
             without
             leading
             any
             other
             witnesses
             ,
             may
             it
             be
             doubted
             ;
             and
             that
             it
             should
             ,
             appears
             from
             these
             grounds
             ,
             1.
             
             That
             it
             is
             a
             principle
             in
             Law
             ,
             that
             
               creditur
               nunciis
               ,
               in
               his
               quae
               spectant
               ad
               ipsorum
               officium
               .
            
             2.
             
             
               In
               civilibus
            
             ,
             The
             execution
             of
             a
             Messenger
             is
             alwayes
             believed
             till
             it
             
             be
             improven
             .
             3.
             
             Lawyers
             are
             very
             clear
             ,
             that
             
               creditur
               nuncio
               ,
               si
               referat
               se
               fuisse
               percussum
               vel
               verberatum
               in
               ipsa
               executione
               ,
            
             which
             
               Guido
               papae
               decis
            
             .
             628.
             declares
             to
             be
             the
             custom
             of
             France
             in
             Dauphmie
             :
             And
             this
             is
             enacted
             by
             a
             statute
             of
             Florence
             ,
             13.
             
             Iune
             ,
             1559.
             
             Yet
             by
             our
             Law
             the
             ex●cution
             of
             Deforcement
             ,
             will
             not
             prove
             that
             the
             Messenger
             was
             deforced
             ,
             and
             Caballus
             declares
             this
             likewise
             of
             most
             other
             nations
             besides
             these
             abovecited
             ,
             Casu
             127.
             
             According
             to
             our
             Law
             ,
             the
             Messengers
             who
             were
             deforced
             ,
             cannot
             be
             led
             even
             as
             single
             witnesses
             ,
             though
             the
             pursuite
             be
             not
             at
             their
             own
             instance
             ,
             but
             at
             the
             instance
             of
             the
             party
             injured
             ,
             or
             his
             Majesties
             Advocat
             ;
             In
             which
             case
             it
             seems
             that
             all
             their
             interest
             ceases
             ;
             but
             the
             reason
             of
             this
             is
             ,
             because
             it
             is
             presumable
             that
             the
             parties
             who
             were
             wronged
             will
             still
             retain
             a
             resentment
             against
             the
             injurers
             ,
             and
             so
             wil
             stil
             be
             prejudicat
             witnesses
             in
             that
             case
             .
             But
             yet
             according
             to
             the
             Doctors
             ,
             this
             is
             doubted
             ,
             and
             many
             of
             them
             conclude
             ,
             that
             
               creditur
               nuncio
               se
               verberatum
               fuisse
               ,
               nam
               creditur
               ei
               secundum
               omnes
               in
               iis
               quae
               pertinent
               ad
               suum
               officium
               &
               hoc
               est
               connexum
               relationi
               executionis
               sibi
               demandata
               .
            
             Menoch
             .
             
               de
               Arb.
               cas
            
             .
             112.
             
               alii
               vero
               credunt
               casum
               hunc
               esse
               arbitrarium
               .
            
             And
             according
             to
             our
             Law
             ,
             such
             as
             were
             witnesses
             ,
             chosen
             by
             the
             Messenger
             to
             go
             alongst
             with
             him
             in
             useing
             the
             execution
             ,
             will
             still
             be
             received
             witnesses
             ,
             though
             they
             were
             themselves
             beat
             in
             the
             deforcement
             ,
             and
             so
             are
             lyable
             to
             the
             former
             suspition
             equally
             with
             the
             Messenger
             :
             and
             the
             only
             reason
             of
             difference
             that
             can
             be
             assigned
             ,
             is
             ,
             that
             the
             Messenger
             is
             himself
             said
             in
             our
             Law
             to
             be
             deforced
             ,
             and
             so
             is
             the
             person
             formally
             interested
             ,
             but
             witnesses
             are
             not
             in
             our
             Law
             said
             to
             be
             deforced
             ,
             and
             though
             they
             be
             received
             ordinarily
             ,
             yet
             it
             is
             given
             as
             a
             caution
             that
             they
             shall
             not
             depon
             upon
             any
             wrong
             done
             to
             themselves
             ,
             for
             if
             they
             do
             ,
             it
             will
             make
             them
             though
             otherwayes
             habit
             ,
             to
             be
             rejected
             from
             being
             witnesses
             ,
             and
             the
             Law
             will
             
               eo
               casu
            
             look
             upon
             them
             as
             persons
             that
             remember
             too
             much
             the
             injury
             〈…〉
             
             though
             the
             witnesses
             taken
             along
             by
             the
             Messenger
             to
             the
             execution
             ,
             cannot
             be
             rejected
             upon
             that
             accompt
             ,
             after
             they
             have
             purged
             themselves
             of
             partial
             counsel
             and
             malice
             ,
             if
             they
             may
             not
             be
             rejected
             ,
             if
             before
             they
             be
             sworn
             they
             confesse
             they
             continue
             to
             have
             a
             resentment
             of
             the
             injury
             done
             them
             .
             And
             in
             my
             opinion
             ,
             if
             this
             beating
             and
             injury
             suffered
             by
             them
             ,
             be
             confest
             by
             themselves
             ,
             before
             they
             be
             purged
             of
             partial
             counsel
             ,
             they
             should
             be
             rejected
             ,
             though
             the
             parties
             interested
             ,
             and
             at
             whose
             instance
             the
             Letters
             were
             execute
             ,
             cannot
             be
             received
             witnesses
             to
             prove
             a
             deforcement
             ,
             even
             though
             they
             should
             declare
             that
             they
             would
             never
             pursue
             the
             deforcement
             ,
             
               ad
               proprium
               interesse
               &
               vindictam
            
             :
             yet
             such
             as
             were
             within
             degrees
             defendant
             to
             the
             party
             ,
             were
             received
             witnesses
             ,
             even
             where
             the
             pursuit
             was
             pursued
             by
             their
             own
             friend
             ,
             13.
             
             Iuly
             ,
             1669.
             
             Murray
             against
             French.
             Upon
             a
             new
             pretext
             ,
             that
             brothers
             and
             servants
             ,
             &c.
             are
             habil
             witnesses
             ,
             where
             they
             are
             
               testes
               instrumentarii
            
             ,
             and
             witnesses
             in
             executions
             are
             
               testes
               instrumentarii
            
             :
             but
             in
             my
             opinion
             there
             is
             a
             great
             difference
             betwixt
             these
             two
             ,
             for
             the
             reason
             why
             
               testes
               instrumentarii
            
             ,
             are
             received
             ,
             though
             they
             be
             otherwayes
             
               in
               habiles
            
             ,
             is
             because
             they
             are
             chosen
             of
             common
             consent
             of
             both
             parties
             who
             are
             present
             at
             the
             subscription
             ;
             but
             that
             cannot
             be
             alledged
             in
             such
             as
             are
             witnesses
             in
             executions
             ,
             who
             are
             only
             chosen
             by
             the
             Messenger
             himself
             .
          
           
             After
             this
             crime
             is
             proven
             ,
             the
             ordinary
             verdict
             is
             ,
             The
             Assize
             finds
             the
             Pannel
             guilty
             of
             Deforcing
             such
             a
             Messenger
             .
             But
             yet
             where
             the
             Assize
             find
             only
             the
             Pannel
             guilty
             of
             troubling
             the
             Messenger
             in
             his
             office
             ,
             and
             would
             not
             find
             him
             guilty
             of
             deforceing
             :
             The
             justices
             finds
             these
             termes
             to
             be
             equivalent
             ,
             and
             punished
             the
             Pannel
             as
             a
             deforcer
             ,
             in
             the
             case
             of
             
               Robert
               Herris
               ,
               Iuly
            
             ,
             1667.
             
          
           
             VI.
             The
             party
             deforced
             ,
             has
             beside
             this
             Criminal
             action
             ,
             a
             Civil
             action
             for
             deforcement
             ,
             against
             such
             as
             have
             been
             accessory
             
             to
             the
             deforcement
             ,
             for
             payment
             of
             the
             debt
             :
             which
             debt
             is
             ordained
             by
             the
             117.
             
             Act
             ,
             7.
             
             
               Parl.
               Ia.
            
             6.
             to
             be
             payed
             ,
             together
             with
             the
             modification
             of
             his
             expences
             out
             of
             the
             first
             and
             readiest
             of
             the
             deforcers
             escheat
             :
             And
             it
             is
             declared
             ,
             that
             he
             shall
             be
             preferred
             to
             the
             King.
             From
             which
             Act
             these
             two
             doubts
             may
             arise
             ,
             1.
             
             Since
             by
             the
             Act
             it
             is
             declared
             that
             the
             persons
             convict
             of
             deforcement
             ,
             shall
             be
             lyable
             for
             payment
             of
             the
             debt
             ,
             by
             this
             Civil
             Action
             ,
             that
             therefore
             this
             Civil
             Action
             is
             not
             competent
             ,
             until
             the
             Parties
             pursued
             be
             first
             found
             guilty
             of
             deforcement
             :
             But
             yet
             it
             was
             found
             ,
             the
             25.
             of
             Iuly
             ,
             1663.
             in
             the
             case
             of
             
               David
               Mitchel
            
             ,
             that
             the
             party
             injured
             might
             pursue
             ,
             either
             Civilly
             ,
             or
             Criminally
             ;
             and
             that
             this
             priviledge
             was
             introduced
             by
             that
             Act
             ,
             as
             a
             further
             advantage
             to
             the
             party
             deforced
             ;
             but
             because
             this
             Action
             was
             founded
             upon
             a
             Criminal
             ground
             ,
             therefore
             they
             ordained
             the
             deforcement
             to
             be
             proved
             by
             most
             unsuspect
             Witnesses
             .
             The
             second
             doubt
             is
             ,
             whether
             by
             this
             Act
             ,
             the
             deforcers
             other
             Estate
             be
             lyable
             to
             this
             Action
             ,
             as
             well
             as
             his
             Moveables
             ?
             And
             though
             it
             may
             be
             urged
             ,
             that
             that
             Act
             appoints
             only
             the
             Creditor
             to
             be
             preferred
             to
             the
             King
             ,
             and
             to
             be
             payed
             out
             of
             the
             first
             end
             of
             the
             deforcers
             Moveables
             .
             Yet
             it
             was
             found
             ,
             the
             13.
             of
             December
             ,
             1672.
             in
             this
             case
             ,
             Murray
             against
             French
             ,
             that
             this
             Act
             did
             allow
             Action
             for
             payment
             ,
             simpliciter
             .
             For
             the
             Lords
             thought
             ,
             that
             the
             Act
             did
             in
             the
             first
             place
             ordain
             payment
             of
             the
             debt
             ,
             and
             expence
             ;
             that
             the
             preferrence
             was
             a
             new
             superadded
             priviledge
             :
             And
             it
             were
             against
             all
             reason
             ,
             that
             the
             Creditor
             should
             be
             frustrat
             of
             his
             Action
             ,
             because
             the
             Deforcer
             had
             no
             moveables
             ,
             though
             he
             had
             an
             opulent
             heritable
             Estate
             .
          
           
             In
             this
             case
             it
             was
             likewise
             found
             ,
             that
             the
             Party
             deforced
             
             might
             pursue
             ,
             either
             
               ad
               vindictam
               publicam
            
             ,
             Criminally
             ,
             or
             might
             pursue
             Civilly
             this
             Action
             for
             dammage
             and
             interest
             ;
             and
             that
             the
             one
             Action
             did
             not
             consume
             or
             exhaust
             the
             other
             :
             And
             therefore
             though
             the
             Pursuer
             here
             had
             prevailed
             in
             a
             Criminal
             pursuit
             against
             this
             Defender
             ,
             
               quo
               ad
               vindictam
               publicam
            
             ,
             that
             yet
             he
             might
             pursue
             this
             Civil
             Action
             for
             dammage
             .
          
        
         
           
           
             TITLE
             XXVII
             .
             Falsum
             ,
             Falshood
             .
          
           
             
               1.
               
               
                 The
                 several
              
               species
               
                 of
                 Falshood
                 by
                 the
                 Civil
                 Law.
                 
              
            
             
               2.
               
               
                 The
                 producers
                 ,
                 or
                 users
                 of
                 false
                 Writs
                 ,
                 commit
                 Falsehood
                 .
              
            
             
               3.
               
               
                 The
                 punishment
                 of
                 Falshood
                 by
                 our
                 Law.
                 
              
            
             
               4.
               
               
                 The
                 Lords
                 of
                 Session
                 are
                 only
                 thereto
                 in
                 the
                 first
                 instance
                 .
              
            
             
               5.
               
               
                 The
                 Lords
                 proceed
                 in
                 the
                 tryal
                 of
                 Falshood
                 ,
                 either
                 summarly
                 ,
                 or
                 by
                 way
                 of
                 action
                 .
              
            
             
               6.
               
               
                 The
                 direct
                 and
                 indirect
                 manner
                 of
                 probation
                 .
              
            
             
               7.
               
               
                 After
                 the
                 Writs
                 are
                 improved
                 ,
                 the
                 forger
                 is
                 remitted
                 to
                 the
                 Iustices
                 .
              
            
             
               8.
               
               
                 False
                 witnesses
                 ,
                 how
                 punished
              
               .
            
             
               9.
               
               
                 False
                 Coyners
                 ,
                 how
                 punished
              
               .
            
             
               10.
               
               
                 False
                 Weights
                 ,
                 how
                 punished
              
               .
            
             
               11.
               
               
                 The
                 assuming
                 a
                 false
                 Name
              
               ,
               &
               suppositio
               personae
               falsae
               ,
               
                 how
                 punished
              
               .
            
          
           
             FAlshood
             is
             by
             the
             Civilians
             ,
             defined
             to
             be
             
               a
               fraudulent
               suppression
               ,
               or
               imitation
               of
               Truth
               ,
               in
               prejudice
               of
               another
            
             ;
             it
             was
             by
             them
             divided
             ,
             
               in
               falsum
               quod
               ipsa
               lege
               Cornelia
               vindicatur
               ,
               &
               quasi
               falsum
               quod
               senatus-consulto
               &
               constituti●nibus
               vindicabatur
               ,
            
             Matheus
             hoc
             ,
             tit
             .
             But
             suitable
             to
             our
             
             practice
             ,
             I
             shall
             divide
             Falshood
             in
             these
             four
             Branches
             ,
             1.
             
             That
             Falshood
             ,
             which
             is
             committed
             in
             writ
             .
             2.
             
             That
             which
             is
             committed
             by
             witnesses
             .
             3.
             
             The
             forging
             and
             falsifying
             of
             Money
             .
             4.
             
             The
             using
             of
             false
             weights
             ,
             and
             measures
             .
          
           
             I.
             As
             to
             the
             first
             Branch
             ,
             he
             commits
             Falshood
             ,
             who
             either
             expresseth
             in
             writ
             ,
             that
             which
             was
             not
             done
             ,
             or
             omits
             to
             expresse
             that
             which
             was
             done
             .
             So
             that
             Falshood
             in
             writ
             may
             be
             committed
             ,
             either
             in
             commission
             ,
             or
             omission
             .
             Falshood
             is
             committed
             by
             commission
             ,
             either
             by
             fabricating
             a
             false
             writ
             ,
             or
             by
             signing
             it
             ,
             or
             causing
             another
             sign
             it
             ,
             
               qui
               instrumentum
               falsum
               dolo
               malo
               scripserit
               ,
               signaverit
               ,
               vel
               signare
               curaverit
               ,
               recitaverit
               ,
               mutaverit
               ,
               subjecerit
               ,
               amoveritcelaverit
               ,
               deleverit
               ,
               interleverit
               ,
               resignaverit
               ,
            
             all
             which
             species
             of
             Falshood
             ,
             are
             enumerat
             by
             
               Ulpian
               .
               leg
            
             .
             2.
             
               ad
               leg
               .
               Cornel.
            
             9.
             
             §
             .
             
               penult
               l.
               paulus
               Cod.
               ad
               legem
               Cornel.
               de
               falsis
               ,
            
             which
             are
             prettily
             exprest
             ,
             but
             much
             more
             fully
             l.
             2.
             
             Basil.
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             In
             these
             termes
             .
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             with
             which
             ,
             Theophil
             .
             differs
             much
             ,
             inst
             .
             §
             .
             7.
             
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             the
             punishment
             of
             Falshood
             ,
             was
             very
             different
             ,
             according
             to
             the
             several
             kinds
             and
             degrees
             of
             guilt
             ,
             as
             will
             hereafter
             appear
             .
          
           
             II.
             Falshood
             in
             writ
             ,
             is
             committed
             by
             producing
             a
             false
             writ
             ,
             if
             they
             know
             it
             to
             be
             false
             ,
             which
             some
             Doctors
             think
             punishable
             only
             ,
             if
             the
             writ
             produced
             by
             them
             was
             suspect
             ;
             and
             it
             is
             said
             to
             be
             suspect
             ,
             if
             either
             it
             appear
             vitiat
             by
             occular
             inspection
             ,
             or
             if
             the
             writer
             or
             producer
             used
             to
             produce
             false
             writs
             ,
             or
             if
             it
             contain
             things
             that
             are
             improbable
             .
          
           
             The
             user
             of
             false
             writs
             is
             said
             to
             commit
             Falshood
             ,
             
               l.
               majorem
               Cod.
               de
               fals
            
             .
             which
             only
             holds
             ,
             if
             he
             knew
             the
             writs
             produced
             by
             them
             to
             be
             false
             ;
             and
             therefore
             Clarus
             relates
             a
             caution
             used
             by
             the
             practitioners
             ,
             which
             is
             ,
             that
             the
             user
             of
             
             the
             writ
             gets
             a
             dyet
             affixed
             to
             him
             ,
             to
             deliver
             at
             ,
             if
             he
             will
             abide
             thereby
             ,
             and
             at
             the
             day
             affixt
             ,
             he
             must
             either
             simply
             abide
             thereat
             ,
             without
             any
             qualification
             ,
             
               quo
               casu
            
             ,
             if
             it
             be
             improven
             the
             user
             is
             punished
             as
             a
             forger
             .
             Albeit
             the
             Doctors
             commonly
             are
             of
             opinion
             ,
             that
             even
             in
             that
             case
             ,
             the
             user
             is
             to
             be
             more
             meekly
             punished
             then
             the
             fabricator
             ,
             
               Paena
               foilicet
               relegationis
            
             ,
             which
             caution
             is
             likewise
             in
             use
             with
             us
             ,
             but
             in
             this
             we
             differ
             ,
             that
             by
             our
             practique
             ,
             the
             user
             will
             be
             allowed
             to
             abide
             by
             the
             writ
             ,
             though
             not
             simply
             as
             a
             writ
             true
             ,
             yet
             as
             a
             writ
             really
             made
             over
             to
             him
             ;
             and
             in
             the
             forging
             whereof
             ,
             he
             had
             no
             interest
             ,
             as
             in
             the
             Earl
             Levins
             case
             ,
             1665.
             but
             though
             this
             qualified
             abiding
             at
             the
             writ
             ,
             be
             allowed
             in
             an
             Heir
             ,
             or
             singular
             Successor
             ,
             yet
             that
             it
             is
             only
             allowed
             where
             there
             is
             some
             person
             extant
             ,
             who
             abides
             simply
             at
             the
             writ
             ,
             as
             true
             as
             Kennedy
             did
             in
             this
             case
             ,
             for
             else
             the
             user
             ,
             though
             a
             singular
             successor
             ,
             must
             abide
             at
             the
             writ
             ,
             as
             a
             true
             writ
             simply
             ;
             without
             which
             ,
             any
             false
             writ
             might
             be
             vented
             securely
             .
          
           
             The
             counterfeiter
             of
             the
             King's
             Letters
             ,
             for
             which
             Binnie
             was
             hanged
             .
             The
             opener
             ,
             and
             unsealer
             of
             privat
             letters
             ,
             from
             which
             Bart.
             likewise
             concludes
             ,
             that
             Advocats
             ,
             Writers
             ,
             and
             others
             who
             reveal
             their
             Clients
             Papers
             to
             their
             Adversaries
             ,
             and
             ,
             the
             sealing
             other
             mens
             Letters
             with
             the
             Sealers
             own
             Seal
             ;
             and
             revealing
             the
             secrets
             of
             a
             Town
             ,
             commit
             likwise●
             Falshood
             .
          
           
             5.
             
             A
             Nottar
             who
             draws
             any
             unlawful
             writ
             ,
             
               verb.
               gra
            
             .
             An
             usurary
             Contract
             ,
             commits
             Falshood
             ,
             but
             not
             in
             Scotland
             .
          
           
             6.
             
             A
             Nottar
             who
             expresseth
             any
             thing
             that
             is
             false
             in
             an
             Instrument
             ,
             commits
             Falshood
             ,
             as
             if
             he
             say
             the
             Money
             was
             numbred
             where
             it
             was
             not
             ,
             or
             if
             he
             marked
             persons
             to
             be
             present
             ,
             who
             were
             not
             ,
             but
             with
             us
             ,
             a
             Nottar
             commits
             not
             Falshood
             ,
             though
             he
             say
             in
             the
             writ
             which
             he
             draws
             ,
             that
             the
             Money
             was
             payed
             ,
             whereas
             it
             was
             not
             .
             I
             find
             that
             
               Iacob
               .
               
               de
               sancto
               Georgio
               ad
               l.
               de
               quibus
               ff
               .
               de
               Legib.
            
             observes
             ,
             that
             
               consuctudo
               loci
               excusat
               notarium
               à
               paena
               falsi
               eo
               casu
               .
            
          
           
             III.
             Falshood
             in
             writs
             is
             committed
             by
             omission
             in
             not
             setting
             down
             what
             the
             Nottar
             was
             desired
             to
             set
             down
             in
             his
             Instrument
             ,
             or
             omitting
             to
             express
             the
             day
             and
             place
             when
             the
             omitting
             thereof
             might
             have
             been
             disadvantagious
             .
             In
             our
             Law
             he
             of
             old
             who
             falsifyed
             the
             King
             ,
             or
             his
             Superiors
             Charter
             ,
             committed
             Treason
             ;
             but
             he
             who
             falsified
             only
             the
             Charter
             of
             a
             private
             man
             ,
             was
             only
             to
             be
             punished
             by
             loss
             or
             mutilation
             of
             a
             member
             ,
             
               Reg.
               Maj.
               l.
            
             4.
             
             Cap.
             13.
             num
             .
             4.
             
             &
             5.
             or
             should
             be
             in
             the
             Kings
             will
             ,
             lib.
             30.
             cap.
             8.
             
             But
             therefore
             it
             is
             determined
             ,
             
               Stat.
               Alexander
            
             19.
             that
             the
             forger
             of
             a
             Charter
             is
             to
             lose
             the
             right
             hand
             ;
             and
             Clarus
             tells
             us
             ,
             that
             in
             the
             Dutchie
             of
             Millan
             ,
             and
             several
             other
             places
             ,
             a
             false
             Nottar
             is
             only
             punished
             for
             the
             first
             Crime
             ,
             by
             losse
             of
             his
             hand
             ,
             but
             all
             this
             is
             innovat
             with
             us
             ,
             by
             the
             6.
             
             Parl.
             80.
             
             
               Act
               Ia.
            
             5.
             whereby
             it
             is
             appointed
             ,
             
               that
               those
               who
               make
               false
               Instruments
               ,
               or
               causes
               them
               be
               made
               ,
               or
               uses
               the
               same
               wittingly
               ,
               shall
               be
               punished
               for
               the
               same
               in
               their
               person
               ,
               and
               goods
               ,
               with
               all
               rigour
               ,
               according
               to
               the
               disposition
               of
               the
               Civil
               and
               Common
               Law
            
             ;
             but
             because
             that
             Act
             punished
             only
             false
             Notars
             ,
             and
             exprest
             only
             false
             Instruments
             ,
             therefore
             by
             the
             22.
             
             Act
             5.
             
             
               Parl.
               Q.
               M.
            
             It
             is
             extended
             to
             all
             evidents
             ,
             but
             it
             would
             appear
             that
             it
             is
             not
             extended
             to
             all
             persons
             ,
             but
             only
             to
             Nottars
             ,
             both
             by
             the
             rubrick
             and
             body
             of
             the
             Act
             ;
             from
             which
             it
             may
             be
             inferred
             ,
             that
             
               in
               criminalibus
               non
               est
               argumentandum
               à
               pari
               ultra
               casum
               à
               lege
               definilum
               .
            
             And
             that
             criminal
             Laws
             are
             to
             be
             most
             strictly
             interpret
             ,
             for
             else
             the
             former
             Law
             against
             Instruments
             ,
             might
             well
             enough
             have
             been
             extended
             against
             other
             false
             writs
             ,
             which
             are
             oftimes
             of
             greater
             consequence
             ,
             then
             Instruments
             are
             .
             2.
             
             The
             reason
             why
             Nottars
             are
             more
             severely
             punished
             then
             others
             ,
             was
             ,
             because
             they
             were
             more
             trusted
             then
             others
             ,
             for
             of
             old
             they
             were
             Church-men
             ,
             and
             hence
             springs
             that
             custom
             ,
             that
             they
             yet
             design
             themselves
             ,
             
               Ego
               ,
               A.
               B.
               
               Notarius
               pub
               .
               Dioceseos
               .
               Andreopolitanae
               Rossensis
               ,
            
             &c.
             And
             any
             Paper
             subscribed
             by
             them
             was
             sufficient
             ,
             though
             not
             subscribed
             by
             the
             Party
             .
             3.
             
             The
             punishment
             is
             declared
             to
             be
             prescription
             (
             which
             is
             an
             error
             of
             the
             Printer
             ,
             put
             for
             prescription
             )
             banishment
             ,
             and
             dismembering
             of
             Hand
             or
             Tongue
             ;
             but
             because
             it
             is
             received
             amongst
             the
             Doctors
             ,
             that
             a
             Statute
             punishing
             Falshood
             in
             a
             Nottar
             ,
             cannot
             be
             extended
             to
             any
             other
             person
             who
             is
             a
             forger
             ,
             
               fulgos
               consil
            
             .
             123.
             therefore
             by
             the
             Act
             22.
             
             Parl.
             23.
             
             Ia.
             6.
             
             It
             is
             statuted
             ,
             that
             whosoever
             maketh
             or
             useth
             a
             false
             writ
             ,
             or
             is
             accessory
             to
             the
             making
             thereof
             ,
             shall
             be
             punished
             as
             a
             committer
             of
             Falshood
             .
          
           
             And
             that
             these
             and
             all
             forgers
             of
             writs
             may
             be
             punisht
             ,
             albeit
             they
             declare
             in
             Judgement
             ,
             that
             they
             passe
             from
             ,
             or
             will
             not
             use
             the
             writ
             quarrelled
             .
             From
             which
             it
             may
             be
             inferred
             ,
             that
             seing
             the
             forger
             is
             only
             not
             allowed
             by
             this
             Act
             to
             passe
             from
             the
             writ
             ,
             after
             it
             is
             used
             and
             produced
             in
             Judgement
             ,
             that
             before
             it
             be
             used
             in
             Judgement
             ,
             it
             may
             be
             past
             from
             ,
             and
             as
             the
             using
             in
             Judgement
             is
             a
             further
             prejudice
             ,
             and
             degree
             of
             impudence
             ,
             then
             a
             simple
             forgery
             which
             may
             be
             repented
             of
             ;
             So
             in
             all
             tryals
             of
             Falshood
             ,
             and
             particularly
             in
             
             Barclay's
             case
             ,
             the
             Lords
             took
             great
             pains
             to
             enquire
             ,
             if
             the
             writs
             quarrelled
             were
             produced
             in
             Judgement
             ,
             or
             made
             use
             of
             before
             any
             Court
             ,
             which
             had
             been
             unnecessar
             ,
             if
             simple
             forging
             had
             been
             sufficient
             ,
             to
             infer
             Falshood
             :
             but
             although
             this
             may
             be
             alledged
             ,
             for
             mitigating
             the
             punishment
             ,
             yet
             Dempster
             was
             condemned
             for
             counterfeiting
             a
             subscription
             ,
             in
             a
             reversion
             ,
             though
             he
             never
             used
             the
             same
             ,
             to
             the
             hurt
             of
             any
             person
             whatsoever
             ,
             nor
             would
             abide
             thereby
             ;
             and
             a
             sentence
             was
             founded
             upon
             this
             Act
             ,
             20.
             
             April
             .
             1620.
             
          
           
             These
             who
             give
             a
             false
             Testimonial
             to
             any
             man
             ,
             whereby
             it
             may
             be
             used
             as
             another
             mans
             Testimonial
             ,
             or
             forges
             one
             to
             himself
             ,
             is
             punishable
             by
             death
             ,
             Act
             ,
             10.
             
             Parl.
             20.
             
             Ia.
             6.
             
             But
             this
             Act
             seems
             only
             to
             relate
             to
             the
             Borders
             ,
             
             and
             such
             fugitives
             ,
             as
             run
             in
             from
             Scotland
             to
             England
             .
          
           
             Though
             England
             and
             some
             other
             Nations
             ,
             punish
             Theft
             with
             death
             ,
             and
             Falshood
             only
             by
             the
             pillary
             ,
             and
             confiscation
             of
             moveables
             :
             Yet
             our
             own
             Law
             seems
             much
             more
             reasonable
             ,
             which
             punisheth
             Falshood
             with
             death
             .
             Since
             Falshood
             is
             a
             theft
             ,
             and
             a
             degree
             of
             that
             crime
             ,
             which
             deserves
             a
             much
             severer
             punishment
             ,
             then
             ordinary
             Theft
             ,
             because
             I
             can
             secure
             my
             goods
             against
             a
             Thief
             ;
             but
             no
             man
             can
             against
             a
             Forger
             .
             And
             a
             thief
             can
             but
             at
             most
             steal
             our
             Moveables
             .
             whereas
             a
             forger
             can
             by
             a
             false
             writ
             ,
             take
             away
             the
             property
             of
             our
             Lands
             ,
             and
             things
             of
             the
             greatest
             consequence
             .
          
           
             By
             the
             Civil
             Law
             ,
             l.
             1.
             
               ff
               .
               de
               l.
               Cornel.
               de
               falsis
               ,
               §
               .
               ult
               .
               paena
               falsi
               ,
               vel
               quasi
               falsi
               ,
               deportatio
               est
               ,
               &
               omnium
               honorum
               publicatio
               :
               &
               siservus
               corum
               quid
               admisserit
               ,
               ultimo
               supplicio
               affici
               jubetur
               ,
            
             which
             is
             
               in
               terminis
            
             ,
             renewed
             in
             the
             Basilicks
             ,
             only
             in
             place
             of
             
               publicatio
               omnium
               honorum
            
             ,
             the
             Basilicks
             have
             
               plenae
               publicatio
            
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             But
             Theophil
             .
             ommits
             absolutely
             ,
             
               publicatio
               honorum
            
             ,
             and
             makes
             it
             to
             be
             simply
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             or
             capital
             ;
             the
             reason
             whereof
             seems
             to
             be
             ,
             because
             capital
             punishment
             included
             necessarly
             publication
             ,
             or
             escheat
             of
             goods
             ,
             l.
             1.
             
             &
             2.
             
               ff
               .
               de
               Bon.
               Dam.
            
             and
             albeit
             the
             former
             punishment
             exprest
             ,
             l.
             1.
             holds
             generally
             in
             Falshood
             ;
             yet
             there
             are
             some
             kinds
             of
             Falshood
             otherwise
             punished
             ,
             because
             in
             effect
             ,
             they
             fall
             in
             to
             be
             branches
             of
             other
             Crimes
             .
             Thus
             the
             assuming
             of
             false
             Arms
             ,
             
               aut
               qui
               militiam
               confinxit
               concutiendi
               causa
            
             is
             capital
             ,
             in
             Matheus
             judgment
             ,
             
               per
               l.
            
             27.
             
               h.
               t.
            
             because
             it
             is
             a
             kind
             of
             Laese-majestie
             .
             But
             I
             find
             by
             the
             Law
             it self
             ,
             that
             the
             pain
             of
             death
             is
             not
             exprest
             in
             that
             case
             ,
             
               sed
               pro
               admissi
               qualitate
               gravissime
               puniendus
               est
               .
            
             And
             by
             the
             Basilicks
             ,
             there
             is
             no
             punishment
             exprest
             ,
             to
             that
             special
             kind
             of
             Falshood
             ,
             and
             so
             it
             is
             left
             only
             punishable
             ,
             
               tanquam
               falsum
            
             .
             And
             though
             Matheus
             doth
             infer
             this
             to
             be
             capitally
             punished
             ,
             from
             l.
             3.
             
               l.
               jul
               .
               Majest
            
             .
             Yet
             I
             think
             there
             is
             a
             great
             difference
             ,
             betwixt
             
             a
             mans
             pretending
             falsly
             that
             he
             is
             a
             Souldier
             ,
             which
             is
             that
             Crime
             ,
             which
             is
             punished
             l.
             27.
             
               h.
               t.
            
             and
             the
             taking
             up
             Arms
             against
             the
             State
             ,
             which
             is
             punished
             ,
             
               dicta
               ,
               l.
            
             3.
             
          
           
             IV.
             Because
             the
             Crime
             of
             Falshood
             ,
             doth
             oftimes
             arise
             upon
             Papers
             produced
             before
             the
             Lords
             of
             Session
             ,
             and
             because
             the
             tryal
             thereof
             ,
             requires
             an
             exact
             ,
             and
             long
             ,
             and
             a
             much
             more
             tedious
             search
             ,
             then
             the
             forms
             of
             the
             Justice
             Court
             can
             allow
             (
             whose
             dyet
             is
             peremptor
             )
             therefore
             by
             the
             Acts
             foresaid
             ,
             it
             is
             declared
             ,
             that
             the
             Lords
             of
             Session
             are
             Judges
             competent
             ,
             to
             the
             tryal
             of
             Falshood
             .
             And
             albeit
             that
             Act
             doth
             not
             expresse
             their
             jurisdiction
             to
             be
             exclusive
             of
             the
             Justices
             ,
             yet
             I
             remember
             ,
             that
             in
             an
             accumulat
             accusation
             of
             Theft
             and
             Falshood
             ,
             pursued
             by
             the
             Lord
             Blantire
             ,
             against
             
               M
               
               cculloch
            
             ,
             his
             servant
             ,
             it
             was
             found
             by
             the
             justices
             ,
             that
             they
             would
             not
             proceed
             to
             judge
             the
             Falshood
             ,
             but
             remitted
             the
             same
             to
             be
             tryed
             before
             the
             Lords
             ,
             in
             an
             improbation
             :
             and
             I
             believe
             ,
             that
             the
             tryal
             of
             Falshood
             ,
             
               in
               prima
               instantia
            
             ,
             doth
             only
             belong
             to
             the
             Lords
             ,
             as
             that
             of
             divorce
             doth
             to
             the
             Commissaries
             ,
             for
             else
             most
             of
             all
             Falshoods
             would
             be
             only
             pursued
             before
             the
             Justices
             ,
             seing
             the
             tryal
             there
             is
             much
             shorter
             ,
             and
             lesse
             expensive
             ,
             than
             before
             the
             Lords
             ;
             whereas
             I
             find
             not
             any
             action
             of
             Falshood
             ,
             
               in
               prima
               instantia
            
             ,
             recorded
             in
             all
             the
             Books
             of
             Adjournal
             .
          
           
             V.
             The
             Lords
             do
             sometimes
             proceed
             to
             the
             tryal
             of
             Falshood
             ,
             
               summarie
               per
               modum
               simplicis
               quaerelae
            
             ,
             upon
             a
             Bill
             ,
             without
             any
             formal
             Summonds
             ;
             and
             thus
             they
             found
             Binnie
             ,
             a
             falsary
             for
             counterfeiting
             the
             Signet
             ,
             Iun
             1666.
             
             But
             this
             they
             do
             only
             in
             two
             cases
             ,
             1.
             
             When
             the
             Falshood
             is
             committed
             ,
             by
             a
             Member
             of
             the
             Colledge
             of
             Justice
             .
             2.
             
             When
             the
             Signet
             or
             any
             part
             of
             a
             Pro●esse
             is
             
               ex
               recenti
            
             ,
             falsified
             .
          
           
             The
             way
             of
             procedor
             in
             this
             Crime
             before
             the
             Lords
             ,
             is
             this
             ;
             a
             Summonds
             of
             Improbation
             is
             raised
             ,
             and
             continued
             ,
             and
             
             three
             terms
             of
             old
             ,
             but
             now
             two
             only
             are
             by
             the
             regulations
             given
             to
             the
             defender
             ,
             to
             produce
             the
             writ
             called
             for
             ,
             to
             be
             improved
             .
             If
             the
             Papers
             called
             for
             be
             not
             produced
             ,
             certification
             is
             granted
             against
             them
             ,
             whereby
             they
             are
             declared
             such
             as
             can
             never
             be
             made
             use
             of
             ,
             as
             true
             Papers
             ,
             in
             any
             time
             coming
             ;
             but
             upon
             this
             presumptive
             Improbation
             ,
             whereby
             the
             Writs
             are
             only
             
               perfictionem
               juris
            
             ,
             declared
             null
             ,
             the
             party
             who
             is
             called
             to
             produce
             them
             ,
             is
             not
             repute
             a
             forger
             ,
             or
             punished
             as
             such
             ,
             for
             
               non
               constat
               eo
               casu
               de
               corpore
               de
               licti
               ,
            
             or
             that
             ever
             there
             were
             any
             such
             Paper
             ,
             as
             is
             called
             for
             :
             nor
             was
             there
             ever
             certification
             granted
             ,
             or
             any
             further
             inquiry
             made
             ,
             into
             the
             Falshood
             it self
             ,
             till
             November
             1669.
             at
             which
             time
             ,
             certification
             having
             been
             granted
             against
             some
             Papers
             ,
             made
             by
             the
             Tutor
             of
             Towie
             ,
             to
             Captain
             Barclay
             ,
             the
             Lords
             found
             they
             might
             proceed
             a
             little
             further
             ,
             by
             examining
             the
             Witnesses
             ,
             albeit
             it
             was
             alledged
             ,
             that
             this
             had
             never
             been
             done
             .
             2.
             
             That
             
               non
               constabat
               de
               corpore
               de
               licti
               .
            
             3.
             
             That
             by
             the
             certification
             ,
             
               res
               erat
               judicata
            
             ,
             and
             so
             the
             Lords
             ,
             
               functierant
               officio
            
             .
             4.
             
             That
             the
             Writs
             being
             improved
             ,
             were
             no
             longer
             dangerous
             ,
             
               non
               erat
               amplius
               nociva
               &
               nullus
               potest
               puniri
               defalso
               ubi
               falsum
               non
               erat
               nocivum
            
             ;
             and
             albeit
             ,
             it
             was
             alledged
             that
             it
             would
             be
             very
             prejudicial
             to
             the
             Common-wealth
             ,
             if
             a
             person
             who
             falsified
             Writs
             ,
             might
             destroy
             them
             ,
             when
             he
             found
             they
             could
             not
             be
             advantagious
             ,
             and
             so
             escape
             ;
             it
             was
             answered
             ,
             that
             there
             was
             no
             hazard
             in
             this
             ,
             because
             ,
             if
             the
             forger
             used
             them
             not
             ,
             the
             Common-wealth
             ,
             nor
             no
             Person
             could
             be
             prejudged
             ;
             but
             if
             he
             did
             ,
             the
             party
             injured
             might
             force
             him
             to
             leave
             it
             in
             the
             Clerks
             hands
             ,
             and
             intent
             and
             Improbation
             .
          
           
             By
             the
             62.
             
             Act.
             7.
             
             
               Parl.
               Q.
               M.
            
             the
             Judge
             is
             allow'd
             to
             exact
             caution
             from
             such
             as
             propon
             Improbation
             ,
             and
             though
             some
             doubt
             whether
             this
             caution
             may
             be
             exacted
             ,
             as
             well
             when
             Improbation
             ,
             is
             proponed
             by
             way
             of
             exception
             ,
             as
             when
             it
             ,
             is
             pursued
             by
             way
             of
             action
             :
             yet
             since
             the
             danger
             is
             the
             same
             it
             
             both
             ,
             and
             that
             by
             the
             Act
             ,
             this
             is
             declared
             to
             extend
             as
             well
             ,
             at
             the
             raising
             of
             the
             Summonds
             ,
             as
             at
             the
             proponing
             of
             the
             objection
             ,
             and
             that
             
               lex
               non
               distinguit
            
             ,
             I
             see
             no
             reason
             for
             this
             doubt
             :
             and
             this
             ,
             it
             was
             decided
             the
             25.
             of
             Iun
             ,
             1675.
             
             The
             Sums
             for
             which
             caution
             is
             to
             be
             found
             in
             this
             case
             ,
             is
             left
             to
             the
             arbitrement
             of
             the
             Judge
             ,
             and
             though
             this
             Statute
             appoints
             only
             caution
             to
             be
             found
             ,
             yet
             the
             Lords
             doth
             ordain
             the
             Money
             oftimes
             to
             be
             consigned
             .
          
           
             VI.
             There
             are
             two
             ways
             of
             improving
             a
             Writ
             ,
             viz.
             the
             direct
             and
             indirect
             manner
             ,
             the
             direct
             manner
             of
             improbation
             ,
             is
             by
             the
             Writer
             and
             Witnesses
             insert
             ,
             the
             indirect
             manner
             is
             by
             Witnesses
             not
             insert
             but
             by
             presumptions
             and
             other
             extrinsick
             arguments
             .
             But
             it
             is
             a
             rule
             in
             our
             Law
             ,
             that
             whilst
             the
             direct
             manner
             of
             improbation
             is
             extant
             ,
             that
             is
             to
             say
             ,
             whilst
             Writer
             and
             Witnesses
             insert
             are
             alive
             ,
             no
             tryal
             can
             be
             taken
             by
             the
             indirect
             manner
             .
          
           
             As
             to
             the
             direct
             manner
             ,
             we
             have
             this
             general
             Maxime
             ,
             viz.
             that
             such
             Witnesses
             as
             are
             dead
             ,
             are
             proving
             Witnesses
             ,
             But
             this
             holds
             only
             presumptive
             ,
             for
             if
             of
             five
             Witnesses
             insert
             ,
             two
             should
             improve
             ,
             the
             other
             three
             being
             dead
             ,
             the
             writ
             will
             be
             declared
             false
             ;
             whereas
             ,
             if
             these
             three
             were
             alive
             ,
             and
             did
             formally
             approve
             ,
             the
             writ
             would
             subsist
             ,
             though
             improven
             by
             two
             .
          
           
             To
             prevent
             Falshood
             in
             all
             manner
             of
             Evidents
             ,
             our
             Law
             in
             place
             of
             Seals
             (
             which
             were
             used
             of
             old
             ,
             and
             which
             might
             have
             been
             easily
             counterfeited
             )
             did
             by
             the
             117.
             
             Act
             7.
             
             
               Parl.
               I.
            
             ●
             .
             require
             that
             all
             Evidents
             should
             be
             subscribed
             by
             the
             Party
             ,
             and
             Witnesses
             ,
             and
             by
             the
             80.
             
             
               Act
               Parl.
            
             6.
             
             Ia.
             6.
             all
             writs
             of
             Importance
             ,
             are
             ordained
             to
             be
             subscribed
             by
             the
             principal
             Parties
             ,
             if
             they
             can
             subscribe
             ,
             or
             by
             two
             famous
             Notars
             ,
             before
             four
             famous
             Witnesses
             ,
             denominat
             by
             th●●
             special
             dwellings
             ,
             or
             by
             some
             evident
             token
             ,
             by
             which
             the
             Witnesses
             may
             be
             known
             ,
             and
             though
             usually
             men
             take
             writs
             of
             the
             ●reatest
             importance
             ,
             subscribed
             before
             any
             Witnesses
             ,
             
             yet
             there
             is
             nothing
             more
             imprudent
             for
             if
             I
             take
             a
             Gentlemans
             two
             Servants
             ,
             or
             a
             Fathers
             two
             Sons
             (
             when
             the
             master
             or
             father
             are
             disponers
             )
             witnesses
             to
             their
             Disposition
             ,
             or
             Bond
             of
             the
             greatest
             importance
             ,
             and
             one
             of
             these
             should
             deny
             his
             subscription
             ,
             the
             writ
             would
             be
             null
             ,
             as
             was
             found
             in
             Commissar
             Fleemings
             case
             ;
             and
             if
             both
             denyed
             their
             subscriptions
             ,
             the
             writ
             ought
             in
             strict
             Law
             to
             be
             declared
             false
             ;
             but
             yet
             if
             there
             were
             pregnant
             circumstances
             ,
             and
             adminicles
             to
             astruct
             the
             truth
             of
             the
             subscriptions
             I
             conceive
             the
             writ
             could
             not
             be
             improven
             ,
             even
             though
             these
             interested
             witnesses
             should
             deny
             their
             subscriptions
             .
             From
             the
             foresaid
             Acts
             of
             Parliament
             it
             is
             clear
             ,
             that
             the
             witnesses
             should
             be
             specially
             designed
             ,
             to
             the
             end
             they
             may
             be
             known
             and
             examined
             ;
             and
             therefore
             the
             Lords
             21.
             
             Feb.
             1672.
             
             
               Littlegil
               contra
               Somervel
            
             ;
             found
             it
             not
             sufficient
             that
             a
             witness
             in
             a
             bond
             craved
             to
             be
             improven
             ,
             was
             designed
             indweller
             in
             Edinburgh
             ,
             but
             ordained
             even
             the
             assigney
             to
             condescend
             more
             particularly
             though
             the
             assignay
             contended
             that
             he
             being
             a
             singular
             successor
             ,
             who
             had
             got
             a
             right
             to
             the
             bond
             ,
             he
             could
             not
             know
             who
             were
             the
             witnesses
             made
             use
             of
             ,
             nor
             was
             he
             obliedged
             to
             consider
             any
             more
             when
             he
             got
             his
             assignation
             ,
             but
             that
             the
             bond
             had
             witnesses
             ,
             without
             requiring
             who
             these
             were
             ;
             and
             so
             though
             the
             cedent
             who
             had
             gotten
             the
             bond
             might
             be
             oblieged
             to
             condescend
             ,
             yet
             he
             could
             not
             ;
             and
             yet
             improbation
             being
             pursued
             against
             a
             bond
             granted
             by
             Sir
             
               Lewis
               Stewart
            
             to
             his
             son
             Kettlestone
             ,
             in
             which
             bond
             one
             of
             the
             witnesses
             was
             designed
             
               Iohn
               Carnagy
            
             servitor
             to
             the
             Earle
             of
             Southesk
             ,
             though
             there
             were
             many
             moe
             
               Iohn
               Carnagies
            
             who
             then
             served
             the
             Earle
             .
             The
             Lords
             found
             that
             Kettlestone
             was
             not
             obliedged
             to
             designe
             more
             particularly
             which
             of
             the
             
               Iohn
               Carnagies
            
             wrot
             the
             bond
             ,
             and
             that
             it
             was
             relevant
             for
             the
             improver
             to
             offer
             to
             prove
             that
             at
             the
             date
             of
             that
             bond
             the
             Earle
             of
             Southesk
             had
             no
             servant
             who
             could
             write
             such
             a
             bond
             ,
             7.
             
             February
             ,
             1672.
             
          
           
             Another
             great
             errour
             committed
             by
             such
             as
             take
             men
             to
             be
             
             witnesses
             to
             the
             Writs
             and
             Evidents
             delivered
             to
             them
             ,
             is
             ,
             that
             they
             imploy
             witnesses
             who
             has
             not
             seen
             the
             party
             subscribe
             ,
             nor
             has
             not
             so
             much
             as
             inquired
             at
             him
             whether
             that
             was
             his
             subscription
             ,
             whereas
             if
             that
             paper
             were
             challenged
             as
             false
             or
             null
             ,
             it
             would
             be
             declared
             null
             ,
             if
             not
             false
             ,
             though
             the
             witnesse
             should
             depone
             that
             he
             was
             in
             the
             next
             room
             ,
             and
             it
             was
             brought
             to
             him
             immediatly
             whilst
             the
             ink
             was
             not
             yet
             dry
             ,
             and
             that
             he
             knew
             his
             masters
             subscription
             ,
             if
             he
             could
             not
             positively
             depone
             ,
             that
             either
             he
             saw
             his
             master
             subscribe
             ,
             or
             that
             his
             master
             had
             declared
             to
             him
             that
             that
             was
             his
             subscription
             .
             And
             this
             remembers
             me
             of
             this
             pretty
             case
             wherein
             I
             my self
             was
             consulted
             :
             A
             Gentlewoman
             being
             to
             subscribe
             her
             contract
             of
             marriage
             desired
             that
             because
             she
             was
             ashamed
             to
             writ
             before
             so
             many
             friends
             ,
             she
             might
             have
             the
             Paper
             delivered
             to
             her
             to
             be
             subscribed
             in
             another
             room
             ,
             and
             the
             same
             having
             been
             sent
             with
             her
             to
             the
             other
             room
             ,
             she
             caused
             her
             sister-in-Law
             who
             went
             alongst
             with
             her
             ,
             subscribe
             the
             same
             ,
             for
             her
             pretending
             that
             she
             could
             not
             write
             well
             ,
             and
             returning
             thereafter
             ,
             she
             told
             the
             witnesses
             that
             that
             was
             her
             subscription
             ;
             which
             Contract
             being
             thereafter
             quarrelled
             upon
             the
             nullity
             of
             not
             being
             truly
             subscribed
             before
             witnesses
             ,
             the
             Lords
             sustained
             the
             Contract
             ,
             the
             matter
             of
             fact
             above
             specified
             ,
             being
             offerred
             to
             be
             proved
             ,
             though
             it
             was
             alledged
             that
             this
             was
             in
             effect
             to
             make
             up
             an
             obligation
             of
             great
             importance
             by
             witnesses
             .
          
           
             In
             the
             indirect
             manner
             ,
             the
             Lords
             use
             to
             consider
             the
             presumptions
             adduced
             for
             the
             improver
             in
             his
             indirect
             Articles
             of
             approbation
             ,
             and
             for
             the
             party
             accused
             ,
             in
             his
             articles
             of
             approbation
             ,
             amongst
             which
             indirect
             articles
             ,
             the
             chief
             are
             ,
             Alibi
             ,
             a
             false
             date
             ,
             and
             
               comparatio
               Literarum
            
             .
             If
             the
             party
             who
             has
             been
             said
             to
             have
             subscribed
             the
             writ
             ,
             be
             proved
             to
             be
             elsewhere
             ;
             as
             for
             instance
             ,
             to
             have
             been
             at
             Edinburgh
             ,
             whereas
             the
             writ
             is
             alledged
             to
             have
             been
             subscribed
             that
             same
             day
             by
             him
             in
             Cathnes
             this
             is
             a
             very
             concluding
             presumption
             of
             Falshood
             ,
             since
             a
             man
             could
             not
             by
             the
             swiftest
             journey
             be
             at
             both
             
             these
             places
             in
             one
             day
             ,
             and
             therefore
             this
             is
             a
             most
             concluding
             presumption
             to
             annul
             the
             Bond
             ,
             but
             I
             think
             it
             is
             no
             convincing
             argument
             which
             can
             inferr
             that
             the
             Bond
             is
             false
             ,
             since
             people
             by
             errour
             or
             mistake
             ,
             may
             ,
             and
             do
             oftentimes
             insert
             a
             wrong
             date
             ,
             neglecting
             the
             date
             ,
             as
             a
             matter
             of
             no
             importance
             ;
             and
             therefore
             the
             Lords
             did
             very
             justly
             assoilzie
             from
             an
             improbation
             of
             a
             writ
             ,
             which
             was
             proved
             to
             be
             false
             in
             the
             date
             ,
             since
             the
             witnesses
             insert
             were
             alive
             ,
             and
             did
             depone
             upon
             the
             verity
             of
             the
             subscription
             ,
             23.
             
             May
             ,
             1667.
             
             Lord
             
               May
               ,
               contra
               Rosse
            
             ,
             and
             upon
             the
             10.
             of
             Iuly
             1669.
             
             
               Gardner
               contra
               Colvil
            
             ,
             a
             writ
             was
             not
             improven
             ,
             though
             it
             was
             proved
             not
             to
             have
             been
             subscribed
             of
             the
             date
             that
             was
             insert
             ,
             In
             respect
             there
             was
             a
             writ
             of
             that
             same
             tenour
             ,
             truly
             subscribed
             that
             day
             ,
             which
             being
             a-missing
             ,
             the
             granter
             a
             long
             time
             thereafter
             subscribed
             another
             of
             the
             same
             tenour
             and
             date
             ,
             and
             the
             first
             being
             thereafter
             found
             ,
             and
             both
             produced
             ,
             the
             user
             abode
             by
             the
             first
             simply
             ,
             and
             by
             the
             last
             as
             to
             the
             verity
             of
             the
             subscription
             ,
             but
             not
             of
             the
             date
             ,
             which
             was
             so
             insert
             for
             the
             reason
             foresaid
             ;
             so
             that
             though
             the
             date
             be
             amongst
             the
             substantial
             solemnities
             requisite
             to
             a
             writ
             ,
             as
             is
             clear
             by
             the
             foresaid
             Acts
             of
             Parliament
             ,
             and
             by
             the
             13.
             
             Act
             ,
             9.
             
             
               Parliament
               ,
               Iam.
            
             1.
             so
             that
             the
             improver
             may
             force
             the
             user
             of
             a
             writ
             ,
             to
             condescend
             upon
             a
             particular
             date
             ,
             if
             the
             date
             be
             blank
             ,
             and
             that
             the
             falsenesse
             of
             the
             date
             will
             inferr
             the
             writ
             to
             be
             false
             ,
             except
             this
             presumption
             can
             be
             taken
             off
             by
             a
             strong
             contrary
             probation
             ,
             yet
             that
             it
             may
             be
             so
             taken
             of
             ,
             is
             clear
             from
             the
             cases
             foresaid
             ,
             and
             in
             this
             sense
             Craig
             is
             to
             be
             understood
             ,
             who
             sayes
             ,
             pag.
             156.
             
             
               Si
               falsa
               data
               apposita
               sit
               ,
               totum
               instrumentum
               vitiatur
               ,
               nam
               quod
               in
               ea
               data
               quae
               exprimitur
               non
               est
               verum
               ,
               etiamsi
               aliam
               datam
               substituere
               velit
               ,
               is
               ,
               qui
               eo
               utitur
               ,
               non
               est
               audiendus
               ,
               &
               quod
               in
               data
               falsa
               non
               fuit
               factum
               ,
               nunquam
               factum
               praesumitur
               .
            
          
           
             If
             the
             writ
             craved
             to
             be
             improven
             be
             unlike
             in
             its
             subscription
             ,
             to
             the
             other
             subscriptions
             used
             by
             the
             subscriber
             at
             the
             
             time
             when
             the
             Paper
             quarelled
             is
             said
             to
             be
             subscribed
             ,
             then
             it
             is
             most
             suspect
             ,
             and
             if
             both
             the
             subscriptions
             of
             the
             witnesses
             and
             granter
             ,
             be
             found
             to
             be
             one
             hand
             writ
             ,
             but
             all
             of
             them
             are
             unlike
             the
             true
             subscriptions
             ,
             then
             the
             writ
             will
             be
             improven
             by
             occular
             inspection
             :
             as
             was
             found
             in
             the
             Earle
             of
             W●ymes
             case
             ,
             
               contra
               Gall
               ,
               Iuly
            
             1675.
             
             But
             yet
             it
             were
             hard
             to
             infer
             the
             corporal
             punishment
             of
             falshood
             from
             this
             probation
             ,
             which
             is
             but
             at
             best
             presumptive
             ,
             for
             the
             granter
             of
             a
             Bond
             or
             other
             writ
             ,
             might
             upon
             designe
             subscribe
             to
             strangers
             his
             name
             ,
             far
             otherwayes
             then
             he
             uses
             to
             do
             ,
             meerly
             that
             he
             or
             his
             Heirs
             ,
             may
             thereafter
             quarrel
             the
             same
             ,
             and
             therefore
             
               Cravet
               .
               Consil.
            
             386.
             concludes
             ,
             that
             
               comparatio
               sola
               non
               relevat
               in
               criminalibus
               ,
            
             and
             all
             Lawyers
             conclude
             ,
             that
             
               recognitio
               scripturae
               privatae
               insert
               plenam
               probationem
               si
               jungatur
               cum
               uno
               teste
               vel
               alia
               somi
               plena
               probatione
               ,
               Alex.
               Consil
            
             239.
             
          
           
             In
             the
             indirect
             manner
             ,
             the
             Lords
             uses
             to
             receive
             witnesses
             
               ad
               futuram
               rei
               memoriam
            
             ,
             and
             to
             receive
             witnesses
             sometimes
             by
             commission
             ,
             as
             in
             Captain
             Barclayes
             case
             .
             Albeit
             it
             was
             there
             alledged
             ,
             that
             witnesses
             in
             the
             indirect
             manner
             of
             improbation
             ,
             are
             only
             received
             
               ex
               nobili
               officio
            
             ,
             which
             could
             not
             be
             committed
             or
             delegat
             ,
             and
             which
             seems
             stranger
             ,
             the
             Lords
             uses
             to
             take
             the
             oath
             of
             the
             defender
             himself
             ,
             albeit
             regularly
             in
             crimes
             the
             defender
             is
             not
             obliedged
             to
             swear
             .
          
           
             Before
             any
             debate
             upon
             the
             indirect
             manner
             ,
             the
             Lords
             use
             to
             ordain
             the
             pursuer
             to
             give
             in
             his
             articles
             of
             improbation
             ,
             and
             to
             ordain
             the
             defender
             to
             give
             in
             his
             articles
             of
             approbation
             .
             And
             albeit
             there
             be
             not
             
               publicatio
               testimoniorum
            
             in
             our
             Law
             in
             Civil
             Cases
             ,
             yet
             because
             improbations
             have
             a
             criminal
             effect
             ,
             and
             tend
             to
             take
             away
             the
             life
             of
             the
             defender
             ,
             therefore
             the
             Lords
             use
             in
             this
             case
             to
             ordain
             the
             depositions
             of
             the
             witnesses
             to
             be
             seen
             by
             both
             parties
             ,
             and
             both
             parties
             being
             fully
             heard
             to
             debate
             
               in
               praesentia
            
             ,
             the
             Lords
             do
             either
             improve
             or
             Assoylzie
             .
          
           
             If
             the
             Lords
             improve
             ,
             they
             have
             by
             the
             foresaid
             acts
             of
             Parliament
             
             power
             to
             impose
             an
             arbitrary
             punishment
             suitable
             to
             the
             crime
             .
             And
             therefore
             they
             do
             sometimes
             ordain
             the
             forget
             ,
             to
             be
             taken
             to
             the
             Crosse
             with
             a
             paper
             Hat
             ,
             if
             the
             cheat
             was
             but
             small
             ,
             or
             the
             person
             in
             great
             necessity
             .
             And
             sometimes
             they
             only
             ordain
             the
             forger
             to
             be
             imprisoned
             ,
             and
             rebuke
             him
             without
             discovering
             the
             falshood
             ,
             as
             they
             did
             lately
             to
             a
             Gentleman
             ,
             who
             being
             otherwayes
             very
             discreet
             ,
             was
             by
             his
             poverty
             driven
             to
             counterfit
             the
             subscription
             of
             his
             friend
             ,
             to
             a
             bond
             of
             Suspension
             .
             Sometimes
             likewise
             they
             refer
             the
             forgers
             to
             the
             Council
             ,
             who
             upon
             that
             reference
             ,
             use
             either
             to
             condemn
             the
             forger
             to
             perpetual
             imprisonment
             ,
             as
             they
             did
             Captain
             Barclay
             ,
             or
             else
             they
             use
             to
             send
             them
             to
             the
             Mercat
             Crosse
             with
             a
             paper
             hat
             ,
             as
             they
             did
             Tulloch
             a
             Nottar
             for
             forging
             a
             charter
             ,
             4.
             
             Iuly
             ,
             1638.
             but
             this
             mitigation
             is
             only
             allowed
             ,
             when
             the
             forger
             hath
             been
             induced
             to
             commit
             that
             crime
             by
             the
             perswasion
             of
             others
             ,
             or
             by
             his
             own
             simplicity
             ,
             and
             hath
             ingeniously
             confest
             .
          
           
             VII
             .
             The
             ordinary
             way
             of
             procedor
             taken
             by
             the
             Lords
             ,
             when
             they
             have
             improven
             the
             papers
             ,
             and
             found
             them
             to
             be
             false
             ,
             is
             to
             remit
             the
             forger
             to
             the
             Justices
             ,
             against
             whom
             an
             indictment
             being
             drawn
             up
             ,
             and
             the
             Assize
             sworn
             ,
             the
             Lords
             Decreet
             is
             read
             ,
             without
             repeating
             any
             further
             probation
             ,
             and
             the
             Assize
             must
             condemn
             thereupon
             ,
             else
             they
             will
             be
             pursued
             for
             errour
             .
             And
             therfore
             the
             verdict
             
               eo
               casu
            
             bears
             ,
             finds
             the
             Pannel
             guilty
             in
             respect
             of
             the
             Decreet
             of
             the
             Lords
             of
             Session
             .
             Upon
             this
             verdict
             the
             Justices
             are
             tyed
             expresly
             to
             condemn
             the
             defender
             to
             be
             hanged
             ,
             as
             Halyday
             for
             counterfeiting
             a
             Discharge
             ,
             8.
             
             February
             ,
             1597.
             
             
               Iames
               Tarbet
            
             for
             being
             art
             and
             part
             of
             counterfeiting
             a
             false
             Charter
             ,
             16.
             
             February
             ,
             1600.
             
             And
             if
             the
             falshood
             be
             atrocious
             ,
             they
             sometimes
             before
             the
             execution
             ordain
             the
             right
             hand
             to
             be
             cut
             off
             .
          
           
             If
             the
             Lords
             remit
             not
             the
             case
             to
             the
             Justices
             ,
             when
             they
             find
             the
             Papers
             to
             be
             false
             ,
             they
             ordain
             the
             Papers
             improven
             to
             be
             cancelled
             in
             their
             own
             presence
             ,
             but
             if
             they
             remit
             
             the
             forgers
             to
             the
             Justices
             then
             the
             Papers
             are
             carried
             to
             the
             Justice
             court
             ,
             and
             when
             the
             sentence
             is
             pronounced
             there
             against
             the
             Pannel
             ,
             the
             papers
             are
             likewise
             cancelled
             at
             the
             command
             of
             the
             Justices
             .
          
           
             VIII
             .
             The
             second
             species
             of
             Falshood
             ,
             is
             that
             which
             is
             committed
             by
             witnesses
             in
             their
             depositions
             ,
             which
             may
             be
             many
             wayes
             comm●tted
             :
             as
             1.
             
             By
             taking
             money
             to
             depon
             or
             not
             depon
             .
             
               Si
               quis
               pecuniam
               ad
               dicendum
               vel
               non
               dicendum
               testimonium
               acceperit
               ,
               l.
            
             20.
             
               ff
               .
               h.
               t.
            
             20.
             by
             concealing
             the
             truth
             ,
             or
             expressing
             more
             then
             the
             truth
             ,
             though
             they
             received
             no
             money
             ,
             l.
             16
             §
             .
             
               ult
               .
               hoc
               .
               tit
            
             .
             3.
             
             By
             deponing
             things
             expresly
             contradictory
             ,
             but
             in
             this
             case
             the
             contradiction
             must
             be
             palpable
             ,
             and
             not
             consequential
             ,
             
               nam
               omnis
               interpretatio
               praeferendo
               est
               ut
               dicta
               testium
               reconcilientur
               .
            
             Witnesses
             either
             are
             such
             as
             were
             sworn
             ,
             and
             if
             they
             swear
             falsly
             ,
             
               eo
               casu
            
             ,
             they
             are
             guilty
             of
             perjury
             (
             
               vid.
               tit
            
             .
             perjury
             )
             or
             else
             they
             are
             such
             as
             are
             false
             witnesses
             ,
             without
             an
             oath
             ,
             as
             witnesses
             in
             papers
             ,
             and
             these
             are
             punishable
             ,
             
               tanquam
               falsarii
               ,
               Bart.
               ad
               l.
               si
               quis
               ff
               .
               ad
               l.
               Corn.
               Clar.
               hoc
               tit
               .
               num
               .
            
             11.
             and
             of
             these
             I
             design
             to
             treat
             only
             at
             least
             principally
             in
             this
             Title
             .
          
           
             He
             who
             depones
             falsly
             in
             one
             point
             ,
             is
             repute
             false
             in
             all
             his
             deposition
             ,
             whether
             the
             points
             be
             coherent
             or
             not
             ;
             But
             he
             who
             depones
             falsly
             only
             in
             extrinsick
             circumstances
             ,
             is
             not
             to
             be
             equally
             punish'd
             ,
             as
             if
             he
             had
             depon'd
             falsly
             upon
             the
             substantials
             of
             what
             is
             interrogat
             ;
             and
             yet
             in
             both
             cases
             he
             is
             falsarius
             .
             And
             thus
             the
             Lords
             ordained
             one
             of
             Barclays
             Servants
             to
             be
             sent
             to
             the
             Cross
             with
             a
             Paper
             Hat
             ,
             because
             he
             prevaricat
             only
             in
             his
             deposition
             about
             the
             carrying
             of
             a
             Letter
             ,
             though
             that
             was
             extrinsick
             to
             the
             debate
             ,
             and
             was
             mainly
             used
             to
             try
             the
             Witnesses
             honesty
             .
             Oblivion
             or
             forgetfulness
             excuseth
             sometimes
             ,
             
               à
               paena
               ordinaria
               falsi
            
             ,
             if
             it
             be
             invincibly
             or
             strongly
             founded
             ,
             but
             not
             otherwise
             .
          
           
             Witnesses
             deponing
             falsly
             ,
             and
             such
             as
             induced
             Witnesses
             ,
             were
             by
             our
             Law
             punished
             according
             to
             the
             disposition
             of
             the
             
             common
             Law
             ,
             Act
             80.
             
             Parl.
             6.
             
             I.
             5.
             but
             thereafter
             by
             piercing
             their
             tongues
             ,
             and
             escheating
             of
             their
             moveables
             to
             the
             Kings
             use
             ,
             and
             are
             never
             to
             brook
             honour
             ,
             office
             ,
             or
             dignity
             ,
             and
             are
             to
             be
             further
             punish'd
             in
             their
             persons
             at
             the
             sight
             of
             the
             Lords
             ,
             according
             to
             the
             quality
             of
             their
             fault
             ,
             
               Q.
               M.
               Parl.
            
             6.
             
             Cap.
             48.
             
             By
             the
             Lords
             in
             this
             Act
             ,
             are
             meant
             the
             Lords
             of
             Session
             ,
             who
             may
             punish
             Witnesses
             
               ex
               incontinenti
            
             ,
             during
             the
             dependence
             of
             the
             Process
             before
             themselves
             ,
             wherein
             the
             Witnesses
             depone
             falsly
             ;
             but
             if
             either
             the
             falshood
             was
             committed
             by
             deponing
             in
             another
             Court
             ,
             or
             if
             the
             Lords
             be
             
               functi
               officio
            
             ,
             as
             to
             the
             Process
             wherein
             the
             falshood
             was
             committed
             ,
             
               eo
               casu
            
             the
             Lords
             cannot
             judge
             the
             falshood
             ,
             or
             punish
             the
             false
             Witnesses
             .
             Sometimes
             the
             Lords
             ordain
             the
             Witnesses
             to
             be
             remitted
             to
             the
             Council
             ;
             thus
             the
             Lords
             ordain'd
             the
             Witnesses
             ,
             who
             had
             confest
             that
             they
             subscribed
             Witnesses
             to
             a
             Disposition
             granted
             by
             the
             Tutor
             of
             Towie
             to
             his
             Nephew
             ,
             to
             be
             remitted
             to
             the
             Council
             ,
             who
             ban●sh'd
             them
             :
             And
             sometimes
             they
             themselves
             ordain
             them
             to
             be
             banish'd
             ,
             or
             to
             have
             their
             tongues
             pierc'd
             ,
             or
             to
             be
             set
             upon
             the
             Cock-stool
             ,
             with
             a
             Paper
             Hat
             ;
             yet
             they
             cannot
             ordain
             them
             to
             die
             ,
             because
             the
             arbitrary
             power
             granted
             by
             this
             Act
             ,
             cannot
             in
             Law
             be
             extended
             
               ad
               infligendam
               paenam
               mortis
            
             ,
             as
             is
             fully
             cleared
             else-where
             ;
             and
             therefore
             the
             Lords
             use
             to
             remit
             the
             falsarie
             to
             the
             Justices
             ,
             if
             the
             Crime
             deserve
             death
             .
             But
             it
             may
             be
             questioned
             ,
             if
             the
             Justices
             can
             inflict
             the
             pain
             of
             death
             in
             any
             case
             upon
             false
             Witnesses
             ,
             since
             that
             Crime
             is
             not
             declared
             capital
             by
             any
             Act
             ?
             But
             to
             this
             the
             answer
             is
             ,
             that
             they
             may
             ,
             and
             do
             infl●ct
             capital
             punishment
             upon
             the
             committers
             of
             this
             Crime
             ,
             in
             some
             cases
             .
             And
             by
             the
             foresaid
             Act
             Ia.
             5.
             it
             is
             declared
             punishable
             ,
             according
             to
             the
             disposition
             of
             the
             Common
             Law
             ,
             by
             which
             is
             meant
             the
             Civil
             Law
             ,
             
               &
               de
               practica
            
             ,
             Wit●esses
             have
             been
             hang'd
             for
             bearing
             false
             witness
             ,
             as
             Croy
             ,
             and
             for
             suborning
             others
             to
             bear
             false
             Witness
             ,
             as
             
               Cheyn
               ,
               March
            
             15.
             1605.
             
             And
             
               Grahame
               ,
               March
            
             8.
             1615.
             
             
             At
             which
             time
             also
             Dunlop
             and
             some
             others
             were
             hang'd
             for
             offering
             themselves
             to
             be
             false
             Witnesses
             ,
             albeit
             they
             did
             not
             actually
             depon
             ,
             because
             they
             were
             not
             received
             ,
             the
             offer
             having
             before
             their
             examination
             come
             to
             light
             .
          
           
             IX
             .
             The
             third
             kind
             of
             falshood
             is
             committed
             by
             falsifying
             money
             ,
             
               falsum
               nummartum
            
             ,
             which
             is
             accounted
             so
             great
             a
             Crime
             ,
             that
             it
             is
             commonly
             excepted
             out
             of
             Remissions
             ,
             as
             may
             be
             seen
             in
             Crightouns
             Remission
             ,
             March
             15.
             1661.
             
             This
             Crime
             is
             committed
             ,
             1.
             
             By
             forging
             true
             money
             without
             Authority
             .
             2.
             
             By
             Coyning
             false
             money
             ,
             and
             impressing
             Copper
             ,
             Lead
             ,
             or
             any
             base
             Mettal
             ,
             with
             the
             stamp
             of
             the
             Prince
             ,
             or
             of
             other
             currant
             money
             .
             2.
             
             By
             mixing
             and
             allying
             worset
             with
             nobler
             mettals
             ,
             in
             currant
             Coyns
             .
             4.
             
             By
             venting
             and
             passing
             ,
             or
             out-putting
             (
             as
             our
             Law
             terms
             it
             )
             the
             adulterat
             money
             coyned
             by
             others
             ,
             or
             intertaining
             the
             Forgers
             ,
             or
             being
             art
             and
             part
             redde
             ,
             or
             of
             the
             Council
             with
             the
             Coyners
             .
             By
             the
             Civil
             Law
             ,
             
               qui
               probos
               nummos
               cudunt
               sed
               non
               in
               officina
               publica
               tenentur
               lege
               Cornelia
               nummaria
               ,
               l.
            
             12.
             
             
               C.
               de
               falsa
               monet
               :
               qui
               adulterinos
               cudunt
               &
               qui
               veros
               adulterant
               ,
               radunt
               ,
               fingunt
               ,
               l.
               qui
               cunque
               &
               l.
               seque
               ff
               .
               hoc
               tit
               .
               qui
               nammos
               probos
               lavant
               constant
               aut
               vultu
               principum
               signatos
               reprobant
               ,
               l.
            
             1.
             
             
               C.
               de
               vet
               .
               numis
               .
               pot
               .
            
          
           
             By
             our
             Law
             ,
             every
             Burgh
             should
             have
             a
             clipping-house
             ,
             (
             which
             was
             a
             house
             for
             trying
             money
             ,
             for
             the
             tryal
             was
             by
             clipping
             )
             and
             sworn
             men
             ,
             who
             should
             clip
             evil
             money
             ,
             who
             are
             to
             have
             a
             penny
             for
             ilk
             pound
             that
             is
             clipped
             ,
             and
             the
             haver
             was
             to
             tyne
             the
             false-money
             ,
             I.
             6.
             p.
             1.
             c.
             19.
             and
             the
             clipped
             money
             ,
             if
             it
             be
             evil
             stuff
             ,
             or
             false
             coyn
             ,
             should
             be
             returned
             to
             the
             owners
             ,
             I.
             4.
             
             P.
             4.
             
             Act
             4.
             
             They
             who
             falsifies
             money
             ,
             or
             counterfeits
             the
             Kings
             Irons
             ,
             are
             to
             be
             justified
             (
             
               id
               est
            
             punished
             )
             according
             to
             the
             old
             Law
             ,
             Act
             124.
             
             P.
             7.
             
             I.
             5.
             
             By
             which
             Act
             ,
             though
             it
             be
             added
             according
             to
             the
             old
             Law
             ,
             yet
             we
             have
             no
             Law
             ,
             
               de
               falso
               nummario
            
             ,
             prior
             to
             this
             ,
             except
             Act
             40.
             
             P.
             5.
             
             I.
             3.
             which
             punisheth
             only
             the
             home-bringers
             
             of
             black
             money
             with
             death
             .
             By
             the
             Act
             70.
             
             P.
             9.
             
             
               Q.
               M.
            
             the
             home-bringers
             of
             false
             coyns
             ,
             or
             lay-money
             ,
             should
             be
             dilated
             ,
             and
             the
             dilater
             is
             to
             have
             the
             half
             of
             all
             his
             goods
             ,
             moveable
             and
             immoveable
             ,
             for
             his
             revealing
             :
             And
             it
             seems
             by
             that
             Act
             ,
             that
             it
             is
             made
             treason
             ,
             for
             confiscation
             of
             Lands
             or
             moveable
             Goods
             ,
             is
             only
             in
             the
             case
             of
             treason
             ;
             and
             I
             find
             no
             other
             Act
             that
             can
             be
             the
             foundation
             of
             Drummonds
             conviction
             as
             a
             traitor
             .
             
               Et
               de
               practica
            
             ,
             this
             Crime
             hath
             been
             diversly
             punish'd
             :
             Reid
             was
             hang'd
             for
             forging
             false
             money
             with
             the
             Kings
             Irons
             ,
             Iuly
             13.
             1602.
             
             Drummond
             burnt
             for
             forging
             false
             money
             ,
             Novemb.
             27.
             1601.
             
             And
             his
             Brother
             
               Patrick
               Drummond
            
             bu●nt
             also
             for
             art
             and
             part
             ,
             red
             counsel
             and
             concealing
             the
             treasonable
             forging
             ,
             coyning
             ,
             and
             out-putting
             (
             for
             venting
             is
             still
             a
             Crime
             ,
             and
             is
             designed
             out-putting
             in
             our
             stiles
             )
             of
             false
             money
             .
             Meinzies
             also
             was
             hang'd
             for
             art
             and
             part
             ,
             as
             said
             is
             ,
             Iune
             30.
             1603.
             
             Thomson
             was
             hang'd
             and
             forefault
             for
             bringing
             home
             and
             out-putting
             false
             money
             ,
             Ianuary
             19.
             1603.
             
          
           
             X.
             The
             fourth
             species
             of
             Falshood
             ,
             is
             false
             weights
             and
             measures
             ,
             
               adulterinae
               staterae
            
             ,
             which
             are
             punish'd
             
               per
               l.
               Corneliam
               ,
               l.
               annonam
               ,
               ff
               .
               de
               extraord
               .
               crim
               .
               &
               falsae
               measurae
               ,
            
             which
             are
             punish'd
             
               per
               relegationem
               ,
               ibid.
            
             With
             us
             the
             using
             false
             measures
             or
             weights
             of
             old
             was
             punish'd
             by
             a
             Fine
             ,
             
               leg
               .
               Burg.
               cap.
            
             52.
             
             And
             the
             Bailies
             of
             the
             Burghs
             were
             declared
             Judges
             competent
             thereto
             ,
             for
             the
             first
             three
             faults
             ,
             but
             the
             fou●th
             was
             declared
             to
             be
             only
             punishable
             by
             the
             Justices
             ,
             because
             the
             committers
             life
             was
             to
             be
             in
             the
             Kings
             will
             ,
             cap.
             74.
             ibid.
             But
             now
             such
             as
             use
             false
             measures
             or
             weights
             deceiving
             the
             people
             ,
             are
             to
             be
             indicted
             as
             falsars
             ,
             Act
             47.
             
             P.
             4.
             
             I.
             4.
             
             By
             which
             Act
             ,
             havers
             cannot
             be
             punish'd
             ,
             except
             they
             use
             ,
             since
             the
             Act
             ordains
             users
             to
             be
             punish'd
             ,
             and
             mentions
             only
             such
             as
             deceive
             the
             people
             ,
             which
             is
             not
             done
             without
             using
             :
             And
             by
             the
             2.
             
             
               Act
               ,
               Parl.
            
             19.
             
             Ia.
             6.
             the
             users
             of
             false
             weights
             and
             measures
             are
             to
             tyne
             their
             hail
             goods
             and
             geir
             ;
             which
             punishments
             derogats
             
             not
             from
             the
             former
             Act
             inflicting
             the
             punishment
             of
             falsit
             ,
             as
             hath
             been
             debated
             more
             fully
             in
             the
             Title
             of
             Deforcement
             :
             
               De
               practica
            
             ,
             I
             find
             that
             Brown
             was
             fyn'd
             for
             false
             measures
             by
             the
             Councils
             warrand
             in
             100.
             merks
             ,
             
               pen.
               Iuly
            
             ,
             1629.
             
             And
             that
             Porteus
             was
             found
             guilty
             ,
             though
             using
             was
             not
             proved
             ,
             since
             having
             of
             false
             weights
             in
             the
             Shop
             presumes
             using
             ,
             except
             this
             presumption
             be
             taken
             off
             ,
             as
             by
             alledging
             that
             the
             we●ghts
             were
             presently
             bought
             ,
             or
             borrowed
             ,
             or
             laid
             aside
             ,
             as
             light
             ,
             May
             ,
             1671.
             
          
           
             By
             the
             foresaid
             last
             Act
             ,
             the
             Sheriffs
             ,
             Lords
             of
             Regalities
             ,
             and
             Stewarts
             ,
             are
             declared
             Judges
             competent
             to
             this
             Crime
             ,
             but
             their
             Commission
             there
             is
             only
             tempory
             for
             a
             year
             ,
             and
             therefore
             it
             may
             be
             concluded
             that
             these
             are
             not
             otherwayes
             Judges
             competent
             to
             this
             Crime
             ,
             else
             this
             Commission
             had
             been
             unnecessary
             .
          
           
             The
             using
             also
             a
             longer
             Ell
             or
             Yard
             ,
             is
             also
             punishable
             ,
             though
             it
             would
             appear
             that
             here
             the
             Merchant
             himself
             is
             only
             prejudged
             ,
             for
             he
             may
             receive
             as
             well
             as
             give
             out
             by
             it
             ;
             nor
             doth
             the
             Law
             presume
             that
             a
             man
             would
             keep
             any
             measure
             to
             his
             own
             disadvantage
             .
          
           
             I
             find
             also
             that
             there
             was
             a
             Merchant
             in
             Elgin
             pu●sued
             before
             the
             Justices
             ,
             
               Iuly
               ult
            
             .
             1672.
             for
             false
             weights
             ,
             in
             swa●
             far
             as
             he
             going
             to
             a
             Mercat
             ,
             dragg'd
             his
             Tobacco
             after
             the
             Boat
             in
             the
             salt
             water
             ,
             which
             made
             it
             weigh
             more
             then
             otherwise
             it
             would
             have
             done
             ,
             and
             so
             the
             people
             were
             cheated
             :
             But
             the
             dyet
             was
             deserted
             ,
             and
             though
             the
             defender
             alledg'd
             that
             this
             was
             done
             for
             keeping
             the
             Tobacco
             from
             drying
             too
             much
             ,
             and
             mouldering
             into
             pieces
             ,
             yet
             the
             Magistrats
             of
             Elgin
             had
             fyned
             him
             formerly
             for
             the
             same
             fault
             in
             20.
             pound
             Scots
             ,
             even
             for
             the
             ill
             example
             ,
             
               paena
               falsi
               arbitraria
               tenetur
               qui
               in
               sua
               mercatura
               addit
               inutile
               ut
               pulverem
               arenam
               ,
            
             &c.
             
               aut
               species
               aridas
               detinet
               in
               loco
               humido
               Carp.
               pag.
            
             375.
             
          
           
             XI
             .
             Falshood
             is
             also
             committed
             by
             assuming
             a
             false
             name
             ,
             
             
               vid.
               Stellionatum
            
             ,
             and
             by
             presenting
             one
             person
             for
             another
             at
             the
             subscribing
             of
             Papers
             ,
             
               suppositio
               salsae
               personae
            
             ,
             which
             is
             punished
             
               tanquam
               partum
               sui
               positum
            
             ,
             by
             the
             Civil
             Law.
             I
             find
             one
             
               David
               Donaldson
            
             hang'd
             for
             this
             imposture
             ,
             having
             made
             use
             of
             a
             false
             person
             ,
             who
             design'd
             himself
             to
             be
             the
             person
             who
             should
             by
             the
             agreement
             have
             subscribed
             the
             Assignation
             ,
             Decemb.
             12.
             1611.
             
          
           
             The
             svpposing
             a
             false
             birth
             ,
             that
             is
             to
             say
             ,
             the
             laying
             in
             one
             child
             for
             another
             ,
             is
             punishable
             as
             a
             false
             deed
             ,
             with
             the
             punishment
             of
             falshood
             ,
             since
             thereby
             men
             are
             cheated
             out
             of
             their
             Estates
             ,
             
               l.
               ad
               Corn.
               de
               fals
            
             .
             the
             words
             whereof
             being
             ,
             
               periculum
               capitis
               subeat
            
             ,
             is
             found
             to
             extend
             to
             death
             ,
             
               Boer
               .
               decis
            
             .
             82.
             
             And
             the
             Mid-wife
             who
             brought
             in
             such
             a
             false
             Child
             ,
             is
             pun●shed
             by
             death
             ,
             
               Pegner
               .
               decis
            
             .
             80.
             
             But
             I
             find
             that
             Farin
             .
             relates
             ,
             that
             
               periculum
               capitis
            
             ,
             was
             in
             this
             case
             extended
             no
             further
             then
             scourging
             :
             But
             yet
             ,
             since
             this
             was
             a
             great
             cheat
             ,
             and
             doth
             steal
             away
             an
             Estate
             from
             the
             righteous
             Heir
             ,
             and
             adulterats
             the
             off-spring
             ,
             it
             ought
             to
             be
             panish'd
             as
             severely
             as
             their
             ,
             especially
             since
             it
             can
             be
             committed
             only
             by
             such
             as
             being
             trusted
             ,
             aggrage
             their
             guilt
             by
             their
             unfaithfulness
             .
             This
             crime
             is
             called
             by
             the
             
               Latins
               ,
               partus
               suppositus
            
             ,
             and
             by
             the
             Basilicks
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
          
        
         
           
           
             TITLE
             XXVIII
             .
             Stellionatus
             .
          
           
             
               1.
               
               
                 The
                 several
                 kinds
                 of
                 Stellionat
                 by
                 the
                 Civil
                 Law.
                 
              
            
             
               2.
               
               
                 What
                 it
                 is
                 ,
                 and
                 how
                 punishable
                 by
                 our
                 Law.
                 
              
            
          
           
             THe
             heart
             of
             man
             is
             deceitful
             above
             all
             things
             ,
             and
             such
             as
             have
             been
             conversant
             in
             businesse
             and
             Courts
             of
             Justice
             ,
             have
             found
             that
             cheats
             do
             amongst
             men
             multiply
             ,
             and
             vary
             themselves
             into
             so
             many
             formes
             ,
             that
             Legislators
             were
             forced
             to
             invent
             this
             general
             name
             of
             Stellionat
             ;
             under
             which
             they
             might
             range
             all
             cheats
             ,
             and
             thence
             sprung
             that
             maxime
             ,
             l.
             3.
             
               ff
               .
               hoc
               .
               tit
               .
               ubicunque
               titulus
               criminis
               deficit
               illic
               stellionatum
               objiciemus
               :
            
             Which
             must
             be
             interpret
             and
             restricted
             in
             its
             generality
             ,
             by
             the
             preceeding
             words
             ,
             
               Stellionatum
               objici
               posse
               his
               qui
               dolo
               quid
               fecerunt
            
             ;
             So
             that
             to
             infer
             this
             crime
             ,
             it
             is
             requisite
             that
             there
             be
             a
             cheat
             or
             fraud
             used
             ,
             and
             that
             the
             cheat
             want
             an
             other
             name
             ,
             for
             there
             are
             frauds
             which
             cannot
             be
             comprehended
             under
             this
             Title
             ,
             as
             falsifying
             W●its
             ,
             counterfeiting
             Seals
             .
             The
             ordinary
             species
             of
             Stellionat
             in
             the
             Civil
             Law
             ,
             are
             to
             sell
             ,
             or
             impignora●
             ,
             or
             to
             give
             for
             payment
             fraudulently
             of
             our
             debt
             ,
             these
             things
             which
             belong
             to
             others
             ;
             And
             to
             corrupt
             or
             change
             merchandise
             ,
             which
             we
             formerly
             sold
             :
             To
             exact
             likewise
             debt
             which
             was
             formerly
             payed
             ,
             and
             known
             to
             be
             payed
             ,
             is
             Stellionat
             .
             l.
             29.
             
               ff
               .
               mandati
            
             ,
             but
             the
             craving
             of
             it
             is
             most
             Criminal
             ,
             if
             recept
             of
             what
             is
             craved
             follow
             not
             
             upon
             it
             .
             
               Bartol
               .
               ibid.
            
             And
             so
             far
             is
             receiving
             Criminal
             ,
             that
             the
             receiving
             payment
             of
             a
             debt
             formerly
             payed
             ,
             is
             Stellionar
             ,
             though
             simple
             craving
             without
             receiving
             will
             not
             infer
             it
             ;
             but
             it
             is
             most
             observeable
             ,
             that
             fraud
             is
             still
             requisite
             to
             the
             construction
             of
             this
             crime
             ,
             and
             its
             essence
             .
          
           
             II.
             By
             our
             Law
             we
             have
             no
             expresse
             statute
             against
             Stellionat
             ,
             except
             only
             act
             140.
             
             P.
             20.
             
             I.
             6.
             
             Which
             bears
             ,
             that
             no
             duty
             shall
             be
             disponed
             to
             two
             sundry
             persons
             which
             is
             
               crimen
               Stellionatus
            
             of
             the
             Law
             ;
             from
             which
             Act
             it
             is
             to
             be
             observed
             ,
             that
             our
             Law
             presupposes
             the
             Civil
             Law
             to
             be
             our
             Law
             ,
             as
             to
             that
             crime
             ;
             For
             it
             does
             not
             determine
             what
             is
             to
             be
             accompted
             Stellionat
             ,
             or
             appoint
             a
             particular
             punishment
             for
             Stellionat
             ,
             but
             only
             clears
             declaratorly
             ,
             that
             the
             disponing
             duties
             or
             rents
             of
             Lands
             to
             several
             persons
             ,
             shall
             be
             accompted
             Stellionatus
             ;
             And
             therefore
             what
             ever
             was
             punished
             as
             Stellionat
             by
             the
             Civil
             Law
             ,
             may
             be
             punished
             as
             such
             by
             ours
             ;
             not
             only
             
               à
               pari
            
             ,
             or
             by
             extension
             ,
             but
             by
             approbation
             ;
             the
             Roman
             Law
             having
             by
             the
             allowance
             of
             that
             Act
             become
             ours
             ;
             and
             therefore
             the
             making
             of
             double
             assignations
             or
             dispositions
             of
             Lands
             ,
             or
             of
             any
             thing
             else
             besides
             Rents
             mentioned
             expresly
             in
             that
             Act
             ,
             is
             punished
             as
             Stellionat
             in
             our
             practique
             ,
             which
             is
             warranted
             likewise
             by
             the
             105.
             
             
               Act
               ,
               P.
            
             7.
             
             I.
             5.
             
          
           
             By
             which
             Act
             ,
             though
             Stellionat
             be
             not
             mentioned
             ,
             yet
             it
             is
             thereby
             punished
             ,
             for
             it
             is
             there
             declared
             ,
             that
             whosoever
             makes
             double
             Dispositions
             of
             Lands
             ,
             he
             shall
             be
             called
             at
             the
             Kings
             instance
             ,
             and
             punisht
             at
             the
             Kings
             will.
             But
             it
             may
             be
             doubted
             ,
             why
             double
             alienations
             should
             be
             punished
             as
             Stellionat
             ,
             seing
             
               qui
               rem
               unam
               duobus
               vendit
               falsi
               est
               reus
               ,
               l.
               qui
               duobus
               ,
               ff
               .
               ad
               l.
               Corn.
               de
               falso
            
             ;
             In
             answer
             to
             which
             ,
             I
             conceive
             ,
             we
             must
             distinguish
             betwixt
             these
             who
             whilst
             they
             are
             selling
             ,
             being
             desired
             to
             clear
             ,
             if
             the
             thing
             offered
             to
             be
             sold
             ,
             hath
             been
             formerly
             sold
             ,
             or
             not
             :
             say
             that
             it
             was
             not
             ,
             In
             which
             case
             he
             is
             guilty
             of
             a
             manifest
             lye
             ,
             and
             so
             of
             Falshood
             ;
             But
             if
             he
             only
             sell
             one
             thing
             twice
             ,
             without
             denying
             that
             it
             was
             formerly
             
             sold
             ,
             or
             was
             not
             his
             own
             ,
             then
             he
             is
             only
             guilty
             of
             Stellionat
             ,
             seing
             though
             there
             be
             a
             cheat
             in
             this
             case
             ,
             yet
             there
             is
             no
             lye
             :
             An
             instance
             whereof
             fell
             out
             into
             my
             own
             experience
             ,
             for
             there
             being
             two
             Writers
             to
             the
             Signet
             of
             one
             name
             ,
             and
             money
             being
             directed
             to
             one
             of
             the
             two
             ,
             the
             bearer
             delivered
             it
             to
             the
             other
             ,
             as
             due
             by
             his
             Master
             to
             him
             ,
             which
             case
             was
             thought
             by
             those
             who
             consulted
             it
             ,
             to
             be
             Stellionat
             ,
             seing
             though
             the
             receiver
             had
             not
             said
             to
             the
             bearer
             that
             his
             Master
             was
             his
             debitor
             ,
             yet
             he
             should
             not
             have
             received
             the
             money
             ,
             for
             he
             was
             obliedged
             to
             know
             that
             the
             same
             was
             not
             due
             to
             him
             ;
             And
             yet
             according
             to
             Farinacius
             opinion
             (
             who
             thinks
             that
             
               dolus
               in
               committendo
               tantum
               insert
               stellionatum
               ,
               sed
               non
               dolus
               in
               ommittendo
            
             )
             It
             might
             be
             debated
             that
             this
             case
             was
             not
             Stellionat
             ,
             seing
             the
             receiver
             of
             the
             money
             was
             only
             guilty
             of
             omission
             ,
             in
             not
             clearing
             the
             bearers
             mistake
             :
             But
             I
             differ
             in
             this
             from
             Farinacius
             ,
             For
             seing
             
               Dolus
               in
               ommittendo
            
             ,
             may
             be
             a
             great
             cheat
             in
             it self
             ,
             and
             that
             the
             party
             wronged
             is
             as
             much
             lesed
             thereby
             ,
             I
             know
             no
             reason
             why
             the
             one
             may
             not
             infer
             stellionat
             as
             well
             as
             the
             other
             :
             And
             albeit
             
               dolus
               in
               ommittendo
            
             ,
             were
             not
             Stellionat
             ,
             yet
             this
             case
             was
             ,
             seing
             the
             recept
             of
             money
             sent
             to
             another
             is
             more
             then
             omission
             .
          
           
             By
             that
             Act
             Iames
             5.
             
             It
             is
             likewise
             declared
             ,
             that
             Superiors
             receiving
             double
             Resignations
             ,
             shall
             be
             punished
             as
             these
             who
             grant
             double
             Dispositions
             :
             And
             certainly
             that
             part
             of
             the
             Act
             was
             most
             just
             ,
             seing
             if
             the
             Superior
             was
             conscious
             to
             the
             design
             of
             making
             these
             double
             Resignations
             ,
             he
             cannot
             but
             be
             art
             and
             part
             of
             the
             cheat
             of
             making
             the
             double
             Dispositions
             ,
             whereupon
             the
             Resignation
             flowed
             ;
             and
             so
             should
             be
             equally
             punished
             ;
             and
             in
             effect
             ,
             a
             Superior
             granting
             new
             Infestments
             ,
             upon
             divers
             resignations
             ,
             to
             divers
             persons
             ,
             does
             grant
             double
             Rights
             :
             for
             to
             grant
             a
             new
             Right
             upon
             the
             old
             Vassals
             Resignation
             ,
             is
             to
             dispon
             .
             And
             seing
             the
             buyer
             is
             prejudged
             more
             by
             these
             Resignations
             ,
             then
             by
             these
             Dispositions
             ,
             upon
             which
             they
             slowed
             ,
             (
             that
             being
             a
             more
             compleat
             act
             then
             the
             other
             )
             
             it
             were
             unreasonable
             that
             the
             Superior
             should
             not
             be
             punished
             as
             well
             as
             the
             Seller
             ;
             and
             yet
             because
             it
             is
             not
             presumed
             ,
             that
             any
             would
             cheat
             where
             there
             is
             no
             gain
             ,
             and
             that
             the
             Superior
             in
             receiving
             resignations
             ,
             
               in
               favorem
            
             ,
             gains
             little
             ,
             therefore
             this
             part
             of
             the
             Act
             is
             now
             
               in
               desuctude
            
             .
          
           
             I
             find
             likewise
             ,
             that
             other
             species
             of
             Stellionat
             are
             punished
             by
             our
             Law
             ,
             as
             in
             Anno
             1634.
             
             
               Iames
               Clerk
            
             was
             pursued
             ,
             because
             a
             Sword
             being
             sent
             by
             Cuthbertson
             to
             Moubray
             a
             Sword-slipper
             ,
             Clerk
             did
             say
             to
             the
             bearer
             that
             he
             was
             Moubray
             ,
             and
             so
             took
             the
             Sword
             ,
             which
             Libel
             the
             Justices
             would
             not
             sustain
             ,
             to
             infer
             falshood
             ,
             but
             
               tanquam
               crimen
               in
               suo
               genere
            
             ;
             and
             yet
             ,
             L.
             13.
             
               ff
               .
               ad
               L.
               Cor.
               de
               falso
               assumptio
               falsi
               cognominis
               est
               crimen
               falsi
               .
            
          
           
             The
             punishment
             then
             of
             this
             crime
             could
             not
             be
             certain
             and
             determinat
             ,
             seing
             the
             crime
             is
             various
             in
             its
             own
             nature
             ,
             but
             it
             is
             arbitrary
             and
             punishable
             at
             the
             discretion
             of
             the
             Judge
             ,
             according
             to
             the
             circumstances
             and
             measures
             of
             the
             fraud
             committed
             .
             And
             it
             is
             called
             Stellionat
             ,
             from
             a
             Serpent
             called
             Stellio
             ,
             which
             is
             beautified
             by
             Starry
             spots
             ,
             
               stellatis
               guttis
               distinctum
            
             ,
             and
             is
             the
             most
             subtile
             of
             all
             Serpents
             ,
             
               plin
               .
               lib.
            
             30.
             
               nat
               .
               histor
               .
               cap.
            
             10.
             
          
        
         
           
           
             TITLE
             XXIX
             .
             Perjury
             .
          
           
             
               1.
               
               
                 What
                 is
                 Perjury
                 ,
                 and
                 the
                 several
                 kinds
                 thereof
                 .
              
            
             
               2.
               
               
                 Whether
                 he
                 who
                 swears
                 only
                 that
                 he
                 believes
                 what
                 he
                 depones
                 to
                 be
                 true
                 ,
                 be
                 punishable
                 for
                 Perjury
                 .
              
            
             
               3.
               
               
                 Whether
                 he
                 who
                 promises
                 upon
                 Oath
                 ,
                 and
                 performes
                 not
                 ,
                 be
                 punishable
                 for
                 Perjury
                 .
              
            
             
               4.
               
               
                 Whether
                 these
                 who
                 perform
                 not
                 their
                 Parents
                 Oaths
                 ,
                 are
                 punishable
                 for
                 Perjury
                 .
              
            
             
               5.
               
               
                 Whether
                 Witnesses
                 who
                 depone
                 falsly
                 ,
                 can
                 be
                 convict
                 of
                 Perjury
                 ,
                 upon
                 the
                 depositions
                 of
                 other
                 Witnesses
                 .
              
            
             
               6.
               
               
                 Whether
                 a
                 Iudge
                 or
                 Advocat
                 violating
                 his
                 Oath
                 ,
              
               de
               fideli
               ,
               
                 be
                 punishable
                 for
                 Perjury
              
               .
            
             
               7.
               
               
                 The
                 punishment
                 of
                 Perjury
                 by
                 the
                 Civil
                 Law
                 ,
                 and
                 ours
                 .
              
            
          
           
             Since
             Witnesses
             can
             by
             their
             depositions
             ,
             take
             away
             the
             Lives
             ,
             or
             ruine
             the
             Estates
             ,
             of
             such
             as
             are
             the
             greatest
             men
             ,
             or
             have
             the
             greatest
             Fortunes
             ;
             the
             Law
             which
             reposed
             that
             trust
             in
             them
             ,
             doth
             very
             justly
             over-awe
             them
             ,
             in
             deponing
             by
             the
             reverend
             fear
             of
             an
             Oath
             ,
             and
             by
             threatning
             them
             with
             the
             severe
             punishment
             of
             Perjury
             ,
             if
             they
             swear
             falsly
             .
          
           
             I.
             Perjury
             is
             defined
             by
             Lawyers
             ,
             to
             be
             a
             lie
             ,
             affirmed
             judicially
             upon
             Oath
             ;
             but
             because
             it
             is
             not
             presumeable
             ,
             that
             
             any
             person
             would
             both
             be
             so
             mean
             as
             to
             lie
             ,
             and
             so
             wicked
             as
             to
             call
             God
             to
             be
             a
             Witness
             thereto
             :
             Therefore
             Lawyers
             have
             very
             justly
             delivered
             us
             a
             Brocard
             ,
             that
             Perjury
             is
             not
             committed
             without
             fraud
             ,
             
               interpretatio
               facienda
               est
               ut
               evitetur
               perjurium
            
             ;
             and
             from
             this
             Principle
             they
             have
             deduced
             ,
             that
             1.
             he
             who
             swears
             that
             which
             is
             false
             ,
             believing
             it
             to
             be
             true
             ,
             is
             not
             to
             be
             punished
             as
             a
             Perjurer
             ;
             for
             in
             effect
             he
             doth
             not
             then
             lie
             ,
             add
             
               ad
               Clar.
               num
            
             .
             13.2
             .
             If
             the
             Perjury
             could
             have
             prejudged
             no
             man
             ,
             
               Clar.
               num
            
             .
             11.
             because
             it
             is
             not
             be
             presumed
             ,
             that
             a
             person
             would
             perjure
             himself
             ,
             while
             he
             could
             have
             no
             design
             :
             And
             from
             this
             may
             be
             likewise
             inferred
             ,
             as
             a
             consequence
             that
             Perjury
             should
             be
             hardly
             fastned
             upon
             any
             person
             ,
             for
             matters
             of
             very
             small
             consequence
             ,
             seing
             as
             
               de
               minimis
               non
               curat
               praetor
            
             ,
             so
             it
             is
             not
             presumeable
             that
             a
             man
             ,
             especially
             of
             any
             integrity
             or
             honour
             ,
             would
             incurr
             that
             guilt
             ,
             and
             this
             was
             alledged
             ,
             for
             Mr.
             
               Iames
               Row
            
             a
             Minister
             ,
             when
             he
             was
             pursued
             for
             Perjuring
             himself
             ,
             by
             Sir
             
               Thomas
               Stewart
            
             ,
             in
             anno
             1667.
             for
             the
             matter
             of
             five
             Pound
             Scots
             ;
             but
             this
             point
             was
             not
             decided
             .
             And
             albeit
             I
             think
             where
             this
             is
             joyned
             with
             other
             circumstances
             ,
             which
             may
             render
             the
             decision
             dubious
             ,
             the
             Council
             may
             either
             mitigat
             or
             remit
             the
             punishment
             ;
             yet
             if
             the
             Perjury
             be
             clearly
             proved
             ,
             I
             think
             it
             should
             be
             punished
             :
             and
             in
             no
             case
             should
             the
             Justices
             refuse
             to
             put
             the
             Pannel
             to
             the
             knowledge
             of
             an
             Assize
             ▪
             because
             the
             matter
             wherein
             the
             Perjury
             is
             alledged
             to
             have
             been
             committed
             ,
             is
             very
             small
             :
             but
             it
             is
             punishable
             ,
             if
             at
             first
             it
             might
             ,
             though
             thereafter
             ,
             
               ex
               eventu
            
             ,
             it
             proved
             not
             prejudicial
             ,
             as
             if
             the
             writ
             was
             improven
             by
             a
             certification
             ;
             yet
             the
             false
             Witnesses
             are
             thereafter
             punishable
             ,
             though
             at
             the
             time
             of
             the
             inquiry
             ,
             that
             Paper
             could
             prejudge
             no
             man
             ,
             because
             of
             the
             certification
             .
             It
             was
             found
             in
             
             Barclay's
             case
             ,
             February
             1670.
             3.
             
             Where
             the
             matter
             is
             difficult
             ,
             it
             is
             presumed
             that
             the
             swearer
             did
             not
             understand
             then
             that
             he
             did
             perjure
             himself
             ,
             
               Clar.
               num
            
             .
             10.
             
             but
             if
             the
             swearer
             did
             not
             take
             pains
             to
             understand
             the
             matter
             upon
             which
             he
             was
             deponing
             ,
             I
             think
             the
             difficulty
             should
             hardly
             excuse
             him
             .
          
           
             II.
             It
             is
             controverted
             among
             the
             Doctors
             ,
             if
             he
             who
             swears
             
               per
               verbum
               credo
               ,
               I
               believe
               ,
            
             can
             be
             punished
             for
             Perjury
             .
             And
             in
             Mr.
             
               Iames
               Row's
            
             case
             ,
             it
             was
             alledged
             ,
             that
             it
             should
             ,
             because
             in
             effect
             all
             Oaths
             are
             but
             oaths
             of
             Credulity
             ,
             where
             the
             matter
             falls
             not
             under
             sense
             ;
             and
             in
             this
             case
             where
             it
             was
             referred
             to
             his
             own
             Oath
             ,
             if
             he
             was
             payed
             of
             his
             Stipend
             ,
             and
             he
             deponed
             upon
             Oath
             ,
             he
             believed
             he
             was
             not
             payed
             ,
             
               hoc
               casu
            
             ,
             the
             word
             ,
             believe
             ,
             should
             have
             inferred
             Perjury
             ,
             because
             he
             should
             not
             have
             believed
             except
             he
             had
             certainly
             known
             ,
             and
             belief
             presupposes
             a
             certainty
             ,
             for
             faith
             and
             belief
             are
             all
             one
             ,
             so
             that
             in
             effect
             ,
             to
             depon
             ,
             he
             believed
             it
             was
             payed
             ,
             was
             to
             depon
             ,
             it
             was
             certainly
             payed
             ,
             or
             that
             in
             faith
             it
             was
             payed
             ,
             either
             of
             which
             would
             have
             inferred
             Perjury
             .
             But
             2.
             
             
               Perjurium
               est
               affirmare
               quod
               dubit
               as
               arg
               .
               L.
               vinc
               .
               ff
               .
               nihil
               nov
               .
               apel
               .
               &
               indiscrete
               jurare
               est
               instar
               perjurii
               .
               Gregor
               .
               Tholosan
               .
               h.
               t.
            
             And
             if
             the
             adjecting
             such
             a
             dubious
             word
             as
             this
             ,
             were
             sufficient
             to
             evite
             Perjury
             ;
             that
             crime
             should
             never
             be
             incurred
             ,
             and
             certainly
             it
             is
             in
             it self
             a
             great
             undervaluing
             of
             the
             Diety
             ,
             (
             
               quod
               est
               medium
               inductivum
               hujus
               criminis
               )
            
             to
             depon
             without
             information
             ,
             where
             information
             may
             be
             had
             ;
             and
             it
             is
             very
             presumable
             ,
             he
             would
             litle
             value
             perjury
             ,
             who
             did
             value
             litle
             to
             get
             such
             information
             ,
             as
             was
             requisite
             for
             satisfying
             the
             Judge
             ,
             in
             clearing
             what
             was
             just
             :
             And
             seeing
             the
             Law
             designs
             by
             punishing
             Perjury
             ,
             to
             come
             to
             the
             exact
             knowledge
             of
             all
             privat
             cases
             ,
             wherein
             Judgement
             is
             to
             be
             given
             ,
             to
             the
             end
             judex
             may
             
               ubicunque
               suum
               tribuere
            
             ,
             it
             follows
             necessarily
             ,
             that
             it
             should
             very
             severely
             punish
             such
             as
             depon
             without
             previous
             information
             ,
             especially
             where
             the
             matter
             of
             the
             deposition
             is
             
               in
               facto
               proprio
            
             ,
             as
             in
             this
             case
             ,
             for
             by
             this
             rash
             ,
             or
             affectate
             omission
             ,
             both
             the
             Law
             and
             the
             Judge
             are
             equally
             disappointed
             of
             their
             ends
             ,
             as
             much
             as
             if
             
             the
             Deponer
             had
             willingly
             perjured
             himself
             .
             2.
             
             A
             witnesse
             deponing
             falsly
             ,
             
               per
               verbum
               credo
            
             ,
             is
             in
             Law
             punished
             with
             the
             punishment
             of
             falshood
             .
             
               Bald.
               Salicet
               in
               l.
               de
               tut
               .
               C.
               de
               in
               integrum
               restitut
               .
               Alexander
               Concis
               .
            
             28.
             vel
             6.
             
             
               Angel.
               consil
            
             .
             3.
             
             The
             deponing
             
               per
               verbum
               credo
            
             ,
             would
             have
             gained
             the
             deponer
             the
             cause
             ;
             and
             assoilzied
             him
             from
             the
             pursuite
             ;
             and
             therefore
             it
             should
             infer
             Perjury
             against
             him
             ,
             because
             the
             reason
             why
             Perjury
             is
             punished
             ,
             is
             that
             there
             may
             be
             something
             to
             over-aw
             such
             to
             whom
             the
             verity
             of
             any
             cause
             is
             referred
             .
             5.
             
             It
             is
             doubted
             amongst
             the
             Doctors
             ,
             if
             he
             who
             promises
             upon
             Oath
             in
             a
             Bond
             ,
             to
             pay
             a
             Sum
             ,
             or
             perform
             a
             deed
             betwixt
             and
             a
             day
             ,
             be
             guilty
             of
             Perjury
             if
             he
             failzie
             ,
             and
             
               Math.
               de
               aflictis
            
             ,
             relates
             a
             Neopolitan
             decision
             ,
             wherein
             it
             was
             found
             ,
             that
             Perjury
             could
             not
             be
             inferred
             upon
             the
             breach
             of
             such
             an
             Oath
             as
             this
             ,
             the
             words
             of
             the
             obligation
             being
             to
             pay
             ,
             
               sub
               fide
               dal
               Gentilhomo
            
             ,
             because
             sayes
             he
             ,
             this
             is
             fides
             and
             consequently
             cannot
             be
             punished
             ,
             but
             only
             
               paena
               extraordinaria
            
             ,
             though
             Bertrand
             be
             of
             another
             opinion
             ,
             Consil.
             126.
             
          
           
             III.
             But
             the
             question
             remains
             yet
             intire
             notwithstanding
             of
             that
             decision
             ,
             whether
             they
             who
             promise
             under
             an
             express
             ,
             formal
             ,
             and
             religious
             oath
             ,
             as
             that
             by
             God
             himself
             ,
             or
             Holy
             Trinity
             ,
             they
             shall
             pay
             a
             sum
             ,
             or
             do
             such
             a
             deed
             ,
             betwixt
             and
             a
             perfixed
             day
             ,
             may
             not
             be
             pursued
             for
             Perjury
             :
             and
             that
             they
             should
             not
             ,
             may
             be
             argued
             from
             this
             ,
             that
             these
             being
             extrajudicial
             oaths
             ,
             the
             Law
             should
             not
             incourage
             the
             giving
             ,
             or
             exacting
             of
             them
             ,
             so
             as
             to
             punish
             the
             not
             implement
             of
             them
             with
             Perjury
             ;
             for
             this
             would
             make
             every
             man
             exact
             an
             oath
             of
             his
             debitor
             when
             he
             lent
             him
             money
             ,
             or
             upon
             every
             slight
             occasion
             ,
             which
             were
             most
             inconvenient
             .
             2.
             
             The
             Laws
             do
             not
             punish
             extrajudicial
             oaths
             ,
             given
             in
             depositions
             of
             Witnesses
             ,
             
               &
               sic
               testes
               deponens
               in
               judicio
               contrarium
               ejus
               quid
               dixit
               extrajudicium
               non
               punitur
               de
               falso
               .
               Alexander
               lib.
            
             1.
             
             Consil.
             74.
             
             
               Covar
               .
               in
               repit
               cap.
               quantis
               de
               puit
               vid.
               Monoch
               de
               
               arbitrar
               .
               Cas.
            
             312.
             
             Much
             lesse
             should
             it
             such
             extrajudicial
             promises
             :
             Yet
             some
             think
             even
             such
             contravertions
             as
             these
             ,
             should
             ,
             
               ob
               despectum
               numen
            
             ,
             be
             punished
             arbitrary
             ,
             but
             if
             this
             promise
             be
             given
             judicially
             ,
             as
             
               in
               cautione
               juratoria
            
             ,
             in
             removings
             ,
             whereby
             the
             party
             obliedges
             himself
             to
             remove
             ,
             and
             pay
             the
             violent
             profits
             ,
             or
             whereby
             he
             binds
             himself
             to
             report
             the
             Criminal
             Letters
             to
             the
             Justice-Clerk
             ,
             in
             these
             &
             such
             other
             cases
             .
          
           
             I
             think
             the
             not
             implement
             of
             the
             promise
             ,
             unless
             a
             reasonable
             cause
             can
             be
             assigned
             ,
             should
             infer
             Perjury
             ,
             both
             because
             this
             is
             a
             judicial
             oath
             ,
             and
             because
             in
             contemplation
             thereof
             ,
             the
             Law
             remits
             the
             necessity
             of
             finding
             another
             Cautioner
             ,
             and
             the
             Party
             concerned
             has
             no
             other
             security
             nor
             what
             is
             founded
             upon
             this
             juratory
             caution
             .
          
           
             IV.
             6.
             
             It
             is
             doubted
             among
             the
             Doctors
             ,
             whether
             these
             can
             be
             accompted
             perjured
             ,
             
               qui
               non
               impleverunt
               vota
               parentum
               juramento
               confirmata
               ,
            
             who
             perform
             and
             fulfil
             not
             their
             Parents
             oaths
             .
             In
             which
             cases
             Grotius
             distinguishes
             betwixt
             those
             oaths
             ,
             whereby
             the
             Father
             bound
             himself
             only
             to
             God
             ,
             and
             in
             these
             the
             Son
             for
             not
             implement
             ,
             is
             not
             guilty
             of
             Perjury
             ,
             because
             in
             effect
             ,
             
               illud
               non
               est
               onus
               haereditatis
            
             ,
             but
             is
             personal
             ,
             and
             so
             the
             Son
             represents
             not
             the
             Father
             in
             it
             ,
             but
             if
             the
             vow
             were
             made
             to
             a
             particular
             person
             ,
             then
             that
             vow
             being
             
               in
               unus
               haereditatis
            
             ,
             the
             not
             implement
             of
             the
             Fathers
             vow
             ,
             will
             infer
             Perjury
             ,
             for
             
               quo
               ad
            
             the
             estate
             
               haeres
               &
               defunctus
               sunt
               una
               &
               cadem
               persona
               .
               Matheus
            
             distinguishes
             in
             this
             case
             ,
             
               si
               juramentum
               parentis
               sit
               in
               rem
               conceptum
               &
               eo
               casu
               tenetur
               sed
               si
               non
               fit
               in
               rem
               conceptum
               sed
               in
               persona
               tenetur
               ,
               arg
               .
               l.
            
             7.8
             .
             
               part
               .
               ff
               .
               de
               part
               .
            
             It
             may
             be
             likewise
             doubted
             upon
             the
             same
             ground
             ,
             whether
             the
             oath
             of
             any
             people
             in
             publick
             affairs
             ,
             relating
             to
             the
             State
             ,
             doth
             tye
             their
             children
             ,
             &
             the
             example
             of
             
             Saul's
             being
             punished
             for
             not
             observing
             the
             oath
             whereby
             the
             people
             of
             Israel
             were
             tyed
             to
             the
             2
             Sam.
             21.
             
             Seems
             to
             evince
             ,
             that
             the
             contravention
             of
             these
             national
             oaths
             given
             by
             Parents
             ,
             is
             punishable
             upon
             children
             ,
             
               in
               foro
               divino
            
             ,
             but
             whether
             the
             Civil
             punishment
             
             can
             be
             inflicted
             for
             contravention
             of
             National
             Oaths
             ,
             such
             as
             the
             Covenant
             and
             Declaration
             ,
             either
             in
             the
             case
             where
             the
             Oath
             is
             given
             ,
             either
             by
             the
             predecessor
             ,
             or
             the
             giver
             himself
             ,
             is
             not
             decided
             .
             And
             I
             should
             incline
             to
             think
             ,
             that
             the
             contravention
             of
             these
             National
             Oaths
             ,
             cannot
             infer
             the
             Civil
             punishment
             of
             perjury
             ,
             both
             because
             the
             design
             of
             perjury
             is
             only
             to
             punish
             such
             as
             do
             prejudge
             the
             privat
             interest
             of
             these
             ,
             concerning
             whom
             they
             swear
             ,
             and
             such
             a
             contravention
             cannot
             be
             properly
             called
             mendacium
             ,
             the
             Swearer
             having
             designed
             at
             that
             time
             to
             fulfil
             what
             he
             Swore
             ,
             though
             he
             thereafter
             alter
             his
             judgement
             :
             Nor
             can
             dolus
             be
             alledged
             in
             this
             case
             ,
             nor
             that
             the
             interest
             of
             a
             third
             party
             is
             thereby
             prejudged
             ,
             all
             which
             are
             requisite
             for
             inferring
             Perjury
             .
          
           
             V.
             7.
             
             When
             witnesses
             depon
             with
             us
             in
             any
             privat
             case
             ,
             it
             was
             of
             old
             doubted
             ,
             whether
             the
             depositions
             might
             be
             reprobated
             ,
             and
             themselves
             punished
             for
             Perjury
             ,
             by
             the
             depositions
             of
             other
             witnesses
             ,
             and
             of
             late
             these
             conclusions
             seem
             to
             be
             regularly
             allowed
             .
             1.
             
             That
             a
             witness
             deponing
             
               verba
               initialia
            
             falsly
             ,
             such
             ,
             as
             of
             what
             age
             he
             is
             ,
             whether
             he
             be
             married
             ,
             or
             where
             he
             dwels
             ,
             
               eo
               casu
            
             ,
             he
             may
             be
             punished
             for
             perjury
             ,
             if
             if
             he
             depon
             falsly
             ,
             for
             these
             questions
             are
             proponed
             ,
             not
             only
             to
             the
             end
             it
             may
             be
             known
             what
             age
             the
             witnesses
             are
             of
             ,
             but
             likewise
             to
             the
             end
             it
             may
             be
             known
             whether
             the
             Deponer
             be
             a
             person
             of
             such
             veracity
             ,
             as
             may
             be
             trusted
             ,
             and
             that
             by
             these
             ,
             his
             veracity
             may
             be
             traced
             and
             examined
             .
             2.
             
             That
             a
             witness
             may
             be
             convinced
             of
             Perjury
             by
             writ
             .
             But
             3.
             whether
             a
             witness
             may
             be
             convinced
             of
             Falshood
             and
             Perjury
             ,
             by
             the
             deposition
             of
             other
             witnesses
             ,
             was
             contraverted
             in
             the
             case
             of
             Balcanquel
             against
             Rig
             a
             Minister
             ,
             and
             that
             he
             could
             not
             ,
             it
             was
             urged
             ,
             because
             if
             this
             were
             allowed
             ,
             
               daretur
               progressus
               in
               infinitum
            
             ,
             for
             else
             if
             two
             witnesses
             deponing
             that
             such
             a
             thing
             were
             done
             ,
             might
             be
             convinced
             of
             Perjury
             ,
             by
             other
             two
             or
             moe
             witnesses
             ,
             these
             witnesses
             might
             again
             be
             convict
             by
             others
             ,
             and
             those
             by
             other
             ,
             
               in
               infinitum
            
             ,
             for
             the
             other
             part
             ,
             it
             was
             
             alledged
             ,
             that
             1.
             
             There
             being
             nothing
             to
             overaw
             witnesses
             in
             Scotland
             ,
             but
             the
             fear
             and
             hazard
             of
             Perjury
             to
             free
             witnesses
             from
             this
             tryal
             ,
             was
             in
             effect
             to
             render
             them
             Libertines
             ,
             and
             to
             incourage
             them
             to
             depon
             falsly
             .
             2.
             
             It
             was
             absurd
             to
             think
             ,
             that
             if
             two
             witnesses
             should
             depon
             that
             which
             were
             notourly
             false
             ,
             as
             that
             such
             a
             man
             was
             killed
             ,
             who
             thereafter
             was
             seen
             by
             a
             whole
             Judicatory
             ,
             and
             all
             the
             members
             of
             Session
             and
             Parliament
             ,
             to
             have
             been
             alive
             ,
             that
             
               eo
               casu
            
             ,
             witnesses
             should
             not
             be
             found
             guilty
             of
             Perjury
             .
             3.
             
             Assizers
             who
             are
             in
             effect
             Witnesses
             ,
             as
             well
             as
             Judges
             ,
             and
             may
             proceed
             to
             a
             Sentence
             upon
             their
             own
             privat
             knowledge
             ,
             may
             be
             tryed
             by
             an
             Assize
             of
             error
             consisting
             of
             twice
             as
             many
             ;
             Whereas
             ,
             if
             the
             depositions
             of
             witnesses
             could
             not
             be
             reprobated
             by
             other
             witnesses
             ,
             no
             Assize
             could
             be
             convict
             by
             an
             assize
             of
             errour
             ,
             as
             
               temere
               jurantes
               super
               assiza
            
             .
             To
             the
             foresaid
             argument
             it
             is
             answered
             ,
             that
             1.
             
             The
             same
             did
             only
             evince
             the
             probation
             ,
             should
             be
             more
             exact
             in
             that
             then
             in
             other
             cases
             ,
             but
             did
             not
             at
             all
             conclude
             ,
             that
             such
             witnesses
             could
             no
             wise
             be
             convinced
             of
             Perjury
             ;
             and
             the
             ordinary
             rule
             given
             by
             Lawyers
             ,
             is
             ,
             that
             twice
             as
             many
             are
             requisite
             to
             reprobat
             ,
             as
             to
             prove
             :
             Which
             conclusion
             could
             not
             take
             place
             ,
             if
             the
             reprobation
             of
             witnesses
             by
             witnesses
             were
             not
             sustained
             .
             2.
             
             This
             argument
             would
             evince
             ,
             if
             it
             had
             any
             weight
             ,
             that
             even
             ,
             
               circa
               initialia
            
             ,
             witnesses
             perjuring
             themselves
             ,
             could
             not
             be
             pursued
             for
             perjury
             ,
             because
             these
             might
             be
             convinced
             by
             other
             witnesses
             ,
             and
             these
             by
             others
             ,
             
               &
               sic
               daretur
               progressus
               in
               infinitum
               ,
            
             so
             that
             either
             witnesses
             cannot
             be
             convict
             of
             Perjury
             in
             no
             case
             ,
             or
             else
             they
             may
             be
             in
             every
             case
             ,
             where
             they
             swear
             falsly
             :
             Notwithstanding
             all
             which
             the
             Justices
             by
             Interloquutor
             found
             ,
             that
             witnesses
             could
             not
             be
             pursued
             for
             Perjury
             ,
             upon
             the
             deposition
             of
             other
             witnesses
             ,
             upon
             the
             day
             of
             1677.
             but
             yet
             it
             remains
             doubtful
             ,
             whether
             one
             witness
             may
             not
             be
             pursued
             for
             Perjury
             ,
             upon
             the
             deposition
             of
             others
             ,
             though
             two
             cannot
             ,
             because
             the
             joynt
             depositions
             only
             make
             a
             full
             probation
             .
             
             8.
             
             
               Clarus
               ,
               num
            
             .
             12.
             
             §
             .
             perjurium
             ,
             is
             of
             opinion
             ,
             that
             when
             any
             thing
             is
             referred
             to
             Oath
             judicially
             ,
             that
             
               eo
               casu
            
             ,
             the
             party
             who
             swears
             ,
             can
             never
             be
             challenged
             for
             Perjury
             ,
             
               sed
               Iohan
               ,
               deum
               habet
               ultorem
            
             ;
             which
             Boerius
             doth
             also
             assert
             to
             be
             the
             common
             opinion
             ,
             decis
             .
             305.
             
             And
             the
             reason
             which
             moves
             them
             to
             this
             ,
             seems
             to
             be
             ,
             that
             a
             party
             having
             made
             his
             Antagonist
             absolutely
             Judge
             of
             his
             own
             cause
             ,
             he
             has
             ,
             as
             it
             were
             ,
             submitted
             to
             him
             ,
             
               &
               juramentum
               debet
               esse
               ultimum
               refugium
               ,
            
             and
             this
             seems
             to
             be
             the
             case
             decided
             ,
             
               per.
               l.
            
             2.
             
             
               C.
               de
               rebus
               credit
               :
               religionem
               contemptam
               juramenti
               satis
               deum
               habet
               ultorem
               sed
               majestatis
               crimen
               vel
               periculum
               corporis
               &
               si
               per
               principis
               venerationem
               quodam
               calore
               fuerit
               perjeratum
               ,
               inferri
               non
               placet
               ,
            
             for
             in
             the
             immediatly
             preceeding
             Law
             ,
             it
             is
             said
             ,
             that
             
               causa
               jure
               jurando
               ex
               consensu
               utriusque
               partis
               delato
               decisa
               ,
               nec
               perjurii
               praetextu
               retractari
               potest
               ,
            
             so
             that
             adding
             both
             Laws
             together
             ,
             the
             sense
             is
             ,
             that
             when
             the
             cause
             is
             referred
             to
             any
             Parties
             Oath
             ,
             it
             being
             decided
             conform
             thereto
             ,
             that
             Decision
             can
             neither
             be
             retracted
             upon
             pretext
             of
             Perjury
             ,
             nor
             can
             the
             Perjurer
             be
             corporally
             punished
             .
             And
             this
             seems
             a
             much
             more
             reasonable
             answer
             ,
             than
             those
             many
             given
             by
             the
             Doctors
             ;
             but
             yet
             I
             cannot
             assent
             to
             the
             conclusion
             it self
             :
             nor
             is
             it
             at
             all
             conform
             to
             our
             Law
             ,
             nor
             perhaps
             to
             reason
             ;
             for
             interest
             and
             avarice
             are
             sufficient
             baits
             to
             Perjury
             ,
             though
             impunity
             be
             not
             thereto
             added
             ,
             and
             when
             the
             Party
             defers
             an
             Oath
             ,
             he
             intends
             thereby
             to
             submit
             finally
             to
             him
             ,
             to
             whom
             the
             famine
             is
             deferred
             ;
             but
             not
             so
             ,
             but
             that
             if
             thereafter
             the
             swea●er
             shall
             be
             found
             Perjured
             ,
             he
             may
             be
             still
             challenged
             :
             Nor
             perhaps
             would
             he
             have
             deferred
             the
             Oath
             ,
             if
             he
             had
             not
             concluded
             himself
             secure
             ,
             as
             to
             what
             should
             be
             deponed
             ,
             not
             only
             out
             of
             respect
             to
             Religion
             ,
             but
             likewise
             because
             of
             the
             hazard
             of
             Perjury
             ;
             and
             seing
             in
             this
             case
             ,
             there
             is
             
               mendacium
               juramento
               affirmatum
            
             ,
             I
             do
             not
             see
             how
             it
             should
             not
             be
             Perjury
             :
             Is
             there
             any
             ground
             why
             at
             least
             His
             Majestie
             's
             Advocat
             should
             not
             be
             allowed
             to
             pursue
             it
             ,
             
             for
             the
             reason
             which
             is
             urged
             for
             the
             speciality
             in
             it
             ,
             ceaseth
             in
             him
             .
             And
             as
             there
             is
             no
             Decision
             in
             favours
             of
             Clarus
             his
             opinion
             in
             our
             Law
             ,
             so
             in
             Mr.
             Iames
             Row's
             ,
             and
             other
             cases
             ,
             where
             this
             might
             have
             been
             proponed
             ,
             this
             defence
             was
             never
             proponed
             ;
             yet
             in
             some
             cases
             ,
             the
             deponer
             ,
             
               in
               juramento
               delato
            
             ,
             craves
             that
             the
             Lords
             may
             declare
             ,
             that
             he
             shall
             not
             be
             liable
             for
             Perjury
             ,
             when
             any
             Oath
             is
             necessarily
             so
             deferred
             to
             him
             ,
             which
             the
             Lords
             in
             some
             cases
             use
             to
             grant
             ,
             as
             
               in
               facto
               antiquo
            
             :
             And
             by
             so
             doing
             ,
             they
             show
             that
             Perjury
             is
             punishable
             ,
             regulariter
             ,
             even
             in
             him
             to
             whom
             an
             Oath
             is
             deferred
             :
             but
             I
             believe
             ,
             that
             the
             Doctors
             have
             more
             justly
             concluded
             ,
             that
             where
             an
             Oath
             is
             deferred
             in
             Criminals
             ,
             though
             the
             Pannel
             needs
             not
             swear
             ,
             yet
             if
             he
             do
             swear
             ,
             he
             is
             not
             punishable
             as
             a
             perjured
             person
             ,
             though
             he
             swear
             falsly
             ,
             
               quia
               licet
               cuique
               suum
               redimere
               sanguinem
               ,
               Clar.
               num
               .
            
             12.
             
             And
             yet
             it
             may
             be
             debated
             ,
             that
             this
             holds
             not
             with
             us
             in
             Usury
             ,
             and
             other
             cases
             ,
             because
             there
             the
             Law
             obliedged
             him
             to
             give
             his
             Oath
             ;
             and
             Matheus
             doth
             think
             ,
             that
             it
             should
             in
             no
             case
             ,
             but
             rather
             that
             the
             Perjurer
             should
             there
             be
             punished
             with
             a
             double
             punishment
             ,
             both
             for
             concealing
             the
             Crime
             ,
             and
             also
             Perjuring
             himself
             .
             And
             it
             may
             be
             alledged
             that
             this
             is
             rather
             punishable
             then
             ordinary
             Perjury
             ,
             because
             the
             Defender
             needed
             not
             swear
             ,
             and
             was
             in
             no
             hazard
             by
             not
             swearing
             ,
             and
             the
             less
             the
             temptation
             be
             ,
             the
             sin
             is
             alwayes
             the
             greater
             :
             nor
             needed
             the
             Defender
             redeem
             his
             own
             Blood
             by
             swearing
             ,
             as
             is
             pretended
             ,
             or
             at
             least
             ,
             
               licet
               hoc
               liceat
               ,
               licere
               tam
               debet
               per
               modum
               licitum
               ,
               sed
               non
               perjurio
               .
            
          
           
             VI.
             It
             may
             likewise
             be
             doubted
             in
             some
             cases
             ,
             whether
             the
             violation
             of
             an
             Oath
             doth
             infer
             Perjury
             ,
             as
             when
             a
             Judge
             gives
             his
             Oath
             that
             he
             shall
             administrat
             Justice
             impartially
             ,
             or
             an
             Advocat
             that
             he
             shall
             be
             honest
             in
             his
             imployment
             ,
             without
             discovering
             his
             Clients
             secret
             ,
             or
             betraying
             his
             business
             ;
             if
             that
             Judge
             ,
             taking
             Money
             as
             a
             bribe
             ,
             or
             that
             Advocat
             thereafter
             prevaricating
             ,
             may
             be
             upon
             these
             accompts
             pursued
             for
             
             Perjury
             .
             And
             this
             was
             ,
             I
             remember
             ,
             controverted
             in
             the
             case
             of
             one
             of
             His
             Majesties
             Officers
             of
             State
             ,
             who
             was
             pursued
             upon
             the
             foresaid
             Act
             of
             Queen
             Mary
             ,
             for
             Perjury
             ;
             because
             he
             was
             alledged
             to
             have
             taken
             Money
             from
             the
             defenders
             ,
             in
             cases
             wherein
             they
             were
             pursued
             at
             His
             Majesties
             instance
             ;
             and
             that
             this
             could
             not
             infer
             Perjury
             ,
             was
             argued
             from
             this
             ,
             that
             our
             Law
             having
             made
             some
             particular
             Statutes
             ,
             as
             to
             Perjury
             ,
             it
             designed
             thereby
             ,
             that
             the
             Subjects
             of
             this
             Nation
             ,
             should
             not
             in
             this
             Crime
             be
             left
             to
             the
             common
             Law
             ;
             and
             seing
             it
             had
             only
             punished
             Perjury
             in
             the
             case
             of
             Witnesses
             ,
             Assizers
             ,
             and
             Bigamy
             ;
             it
             did
             clearly
             follow
             ,
             that
             Perjury
             
               deum
               tantum
               habet
               ultorem
            
             ,
             in
             all
             other
             cases
             .
             2.
             
             If
             Perjury
             were
             punishable
             in
             this
             case
             ,
             Tutors
             and
             Executors
             who
             find
             caution
             ,
             might
             be
             always
             punished
             for
             Perjury
             ,
             where
             they
             are
             pursuable
             for
             Mal-administration
             ,
             which
             were
             absurd
             ,
             and
             was
             never
             practized
             in
             any
             Nation
             .
             3.
             
             When
             such
             Oaths
             as
             these
             are
             given
             ,
             these
             words
             ,
             
               As
               ye
               shall
               answer
               to
               God
               ,
            
             are
             ordinarly
             adjected
             ,
             rather
             to
             impresse
             a
             fear
             of
             the
             Deity
             upon
             the
             swearer
             ,
             than
             to
             subject
             him
             by
             the
             Oath
             to
             the
             hazard
             of
             Perjury
             :
             and
             the
             fear
             of
             Perjury
             is
             neither
             thought
             upon
             considered
             by
             the
             Administrator
             ,
             nor
             the
             swearer
             ,
             so
             that
             
               non
               de
               hoc
               agitur
            
             ,
             at
             that
             time
             ,
             which
             is
             one
             of
             the
             many
             things
             ,
             that
             is
             always
             looked
             to
             in
             punishing
             of
             Crimes
             .
             4.
             
             If
             consequential
             Perjury
             had
             been
             punishable
             as
             formal
             Perjury
             ,
             there
             needed
             no
             Act
             to
             have
             been
             made
             ,
             declaring
             that
             Bigamy
             should
             be
             repute
             ,
             and
             punished
             as
             Perjury
             ,
             seing
             it
             was
             such
             by
             consequence
             before
             that
             Act.
             For
             the
             better
             clearing
             of
             this
             case
             ,
             it
             will
             be
             fit
             to
             divide
             Perjury
             in
             Formal
             and
             Consequential
             Perjury
             :
             and
             to
             conclude
             that
             formal
             Perjury
             ,
             which
             is
             in
             these
             cases
             declared
             Perjury
             by
             an
             expresse
             Act
             ,
             should
             be
             punishable
             as
             a
             Crime
             ;
             But
             that
             consequential
             Perjury
             ,
             as
             may
             be
             instanced
             in
             the
             cases
             above-written
             ,
             should
             not
             be
             punished
             as
             a
             Crime
             ,
             but
             as
             an
             Aggravation
             :
             for
             seing
             in
             these
             the
             Perjurer
             did
             not
             
             formally
             design
             to
             commit
             Perjury
             ,
             is
             were
             not
             very
             rational
             to
             think
             ,
             that
             he
             should
             be
             punished
             by
             the
             formal
             punishment
             of
             that
             Crime
             :
             which
             distinction
             ,
             I
             find
             likewise
             allowed
             by
             the
             Civilians
             ;
             for
             albeit
             formal
             Perjury
             was
             only
             punishable
             by
             Banishment
             ,
             and
             Infamy
             :
             Yet
             if
             any
             man
             died
             by
             that
             Perjury
             ,
             as
             in
             false-witnessing
             in
             capital
             Crimes
             ,
             the
             Perjury
             was
             
               eo
               casu
            
             ,
             punishable
             by
             death
             ;
             and
             if
             it
             was
             mixt
             with
             Treason
             ,
             it
             was
             punishable
             as
             Treason
             .
          
           
             
               Margaret
               Wood
            
             was
             in
             February
             1631.
             pursued
             ,
             for
             having
             perjured
             her self
             as
             a
             false
             Witness
             ,
             in
             so
             far
             ,
             as
             she
             having
             been
             cited
             before
             the
             Privy
             Council
             ,
             and
             examined
             by
             them
             ,
             she
             had
             deponed
             many
             false
             things
             against
             the
             Laird
             of
             Pitcaple
             ,
             and
             
               Richard
               Mowat
            
             :
             Against
             which
             pursuit
             ,
             it
             was
             alledged
             for
             her
             ,
             1.
             
             That
             she
             could
             not
             be
             pursued
             as
             a
             false
             Witness
             ,
             because
             a
             Woman
             in
             our
             Law
             cannot
             be
             a
             Witness
             ,
             and
             consequently
             she
             cannot
             be
             a
             false
             Witness
             .
             2.
             
             She
             did
             not
             depon
             upon
             oath
             before
             the
             Council
             ,
             and
             consequently
             she
             cannot
             be
             guilty
             of
             Perjury
             ,
             since
             ,
             
               nemo
               sine
               juramento
               est
               perjurii
               reus
            
             ;
             Nor
             is
             a
             person
             deponing
             for
             the
             information
             of
             the
             Council
             ,
             oblieged
             before
             an
             oath
             be
             administrat
             ,
             to
             consider
             what
             she
             is
             deponing
             ,
             as
             lyable
             to
             the
             certification
             of
             Perjury
             ,
             and
             if
             it
             were
             otherwayes
             ,
             there
             needed
             no
             oath
             be
             administrat
             ;
             so
             that
             before
             the
             administration
             of
             an
             oath
             ,
             the
             deponer
             being
             neither
             a
             witness
             ,
             nor
             sworn
             ,
             can
             neither
             be
             guilty
             of
             perjury
             ,
             nor
             false
             witnessing
             :
             much
             less
             can
             she
             be
             guilty
             of
             perjury
             ,
             in
             having
             deponed
             falsly
             ,
             which
             is
             a
             complicated
             crime
             ,
             made
             up
             of
             perjury
             and
             falshood
             .
             3.
             
             She
             is
             but
             one
             single
             witness
             ,
             and
             so
             could
             not
             have
             prejudged
             by
             her
             testimony
             ,
             the
             persons
             against
             whom
             she
             deponed
             ,
             
               &
               semper
               perpendendum
               est
               damnum
               ,
               quod
               ex
               perjurio
               resultat
               ,
               Carpz
               .
               quaest
               .
            
             46.
             n.
             47.
             
             Likeas
             ,
             here
             she
             retracted
             her
             own
             deposition
             her self
             ,
             before
             any
             pursuit
             was
             ,
             or
             could
             be
             intented
             against
             those
             Gentlemen
             :
             and
             that
             she
             deponed
             was
             the
             result
             of
             the
             confusion
             she
             was
             
             put
             in
             ,
             by
             her
             appearance
             before
             the
             Council
             ,
             being
             a
             young
             Girle
             ,
             not
             exceeding
             18.
             so
             that
             her
             age
             and
             sex
             should
             excuse
             her
             ,
             
               si
               quis
               calore
               iracundiae
               ,
               aut
               forte
               lingua
               lapsus
               ,
               aut
               praecipitatus
               ,
               perjurium
               commisit
               ,
               ei
               eo
               casu
               ignosci
               debet
               ,
               Rens
               .
               lib.
            
             3.
             decis
             .
             2.
             
             And
             there
             is
             nothing
             more
             natural
             ,
             or
             less
             dangerous
             ,
             then
             that
             a
             guilt
             arising
             from
             a
             deposition
             ,
             and
             meer
             words
             should
             be
             taken
             off
             in
             the
             same
             way
             ,
             especially
             ,
             before
             any
             person
             be
             thereby
             prejudg'd
             ,
             as
             in
             this
             case
             .
             4.
             
             This
             Libel
             could
             not
             be
             warrantably
             founded
             upon
             the
             Act
             of
             
               Q.
               M.
            
             which
             punish'd
             only
             perjury
             committed
             in
             marrying
             two
             wives
             ,
             but
             no
             other
             species
             of
             perjury
             .
             To
             which
             it
             was
             answered
             ,
             that
             as
             to
             the
             first
             defence
             ,
             it
             was
             not
             relevant
             ,
             since
             she
             being
             cited
             before
             the
             Council
             ,
             ought
             to
             have
             depon'd
             truly
             ,
             even
             for
             informing
             the
             Supreme
             Judicatory
             of
             the
             Nation
             ,
             who
             use
             ,
             and
             must
             examine
             women
             for
             the
             good
             of
             the
             Common-wealth
             :
             especially
             in
             such
             atrocious
             and
             occult
             crimes
             ,
             as
             in
             the
             burning
             of
             the
             House
             of
             Frendraught
             .
             And
             though
             the
             defender
             may
             in
             some
             cases
             cast
             a
             woman
             from
             being
             witness
             ,
             yet
             that
             excuses
             her
             not
             if
             she
             be
             examined
             .
             To
             the
             2.
             
             Lawyers
             are
             clear
             ,
             that
             a
             witness
             may
             depon
             without
             being
             sworn
             ,
             for
             the
             swearing
             them
             is
             not
             essential
             ,
             since
             the
             pursuer
             may
             remit
             it
             :
             And
             yet
             the
             witness
             who
             depones
             falsly
             ,
             even
             though
             not
             sworn
             ,
             is
             a
             false
             witness
             ,
             
               Bart.
               in
               l.
               si
               quis
               ff
               .
               ad
               l.
               Cornel.
               de
               fals
               .
               Clar.
               h.
               t.
               num
               .
            
             11.
             
             To
             the
             3.
             it
             was
             not
             relevant
             ,
             since
             she
             inform'd
             against
             these
             Gentlemen
             in
             a
             treasonable
             point
             ,
             and
             might
             have
             prejudg'd
             them
             :
             nor
             did
             her
             retraction
             proceed
             from
             repentance
             ,
             but
             confrontation
             ;
             nor
             did
             she
             accidentally
             only
             ,
             or
             by
             confusion
             lapse
             into
             this
             error
             ,
             she
             having
             spread
             these
             misreports
             before
             she
             was
             cited
             ,
             and
             having
             reiterated
             her
             confession
             after
             citation
             .
             To
             the
             4.
             the
             practice
             of
             the
             Kingdom
             was
             oppon'd
             ,
             which
             is
             the
             best
             interpreter
             of
             Laws
             .
             And
             in
             Anno
             1615.
             
             Grahame
             of
             Long-boddom
             ,
             and
             in
             Anno
             1622.
             
             Turnbul
             of
             Belshes
             ,
             and
             lately
             Dempster
             of
             Muresk
             ,
             were
             punish'd
             with
             death
             for
             deponing
             falsly
             ,
             or
             seducing
             
             others
             to
             depon
             .
             But
             these
             points
             were
             not
             decided
             .
          
           
             VII
             .
             The
             punishment
             of
             Perjury
             by
             the
             Civil
             Law
             ,
             was
             Banishment
             ,
             
               l.
               ult
               .
               ff
               .
               de
               crimine
               Stellionatus
               &
               fustigatio
               ,
            
             or
             Scourging
             ,
             
               l.
               si
               duo
               §
               .
               si
               quis
               perjuraverit
               .
            
             By
             our
             Law
             ,
             Act
             19.
             
             Parl.
             5.
             
             
               Q.
               Mary
            
             ,
             Bigamy
             is
             declared
             punishable
             as
             Perjury
             ,
             which
             is
             declared
             to
             be
             confiscation
             of
             all
             their
             moveable
             Goods
             ,
             warding
             of
             their
             Person
             for
             year
             and
             day
             ,
             and
             longer
             during
             the
             Kings
             will
             ,
             and
             that
             as
             infamous
             persons
             they
             shall
             never
             be
             able
             to
             bruik
             Office
             ,
             Honour
             ,
             Dignity
             ,
             nor
             Benefice
             in
             time
             coming
             .
             As
             to
             which
             Act
             ,
             it
             is
             observable
             ,
             1.
             
             That
             Perjury
             is
             not
             formally
             punishable
             with
             us
             ,
             but
             only
             declaratorly
             Perjury
             being
             in
             it self
             so
             heinous
             a
             Crime
             ;
             but
             the
             reason
             of
             this
             seems
             to
             be
             ,
             that
             Perjury
             was
             before
             this
             Act
             punishable
             ,
             after
             this
             manner
             ,
             for
             by
             the
             4.
             
               cap.
               lib.
            
             1.
             
             
               Reg.
               Maj.
            
             it
             was
             appointed
             ,
             that
             
               temere
               jurantes
               super
               assisa
               spoliabuntur
               mobilibus
               &
               in
               carcerem
               detrudentur
               per
               annum
               &
               diem
               adminus
               &
               infamiae
               notam
               incurrent
               &
               amittent
               legem
               terrae
               ,
            
             which
             Skeen
             interprets
             to
             be
             ,
             
               non
               habère
               personam
               standi
               in
               judicio
               ,
            
             and
             not
             to
             be
             receivable
             as
             witnesses
             ,
             either
             in
             judicio
             ,
             or
             extrajudicium
             ,
             which
             Act
             is
             likewise
             ratified
             ,
             by
             the
             47.
             
             
               Act
               ,
               Parl.
            
             6.
             
             
               K.
               I.
            
             3.
             where
             it
             is
             said
             ,
             that
             wilful
             or
             ignorant
             Assizers
             ,
             Man-swearing
             shall
             be
             punished
             after
             the
             Kings
             old
             Law
             ,
             in
             the
             first
             Book
             of
             the
             Majestie
             .
          
           
             Where
             Perjury
             is
             to
             be
             inferred
             from
             a
             Deposition
             ,
             either
             as
             Party
             or
             witness
             ,
             it
             is
             necessar
             ,
             that
             the
             Deposition
             be
             subscribed
             by
             him
             ;
             and
             the
             Lords
             found
             that
             Mr.
             
               Iames
               Row
            
             could
             not
             be
             convict
             of
             Perjury
             ,
             upon
             his
             Deposition
             subscribed
             by
             the
             Clerk.
             
          
           
             Sometimes
             the
             Council
             change
             the
             punishment
             of
             Perjury
             into
             banishment
             ;
             as
             in
             the
             case
             of
             Galbraith
             ,
             who
             came
             in
             will
             for
             Perjury
             .
             23.
             
             Iuly
             .
             1625.
             
          
        
         
           
           
             TITLE
             XXX
             .
             Of
             Injuries
             ,
             Personal
             ,
             and
             Real
             ;
             And
             of
             infamous
             Libels
             .
          
           
             
               1.
               
               
                 Injuries
                 are
                 either
                 verbal
                 or
                 real
                 .
              
            
             
               2.
               
               
                 The
                 requisits
                 in
                 Libelling
                 verbal
                 injuries
                 .
              
            
             
               3.
               
               
                 What
                 are
                 real
                 injuries
              
               .
            
             
               4.
               
               
                 Who
                 are
                 Iudges
                 to
                 verbal
                 or
                 real
                 injuries
                 .
              
            
             
               5.
               
               
                 Infamous
                 Libels
                 ,
                 how
                 punished
              
               .
            
             
               6.
               
               
                 Leasing-makers
                 ,
                 how
                 punished
                 by
                 our
                 Law.
                 
              
            
          
           
             I
             Have
             oftimes
             thought
             that
             men
             should
             walk
             legally
             ,
             not
             only
             in
             obedience
             ,
             but
             gratitude
             to
             Law
             ,
             since
             the
             Law
             takes
             so
             much
             pains
             to
             secure
             not
             only
             our
             lives
             and
             estates
             ,
             but
             even
             our
             honour
             and
             reputation
             ,
             and
             will
             humour
             us
             so
             far
             ,
             as
             that
             because
             we
             will
             think
             railery
             a
             misfortune
             ,
             it
             will
             therefore
             punish
             even
             these
             who
             offend
             our
             imagination
             .
          
           
             I.
             Injury
             then
             ,
             in
             its
             more
             comprehensive
             sense
             ,
             may
             give
             a
             name
             to
             all
             crimes
             ;
             for
             all
             crimes
             are
             injuries
             ,
             but
             injury
             as
             it
             is
             the
             Subject
             of
             this
             Title
             ,
             is
             the
             same
             thing
             with
             contumely
             or
             reproach
             :
             It
             is
             divided
             by
             Lawyers
             ,
             into
             such
             as
             are
             committed
             by
             thoughts
             ,
             deeds
             ,
             words
             ,
             and
             gestures
             ;
             but
             the
             more
             received
             division
             is
             ,
             that
             injuries
             are
             either
             verbal
             ,
             or
             real
             .
          
           
             II.
             Verbal
             injuries
             are
             these
             which
             are
             committed
             by
             unwarrantable
             
             expressions
             ,
             as
             to
             call
             a
             man
             a
             cheat
             ,
             or
             a
             woman
             a
             whore
             ;
             but
             because
             expressions
             vary
             according
             to
             the
             intention
             of
             the
             speaker
             ,
             therefore
             except
             the
             words
             can
             allow
             of
             no
             good
             sense
             ,
             as
             Whore
             ,
             or
             Thief
             ,
             or
             that
             there
             ly
             strong
             presumptions
             against
             the
             speaker
             ,
             the
             
               injuriandi
               animus
            
             ,
             the
             designe
             of
             injuring
             ,
             as
             well
             as
             the
             injuring
             words
             ,
             must
             be
             proved
             ,
             and
             the
             speaker
             will
             be
             allowed
             to
             purge
             his
             guilt
             ,
             by
             declaring
             his
             intention
             ,
             l.
             5.
             
             §
             .
             
               octavo
               ,
               ff
               .
               de
               injur
               .
            
             and
             his
             declaration
             will
             ,
             without
             an
             oath
             ,
             be
             sufficient
             ,
             except
             the
             offender
             be
             burdened
             with
             contrary
             presumptions
             ,
             
               Berlich
               .
               conclus
            
             .
             60.
             num
             .
             18.
             
             Lawyers
             therefore
             require
             in
             Libelling
             injuries
             ,
             1.
             
             That
             the
             particular
             expressions
             be
             distinctly
             condescended
             upon
             ;
             nor
             is
             the
             general
             ,
             you
             called
             me
             a
             Cheat
             ,
             or
             said
             some
             such
             thing
             sufficient
             ,
             seing
             not
             only
             words
             but
             even
             the
             pointing
             of
             them
             does
             alter
             the
             estimat
             of
             Injuries
             .
             2.
             
             The
             pusuer
             should
             Libel
             the
             design
             of
             injuring
             ,
             except
             the
             words
             infer
             so
             clearly
             an
             Injury
             ,
             that
             there
             is
             no
             necessity
             to
             Libel
             the
             design
             .
             3.
             
             That
             the
             pursuer
             who
             was
             injured
             ,
             did
             presently
             resent
             the
             injury
             ,
             and
             took
             what
             was
             spoke
             for
             an
             Injury
             ,
             which
             the
             Lawyers
             call
             
               revocatio
               injuriae
               ad
               animum
            
             .
             And
             it
             is
             sufficient
             ,
             that
             this
             dissatisfaction
             be
             signified
             either
             openly
             and
             expresly
             ,
             or
             by
             some
             other
             Acts
             which
             testified
             discontent
             ,
             
               ex
               incontinenti
               quis
               injuriam
               debet
               ad
               animum
               revocare
               alias
               ex
               intervallo
               nihil
               facit
               sed
               injuria
               remissa
               censetur
               .
               §
               ult
               .
               just
               .
               de
               injur
               .
            
             And
             the
             reason
             of
             this
             seems
             to
             be
             ,
             because
             the
             essence
             of
             a
             verbal
             injury
             consists
             in
             dissatisfying
             the
             person
             to
             whom
             the
             words
             were
             spoken
             ,
             and
             words
             are
             only
             Injuries
             ,
             if
             they
             be
             so
             taken
             ,
             and
             therefore
             if
             they
             were
             taken
             at
             first
             to
             be
             no
             injury
             ,
             they
             were
             then
             no
             injury
             :
             And
             if
             they
             were
             not
             then
             an
             injury
             ,
             they
             could
             not
             afterwards
             become
             such
             .
          
           
             Since
             then
             Injuries
             are
             estimat
             according
             to
             the
             design
             of
             the
             offender
             ,
             it
             follows
             naturally
             ,
             that
             men
             who
             are
             Fools
             ,
             Idiots
             ,
             very
             young
             ,
             or
             very
             drunk
             ,
             are
             not
             punishable
             for
             verbal
             Injuries
             ,
             except
             the
             offender
             did
             become
             drunk
             upon
             design
             to
             
             offend
             ,
             
               si
               non
               ex
               proposito
               sed
               ex
               impetu
               deliquit
               .
            
             And
             great
             passions
             which
             break
             off
             all
             designing
             ,
             
               justa
               &
               non
               affectata
               ira
            
             excuses
             also
             in
             this
             case
             .
             As
             also
             for
             the
             same
             reason
             ,
             the
             objecting
             true
             Crimes
             are
             no
             injury
             ,
             if
             the
             objecter
             designed
             principally
             not
             to
             offend
             the
             person
             guilty
             ,
             but
             to
             inform
             the
             Common-wealth
             ,
             or
             to
             defend
             the
             speakers
             own
             honour
             .
             And
             upon
             the
             first
             accompt
             ,
             it
             was
             found
             ,
             that
             the
             detecting
             what
             the
             Common-wealth
             was
             not
             much
             concerned
             in
             ,
             was
             an
             injury
             ,
             
               Cravet
               .
               consil
            
             .
             145.
             
             And
             upon
             the
             last
             accompt
             ,
             it
             is
             thought
             ,
             that
             to
             give
             a
             man
             the
             lye
             ,
             is
             an
             injury
             ,
             but
             that
             it
             is
             no
             injury
             to
             say
             you
             speak
             not
             truth
             ;
             for
             in
             the
             one
             we
             defend
             our
             own
             honour
             ,
             but
             in
             the
             other
             we
             offend
             the
             honour
             of
             the
             speaker
             :
             and
             custom
             has
             made
             the
             expression
             passe
             for
             an
             expression
             to
             be
             used
             when
             we
             design
             to
             offend
             .
             The
             relating
             likewise
             what
             we
             heard
             from
             good
             Authors
             ,
             who
             designed
             no
             prejudice
             ,
             is
             sufficient
             also
             to
             defend
             against
             the
             punishment
             due
             to
             Injurers
             ,
             as
             was
             found
             in
             the
             Court
             of
             
               Savoy
               Cod.
               fab
               .
               de
               injur
               .
               def
               .
            
             5.
             
             Yet
             sometimes
             injuries
             are
             inferred
             not
             only
             from
             expresse
             words
             ,
             but
             even
             from
             the
             presumptive
             meaning
             of
             the
             speakers
             ;
             as
             to
             look
             in
             a
             mans
             face
             ,
             and
             to
             say
             ,
             I
             am
             not
             a
             lyar
             as
             others
             are
             ,
             
               Afflict
               .
               §
               .
               injuria
               .
               tit
               .
               de
               parjur
               .
               firm
               .
            
             or
             to
             say
             ,
             flauntingly
             ,
             you
             are
             a
             fine
             Church-man
             ,
             
               Iacob
               .
               de
               bello
               visu
               lib.
            
             1.
             cap.
             3.
             num
             .
             31.
             
          
           
             III.
             Real
             Injuries
             are
             committed
             ,
             by
             hindring
             a
             man
             to
             use
             what
             is
             his
             own
             ,
             by
             removing
             his
             Seat
             out
             of
             its
             place
             in
             the
             Church
             ,
             by
             giving
             a
             man
             medicaments
             which
             may
             affront
             him
             ,
             by
             Arresting
             his
             stoods
             unjustly
             ,
             by
             wearing
             in
             contempt
             what
             belongs
             to
             another
             man
             ,
             as
             a
             mark
             of
             honour
             ,
             by
             Razing
             shamfully
             a
             mans
             hair
             ,
             or
             beard
             ,
             by
             offering
             to
             strike
             him
             in
             publick
             ,
             or
             by
             striking
             him
             ,
             or
             riving
             or
             abusing
             his
             cloaths
             ,
             or
             his
             house
             ,
             and
             many
             other
             wayes
             related
             by
             
               Berlich
               .
               conclus
            
             .
             69.
             
          
           
             VI.
             According
             to
             our
             Law
             ,
             verbal
             injuries
             ,
             are
             punished
             only
             by
             the
             Commissars
             ,
             who
             are
             
               judices
               christianitatis
            
             :
             Scandal
             
             being
             a
             Church
             censure
             ,
             And
             the
             Commissars
             do
             inflict
             pecuniary
             mulcts
             ,
             and
             make
             the
             offender
             do
             pennance
             at
             Church
             doors
             ,
             or
             otherwayes
             :
             nor
             ,
             do
             ordinarily
             the
             Lords
             of
             Session
             either
             Advocat
             such
             Actions
             ,
             or
             modify
             their
             penalties
             .
          
           
             The
             Council
             do
             use
             to
             remit
             to
             the
             Commissars
             such
             pursuits
             ,
             and
             refuse
             to
             try
             verbal
             injuries
             done
             to
             privat
             persons
             ,
             as
             in
             the
             case
             of
             Strauchan
             and
             Straiton
             ;
             but
             if
             the
             verbal
             injury
             was
             done
             to
             a
             Magistrat
             ,
             as
             if
             any
             man
             should
             call
             him
             a
             knave
             ,
             or
             a
             fool
             ,
             then
             the
             Council
             use
             to
             fyne
             and
             to
             punish
             even
             verbal
             injuries
             ,
             as
             in
             the
             case
             of
             
               George
               Campbel
            
             ,
             and
             the
             Bailiffs
             of
             Inverary
             ,
             1666.
             
             Or
             to
             a
             Privy
             Counsellour
             ,
             as
             in
             the
             case
             of
             Mr.
             
               Alexander
               Spotswood
            
             and
             the
             Justice
             Clerk.
             And
             though
             verbal
             injuries
             are
             extinguished
             by
             the
             Civil
             Law
             ,
             if
             they
             be
             not
             pursued
             within
             a
             Year
             ,
             or
             by
             posterior
             friendship
             ;
             for
             the
             Law
             is
             most
             desirous
             to
             pass
             by
             such
             imaginary
             Crimes
             ,
             yet
             in
             
               George
               Campbels
            
             case
             ,
             a
             subsequent
             reconciliation
             was
             not
             sustained
             as
             a
             relevant
             exception
             ,
             because
             it
             was
             not
             very
             expresse
             ,
             they
             punish
             also
             
               scandalum
               magnatum
            
             .
          
           
             The
             Criminal
             Courts
             likewise
             punishes
             verbal
             injuries
             ,
             if
             against
             Magistrats
             ,
             but
             will
             not
             sustain
             a
             pursuite
             against
             privat
             persons
             ,
             for
             though
             II.
             of
             November
             ,
             1672.
             
             Aikman
             against
             Carnagy
             ;
             nor
             would
             they
             sustain
             a
             Criminal
             pursuit
             ,
             for
             calling
             a
             Minister
             perjured
             ,
             
               vid
               Stock
               .
               decis
            
             .
             108.
             where
             he
             tells
             us
             that
             it
             is
             the
             present
             custom
             of
             Brabant
             not
             to
             sustain
             Criminal
             Actions
             for
             words
             ,
             except
             they
             be
             spoken
             against
             Mag●strats
             in
             the
             exercise
             of
             their
             imployment
             ,
             
               vid.
               l.
               ult
               .
               ff
               .
               de
               priv
               .
               delict
               .
            
          
           
             Real
             Injuries
             may
             be
             pursued
             before
             the
             Council
             ,
             or
             Justice
             Court
             ,
             and
             the
             punishment
             is
             arbitrary
             .
          
           
             V.
             Infamous
             Libels
             ,
             
               libelli
               famosi
            
             ,
             are
             the
             most
             permanent
             of
             all
             Injuries
             ,
             and
             therefore
             are
             most
             severely
             punished
             ;
             and
             in
             it
             the
             offender
             ,
             shews
             more
             design
             ,
             and
             therefore
             is
             more
             guilty
             .
          
           
           
             He
             who
             writes
             ,
             dictats
             ,
             or
             affixes
             infamous
             Libels
             ,
             or
             causes
             writ
             ,
             dictat
             ,
             or
             affix
             them
             ,
             is
             punishable
             .
          
           
             He
             who
             finds
             an
             infamous
             Libel
             ,
             and
             shews
             it
             ,
             though
             to
             one
             only
             ,
             is
             punishable
             ,
             if
             malice
             or
             design
             can
             be
             proved
             ,
             else
             not
             ;
             for
             there
             is
             nothing
             more
             ordinary
             ,
             nor
             more
             innocently
             done
             for
             the
             most
             part
             ,
             then
             to
             shew
             such
             Libels
             :
             whether
             
               dolus
               malus
               &
               animus
               iniuriandi
            
             ,
             (
             a
             design
             to
             offend
             ,
             )
             be
             presumed
             in
             this
             delict
             ,
             or
             must
             be
             proved
             ,
             is
             much
             contraverted
             ,
             
               Bertaz
               .
               consil
            
             .
             237.
             affirms
             that
             it
             is
             presumed
             .
             
               Farin
               .
               quest
            
             .
             295.
             affirms
             it
             is
             not
             presumed
             ,
             but
             must
             be
             proved
             .
             And
             I
             incline
             to
             this
             last
             opinion
             ,
             seing
             infamous
             Libels
             are
             not
             now
             so
             much
             resented
             as
             formerly
             ,
             custom
             having
             much
             allayed
             the
             picque
             which
             used
             to
             ensue
             thereupon
             ,
             and
             that
             custom
             defends
             from
             all
             guilt
             in
             this
             case
             ,
             is
             most
             learnedly
             maintained
             by
             
               Coler
               .
               decis
            
             .
             154.
             where
             it
             was
             found
             that
             Stationers
             were
             absolved
             ,
             though
             they
             sold
             infamous
             Libels
             ,
             because
             all
             Stationers
             use
             to
             sell
             such
             .
          
           
             Many
             things
             do
             likewise
             in
             this
             case
             lessen
             the
             punishment
             ,
             as
             that
             the
             Pannel
             is
             a
             minor
             ,
             was
             provoked
             ,
             did
             tear
             it
             before
             it
             was
             fully
             written
             ,
             or
             after
             it
             was
             affixt
             ,
             or
             confest
             his
             fault
             ,
             and
             said
             he
             did
             it
             only
             out
             of
             passion
             ,
             or
             curiosity
             ,
             or
             if
             what
             was
             said
             was
             true
             ,
             
               Berlich
               .
               conclus
            
             .
             67.
             
          
           
             The
             punishment
             of
             this
             delict
             was
             of
             old
             arbitrary
             ,
             
               Paul.
               lib.
            
             5.
             
               sent
               .
               tit
            
             .
             14.
             but
             was
             made
             capital
             by
             the
             edict
             ,
             
               valentiniani
               &
               valentis
               l.
               unic
               .
               C.
               de
               famos
               .
               libel
               .
            
             but
             Clar.
             makes
             it
             arbitrary
             by
             the
             present
             custom
             of
             Europ
             ;
             And
             so
             it
             is
             with
             us
             at
             present
             in
             Scotland
             ,
             except
             where
             the
             Prince
             is
             abused
             ,
             or
             where
             a
             capital
             Crime
             is
             alledged
             against
             any
             man
             ,
             for
             
               eo
               casu
            
             ,
             infamous
             Libels
             are
             justly
             punishable
             by
             death
             :
             And
             thus
             Fleeming
             was
             hanged
             for
             saying
             that
             he
             wisht
             that
             the
             King
             would
             shoot
             to
             dead
             and
             dye
             of
             the
             falling
             Sicknesse
             ,
             17.
             
             May
             ,
             1615.
             but
             in
             this
             the
             words
             were
             maliciously
             spoken
             ,
             for
             the
             speaker
             utterred
             them
             because
             he
             had
             lost
             a
             Plea.
             But
             sometimes
             the
             speaker
             is
             only
             Scourged
             and
             Banished
             ,
             as
             Tweedy
             
             was
             13.
             
             March
             ,
             1612.
             for
             abusing
             Constables
             and
             bidding
             the
             King
             ,
             the
             Council
             ,
             and
             them
             ,
             kiss
             his
             arse
             ,
             and
             swearing
             he
             cared
             not
             a
             fart
             for
             them
             ,
             which
             words
             appeared
             both
             by
             the
             speaker
             ,
             and
             the
             contexture
             of
             the
             words
             ,
             to
             have
             rather
             flowed
             from
             folly
             ,
             then
             design
             .
             And
             Spotswood
             in
             his
             History
             ,
             relats
             ,
             that
             the
             School-master
             of
             Edinburgh
             was
             hanged
             for
             dispersing
             Libels
             against
             the
             Regent
             ,
             wherein
             he
             charged
             him
             with
             being
             guilty
             of
             capital
             Crimes
             .
          
           
             
               Leasing
               makers
               .
            
             
               VI.
               Like
               to
               this
               Crime
               ,
               if
               not
               the
               same
               with
               it
               ,
               is
               Leasing
               making
               ,
               whereby
               hatred
               and
               discord
               may
               be
               raised
               betwixt
               the
               King
               and
               his
               people
               ,
               which
               was
               punished
               with
               tinsel
               of
               life
               and
               goods
               ,
               by
               the
               43.
               
               
                 Act
                 ,
                 Parliament
              
               2.
               
               
                 King
                 Iames
              
               the
               1.
               
               Likeas
               any
               misrepresentation
               (
               or
               evil
               information
               ,
               as
               our
               Law
               calls
               it
               )
               of
               the
               King
               to
               his
               people
               ,
               is
               punishable
               in
               the
               same
               way
               ,
               by
               the
               83.
               
               
                 Act
                 ,
                 Parliament
              
               6.
               
               
                 King
                 Iames
              
               the
               5.
               
               And
               though
               the
               slandering
               of
               His
               Majesty
               might
               have
               been
               punished
               ,
               by
               the
               reason
               of
               the
               first
               Act
               ,
               yet
               we
               see
               that
               our
               Predecessors
               did
               not
               think
               
                 paritas
                 rationis
              
               sufficient
               in
               punishing
               Crimes
               ;
               Upon
               which
               Acts
               a
               great
               person
               was
               found
               guilty
               of
               death
               ,
               for
               writing
               a
               Letter
               ,
               wherein
               the
               Parliament
               was
               slandered
               ,
               Anno
               1662.
               
               But
               this
               was
               thereafter
               rescinded
               by
               his
               Majesty
               .
               Likeas
               by
               the
               20.
               
               A.
               of
               the
               14.
               
               
                 P.
                 KI
              
               .
               6.
               the
               hearing
               and
               not
               revealing
               ,
               and
               not
               apprehending
               of
               such
               Leasing
               makers
               ,
               if
               it
               be
               in
               the
               hearers
               power
               ,
               is
               equally
               punished
               with
               the
               Leasing
               making
               ;
               but
               because
               these
               Acts
               could
               not
               reach
               to
               slanderers
               of
               His
               Majesty
               to
               His
               people
               in
               England
               ,
               or
               misrepresenting
               them
               to
               the
               King
               ,
               or
               abusing
               any
               Privy
               Counseller
               of
               that
               Kingdom
               ,
               therefore
               the
               misrepresenting
               them
               is
               declared
               punishable
               at
               His
               Majesties
               pleasure
               ,
               by
               the
               9.
               
               Act
               ,
               20.
               
               
                 Par.
                 K.
                 Ia.
              
               6.
               
               By
               the
               same
               last
               Act
               ,
               dispersing
               or
               making
               Cockalands
               ,
               or
               other
               infamous
               Libels
               against
               Counsellours
               of
               England
               ,
               is
               punished
               as
               Leasing
               making
               .
            
          
        
         
           
           
             TITLE
             XXXI
             .
             Poinding
             of
             Oxen
             ,
             in
             time
             of
             labouring
             .
          
           
             
               1.
               
               
                 How
                 this
                 Crime
                 is
                 punished
                 by
                 our
                 Law.
                 
              
            
             
               2.
               
               
                 How
                 by
                 the
                 Civil
                 Law.
              
               
            
             
               3.
               
               
                 The
                 explication
                 of
                 our
                 Act
                 of
                 Parliament
                 in
                 this
                 case
                 .
              
            
             
               4.
               
               
                 How
                 the
                 Civil
                 Law
                 and
                 ours
                 differs
                 in
                 this
                 point
                 .
              
            
          
           
             BY
             the
             98.
             
             Act
             6.
             
             
               Parl.
               Ia.
            
             4.
             it
             is
             Statute
             ,
             that
             no
             Sheriff
             ,
             or
             Officer
             ,
             shall
             poind
             ,
             or
             distreinzie
             the
             Oxen
             ,
             Horse
             ,
             or
             other
             goods
             ,
             pertaining
             to
             the
             Plough
             ,
             and
             that
             labours
             the
             ground
             ,
             the
             time
             of
             the
             labouring
             of
             the
             same
             ,
             where
             any
             other
             Goods
             ,
             or
             Lands
             are
             to
             be
             Apprized
             ,
             or
             Poinded
             ,
             according
             to
             the
             Common
             Law.
             
          
           
             II.
             The
             Common
             Law
             ,
             to
             which
             this
             relates
             ,
             is
             l.
             8.
             
             
               C.
               quae
               res
               pig
               .
               oblig
               .
               possunt
               ,
               pignorum
               gratia
               aliquid
               quod
               ad
               culturam
               agri
               pertinet
               auferri
               non
               convenit
               ,
            
             and
             by
             the
             subsequent
             ,
             
               authent
               ibid.
               agricultores
               terrarum
               securi
               sunt
               ,
               ita
               ut
               nullus
               inveniatur
               tam
               audax
               ;
               ut
               personas
               boves
               &
               agrorum
               instrumenta
               aut
               si
               quid
               aliud
               ,
               quod
               ad
               agrorum
               rusticorum
               operam
               pertineat
               invadere
               aut
               capere
               praesumat
               :
               &
               siquis
               hoc
               statutum
               violare
               praesumpserit
               ,
               in
               quadruplum
               ablata
               restituat
               &
               infamiae
               notam
               ipso
               jure
               jucurrat
               ,
               imperiali
               animadversione
               nihilominus
               puniendus
               ,
            
             
             and
             
               Maranta
               de
               ordine
               jud
               .
               part
               .
            
             6.
             
             Act
             3.
             num
             .
             31.
             relates
             ,
             that
             this
             Law
             is
             confirmed
             in
             Sicilie
             ,
             by
             an
             expresse
             Statute
             ;
             and
             all
             these
             Laws
             seem
             to
             be
             founded
             ,
             on
             Deut.
             24.
             vers
             .
             6.
             
             
               No
               man
               shall
               take
               the
               upper
               nor
               nether
               milstone
               to
               pledge
               :
               for
               he
               taketh
               a
               mans
               life
               to
               pledge
               .
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             as
             Grotius
             observes
             ,
             out
             of
             Philo.
             which
             are
             called
             
               mola
               &
               catillus
               ,
               l.
               cum
               de
               lanionis
               §
               .
               idem
               consultus
               .
               ff
               .
               de
               instructo
               vel
               instrumento
               legato
               .
            
          
           
             III.
             By
             the
             foresaid
             Act
             of
             Parliament
             ,
             the
             Poinding
             of
             such
             Goods
             is
             forbid
             ,
             in
             the
             time
             of
             labouring
             ,
             but
             it
             is
             not
             declared
             to
             be
             a
             Crime
             ;
             and
             the
             Lord
             Renton
             haveing
             ,
             in
             Ianuary
             1666.
             pursued
             the
             Officer
             of
             the
             Court
             of
             Coldinghame
             ,
             for
             poinding
             one
             of
             his
             Plough
             Oxen
             ,
             when
             they
             were
             labouring
             ,
             before
             the
             Criminal
             Court
             ,
             is
             was
             alledged
             that
             no
             criminal
             pursuit
             ,
             could
             be
             founded
             upon
             this
             Act
             ,
             seing
             nothing
             could
             be
             criminally
             pursued
             ,
             but
             that
             which
             was
             made
             a
             Crime
             ,
             by
             a
             special
             Statute
             ,
             and
             to
             which
             a
             special
             sanction
             was
             annex'd
             .
             Likeas
             by
             the
             constant
             custome
             ,
             many
             actions
             of
             Spoilzie
             were
             founded
             upon
             this
             Act
             ;
             but
             no
             criminal
             pursuit
             was
             ever
             thereupon
             intented
             :
             To
             which
             it
             was
             replyed
             ,
             that
             the
             contempt
             of
             a
             Law
             ,
             was
             in
             it self
             a
             Crime
             ;
             seing
             disobedience
             to
             Authority
             ,
             was
             in
             effect
             the
             basis
             of
             all
             Crimes
             .
             2.
             
             Illegal
             intrometring
             with
             another
             mans
             Goods
             ,
             was
             a
             Crime
             ,
             especially
             
               ubi
               lex
               non
               solum
               non
               assistebat
               ,
               sed
               &
               restistebat
               ,
            
             for
             theft
             is
             nothing
             else
             but
             an
             unwarrantable
             intromission
             ,
             and
             as
             the
             taking
             of
             His
             
             Majestie
             's
             free
             Liedges
             is
             a
             Crime
             ,
             where
             the
             same
             is
             not
             warranted
             by
             Law
             ;
             so
             the
             poinding
             of
             these
             Goods
             should
             infer
             a
             Crime
             ,
             that
             being
             another
             species
             of
             unlawful
             execution
             .
             3.
             
             This
             Act
             discharges
             such
             executions
             ,
             conform
             to
             the
             Common
             Law.
             And
             by
             the
             Common
             or
             Civil
             Law
             ,
             this
             is
             a
             Crime
             ,
             as
             is
             clear
             by
             the
             Law
             above
             cited
             ;
             and
             whereas
             ,
             it
             was
             alledged
             that
             no
             sanction
             was
             annex'd
             :
             It
             was
             replyed
             ,
             that
             where
             the
             Law
             annexes
             no
             sanction
             ,
             the
             punishment
             is
             there
             
             arbitrary
             ;
             and
             there
             are
             many
             Crimes
             ,
             both
             in
             the
             Civil
             Law
             and
             outs
             ,
             to
             which
             no
             sanction
             is
             annext
             .
             The
             Justices
             sustain'd
             the
             Libel
             ,
             and
             ordained
             the
             Pannel
             to
             go
             to
             the
             knowledge
             of
             an
             Inquest
             :
             The
             expresse
             words
             of
             the
             Interloquutor
             were
             ,
             that
             the
             poinding
             an
             Oxe
             ,
             in
             the
             time
             of
             labouring
             ,
             is
             an
             injury
             and
             wrong
             ,
             punishable
             by
             the
             Law
             ,
             
               paena
               aplicanda
               filco
            
             .
             And
             thereafter
             ,
             the
             three
             Pannels
             were
             found
             guilty
             ,
             though
             it
             was
             not
             expresly
             proved
             ,
             that
             the
             Oxe
             was
             labouring
             actually
             ,
             the
             time
             of
             the
             poinding
             ,
             but
             only
             that
             he
             used
             to
             labour
             ,
             and
             was
             in
             the
             Plough
             the
             week
             before
             ,
             and
             the
             Countrey
             was
             then
             labouring
             ,
             all
             which
             are
             necessary
             qualifications
             of
             this
             Crime
             ,
             and
             so
             are
             necessary
             interrogators
             after
             pronouncing
             of
             which
             doom
             ,
             the
             Justices
             fined
             each
             of
             the
             three
             Pannels
             ,
             in
             fourty
             Pound
             Scots
             .
             And
             yet
             in
             Iune
             1674.
             a
             reply
             against
             lawfully
             poinded
             ,
             being
             proponed
             in
             a
             pursuit
             for
             theft
             ;
             the
             case
             was
             by
             the
             Justices
             referred
             ,
             to
             be
             first
             civily
             pursued
             .
             It
             was
             here
             also
             alledged
             ,
             that
             by
             the
             34.
             
             Act.
             4.
             
             
               Parl.
               I.
            
             5.
             where
             Crimes
             may
             be
             criminally
             ,
             and
             civily
             pursued
             ,
             the
             civil
             pursuit
             ought
             first
             to
             be
             discus'd
             ,
             which
             was
             repelled
             ,
             because
             ,
             though
             a
             civil
             pursuit
             of
             spoilzie
             were
             intented
             ,
             there
             could
             no
             defence
             ,
             such
             as
             lawfully
             poinded
             ,
             
               authore
               praetore
            
             ,
             &c.
             which
             are
             usual
             in
             other
             cases
             ,
             be
             proponed
             here
             ,
             seing
             though
             the
             executions
             were
             formal
             ,
             and
             the
             Decreet
             whereupon
             they
             proceeded
             irreduceable
             ;
             yet
             to
             poind
             a
             labouring
             Oxe
             ,
             in
             labouring
             time
             ,
             is
             in
             all
             cases
             unlawful
             ,
             
               &
               itacessat
               hoc
               casu
               ratio
               legis
               .
            
             2.
             
             The
             defender
             could
             not
             plead
             the
             benefite
             of
             this
             Act
             ,
             except
             he
             first
             acknowledged
             ,
             that
             the
             wrong
             here
             committed
             was
             a
             Crime
             ,
             for
             the
             Act
             runs
             only
             in
             such
             cases
             ,
             as
             may
             be
             civilly
             ,
             or
             criminally
             pursued
             .
          
           
             IV.
             It
             is
             observable
             ,
             that
             albeit
             this
             Act
             relate
             to
             the
             Common
             Law
             ,
             yet
             they
             differ
             in
             many
             points
             ,
             as
             1.
             
             The
             persons
             of
             labourers
             could
             not
             be
             apprehended
             by
             that
             Law
             ,
             but
             by
             ours
             they
             may
             .
             2.
             
             By
             that
             Law
             no
             distinction
             is
             
             made
             ,
             whether
             there
             were
             other
             poindable
             Goods
             or
             not
             ;
             but
             by
             ours
             ,
             these
             particulars
             may
             be
             poinded
             ,
             or
             Lands
             may
             be
             apprized
             ;
             and
             therefore
             such
             as
             raise
             Criminal
             Letters
             upon
             this
             Act
             ,
             should
             libel
             ,
             that
             such
             Goods
             were
             poinded
             in
             labouring
             time
             ,
             and
             that
             the
             owner
             ,
             or
             debitor
             had
             other
             Goods
             and
             Lands
             ,
             against
             which
             the
             creditor
             could
             have
             had
             execution
             :
             Albeit
             I
             think
             ,
             he
             is
             not
             obliedged
             to
             prove
             this
             ;
             but
             that
             this
             is
             ,
             
               ex
               eorum
               numero
               quae
               allegari
               sed
               non
               probari
               debent
               ,
            
             yet
             if
             the
             Messengers
             execution
             be
             produced
             ,
             bearing
             ,
             that
             he
             searched
             ,
             and
             could
             find
             no
             other
             Moveables
             ,
             I
             think
             ,
             that
             
               eo
               casu
            
             ,
             the
             Messengers
             execution
             should
             make
             Faith
             ,
             except
             the
             pursuer
             offer
             instantly
             ,
             to
             condescend
             upon
             these
             other
             Moveables
             ,
             that
             were
             extant
             ,
             and
             be
             ready
             to
             prove
             the
             same
             .
             I
             find
             ,
             that
             if
             the
             Messengers
             executions
             bearing
             in
             an
             Apprizing
             ,
             that
             he
             searched
             ,
             but
             could
             find
             no
             Moveables
             ,
             they
             are
             so
             far
             believed
             ,
             that
             no
             contrary
             Probation
             will
             be
             received
             ,
             for
             else
             all
             Comprizngs
             might
             be
             reduced
             ;
             yet
             I
             think
             ,
             that
             the
             case
             is
             not
             alike
             here
             ,
             for
             the
             Act
             being
             so
             expresse
             ,
             it
             should
             be
             sufficient
             to
             defend
             against
             a
             crime
             ,
             (
             though
             not
             to
             reduce
             a
             real
             diligence
             ,
             )
             that
             other
             Moveables
             were
             extant
             .
          
           
             Under
             the
             prohibition
             of
             this
             Act
             ,
             are
             comprehended
             ,
             not
             only
             the
             Goods
             that
             are
             in
             the
             Plough
             ,
             but
             these
             Horses
             which
             lead
             foggage
             ,
             for
             without
             these
             ,
             Land
             cannot
             be
             laboured
             ;
             and
             so
             the
             reason
             of
             the
             Law
             extends
             to
             them
             :
             likeas
             ,
             the
             Act
             of
             Parliament
             expresses
             separatly
             ,
             and
             distinctly
             ,
             Goods
             pertaining
             to
             the
             Plough
             ,
             and
             that
             labours
             the
             ground
             :
             nor
             are
             these
             words
             
               that
               labours
               the
               ground
            
             ,
             exegetick
             only
             .
          
           
             By
             these
             words
             ,
             
               in
               time
               of
               labouring
            
             ,
             are
             mean'd
             ,
             not
             only
             when
             the
             beasts
             are
             actually
             labouring
             ,
             but
             the
             season
             of
             labouring
             ,
             and
             that
             from
             the
             time
             of
             strieking
             ,
             to
             upseed
             time
             ;
             and
             therefore
             Goods
             that
             had
             once
             tilled
             ,
             though
             
             in
             October
             ,
             seem
             not
             poindable
             ,
             for
             then
             labouring
             is
             as
             necessar
             as
             in
             the
             Spring
             ;
             and
             yet
             the
             contrary
             was
             found
             ,
             the
             15.
             of
             November
             ,
             1627.
             and
             the
             22.
             of
             November
             ,
             1628.
             because
             as
             is
             there
             alledged
             by
             
               Durie
               ,
               October
            
             is
             not
             the
             season
             of
             labouring
             .
          
           
             It
             may
             be
             doubted
             ,
             whether
             Horse
             leading
             foggage
             in
             Iune
             and
             Iuly
             ,
             can
             be
             poinded
             ,
             for
             that
             is
             the
             season
             of
             that
             kind
             of
             labouring
             .
          
        
         
           
           
             TITLE
             XXXII
             .
             Bearing
             of
             unlawful
             Weapons
             .
          
           
             
               1.
               
               
                 What
                 is
                 the
                 punishment
                 of
                 this
                 Crime
                 by
                 our
                 Law.
                 
              
            
             
               2.
               
               
                 What
                 by
                 the
                 Civil
                 Law.
              
               
            
             
               3.
               
               
                 Who
                 are
                 Iudges
                 competent
                 to
                 it
                 .
              
            
          
           
             I.
             BEaring
             of
             Hagbuts
             ,
             Pistols
             ,
             and
             other
             Fire-works
             ,
             were
             punished
             of
             old
             by
             amputation
             of
             the
             right
             hand
             ,
             but
             by
             the
             6.
             
             
               Act
               ,
               Parliament
            
             16.
             
             Ia.
             6.
             the
             bearing
             of
             such
             weapons
             is
             forbidden
             ,
             though
             no
             prejudice
             be
             done
             by
             the
             wearers
             ,
             who
             may
             be
             pursued
             ,
             either
             before
             the
             Council
             ,
             or
             Justice
             Court
             ,
             and
             the
             punishment
             by
             the
             Council
             is
             declared
             not
             to
             be
             corporal
             ,
             but
             only
             confiscation
             of
             their
             moveables
             ,
             or
             syning
             and
             imprisonment
             ;
             but
             prejudice
             of
             any
             pursuite
             before
             the
             Justice
             Court
             ,
             who
             it
             appears
             may
             inflict
             the
             former
             punishment
             of
             cutting
             off
             the
             right
             hand
             .
          
           
             It
             would
             seem
             that
             by
             this
             act
             the
             Pannel
             is
             oblidged
             to
             give
             his
             oath
             before
             the
             Justices
             ,
             which
             is
             not
             usual
             in
             any
             crime
             ,
             except
             that
             of
             Usury
             ,
             for
             the
             probation
             by
             oath
             is
             indefinitly
             subjoyned
             to
             pursuits
             before
             the
             Justices
             or
             Council
             .
             And
             albeit
             the
             Council
             does
             immediatly
             preceed
             ,
             yet
             that
             probation
             by
             oath
             seems
             not
             to
             relate
             solely
             to
             the
             procedure
             before
             the
             Council
             .
             For
             when
             the
             procedure
             before
             the
             Council
             is
             repeated
             ,
             the
             probation
             by
             witnesses
             is
             only
             there
             mentioned
             .
             
             Yet
             I
             think
             there
             is
             an
             errour
             in
             the
             printing
             of
             this
             Act
             ,
             for
             it
             is
             very
             unreasonable
             ,
             that
             when
             this
             Crime
             is
             proved
             before
             the
             Council
             by
             witnesses
             ,
             that
             no
             amputation
             shall
             be
             remitted
             ,
             and
             yet
             this
             priviledge
             should
             not
             be
             extended
             to
             those
             against
             whom
             it
             is
             proved
             by
             their
             own
             oath
             .
          
           
             It
             is
             observable
             from
             this
             Act
             ,
             that
             the
             Council
             may
             force
             such
             as
             are
             pursued
             before
             them
             to
             give
             their
             oaths
             ,
             albeit
             it
             may
             be
             alledged
             ,
             that
             
               nemo
               tenetur
               crimen
               contra
               se
               probare
               .
            
          
           
             By
             this
             Act
             likewise
             ,
             all
             licences
             to
             bear
             thir
             Weapons
             are
             ordained
             to
             be
             past
             in
             Council
             ,
             and
             to
             pay
             a
             composition
             to
             the
             Thesaurer
             ,
             and
             to
             passe
             his
             Register
             and
             all
             the
             Seals
             ,
             else
             to
             be
             null
             .
          
           
             II.
             By
             the
             Civil
             Law
             ,
             the
             bearing
             of
             these
             Weapons
             was
             a
             crime
             also
             .
             l.
             11.
             
             
               C.
               ut
               armorum
               usus
            
             and
             by
             the
             Feudal
             Law
             ,
             c.
             1.
             
             §
             .
             
               si
               quis
               .
               de
               pace
               tenenda
               .
               &
               tenebatur
               paena
               legis
               juliae
               de
               vi
               publica
               ,
            
             which
             was
             arbitrary
             :
             And
             the
             Glosse
             observes
             ,
             that
             the
             carrying
             of
             such
             Arms
             was
             repute
             publick
             violence
             ,
             though
             no
             prejudice
             was
             done
             ,
             which
             is
             consonant
             to
             the
             Act
             of
             Parliament
             .
             But
             it
             is
             strange
             that
             only
             Fire-works
             ,
             or
             ingines
             should
             be
             forbidden
             by
             that
             Act.
             Nor
             can
             the
             carrying
             Pikes
             ,
             Swords
             ,
             or
             any
             other
             weapons
             ,
             be
             punished
             by
             that
             Act.
             
          
           
             By
             the
             Civil
             Law
             likewise
             ,
             the
             prohibit
             Arms
             were
             confiscat
             ,
             and
             
               Marsil
               .
               in
               prac
               .
               §
               pro
               complemento
               ,
               N.
            
             12.
             
             
               Carerius
               &
               Clar.
            
             declared
             ,
             that
             by
             the
             custom
             both
             of
             Spain
             and
             other
             places
             ,
             the
             Arms
             are
             confiscat
             ,
             albeit
             there
             be
             no
             expresse
             warrand
             for
             that
             confiscation
             by
             the
             Statute
             ,
             but
             it
             may
             be
             doubted
             if
             the
             true
             owner
             having
             lent
             them
             without
             being
             conscious
             to
             the
             crime
             ,
             will
             losse
             them
             ,
             and
             I
             think
             ,
             not
          
           
             But
             keeping
             of
             such
             Weapons
             at
             home
             is
             not
             punishable
             neither
             by
             the
             foresaid
             Act
             ,
             nor
             common
             Law
             ,
             by
             which
             likewise
             it
             is
             lawful
             for
             such
             as
             travel
             to
             bear
             such
             Weapons
             ,
             for
             their
             own
             preservation
             ,
             
               &
               generaliter
               licet
               portare
               arma
               defensiva
            
             ;
             
             but
             our
             Law
             allows
             no
             such
             distinction
             .
             And
             I
             remember
             that
             
               Iohn
               Macknaughton
            
             ,
             being
             pursued
             before
             the
             Council
             for
             bearing
             forbidden
             Weapons
             ,
             they
             repelled
             this
             defence
             ,
             viz.
             that
             he
             was
             travelling
             (
             unlesse
             the
             journey
             could
             have
             been
             alledged
             necessary
             ,
             for
             else
             the
             Act
             might
             stil
             be
             eluded
             )
             and
             that
             it
             was
             the
             custom
             of
             the
             Highlands
             to
             go
             still
             well
             attendded
             and
             armed
             ,
             which
             defence
             seemed
             to
             some
             ill
             repelled
             ,
             for
             self-defence
             ,
             and
             the
             custom
             of
             the
             Countrey
             ,
             excuses
             still
             from
             this
             crime
             ,
             
               Farinac
               .
               de
               diver
               .
               crim
               .
               questi
               .
            
             108.
             
          
           
             By
             the
             common
             Law
             ,
             offensive
             Arms
             ,
             such
             as
             Swords
             and
             Pistols
             ,
             were
             forbidden
             ,
             and
             the
             bearers
             punished
             ,
             albeit
             no
             prejudice
             followed
             ;
             but
             the
             carrying
             Stones
             and
             Trees
             ,
             and
             such
             other
             things
             as
             were
             not
             ,
             
               ex
               sua
               natura
               offensiva
            
             ,
             was
             only
             punishable
             ,
             if
             violence
             was
             done
             by
             the
             bearers
             ,
             
               l.
               armorum
               ff
               .
               de
               verb.
               sig
               .
            
          
           
             III.
             Thir
             pursuits
             are
             more
             ordinarily
             before
             the
             Council
             ,
             than
             the
             Justice
             Court
             ,
             and
             is
             ordinary
             Libelled
             as
             an
             aggravation
             ,
             rather
             then
             a
             crime
             .
             Thus
             I
             find
             
               William
               Hamiltoun
            
             pursued
             for
             wearing
             of
             Pistols
             ,
             and
             presenting
             one
             to
             the
             Provost
             of
             Edinburgh
             ,
             whereupon
             he
             came
             in
             will
             ,
             and
             was
             banished
             the
             Realm
             during
             his
             lifetime
             ,
             1.
             
             Novem.
             1597.
             
          
           
             The
             prosecution
             of
             this
             crime
             concerns
             only
             his
             Majestie
             's
             interest
             .
             And
             therefore
             the
             dyet
             was
             deserted
             ,
             because
             His
             Majesties
             Advocat
             ,
             nor
             none
             to
             represent
             him
             ,
             did
             not
             concur
             ,
             nor
             was
             the
             Libel
             raised
             at
             his
             instance
             ,
             20.
             
             Iuly
             ,
             1596.
             
             Mr.
             
               Iames
               Leask
            
             ,
             against
             
               Andrew
               Red.
            
             
          
        
         
           
           
             TITLE
             XXXIII
             .
             Beggars
             and
             Vagabonds
             .
          
           
             
               1.
               
               
                 How
                 Beggars
                 and
                 Vagabonds
                 are
                 to
                 be
                 punished
                 by
                 our
                 Law.
                 
              
            
             
               2.
               
               
                 How
                 by
                 the
                 Civil
                 Law.
              
               
            
          
           
             OUr
             Law
             hath
             been
             so
             charitable
             ,
             as
             to
             provide
             for
             Beggars
             ,
             by
             special
             Statutes
             ,
             Ia.
             1.
             
             Parl.
             1.
             cap.
             25.
             
             Ia.
             1.
             
             Parl.
             1.
             cap.
             42.
             
             Ia.
             4.
             
             P.
             6.
             
             
               Parl.
               cap.
            
             70.
             
             Ia.
             5.
             
             Parl.
             4.
             cap.
             21.
             
             But
             sturdy
             Beggars
             (
             our
             Law
             calls
             them
             Egyptians
             oftimes
             ,
             as
             the
             French
             calls
             them
             Bohemians
             )
             and
             Vagabonds
             should
             be
             proceeded
             against
             by
             the
             Sheriffs
             ,
             and
             other
             Judges
             ,
             and
             they
             may
             exact
             caution
             of
             them
             ,
             and
             if
             they
             find
             none
             ,
             they
             should
             be
             denounced
             fugitives
             ,
             Ia.
             6.
             
             Parl.
             1.
             cap.
             97.
             and
             may
             be
             sent
             to
             publick
             Work-houses
             ,
             or
             put
             in
             the
             Stocks
             ,
             Ia.
             6.
             
             Parl.
             12.
             cap.
             124.144
             .
             and
             147.
             
             
               Item
               .
               Ia.
            
             6.
             
             Par.
             15.
             cap.
             268.
             and
             if
             they
             be
             recept
             after
             they
             are
             denounced
             fugitives
             ,
             their
             receptors
             are
             lyable
             for
             the
             prejudice
             sustained
             ,
             and
             the
             parties
             damnified
             ,
             will
             have
             action
             against
             the
             Magistrates
             ,
             within
             whose
             bounds
             or
             jurisdiction
             these
             Vagabounds
             are
             recept
             wittingly
             ,
             Ia.
             6.
             
             Parl.
             11.
             cap.
             97.
             
             But
             this
             Act
             determines
             not
             ,
             whether
             this
             wittingly
             relates
             to
             the
             receptor
             ,
             or
             Magistrat
             ;
             yet
             by
             the
             common
             Law
             ,
             the
             adverb
             scienter
             ,
             is
             still
             applicable
             to
             the
             person
             ,
             against
             whom
             the
             penal
             Statute
             runs
             ;
             so
             that
             except
             the
             Magistrat
             know
             
             that
             the
             Vagabond
             was
             harboured
             within
             his
             bounds
             ,
             it
             were
             severe
             to
             sustain
             action
             of
             damnage
             and
             interest
             against
             him
             ,
             though
             the
             receptor
             knew
             the
             Vagabond
             ,
             and
             did
             wittingly
             recept
             him
             .
             But
             I
             think
             ,
             that
             if
             the
             Magistrate
             did
             either
             omit
             his
             duty
             ,
             he
             will
             be
             liable
             ,
             
               nam
               scire
               &
               scire
               debere
               aequiparantar
               ,
            
             or
             if
             he
             was
             willingly
             ignorant
             .
          
           
             I
             find
             that
             
               A.
               B.
            
             —
             being
             pursued
             criminally
             ,
             for
             general
             recepting
             Vagabonds
             ,
             this
             action
             was
             not
             sustained
             ,
             but
             he
             was
             referred
             to
             the
             Kirk
             Session
             ,
             which
             it
             seems
             was
             done
             ,
             because
             of
             the
             147.
             
             
               Act
               ,
               Parl.
            
             12.
             
             Ia.
             6.
             whereby
             Ministers
             ,
             Elders
             and
             Deacons
             ,
             may
             nomin●t
             any
             two
             of
             their
             number
             ,
             to
             enquire
             into
             this
             crime
             ,
             and
             whom
             His
             Majesty
             makes
             ,
             and
             constitutes
             Justices
             as
             to
             that
             effect
             .
             It
             appears
             by
             a
             Proclamation
             ,
             emitted
             by
             the
             Council
             ,
             in
             Anno
             1603.
             these
             Egyptians
             were
             ordered
             to
             leave
             the
             Kingdom
             ,
             upon
             pain
             of
             death
             ,
             which
             is
             ratified
             by
             the
             13.
             
             
               Act
               Parl.
            
             20.
             
             Ja.
             6.
             and
             upon
             that
             Act
             of
             Parliament
             ,
             
               Moses
               shaw
            
             and
             other
             Egyptians
             ,
             Sorners
             and
             Vagabonds
             ,
             were
             hanged
             the
             last
             of
             Iuly
             ,
             1611.
             
          
           
             II.
             Our
             Law
             has
             in
             this
             ,
             followed
             exactly
             ,
             the
             Civil
             ,
             for
             there
             is
             a
             title
             in
             the
             
               Codex
               ,
               de
               mendicantibus
               validis
            
             ,
             our
             sturdy
             Beggars
             :
             and
             the
             novel
             .
             80.
             this
             Crime
             was
             also
             called
             by
             the
             
               Athenians
               ,
               
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
              
               sive
               otii
               ignavi
               de
               quo
               vide
               heigium
               ,
               l.
            
             2.
             quest
             .
             27.
             
          
        
         
           
           
             TITLE
             XXXIV
             .
             
               Robery
               ,
               Oppression
            
             ,
             vis
             publica
             &
             privata
             .
          
           
             
               1.
               
               
                 The
                 several
                 Epithets
                 given
                 to
                 Robbery
                 ,
                 and
                 how
                 it
                 is
                 distinguished
                 from
                 other
                 Crimes
                 .
              
            
             
               2.
               
               
                 Common
                 Theft
                 ,
                 and
                 Stouthrief
                 ,
                 how
                 punished
                 by
                 our
                 Law.
                 
              
            
             
               3.
               
               
                 Several
                 decisions
                 ,
                 as
                 to
                 this
                 Crime
                 .
              
            
             
               4.
               
               
                 How
                 the
                 assisting
                 of
                 Robbers
                 is
                 punished
                 by
                 our
                 Law.
                 
              
            
             
               5.
               
               
                 In
                 what
                 cases
                 is
                 it
                 lawful
                 to
                 joyn
                 against
                 Robbers
                 .
              
            
             
               6.
               
               
                 The
                 punishment
                 of
                 oppression
                 by
                 our
                 Law.
                 
              
            
             
               7.
               
               
                 In
                 what
                 cases
                 the
                 civil
                 right
                 is
                 to
                 be
                 discussed
                 ,
                 before
                 the
                 violence
                 can
                 be
                 criminally
                 punished
                 .
              
            
             
               8.
               
               
                 How
                 Oppression
                 was
                 termed
                 by
                 the
                 Civil
                 Law
                 ,
                 and
                 how
                 it
                 was
                 thereby
                 punished
                 .
              
            
             
               9.
               
               
                 What
                 Concussion
                 is
                 ,
                 and
                 how
                 punished
                 .
              
            
             
               10.
               
               
                 Black
                 mail
                 how
                 punished
              
               .
            
          
           
             MEn
             may
             by
             dilligence
             and
             circumspection
             ,
             defend
             themselves
             against
             Theft
             ,
             and
             these
             who
             steal
             clandestinely
             ,
             shew
             a
             reverence
             ,
             even
             to
             that
             Law
             which
             they
             transgress
             ;
             but
             Robbery
             and
             Oppression
             are
             Crimes
             ,
             against
             which
             there
             can
             be
             no
             fence
             :
             and
             in
             which
             ,
             these
             who
             violat
             the
             Law
             ,
             contemn
             the
             Legislators
             .
             To
             defend
             them
             against
             these
             ,
             men
             did
             associat
             themselves
             under
             Government
             ,
             and
             
             renounced
             their
             native
             liberty
             ,
             for
             the
             protection
             of
             Law
             :
             nor
             can
             Law
             justifie
             the
             severity
             of
             its
             punishments
             ,
             and
             the
             great
             exactions
             it
             requires
             ,
             but
             by
             returning
             to
             these
             it
             commands
             ,
             a
             sweet
             and
             pleasant
             security
             ,
             against
             all
             rapine
             and
             violence
             .
          
           
             I.
             When
             Theft
             is
             aggraged
             by
             violence
             ,
             it
             is
             called
             Robbery
             ,
             from
             the
             Germane
             word
             Raube
             ;
             and
             is
             with
             us
             called
             Stouthrieff
             ,
             Stouth
             signifying
             Theft
             ,
             and
             Rieff
             signifying
             violence
             :
             In
             which
             Crime
             ,
             our
             Persons
             are
             endangered
             as
             well
             as
             our
             Estates
             ,
             and
             so
             is
             ordinarily
             punished
             by
             death
             ,
             even
             in
             these
             Countreys
             ,
             where
             Theft
             is
             only
             punishable
             by
             pecunial
             mulcts
             ,
             or
             whipping
             ,
             and
             thus
             it
             was
             punished
             with
             death
             amongst
             the
             Jews
             ,
             as
             is
             clear
             ,
             by
             Davids
             answer
             to
             Nathans
             Parable
             ,
             though
             Theft
             was
             only
             punished
             by
             restitution
             ;
             and
             though
             
               Calistratus
               ,
               l.
            
             28.
             
             §
             .
             
               grassatores
               ,
               ff
               .
               de
               paenis
               ,
            
             seems
             to
             make
             such
             only
             punishable
             ,
             if
             they
             Robb
             frequently
             ,
             and
             in
             high
             wayes
             ,
             and
             with
             Arms
             ,
             
               grassatores
               qui
               praedae
               causa
               id
               faciunt
               proximi
               latronibus
               habentur
               ;
               &
               si
               cum
               ferro
               aggredi
               &
               spoliare
               instituerunt
               capite
               puniuntur
               .
               Utique
               si
               saepius
               atque
               in
               itineribus
               hoc
               admiserunt
               caeteri
               in
               metallum
               dantur
               ,
               aut
               in
               insulas
               relegantur
               .
            
             Yet
             by
             the
             custome
             of
             all
             Nations
             ,
             Robbery
             is
             punished
             with
             death
             ,
             though
             it
             be
             not
             reiterated
             ;
             and
             I
             think
             ,
             that
             Law
             must
             be
             only
             understood
             of
             such
             ,
             as
             designed
             to
             Robb
             ,
             
               qui
               instituerunt
            
             ,
             who
             are
             punishable
             ,
             though
             they
             actually
             Robb'd
             nothing
             ,
             and
             had
             no
             design
             to
             kill
             ,
             but
             to
             plunder
             ,
             
               predae
               causae
            
             ,
             if
             they
             went
             out
             frequently
             ,
             and
             to
             high
             wayes
             with
             that
             design
             ,
             for
             if
             they
             actually
             Robb'd
             ,
             or
             had
             a
             design
             to
             kill
             ,
             though
             they
             killed
             not
             ,
             yet
             they
             are
             still
             punishable
             by
             death
             ,
             by
             all
             Laws
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             II.
             The
             quality
             of
             frequent
             and
             common
             committing
             Theft
             and
             Robberies
             ,
             is
             not
             only
             a
             quality
             that
             raises
             the
             Crime
             of
             Theft
             alone
             ,
             from
             being
             punishable
             by
             restitution
             ,
             to
             be
             
             punishable
             by
             death
             in
             other
             nations
             ,
             but
             by
             the
             51.
             
             Act
             ,
             11.
             
             
               Parl.
               I.
            
             6.
             
             It
             is
             declared
             ,
             
               that
               landed
               men
               who
               are
               convict
               of
               common
               Theft
               ,
               Recept
               of
               Theft
               ,
               or
               Stouthreif
               ,
               shall
               incur
               the
               crime
               and
               pain
               of
               treason
            
             ;
             upon
             which
             Act
             ,
             it
             was
             contraverted
             ,
             whether
             the
             word
             common
             ,
             was
             a
             quality
             and
             adjunct
             to
             be
             added
             to
             the
             Recept
             of
             Theft
             ,
             and
             Stouthreif
             as
             well
             as
             Theft
             ,
             since
             the
             Act
             sayes
             but
             only
             common
             Theft
             ,
             not
             common
             Recept
             of
             Theft
             ,
             nor
             common
             Stouthreif
             ;
             and
             it
             was
             urged
             ,
             that
             it
             was
             reasonable
             ,
             that
             this
             should
             be
             understood
             of
             all
             ,
             seing
             it
             was
             that
             quality
             ,
             which
             rendered
             them
             Treason
             .
             For
             simple
             Recept
             ,
             would
             not
             have
             been
             declared
             treasonable
             of
             it self
             ;
             and
             by
             the
             foresaid
             l.
             28.
             the
             reiterating
             this
             crime
             ,
             aggraged
             it
             from
             banishment
             ,
             to
             death
             ,
             and
             in
             the
             o●dinary
             way
             of
             speaking
             ,
             men
             cease
             not
             to
             repeat
             such
             words
             :
             Likeas
             it
             was
             just
             ,
             that
             as
             the
             crimes
             were
             in
             Landlesse
             men
             punishable
             ,
             only
             by
             restitution
             ,
             or
             death
             ,
             if
             repeated
             so
             in
             Landed
             men
             ,
             the
             punishment
             should
             grow
             proportionally
             ,
             and
             infer
             death
             or
             Treason
             ,
             if
             commonly
             committed
             .
          
           
             To
             which
             it
             was
             answered
             ,
             that
             the
             words
             of
             the
             Act
             of
             Parliament
             ,
             are
             conceived
             disjunctively
             ;
             Likeas
             it
             seems
             ,
             that
             if
             the
             Parliament
             had
             designed
             ,
             to
             add
             the
             word
             common
             ,
             to
             Receipt
             and
             Stouthreif
             ,
             they
             would
             have
             added
             the
             same
             to
             prevent
             this
             objection
             :
             and
             it
             seems
             indeed
             ,
             that
             Stouthreif
             ,
             which
             is
             that
             species
             of
             Theft
             ,
             that
             we
             call
             Robery
             ,
             deserves
             to
             be
             punished
             as
             Treason
             in
             landed
             men
             ,
             though
             they
             do
             not
             commonly
             commit
             the
             same
             ,
             because
             it
             being
             easier
             for
             landed
             men
             to
             commit
             Robbery
             ,
             and
             it
             being
             more
             probable
             ,
             that
             they
             would
             Rob
             than
             steal
             ,
             this
             crime
             ought
             to
             be
             as
             severely
             punished
             in
             them
             ,
             as
             common
             Theft
             ;
             and
             accordingly
             the
             foresaid
             alledgiance
             being
             proponed
             for
             
               Iames
               Wood
            
             ,
             the
             21.
             
             May
             1601.
             it
             was
             repelled
             .
          
           
             III.
             In
             this
             process
             likewise
             ,
             the
             said
             Iames
             ,
             having
             been
             pursued
             for
             robbing
             the
             writs
             and
             evidents
             belonging
             to
             Bonitown
             ,
             It
             was
             alledged
             ,
             that
             the
             pursuer
             ought
             to
             condescend
             
             upon
             the
             Lands
             ,
             to
             which
             these
             evidents
             belonged
             ,
             because
             if
             that
             were
             condescended
             on
             ,
             the
             Pannel
             would
             prove
             ,
             that
             the
             said
             Lands
             ,
             and
             consequently
             ,
             the
             evidents
             did
             belong
             to
             himself
             ,
             which
             alledgiance
             was
             likewise
             repelled
             ,
             nor
             was
             it
             found
             necessary
             ,
             that
             a
             Civil
             precognition
             should
             proceed
             in
             this
             case
             ;
             and
             in
             Iune
             1668.
             it
             was
             found
             that
             a
             Libel
             was
             relevant
             ,
             bearing
             in
             general
             ,
             that
             Jewels
             or
             Pearls
             were
             stolne
             ,
             without
             condescending
             upon
             the
             particular
             number
             of
             them
             ;
             and
             it
             being
             alledged
             for
             the
             
               Macgibbons
               ,
               Decemb.
            
             8.
             1676.
             that
             the
             Libel
             was
             not
             relevant
             ,
             not
             condescending
             upon
             the
             persons
             from
             whom
             the
             goods
             were
             robbed
             ,
             nor
             what
             goods
             were
             robbed
             ,
             but
             only
             in
             the
             general
             ,
             that
             the
             Pannels
             did
             frequently
             rob
             the
             houses
             of
             Garntilly
             ,
             and
             Strathurds
             tennents
             .
          
           
             To
             this
             it
             was
             answered
             ,
             that
             though
             where
             privat
             parties
             pursue
             ,
             
               ad
               interesse
               privatum
            
             ;
             such
             a
             condescendance
             is
             nessary
             ,
             because
             the
             informers
             may
             know
             ,
             nor
             can
             the
             private
             damnage
             be
             repaired
             ,
             except
             his
             losse
             be
             liquidly
             proved
             ;
             yet
             when
             the
             pursuit
             is
             at
             His
             Majesties
             instance
             ,
             and
             that
             an
             habitual
             ,
             and
             constant
             trade
             of
             robbing
             ,
             and
             sorning
             ,
             is
             libelled
             ,
             It
             is
             sufficient
             to
             libel
             in
             general
             ,
             and
             if
             the
             speciality
             be
             not
             proved
             ,
             the
             Pannels
             have
             no
             prejudice
             ,
             for
             they
             will
             not
             be
             found
             guilty
             ,
             nor
             will
             the
             probation
             be
             conc●uding
             ;
             but
             it
             is
             all
             one
             to
             His
             Majesty
             ,
             which
             of
             His
             subjects
             be
             robbed
             ,
             or
             what
             be
             taken
             away
             ,
             it
             being
             His
             Majesties
             interest
             ,
             that
             no
             constant
             ,
             and
             habitual
             Robbery
             be
             committed
             in
             his
             Kingdoms
             ;
             nor
             is
             there
             any
             thing
             more
             ordinary
             ,
             then
             to
             sustain
             Libels
             against
             such
             as
             are
             guilty
             of
             open
             rebellion
             ,
             without
             condescending
             upon
             the
             particular
             persons
             who
             were
             killed
             or
             robbed
             in
             that
             Rebellion
             .
             And
             whereas
             it
             was
             urged
             ,
             that
             if
             the
             particular
             goods
             alledged
             to
             be
             robbed
             ,
             were
             condescended
             on
             ,
             the
             Libel
             might
             be
             elided
             by
             this
             suitable
             defence
             ,
             viz.
             that
             they
             had
             a
             right
             to
             the
             goods
             ,
             or
             had
             the
             consent
             of
             the
             owner
             ;
             It
             might
             have
             been
             answered
             ,
             that
             they
             were
             not
             precluded
             from
             such
             defenses
             ,
             by
             the
             generality
             of
             the
             Libel
             ,
             for
             the
             Pannels
             
             might
             alledge
             that
             the
             taking
             away
             of
             such
             and
             such
             goods
             could
             not
             inferr
             Robbery
             ,
             because
             they
             had
             a
             right
             to
             these
             goods
             ,
             or
             were
             warranted
             to
             take
             them
             away
             by
             the
             consent
             of
             the
             owner
             .
          
           
             The
             Justices
             sustained
             this
             Libel
             ,
             notwithstanding
             of
             the
             generality
             foresaid
             .
          
           
             
               Alexander
               Steil
            
             being
             pursued
             in
             August
             1669.
             for
             stealing
             and
             Robbing
             ,
             evidents
             ,
             writs
             ,
             and
             cloaths
             ,
             out
             of
             Captain
             Barclays
             house
             ,
             who
             was
             his
             Master
             at
             that
             time
             .
          
           
             It
             was
             found
             that
             the
             pursuer
             ,
             behoved
             to
             prove
             ,
             that
             the
             saids
             evidents
             were
             taken
             away
             by
             force
             ,
             or
             breaking
             up
             of
             doors
             ,
             and
             that
             the
             servants
             having
             of
             them
             was
             not
             sufficient
             to
             infer
             Theft
             ,
             though
             he
             had
             delivered
             them
             to
             a
             third
             party
             :
             and
             albeit
             this
             should
             be
             proved
             ,
             yet
             the
             Justices
             found
             this
             alledgeance
             relevant
             ,
             viz.
             that
             this
             deposition
             alledged
             to
             be
             stollen
             ,
             being
             given
             to
             the
             Pannel
             ,
             that
             he
             might
             counterfeit
             the
             subscription
             ,
             and
             he
             having
             no
             freedome
             to
             comply
             therewith
             ,
             he
             did
             run
             away
             to
             the
             Lord
             Fyvie
             ,
             and
             delivered
             up
             the
             same
             to
             him
             without
             any
             reward
             ,
             which
             alledgeance
             was
             found
             relevant
             ,
             as
             said
             is
             ,
             though
             it
             seems
             to
             be
             contrary
             to
             the
             Libel
             ,
             and
             as
             to
             the
             wearing
             cloaths
             ,
             the
             Libel
             was
             not
             found
             relevant
             ,
             except
             it
             had
             been
             proved
             that
             they
             belonged
             to
             Captain
             Barclay
             ,
             and
             were
             under
             his
             locks
             at
             the
             time
             ,
             since
             it
             was
             offered
             to
             be
             proved
             ,
             that
             the
             servant
             had
             worn
             these
             cloaths
             publickly
             in
             his
             Masters
             service
             ,
             which
             purged
             the
             presumption
             of
             Theft
             .
             It
             may
             be
             doubted
             what
             a
             poor
             servant
             could
             do
             ,
             if
             he
             had
             broken
             up
             the
             doors
             really
             at
             his
             Masters
             desire
             ,
             who
             had
             sent
             him
             home
             to
             bring
             papers
             ,
             though
             he
             could
             not
             prove
             the
             command
             otherwayes
             then
             by
             his
             masters
             oath
             ,
             for
             his
             master
             might
             alwayes
             easily
             prove
             the
             breaking
             up
             of
             the
             doors
             .
          
           
             IV.
             So
             odious
             is
             this
             crime
             ,
             and
             so
             frequent
             was
             it
             ,
             that
             by
             the
             21.
             
             
               Act
               ,
               Parl.
            
             1.
             
             Ia.
             6.
             all
             such
             as
             recept
             ,
             fortifie
             ,
             maintain
             ,
             or
             give
             meat
             ,
             harbour
             ,
             or
             assistance
             to
             any
             such
             Robbers
             ,
             
             are
             declared
             art
             and
             part
             ,
             but
             it
             would
             appear
             that
             this
             Act
             strikes
             only
             where
             there
             are
             Letters
             of
             Intercommuning
             ,
             and
             that
             because
             the
             Act
             it self
             bears
             ,
             
               to
               the
               effect
               it
               should
               be
               known
               to
               what
               purpose
               they
               Intercommuned
               ,
            
             and
             because
             it
             were
             too
             severe
             to
             punish
             men
             as
             thieves
             ,
             except
             they
             were
             put
             
               in
               mala
               fide
            
             ,
             so
             to
             do
             ,
             by
             publick
             Proclamation
             ,
             or
             Letters
             of
             Intercommuning
             .
          
           
             V.
             By
             the
             227.
             
             
               Act
               ,
               Parl.
            
             14.
             
             I.
             6.
             
             It
             is
             declared
             (
             for
             the
             same
             hatred
             against
             Robbers
             )
             lawfull
             to
             all
             his
             Majesties
             Leidges
             to
             concur
             and
             joyn
             against
             Clann
             and
             Border
             Thieves
             ,
             and
             to
             take
             and
             execute
             them
             ;
             all
             Magistrats
             and
             Free-holders
             ,
             being
             made
             Justices
             for
             that
             effect
             ,
             by
             the
             said
             Act.
             But
             this
             part
             of
             the
             Act
             is
             now
             in
             desuetude
             ;
             and
             it
             appears
             to
             have
             been
             but
             temporary
             ,
             
               quo
               ad
            
             the
             power
             of
             executing
             ,
             but
             Robbers
             may
             be
             lawfully
             seized
             on
             without
             authority
             .
          
           
             VI.
             Oppression
             is
             ordinarly
             but
             a
             quality
             of
             other
             crimes
             ,
             but
             yet
             there
             are
             sometimes
             special
             dittayes
             founded
             thereupon
             ,
             
               per
               se
            
             ;
             and
             there
             are
             some
             particular
             Acts
             declaring
             several
             species
             of
             it
             to
             be
             punishable
             ,
             as
             reif
             ,
             or
             by
             other
             specifick
             punishments
             mentioned
             in
             the
             saids
             Acts
             ;
             and
             thus
             it
             is
             oppression
             to
             compel
             the
             Kings
             proper
             Tennents
             to
             ride
             ,
             or
             do
             service
             of
             Avarage
             ,
             Carriage
             ,
             Shearing
             ,
             Leading
             ,
             &c.
             and
             should
             be
             punished
             accordingly
             ,
             Act
             21.
             
             P.
             2.
             
             I.
             4.
             
             It
             is
             oppression
             to
             take
             Caups
             (
             that
             is
             to
             say
             ,
             a
             duty
             for
             protection
             to
             be
             given
             by
             privat
             men
             to
             such
             as
             thieves
             ,
             and
             other
             great
             men
             )
             Acts
             18.
             and
             19.
             
             Parl.
             2.
             
             Ia.
             4.
             
               vid.
               de
               verb.
               signif
            
             .
             It
             is
             oppression
             for
             a
             Crafts-man
             to
             take
             custome
             ,
             or
             any
             other
             taxation
             ,
             from
             another
             of
             that
             same
             Craft
             ,
             or
             for
             them
             to
             make
             privat
             Acts
             among
             themselves
             ,
             prejudicial
             to
             the
             people
             ,
             Acts.
             42.
             and
             43.
             
             Parl.
             4.
             
             Iames.
             4.
             
             Act.
             111.
             
             Parl.
             7.
             
             I.
             5.
             and
             Act.
             4.
             
             Par.
             19.
             
             Ia.
             6.
             
             It
             is
             oppression
             for
             Customers
             to
             exact
             more
             then
             their
             due
             ,
             Act.
             46.
             
             P.
             4.
             
             I.
             4.
             
             It
             is
             oppression
             to
             molest
             Magistrats
             of
             Burghs
             ,
             and
             other
             Merchands
             to
             use
             their
             priviledges
             and
             liberties
             ,
             Act.
             26.
             
             Parl.
             4.
             
             Ia.
             5.
             
             It
             is
             a
             kind
             of
             Oppression
             ,
             
             to
             exact
             more
             fraught
             from
             Passengers
             ,
             or
             greater
             prices
             for
             Weavers
             and
             handy-work
             ,
             then
             what
             is
             allowed
             and
             usual
             .
             Acts
             21
             and
             23.
             
             Parl.
             5.
             
             
               Q.
               M.
            
             It
             is
             oppression
             to
             stop
             or
             make
             impediment
             of
             common
             high
             ways
             ,
             to
             ,
             or
             from
             Burghs
             ,
             Act
             54.
             
             Parl.
             6.
             
             
               Q
               M.
            
             It
             is
             oppression
             for
             Officers
             to
             extort
             the
             Leidges
             ,
             Act
             33.
             
             P.
             5.
             
             I.
             3.
             
             
               &
               Act
            
             83.
             
             Parl.
             11.
             
             I.
             6.
             or
             to
             put
             out
             ,
             or
             put
             in
             the
             Roll
             of
             Assizours
             given
             to
             him
             by
             the
             pursuer
             .
             Act
             88.
             
             Parl.
             11.
             
             I.
             6.
             
             In
             which
             last
             Act
             common
             oppressors
             are
             punishable
             by
             death
             :
             Oppression
             is
             also
             punishable
             by
             death
             ,
             Act.
             42.
             
             Parl.
             4.
             
             Ia.
             4.
             
             Act
             88.
             
             Parl.
             11.
             
             Ia.
             6.
             
          
           
             VII
             .
             Because
             oftimes
             in
             thir
             cases
             ,
             the
             Pannel
             pretends
             ,
             that
             what
             he
             did
             take
             by
             force
             ,
             was
             his
             own
             ,
             or
             that
             he
             had
             a
             right
             thereto
             ,
             therefore
             except
             the
             violence
             be
             very
             great
             ,
             the
             Justices
             use
             to
             ordain
             the
             matter
             of
             right
             to
             be
             first
             discussed
             before
             the
             Civil
             Judge
             ,
             as
             was
             found
             in
             Novemb.
             1675
             in
             the
             case
             of
             Inglis
             of
             East-sheilds
             ,
             and
             in
             many
             other
             cases
             :
             and
             by
             the
             33.
             
             Act.
             4.
             
             
               Parl.
               I.
            
             5.
             
             It
             is
             declared
             ,
             
               that
               as
               for
               depredation
               ,
               masterful
               reiffs
               ,
               and
               spoilzies
               ,
               particular
               dyets
               shall
               be
               set
               therefore
               at
               the
               discretion
               of
               the
               Lords
               ,
               the
               matter
               being
               first
               Civilly
               discussed
               before
               them
               .
            
             Upon
             which
             Act
             it
             is
             oftimes
             alledged
             before
             the
             Justices
             ,
             that
             the
             cause
             must
             be
             civilly
             discussed
             before
             the
             Session
             ,
             in
             all
             masterful
             reiffs
             ,
             before
             they
             can
             proceed
             to
             cognosc
             thereupon
             ;
             but
             notwithstanding
             of
             this
             the
             Justices
             do
             constantly
             sustain
             Criminal
             processes
             for
             Reiffs
             and
             Robberies
             ,
             without
             any
             previous
             civil
             precognition
             ;
             and
             they
             find
             this
             Act
             to
             be
             now
             in
             desuetude
             ,
             as
             in
             the
             case
             of
             Monimusk
             27.
             of
             November
             1611.
             
             And
             I
             think
             ,
             that
             by
             Lords
             ,
             in
             that
             act
             are
             not
             meaned
             the
             Lords
             of
             S●ssion
             ,
             for
             that
             Act
             is
             two
             Years
             prior
             to
             the
             institution
             of
             the
             Session
             ,
             but
             that
             by
             Lords
             ,
             there
             ,
             are
             meant
             the
             Justices
             themselves
             ,
             for
             there
             being
             no
             Session
             at
             that
             time
             ,
             the
             Justices
             were
             Judges
             competent
             to
             many
             Civil
             cases
             ,
             originally
             such
             as
             perambulations
             ,
             &c.
             and
             to
             all
             Civil
             cases
             ,
             if
             they
             had
             a
             necessary
             connexion
             with
             ,
             or
             dependance
             upon
             criminal
             cases
             .
             And
             therefore
             ,
             where
             the
             
             person
             who
             was
             alledged
             to
             have
             committed
             masterful
             reiffs
             ,
             or
             spuilzies
             ,
             could
             pretend
             that
             what
             he
             did
             was
             in
             prosecution
             of
             his
             own
             right
             .
             The
             Justices
             had
             a
             latitude
             to
             try
             the
             matter
             of
             right
             ,
             first
             Civilly
             ,
             but
             this
             was
             never
             necessary
             ,
             for
             it
             is
             by
             the
             Act
             left
             to
             the
             discretion
             of
             the
             Judge
             .
          
           
             It
             remains
             then
             ,
             to
             be
             considered
             ,
             how
             far
             the
             taking
             away
             by
             violence
             what
             is
             really
             a
             mans
             own
             ,
             can
             infer
             a
             guilt
             against
             him
             .
             Which
             difficulty
             may
             be
             cleared
             in
             these
             few
             conclusions
             ,
             1.
             
             That
             the
             thing
             violently
             possessed
             ,
             though
             by
             a
             common
             spuilzie
             ,
             and
             much
             more
             by
             a
             masterful
             reiff
             ,
             ought
             to
             be
             restored
             ,
             
               nam
               spoliatus
               est
               ante
               omnia
               restituendus
               ,
            
             and
             that
             though
             he
             who
             took
             away
             what
             was
             his
             own
             ,
             could
             instantly
             prove
             his
             right
             ;
             and
             since
             this
             holds
             ,
             where
             the
             violence
             was
             only
             committed
             by
             a
             simple
             Ryot
             ,
             it
             should
             by
             a
             stronger
             consequence
             hold
             ,
             where
             the
             thing
             was
             taken
             away
             by
             such
             violent
             means
             as
             amounted
             to
             a
             crime
             ,
             and
             so
             this
             should
             be
             no
             good
             defence
             ,
             either
             against
             a
             Criminal
             ,
             or
             Civil
             pursuit
             .
             2.
             
             Not
             only
             ought
             the
             thing
             to
             be
             restored
             ,
             but
             even
             the
             true
             Proprietar
             who
             intrometted
             with
             his
             own
             ,
             by
             open
             force
             &
             violence
             is
             punishable
             ,
             for
             the
             Law
             will
             not
             allow
             that
             any
             man
             should
             be
             Judge
             to
             himself
             ,
             but
             much
             lesse
             that
             he
             should
             use
             violence
             ,
             &
             force
             upon
             any
             accompt
             ,
             and
             this
             were
             to
             invade
             or
             assume
             Jurisdictions
             ,
             which
             is
             in
             it self
             a
             crime
             .
          
           
             The
             third
             conclusion
             is
             ,
             that
             if
             any
             man
             do
             by
             force
             or
             violence
             ,
             extort
             from
             another
             ,
             a
             writ
             ,
             or
             obligation
             ,
             which
             he
             could
             have
             obliedged
             him
             in
             Law
             to
             grant
             ,
             that
             force
             is
             not
             only
             punishable
             Criminally
             ,
             but
             the
             deed
             so
             extorted
             is
             reducable
             by
             a
             Civil
             pursuit
             :
             as
             was
             found
             in
             Ianuary
             1675.
             
             Though
             it
             was
             alledged
             there
             ,
             that
             such
             force
             might
             be
             Criminally
             punished
             ,
             yet
             the
             deed
             so
             granted
             could
             not
             be
             reduced
             ,
             since
             such
             deeds
             were
             only
             reduceable
             ,
             where
             something
             might
             be
             restored
             ,
             but
             here
             nothing
             was
             to
             be
             restored
             ;
             since
             the
             deposition
             alledged
             to
             be
             extorted
             by
             force
             ,
             depended
             upon
             a
             former
             minut
             ,
             by
             vertue
             whereof
             the
             granter
             could
             have
             
             been
             compelled
             to
             have
             granted
             the
             same
             ;
             and
             this
             was
             the
             same
             case
             ,
             as
             if
             a
             Creditor
             should
             compel
             his
             Debitor
             by
             force
             ,
             to
             pay
             him
             what
             was
             his
             own
             ,
             in
             which
             ,
             though
             the
             force
             be
             punishable
             ,
             yet
             the
             Debitor
             could
             not
             repeat
             what
             he
             had
             justly
             payed
             ,
             as
             is
             clear
             ,
             not
             only
             by
             common
             sense
             and
             reason
             ,
             but
             l.
             12.
             
               ff
               .
               quod
               met
               .
               caus
               .
               Iulianus
               ait
               eum
               qui
               vim
               adhibuit
               ut
               debitori
               suo
               ut
               ei
               solverit
               hoc
               edicto
               non
               teneri
               propter
               naturam
               actionis
               metus
               causa
               quae
               damnum
               exegit
               quamvis
               negari
               non
               possit
               in
               Iuliam
               eum
               de
               vi
               incidisse
               &
               jus
               crediti
               amisse
               .
            
             To
             which
             it
             was
             answered
             ,
             that
             there
             could
             be
             nothing
             more
             disadvantagious
             to
             the
             interest
             of
             the
             Common-wealth
             ,
             nor
             a
             greater
             usurpation
             against
             authority
             ,
             then
             that
             every
             man
             should
             be
             his
             own
             Judge
             ,
             and
             force
             the
             Executioner
             ;
             and
             the
             Law
             justly
             presumed
             ,
             that
             he
             had
             no
             legal
             right
             ,
             who
             would
             not
             pursue
             i●
             in
             a
             legal
             way
             ,
             and
             if
             this
             were
             allowed
             every
             man
             would
             discusse
             his
             own
             Suspension
             himself
             ,
             by
             forcing
             his
             Debitor
             to
             pass
             from
             it
             ,
             and
             would
             force
             the
             Heir
             of
             his
             Debitor
             ,
             to
             give
             him
             Bond
             ,
             or
             his
             Debitor
             himself
             ,
             to
             fulfil
             all
             minuts
             without
             any
             regal
             pursuits
             ;
             every
             Master
             would
             thus
             thrust
             out
             his
             Tennents
             ,
             and
             every
             Creditor
             force
             his
             Debitor
             to
             pay
             ,
             by
             carrying
             him
             away
             Prisoner
             ,
             and
             when
             he
             were
             that
             length
             he
             would
             alledge
             that
             
               nihil
               illi
               deest
            
             ,
             and
             as
             to
             the
             former
             Law
             ,
             it
             was
             answered
             ,
             that
             the
             Civil
             Law
             in
             detestation
             of
             force
             and
             violence
             ,
             did
             allow
             three
             several
             remedies
             to
             the
             person
             violented
             .
             
               viz.
               Edictum
               praetor
               is
               quod
               metus
               causa
               ,
               &c.
               
               Lex
               julia
            
             which
             punisheth
             the
             force
             as
             a
             Crime
             ,
             
               &
               decretum
               divi
               Marci
            
             ,
             all
             which
             three
             are
             expresly
             mentioned
             in
             that
             Title
             ,
             and
             though
             by
             the
             old
             edict
             ,
             and
             the
             
               Lex
               julia
            
             ,
             he
             who
             forced
             his
             debitor
             to
             pay
             what
             was
             justly
             due
             ,
             could
             not
             be
             by
             these
             remedies
             restored
             ,
             
               quia
               nihil
               decrat
               vim
               passo
            
             ,
             as
             the
             Law
             formerly
             cited
             does
             prove
             ;
             yet
             ,
             
               ex
               decreto
               divi
               Marci
            
             ,
             which
             was
             posterior
             to
             these
             remedies
             (
             as
             
               Marcus
               Antoninus
            
             was
             long
             posterior
             to
             
               Iulius
               Caesar
            
             )
             even
             he
             who
             took
             payment
             of
             his
             own
             ,
             could
             not
             defend
             himself
             by
             alledging
             upon
             
             his
             right
             :
             which
             excellent
             Law
             is
             set
             down
             ,
             l.
             13.
             
               ff
               .
               quod
               motus
               causa
               .
               Quisquis
               igitur
               probatus
               mihi
               fuerit
               rem
               ullam
               debitoris
               vel
               pecuniam
               debitam
               non
               ab
               ipso
               sibi
               sponte
               datam
               sine
               ullo
               judice
               tempore
               possidere
               ,
               vel
               accipisse
               ,
               isque
               sibi
               jus
               in
               eam
               rem
               dixisse
               ,
               jus
               crediti
               non
               habebit
               .
            
             And
             Faber
             upon
             that
             Law
             doth
             excellently
             conclude
             ,
             that
             this
             was
             a
             just
             supplement
             of
             the
             former
             Law
             :
             and
             Cujacius
             allows
             this
             remedy
             ,
             not
             only
             to
             the
             publick
             ,
             but
             even
             to
             the
             privat
             party
             ,
             for
             
               qui
               sibi
               jus
               dicit
               jus
               crediti
               non
               habebit
               ,
            
             which
             implyes
             an
             annulling
             of
             the
             deed
             ,
             
               quo
               ad
               privatum
               interesse
            
             .
             And
             Cujacius
             observes
             well
             that
             the
             party
             forced
             ,
             
               potest
               condicere
            
             ,
             and
             how
             can
             it
             be
             imagined
             ,
             that
             the
             Law
             would
             ordain
             the
             extorter
             to
             be
             punished
             ,
             and
             yet
             not
             restore
             that
             which
             was
             extorted
             ,
             the
             publicks
             interest
             resulting
             only
             from
             the
             privat
             injury
             done
             to
             the
             Party
             ,
             and
             as
             the
             Fisk
             uses
             not
             to
             pursue
             without
             an
             informer
             ,
             so
             the
             privat
             party
             injured
             ,
             would
             not
             inform
             ,
             nor
             concur
             ,
             since
             he
             could
             not
             expect
             any
             reparation
             ,
             and
             thus
             the
             Crime
             and
             injury
             would
             remain
             unpunished
             :
             But
             even
             according
             to
             the
             l.
             12.
             and
             14.
             so
             much
             founded
             on
             ,
             it
             is
             most
             clear
             ,
             that
             they
             were
             not
             in
             the
             case
             of
             these
             Lawes
             ,
             but
             on
             the
             contrary
             ,
             that
             even
             by
             these
             Lawes
             ,
             the
             foresaid
             principle
             is
             just
             ,
             since
             restitution
             is
             still
             to
             be
             granted
             ,
             
               ubi
               actori
               aliquid
               abest
               &
               ubi
               damnum
               intervenit
            
             ;
             but
             so
             it
             is
             ,
             that
             in
             this
             case
             the
             pursuer
             is
             extreamly
             prejudged
             by
             this
             disposition
             craved
             to
             be
             reduced
             ,
             
               ex
               capite
               metus
            
             ,
             since
             if
             it
             were
             reduced
             ,
             he
             would
             easily
             defend
             himself
             against
             the
             alledged
             minut
             ,
             upon
             many
             grounds
             then
             represented
             .
             It
             was
             also
             urged
             ,
             that
             though
             in
             the
             restitution
             of
             Minors
             ,
             the
             Law
             restores
             them
             only
             when
             they
             are
             Leas'd
             ,
             since
             that
             remedy
             is
             mainly
             introduced
             for
             their
             advantage
             ;
             yet
             in
             reductions
             ,
             
               ex
               capite
               metus
            
             ,
             the
             Law
             designs
             mainly
             ,
             that
             no
             man
             should
             have
             advantage
             by
             his
             own
             oppression
             ,
             nor
             no
             man
             be
             obliedged
             without
             his
             own
             consent
             ,
             and
             so
             it
             rescinds
             the
             deed
             ,
             though
             the
             party
             be
             not
             leas'd
             ,
             and
             the
             edict
             it self
             sayes
             ,
             
               quod
               metus
               causa
               gestum
               erit
               ratum
               non
               habebo
               ,
            
             without
             
             considering
             laesion
             ,
             
               &
               quod
               ratum
               non
               est
               ,
               irritandum
               est
               ,
            
             that
             is
             to
             say
             ,
             is
             reduceable
             .
             And
             whereas
             it
             was
             pretended
             ,
             that
             the
             former
             brocard
             ,
             
               Spoliatus
               est
               ante
               omnia
               restituendus
            
             ,
             did
             only
             hold
             where
             the
             thing
             was
             taken
             away
             ,
             
               vi
               ablativa
            
             ,
             because
             that
             could
             be
             easily
             proved
             ,
             but
             not
             in
             deeds
             extorted
             ,
             
               vi
               compulsiva
            
             ,
             which
             force
             depending
             upon
             inward
             Acts
             of
             the
             mind
             ,
             could
             not
             so
             easily
             be
             discovered
             ,
             and
             could
             be
             easily
             mistaken
             .
          
           
             To
             this
             it
             was
             answered
             ,
             that
             though
             those
             two
             differ
             in
             themselves
             ,
             yet
             either
             of
             them
             infer
             restitution
             ,
             as
             we
             see
             all
             alongs
             the
             Title
             ,
             
               quod
               metus
               causa
            
             ,
             and
             in
             the
             practice
             of
             our
             reductions
             ,
             
               ex
               capite
               metus
            
             .
             In
             both
             which
             ,
             deeds
             extorted
             ,
             
               vi
               compulsiva
            
             ,
             are
             reduceable
             ,
             and
             the
             persons
             injured
             restored
             against
             them
             ,
             and
             since
             
               vis
               compulsiva
            
             ,
             can
             infer
             more
             prejudice
             ,
             then
             
               vis
               ablativa
            
             ,
             since
             
               vis
               ablativa
            
             can
             only
             robb
             us
             of
             moveables
             ,
             whereas
             
               vis
               compulsiva
            
             ,
             can
             robb
             us
             of
             our
             estates
             ;
             it
             were
             strange
             that
             the
             Law
             should
             not
             assist
             the
             injured
             persons
             ,
             most
             where
             they
             may
             be
             most
             injured
             ;
             nor
             can
             it
             be
             denyed
             ,
             but
             that
             compulsion
             ,
             falls
             as
             much
             under
             sense
             ,
             and
             so
             can
             be
             as
             easily
             proved
             as
             a
             spuilzie
             can
             .
             For
             though
             it
             may
             be
             doubted
             whether
             some
             degrees
             of
             force
             ,
             should
             alwayes
             infer
             restitution
             ,
             yet
             the
             probation
             of
             these
             degrees
             ,
             if
             once
             admitted
             ,
             is
             alwayes
             easy
             .
          
           
             The
             Crimes
             answering
             in
             the
             Civil
             Law
             to
             oppression
             ,
             were
             
               vis
               publica
               ,
               vis
               privata
               ,
               &
               concussio
               .
            
             Those
             were
             punishable
             ,
             
               l.
               julia
               de
               vi
               publicae
            
             ,
             who
             raised
             Arms
             ,
             or
             did
             violently
             eject
             men
             out
             of
             their
             houses
             ,
             or
             lands
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             l.
             4.
             
             
               Basil.
               h.
               t.
            
             these
             who
             assisted
             the
             Oppressors
             with
             men
             ,
             are
             guilty
             thereof
             ,
             and
             the
             punishment
             was
             ,
             
               aquae
               &
               ignis
               interdictio
            
             .
             These
             were
             guilty
             of
             
               vis
               privata
            
             ,
             who
             oppressed
             upon
             a
             privat
             account
             ,
             and
             the
             punishment
             was
             the
             confiscation
             of
             the
             third
             part
             of
             their
             goods
             ,
             with
             infamy
             .
          
           
             Concussion
             was
             that
             Crime
             ,
             whereby
             money
             or
             any
             thing
             else
             was
             extorted
             by
             open
             force
             ,
             or
             who
             imployed
             their
             power
             
             and
             authority
             as
             the
             instrument
             of
             Oppression
             .
             I
             have
             seen
             processes
             and
             remissions
             relating
             to
             this
             crime
             with
             us
             ,
             and
             the
             punishment
             of
             it
             is
             arbitrary
             ,
             both
             by
             the
             Civil
             Law
             and
             ours
             .
          
           
             The
             taking
             of
             black-mail
             ,
             is
             a
             kind
             of
             Concussion
             in
             our
             Law
             ,
             and
             by
             black-mail
             is
             understood
             ,
             the
             paying
             of
             money
             ,
             or
             any
             gratuity
             to
             thieves
             ,
             for
             their
             protection
             ,
             and
             by
             our
             Law
             not
             only
             the
             takers
             but
             the
             payers
             of
             black-mail
             ,
             are
             punishable
             as
             thieves
             and
             Robbers
             ,
             by
             the
             21.
             
             
               Act
               Par.
            
             1.
             
             Ia.
             6.
             and
             dittay
             is
             ordained
             to
             be
             taken
             up
             against
             them
             ,
             Act
             102.
             
             Parl.
             11.
             
             Ia.
             6.
             and
             the
             reason
             why
             the
             givers
             are
             liable
             ,
             is
             because
             they
             maintain
             the
             Thieves
             ,
             and
             keep
             correspondance
             with
             them
             ,
             and
             do
             not
             dilate
             them
             .
             But
             yet
             except
             there
             be
             something
             of
             complyance
             ,
             or
             a
             long
             tract
             of
             payment
             libelled
             ,
             the
             Justices
             do
             not
             use
             to
             sustain
             payment
             of
             black-mail
             by
             it self
             ,
             as
             a
             crime
             to
             infer
             any
             severe
             punishment
             ,
             much
             lesse
             to
             infer
             the
             pains
             of
             Theft
             and
             Robbery
             ,
             conform
             to
             the
             fore●aid
             Acts
             ,
             that
             payment
             being
             ordinarly
             more
             the
             effect
             of
             fear
             ,
             then
             of
             complyance
             .
          
        
         
           
           
             TITLE
             XXXV
             .
             
               Art
               and
               Part
            
             ,
             Ope
             &
             Consilio
             .
          
           
             
               1.
               
               
                 These
                 words
                 ,
                 Art
                 and
                 Part
                 ,
                 explained
                 .
              
            
             
               2.
               
               
                 The
                 Act
                 of
                 Parliament
                 ,
                 ordaining
                 that
                 Libels
                 bearing
                 Art
                 and
                 Part
                 ,
                 shall
                 be
                 relevant
                 ,
                 fully
                 considered
                 .
              
            
             
               3.
               
               
                 How
                 far
                 advice
                 and
                 counsel
                 ,
                 do
                 import
                 accession
                 .
              
            
             
               4.
               
               
                 How
                 far
                 the
                 giving
                 order
                 to
                 commit
                 a
                 crime
                 ,
                 imports
                 accession
                 .
              
            
             
               5.
               
               
                 How
                 far
                 the
                 command
                 of
                 a
                 Superior
                 excuseth
                 .
              
            
             
               6.
               
               
                 How
                 far
                 the
                 command
                 of
                 a
                 Father
                 excuseth
                 .
              
            
             
               7.
               
               
                 Who
                 are
                 constructed
                 in
                 Law
                 to
                 be
                 assisters
                 .
              
            
             
               8.
               
               
                 How
                 a
                 Crime
                 may
                 be
                 ratified
                 ,
                 and
                 what
                 is
                 the
                 import
                 of
                 Ratification
                 .
              
            
             
               9.
               
               
                 Whether
                 accessories
                 can
                 be
                 pursued
                 ,
                 till
                 the
                 principal
                 actors
                 be
                 first
                 discussed
                 .
              
            
             
               10.
               
               
                 Whether
                 complices
                 and
                 accessories
                 are
                 to
                 be
                 punished
                 by
                 the
                 punishment
                 due
                 to
                 the
                 principal
                 Malefactor
                 .
              
            
          
           
             NOt
             only
             these
             who
             are
             the
             actual
             committers
             of
             crimes
             ,
             but
             these
             by
             whose
             counsel
             ,
             direction
             ,
             or
             assistance
             ,
             any
             crime
             is
             committed
             ,
             are
             likewise
             punishable
             ,
             else
             the
             Law
             might
             be
             easily
             eluded
             ,
             and
             the
             chief
             contrivers
             might
             escape
             .
          
           
             I.
             These
             who
             are
             assisters
             by
             counsel
             ,
             or
             otherwayes
             ,
             are
             in
             our
             Law
             said
             to
             be
             
               Art
               and
               Part
            
             of
             the
             crime
             ,
             by
             Art
             is
             meant
             
             that
             the
             crime
             was
             contrived
             by
             their
             art
             or
             skill
             ,
             
               eorum
               arte
            
             ;
             by
             part
             is
             meant
             ,
             that
             they
             were
             sharers
             in
             the
             crime
             committed
             ,
             when
             it
             was
             committed
             ,
             
               &
               quorum
               pars
               magna
            
             .
             The
             Civilians
             used
             in
             place
             of
             
               Art
               and
               part
               ,
               ope
               &
               consilio
               :
            
             and
             these
             who
             assisted
             ,
             and
             are
             art
             and
             part
             ,
             are
             by
             our
             Law
             called
             Complices
             ,
             which
             word
             is
             borrowed
             from
             the
             Doctors
             ,
             for
             the
             call
             
               Consiliarios
               fautores
               &
               instructores
               complices
               ,
               Carer
               .
               pract
               .
               crim
               .
               §
               .
               homicidium
               ,
               num
               .
            
             14.
             
          
           
             II.
             By
             the
             151.
             
             Act
             ,
             11.
             
             
               Parl.
               I.
            
             6.
             
             It
             it
             ordained
             ,
             that
             nothing
             can
             be
             objected
             against
             the
             relevancy
             of
             that
             part
             of
             the
             Summonds
             ,
             which
             bears
             ,
             that
             the
             persons
             complain'd
             upon
             ,
             are
             
               art
               and
               part
               of
               the
               crimes
            
             Libelled
             ;
             by
             the
             relevancy
             of
             the
             Libel
             ,
             our
             Law
             means
             that
             the
             Libel
             is
             
               rite
               libellatus
            
             .
             And
             I
             find
             the
             term
             relevant
             ,
             used
             by
             the
             Doctors
             themselves
             ,
             in
             the
             same
             sense
             that
             it
             is
             used
             by
             us
             :
             and
             thus
             
               Gail
               .
               l.
            
             1.
             obs
             .
             86.
             
               judex
               debet
               tantum
               admittere
               articulos
               relevantes
               .
            
          
           
             The
             reason
             of
             the
             former
             Act
             is
             there
             rendered
             to
             be
             ,
             because
             diverse
             exceptions
             were
             formerly
             propounded
             against
             the
             relevancy
             of
             the
             Summonds
             ,
             whereby
             parties
             were
             frustrat
             of
             justice
             ;
             and
             it
             appears
             by
             that
             Act
             ,
             that
             the
             pursuer
             was
             before
             the
             making
             of
             that
             Act
             ,
             oblieged
             to
             Libel
             ,
             that
             the
             defender
             was
             accessory
             to
             the
             committing
             ,
             and
             so
             guilty
             of
             the
             crime
             ,
             in
             swa
             far
             as
             ,
             &c.
             and
             so
             was
             forced
             to
             condescend
             upon
             the
             manner
             of
             the
             accession
             ,
             which
             seemed
             unjust
             to
             the
             Parliament
             ,
             because
             (
             as
             I
             conjecture
             )
             the
             accuser
             could
             not
             know
             all
             the
             accession
             ,
             before
             the
             examination
             of
             the
             witnesses
             ;
             for
             it
             is
             not
             lawful
             to
             witnesses
             ,
             
               prodere
               testimonium
            
             ,
             to
             declare
             what
             they
             will
             depon
             :
             and
             this
             made
             it
             impossible
             for
             the
             pursuer
             to
             condescend
             exactly
             ;
             whereas
             if
             he
             erred
             in
             exact
             Libelling
             ,
             the
             Pannel
             or
             defender
             was
             assoilzied
             ,
             because
             the
             probation
             did
             not
             quadrat
             with
             the
             Libel
             .
             As
             for
             instance
             ,
             if
             a
             person
             was
             accused
             for
             accession
             to
             the
             murder
             of
             one
             ,
             in
             swa
             far
             as
             he
             gave
             direction
             to
             
               A.
               B.
            
             to
             kill
             him
             ,
             possibly
             the
             defender
             was
             guilty
             of
             accession
             ,
             though
             not
             by
             giving
             direction
             ;
             
             yet
             by
             counselling
             
               A.
               B.
            
             or
             by
             directing
             P.
             or
             any
             other
             ,
             to
             commit
             murder
             .
             In
             these
             and
             the
             like
             cases
             ,
             the
             Pannel
             was
             guilty
             ,
             and
             yet
             could
             not
             be
             condemned
             ,
             because
             the
             Libel
             was
             not
             proved
             .
             Yet
             ,
             upon
             the
             other
             hand
             ,
             it
             seems
             hard
             ,
             that
             such
             a
             general
             Libel
             as
             this
             ,
             should
             be
             relevant
             ;
             since
             it
             were
             as
             reasonable
             to
             Libel
             in
             general
             ,
             that
             a
             person
             is
             guilty
             of
             murder
             ,
             which
             generality
             would
             not
             be
             allowed
             :
             Likeas
             ,
             the
             defender
             seems
             by
             this
             precluded
             of
             many
             defences
             ,
             which
             would
             be
             competent
             to
             him
             ,
             if
             the
             Libel
             were
             more
             special
             .
             And
             by
             the
             practice
             of
             other
             Nations
             ,
             the
             Libel
             must
             condescend
             specially
             upon
             the
             manner
             and
             nature
             of
             the
             accession
             :
             But
             that
             which
             seems
             to
             me
             most
             inconvenient
             ,
             is
             ,
             that
             the
             Assizers
             are
             Judges
             to
             the
             relevancy
             of
             the
             condescendency
             ,
             which
             infers
             art
             &
             part
             .
             Albeit
             many
             questions
             ,
             
               in
               jure
            
             ,
             are
             there
             started
             ,
             which
             are
             very
             intricat
             ,
             and
             which
             have
             troubled
             the
             greatest
             and
             most
             accurate
             Doctors
             ;
             for
             by
             our
             practique
             ,
             the
             pursuer
             ,
             who
             Libels
             art
             and
             part
             ,
             will
             not
             be
             oblieged
             to
             condescend
             how
             the
             defender
             is
             art
             and
             part
             ,
             or
             accessory
             to
             the
             Crime
             committed
             ,
             as
             was
             found
             in
             the
             pursuit
             at
             Sinclars
             instance
             ,
             against
             Captain
             Barclay
             :
             But
             the
             Libel
             being
             relevant
             ,
             when
             art
             and
             part
             is
             Libelled
             ,
             the
             defender
             must
             go
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             and
             probation
             is
             thereupon
             led
             ;
             in
             which
             many
             impertinent
             and
             irrelevant
             Interrogators
             are
             propounded
             ;
             whereas
             ,
             if
             the
             Justices
             were
             Judges
             to
             the
             relevancy
             ,
             no
             impertinent
             Interrogator
             would
             be
             allowed
             ,
             since
             nothing
             could
             be
             interrogated
             ,
             but
             what
             were
             found
             to
             depend
             necessarily
             upon
             the
             accession
             ,
             which
             was
             found
             relevant
             .
             As
             also
             ,
             after
             the
             probation
             is
             closed
             ,
             the
             Advocats
             upon
             both
             sides
             are
             forced
             to
             debate
             the
             relevancy
             of
             the
             probation
             ,
             and
             how
             far
             the
             accession
             is
             relevant
             ;
             and
             here
             Laws
             ,
             decisions
             ,
             and
             Doctors
             ,
             are
             alledg'd
             to
             Assizers
             ,
             who
             understand
             neither
             .
             As
             for
             instance
             ,
             if
             art
             and
             part
             of
             murder
             be
             Libelled
             ,
             probably
             the
             pursuer
             will
             interrogat
             if
             the
             witnesses
             heard
             the
             defender
             say
             ,
             
               that
               it
               were
               no
               fault
               though
               the
               person
               who
               is
               killed
               were
               
               stab'd
               ,
            
             or
             approve
             the
             murder
             ,
             after
             it
             was
             committed
             ;
             upon
             which
             much
             debate
             might
             arise
             ,
             for
             the
             defenders
             Procurators
             would
             contend
             that
             the
             Article
             was
             not
             relevant
             :
             And
             though
             the
             Justices
             did
             allow
             ,
             or
             the
             Assizers
             did
             desire
             ,
             that
             the
             witnesses
             should
             answer
             to
             these
             Interrogators
             ,
             as
             they
             usually
             allow
             all
             Interrogators
             ,
             reserving
             the
             relevancy
             to
             be
             debated
             after
             probation
             is
             concluded
             ;
             then
             a
             learned
             debate
             would
             ensue
             before
             the
             Assizers
             ,
             after
             closing
             of
             the
             probation
             ,
             upon
             these
             points
             :
             So
             that
             the
             Assizers
             are
             against
             the
             intention
             even
             of
             our
             Law
             ,
             Judges
             to
             the
             relevancy
             ,
             and
             to
             the
             points
             of
             Law
             ;
             by
             whose
             ignorance
             also
             the
             Liedges
             are
             oft-times
             much
             prejudged
             .
             But
             when
             the
             pursuer
             designs
             to
             have
             the
             relevancy
             of
             his
             condescendency
             judged
             by
             the
             Justices
             ,
             he
             uses
             to
             Libel
             ,
             that
             the
             defenders
             are
             art
             and
             part
             of
             the
             Crime
             Libelled
             ,
             in
             so
             far
             as
             they
             gave
             order
             ,
             or
             advised
             the
             committing
             of
             it
             ,
             
               &c.
               quo
               casu
            
             ,
             the
             relevancy
             of
             art
             and
             part
             being
             specially
             condescended
             upon
             ,
             is
             decided
             by
             the
             Justices
             ,
             who
             are
             Judges
             to
             all
             that
             is
             in
             the
             Libel
             .
          
           
             Though
             it
             be
             sufficient
             to
             Libel
             generally
             ,
             that
             the
             complices
             are
             art
             and
             part
             ,
             yet
             the
             Libel
             must
             bear
             expresly
             who
             are
             complices
             ;
             for
             it
             is
             not
             sufficient
             to
             Libel
             who
             are
             complices
             generally
             ,
             but
             their
             names
             and
             designations
             must
             be
             specified
             ,
             
               K.
               Ia.
            
             6.
             
             Parl.
             6.
             
             Act
             76.
             
          
           
             Because
             the
             Assizers
             are
             Judges
             to
             the
             relevancy
             of
             Art
             and
             part
             ,
             and
             that
             the
             debates
             made
             to
             the
             Assize
             are
             not
             upon
             record
             ,
             being
             only
             delivered
             ,
             
               viva
               voce
            
             ,
             therefore
             it
             is
             that
             there
             are
             but
             few
             decisions
             here
             adduced
             for
             clearing
             the
             relevancy
             of
             this
             part
             of
             the
             dittay
             .
          
           
             To
             the
             end
             that
             all
             the
             Leidges
             who
             may
             be
             assizers
             ,
             may
             understand
             what
             accession
             is
             relevant
             to
             infer
             a
             guilt
             ,
             they
             will
             be
             pleased
             to
             understand
             ,
             that
             one
             may
             be
             art
             and
             part
             by
             deeds
             preceeding
             the
             crime
             ,
             either
             by
             counsel
             or
             command
             ,
             
               consilio
               aut
               mandato
            
             ,
             by
             deeds
             concomitating
             the
             Crime
             ,
             as
             by
             help
             ,
             or
             by
             countenancing
             ,
             
               ope
               &
               assistentia
            
             ,
             or
             by
             deeds
             subsequent
             to
             
             the
             committing
             of
             the
             crime
             ,
             as
             by
             ratihabiting
             or
             recepting
             ,
             all
             which
             I
             shall
             treat
             separatly
             .
          
           
             III.
             How
             far
             the
             advising
             ,
             and
             counselling
             a
             man
             to
             commit
             a
             crime
             ,
             is
             punishable
             as
             an
             accession
             ,
             and
             art
             and
             part
             of
             that
             crime
             ,
             is
             thus
             resolved
             by
             the
             Doctors
             ;
             if
             (
             say
             they
             )
             the
             committer
             of
             the
             crime
             ,
             would
             have
             committed
             it
             however
             ,
             and
             though
             he
             had
             not
             been
             advised
             thereto
             ,
             then
             the
             adviser
             is
             not
             liable
             ,
             so
             as
             to
             suffer
             the
             same
             punishment
             with
             the
             committer
             ,
             but
             it
             is
             to
             be
             less
             severely
             punished
             :
             whereas
             ,
             if
             the
             committer
             of
             the
             crime
             would
             not
             have
             committed
             ,
             and
             perpetrate
             the
             crime
             ,
             if
             he
             had
             not
             received
             that
             advice
             ,
             then
             the
             adviser
             and
             committer
             are
             equally
             to
             be
             punished
             ,
             
               Clar.
               quest
            
             .
             89.
             
             But
             I
             am
             not
             satisfied
             with
             this
             opinion
             ,
             for
             since
             the
             adviser
             did
             all
             that
             in
             him
             lay
             ,
             to
             have
             the
             crime
             committed
             ,
             and
             that
             the
             effect
             followed
             ,
             he
             is
             surely
             as
             guilty
             ,
             as
             if
             he
             had
             committed
             it
             ;
             seing
             in
             crimes
             we
             look
             to
             the
             design
             ,
             and
             not
             to
             the
             event
             ,
             
               in
               maleficiis
               spectatur
               voluntas
               non
               exitus
               &
               maleficia
               propositum
               distingut
               ,
            
             at
             least
             the
             adviser
             is
             equally
             guilty
             ,
             whether
             it
             had
             been
             committed
             ,
             with
             ,
             or
             without
             his
             advice
             ,
             even
             as
             he
             had
             been
             guilty
             ,
             in
             case
             of
             assistance
             ,
             though
             the
             crime
             would
             have
             been
             committed
             without
             his
             assistance
             ;
             nor
             is
             guilt
             spared
             by
             lessening
             :
             And
             it
             is
             impossible
             to
             know
             whether
             the
             committer
             would
             have
             committed
             it
             ,
             without
             the
             advice
             and
             counsel
             given
             .
             Other
             Doctors
             are
             of
             opinion
             ,
             that
             in
             atrocious
             crimes
             ,
             the
             adviser
             and
             committer
             are
             equally
             punishable
             ,
             which
             certainly
             holds
             in
             Treason
             ;
             but
             that
             in
             lesser
             crimes
             ,
             the
             adviser
             is
             to
             be
             lesse
             severely
             punished
             then
             the
             actor
             :
             and
             this
             distinction
             I
             like
             better
             ,
             and
             is
             more
             consonant
             to
             our
             Practique
             .
             In
             our
             Law
             advice
             and
             counsel
             comes
             under
             art
             ,
             for
             advice
             is
             a
             species
             of
             contrivance
             and
             art
             ;
             and
             therefore
             advisers
             may
             appear
             in
             our
             Law
             to
             be
             punishable
             ,
             as
             the
             principal
             offenders
             ,
             seing
             art
             and
             part
             is
             punishable
             ,
             as
             the
             principal
             Crime
             with
             us
             ;
             yet
             the
             Council
             uses
             to
             mitigat
             the
             punishment
             ,
             
             where
             the
             crime
             is
             not
             atrocius
             :
             And
             the
             Judge
             should
             here
             consider
             ,
             whether
             the
             adviser
             gave
             the
             counsel
             ,
             upon
             the
             account
             of
             former
             malice
             ,
             conceived
             by
             himself
             :
             or
             if
             it
             was
             only
             given
             in
             resentment
             of
             any
             wrong
             done
             to
             the
             committer
             ,
             and
             he
             is
             to
             be
             more
             severely
             punished
             in
             the
             first
             case
             ,
             then
             in
             the
             last
             .
             2.
             
             In
             the
             case
             or
             advice
             ,
             the
             advisers
             age
             is
             much
             to
             be
             considered
             ;
             for
             though
             Minors
             ,
             and
             these
             who
             are
             drunk
             ,
             may
             be
             punished
             for
             Murder
             ,
             yet
             it
             were
             hard
             to
             punish
             them
             for
             advice
             .
             3.
             
             The
             words
             in
             which
             the
             advice
             were
             conceived
             ,
             should
             still
             be
             interpret
             most
             favourable
             for
             the
             adviser
             ,
             for
             words
             are
             capable
             of
             several
             ,
             and
             distinct
             senses
             ,
             accordingly
             as
             they
             are
             understood
             by
             the
             speaker
             ;
             and
             words
             do
             vary
             by
             the
             accent
             ,
             or
             punctation
             .
             4.
             
             If
             the
             adviser
             retreated
             his
             opinion
             ,
             he
             ought
             not
             to
             be
             punisht
             ,
             if
             he
             thereafter
             disswaded
             the
             committer
             :
             but
             some
             require
             ,
             that
             
               eo
               casu
            
             ,
             he
             do
             intimat
             to
             the
             person
             ,
             against
             whom
             the
             advice
             was
             given
             ,
             what
             danger
             he
             is
             in
             ,
             for
             else
             the
             advice
             once
             given
             ,
             may
             occasion
             the
             Murder
             ,
             though
             thereafter
             disowned
             .
          
           
             IV.
             He
             who
             gives
             order
             to
             commit
             a
             Crime
             ,
             is
             in
             our
             Law
             ,
             art
             and
             part
             of
             the
             Crime
             committed
             ,
             as
             was
             found
             in
             
               Iohn
               Mackintoshes
            
             case
             ,
             the
             11.
             of
             May
             1673.
             
             And
             is
             in
             the
             Civil
             Law
             punishable
             ,
             in
             the
             same
             way
             and
             manner
             ,
             with
             the
             Principal
             Party
             ,
             whether
             that
             Principal
             ,
             or
             chief
             Committer
             ,
             would
             have
             committed
             the
             Crime
             or
             not
             ,
             without
             that
             
               mandat
               ,
               nam
               quando
               mandatum
               cadit
               in
               delictum
               non
               queritur
               an
               mandatorius
               perse
               commississet
               Gomes
               .
               in
               §
               .
               penales
               just
               .
               de
               actionibus
               .
            
             And
             seing
             this
             distinction
             holds
             not
             ,
             
               in
               mandato
            
             ,
             I
             see
             no
             reason
             why
             it
             should
             hold
             ,
             
               in
               confilio
            
             .
          
           
             Not
             only
             if
             one
             give
             order
             to
             commit
             the
             Crime
             ,
             is
             he
             liable
             as
             art
             and
             part
             ,
             but
             if
             he
             give
             order
             to
             do
             that
             which
             which
             is
             inseparably
             joined
             to
             the
             commission
             of
             it
             ;
             and
             even
             if
             he
             give
             order
             to
             do
             that
             ,
             which
             being
             unlawful
             in
             it
             
             self
             ,
             may
             produce
             the
             crime
             ;
             and
             thus
             ,
             if
             one
             give
             order
             to
             wound
             a
             man
             ,
             it
             is
             thought
             ,
             that
             if
             the
             person
             die
             of
             the
             wounds
             he
             receives
             ,
             the
             giver
             of
             the
             mandat
             is
             guilty
             of
             the
             Murder
             ,
             except
             the
             order
             be
             restricted
             to
             wound
             with
             a
             Stone
             ,
             Club
             ,
             or
             some
             such
             Weapon
             ,
             as
             is
             not
             mortal
             ;
             for
             in
             that
             case
             ,
             the
             committer
             is
             only
             punishable
             ,
             
               paena
               extraordinaria
            
             ,
             and
             by
             an
             arbitrary
             punishment
             ,
             not
             reaching
             death
             ,
             
               Clar.
               quest
            
             .
             89.
             num
             .
             5.
             
          
           
             What
             words
             will
             infer
             a
             command
             ,
             cannot
             be
             determined
             ;
             but
             it
             was
             found
             in
             Mackintoshes
             case
             ,
             that
             his
             desire
             to
             bring
             Druchdarg
             ,
             who
             was
             killed
             ,
             dead
             or
             alive
             ,
             did
             not
             infer
             his
             being
             art
             or
             part
             of
             the
             Murder
             ;
             for
             he
             having
             a
             Caption
             against
             Druchdarg
             ,
             he
             might
             desire
             the
             Messenger
             ,
             or
             his
             sons
             to
             pursue
             him
             ,
             if
             he
             resisted
             the
             Caption
             .
             And
             yet
             if
             the
             words
             can
             import
             properly
             no
             other
             sense
             ,
             then
             such
             as
             would
             infer
             a
             crime
             ,
             the
             speaking
             of
             them
             will
             infer
             art
             and
             part
             ▪
             and
             thus
             Fraze●
             of
             Culhockie
             ,
             being
             pursued
             on
             the
             9.
             of
             Iuly
             1675.
             for
             deforcing
             a
             Messenger
             ,
             he
             was
             found
             guilty
             ,
             because
             it
             was
             proved
             ,
             that
             after
             he
             was
             apprehended
             by
             the
             Messenger
             ▪
             he
             cryed
             to
             his
             natural
             Son
             to
             come
             up
             and
             help
             him
             ,
             and
             to
             give
             these
             men
             their
             reward
             ;
             whereupon
             his
             natural
             Son
             did
             invade
             the
             Messenger
             ,
             and
             he
             thereupon
             escaped
             .
             And
             in
             general
             ,
             I
             think
             words
             should
             be
             very
             clear
             ,
             and
             spoke
             too
             by
             a
             person
             ,
             who
             hath
             previous
             malice
             ,
             else
             they
             ought
             not
             to
             infer
             death
             ,
             for
             words
             are
             oft
             spoke
             in
             jest
             ,
             as
             when
             one
             of
             our
             Kings
             desired
             those
             of
             Caithness
             ,
             to
             go
             and
             sup
             their
             Bishop
             in
             Broth.
             
          
           
             It
             is
             determined
             also
             by
             the
             Doctors
             ,
             that
             if
             the
             giver
             of
             the
             mandat
             refer
             the
             committing
             of
             the
             crime
             to
             a
             third
             person
             ,
             and
             he
             to
             a
             fourth
             ;
             if
             the
             crime
             be
             committed
             by
             the
             third
             or
             fourth
             ,
             that
             all
             of
             them
             are
             punishable
             ,
             with
             the
             same
             punishment
             
               Bald.
               in
               l.
            
             1.
             
             §
             .
             
               nec
               autem
               ,
               C.
               de
               cad●●
               .
               tollend
               .
            
             but
             seems
             hard
             ,
             seing
             the
             person
             was
             not
             killed
             ,
             in
             that
             case
             ,
             by
             the
             order
             of
             the
             first
             committer
             ,
             and
             possibly
             the
             discretion
             
             of
             the
             person
             ,
             to
             whom
             the
             first
             mandat
             was
             given
             ,
             was
             considered
             to
             be
             such
             ,
             that
             he
             would
             not
             excuse
             the
             mandat
             ;
             and
             many
             cases
             may
             fall
             out
             ,
             whereby
             it
             might
             have
             been
             ,
             that
             the
             giver
             of
             the
             mandat
             ,
             would
             not
             have
             given
             the
             mandat
             to
             any
             other
             ,
             and
             therefore
             ,
             
               Capoll
               .
               Gautela
            
             .
             39.
             
             
               &
               Menoch
               .
               de
               arb
               .
               caesu
               .
            
             353.
             are
             of
             opinion
             ,
             that
             if
             the
             Murder
             was
             committed
             by
             any
             other
             then
             him
             ,
             to
             whom
             the
             commission
             was
             granted
             ,
             that
             the
             giver
             of
             the
             mandat
             is
             not
             liable
             in
             that
             case
             ,
             and
             generally
             they
             conclude
             ,
             that
             if
             the
             receiver
             of
             the
             mandat
             ,
             did
             exceed
             his
             mandat
             any
             manner
             of
             way
             ,
             that
             then
             ,
             if
             the
             crime
             which
             was
             order'd
             to
             be
             committed
             ,
             was
             a
             mean
             and
             small
             crime
             ,
             the
             giver
             of
             the
             mandat
             is
             no
             way
             to
             be
             punisht
             :
             but
             if
             the
             crime
             was
             atrocious
             ,
             then
             the
             giver
             of
             the
             warrand
             is
             to
             be
             punished
             ,
             
               paena
               extraordinaria
            
             ,
             by
             an
             extraordinary
             punishment
             ,
             for
             he
             who
             gives
             order
             to
             commit
             as
             atrocious
             crime
             ,
             incurrs
             a
             punishable
             guilt
             ,
             in
             the
             very
             giving
             of
             the
             order
             ,
             
               Menoch
               .
               ibid.
               num
            
             .
             9.
             
             They
             likewise
             determine
             from
             this
             reason
             ,
             that
             the
             commanding
             to
             kill
             A.
             ●
             he
             be
             not
             killed
             ,
             but
             B.
             be
             killed
             ,
             is
             punishable
             by
             an
             extraordinary
             punishment
             :
             the
             like
             also
             holds
             ,
             if
             the
             command
             〈◊〉
             mandat
             did
             bear
             to
             commit
             the
             crime
             in
             one
             Moneth
             ,
             and
             〈◊〉
             was
             not
             committed
             in
             that
             Moneth
             ,
             but
             many
             other
             ,
             
               Menoch
               .
               ibid.
               num
            
             .
             21.
             
             Though
             mandats
             in
             civil
             cases
             are
             only
             probable
             ,
             
               scripto
               vel
               juramento
            
             ,
             yet
             in
             crimes
             they
             are
             probable
             by
             witnesses
             ,
             as
             all
             crimes
             ,
             and
             art
             and
             part
             are
             .
          
           
             V.
             How
             far
             the
             mandat
             ,
             warrand
             ,
             or
             command
             of
             our
             Superiours
             excuses
             ,
             is
             variously
             debated
             by
             the
             Doctors
             ;
             But
             their
             dictates
             may
             be
             resolved
             in
             these
             conclusions
             ,
             1.
             
             The
             commands
             of
             the
             Prince
             excuses
             altogether
             in
             lesser
             crimes
             ;
             but
             in
             atrocious
             crimes
             ,
             it
             excuses
             only
             from
             the
             ordinary
             punishment
             ,
             
               metus
               paenam
               attenuat
               .
               non
               in
               totum
               tollit
               ,
            
             for
             the
             committer
             in
             this
             case
             doth
             not
             commit
             the
             crime
             ,
             
               dolo
               malo
               &
               quicitra
               dolum
               deliquit
               ordinaria
               paena
               non
               punitur
               &
               illi
               qui
               
               aliquid
               adversus
               suam
               voluntatem
               agit
               crimem
               non
               adscribitur
               sed
               cogenti
               ,
               cap.
            
             1
             ,
             2.
             
               &
               cap.
            
             32.
             quest
             .
             5.
             
             The
             command
             of
             the
             Magistrat
             ,
             acting
             as
             a
             Magistrat
             ,
             or
             a
             publick
             Person
             ,
             excuses
             or
             defends
             the
             committer
             ,
             from
             the
             ordinary
             punishment
             ,
             in
             atrocious
             crimes
             ,
             and
             from
             all
             punishment
             in
             lesser
             crimes
             ,
             
               l.
               quanquam
               &
               l.
               quod
               principis
               ff
               .
               de
               aqua
               pluv
               .
               arcend
               .
            
             A
             mandat
             given
             by
             a
             Master
             to
             his
             Servant
             ,
             excuses
             him
             from
             the
             ordinary
             punishment
             ,
             when
             the
             crime
             is
             atrocious
             ,
             and
             the
             Master
             is
             known
             to
             be
             cruel
             .
             And
             thus
             I
             have
             seen
             the
             servants
             of
             one
             who
             was
             hanged
             for
             Robbery
             banished
             only
             ,
             because
             they
             knew
             not
             that
             their
             Master
             was
             a
             Robber
             ,
             and
             that
             was
             the
             first
             act
             ;
             whereas
             if
             these
             had
             continued
             in
             his
             service
             thereafter
             ,
             they
             had
             been
             hang'd
             ,
             notwithstanding
             of
             both
             his
             command
             ,
             and
             known
             severity
             ,
             seing
             how
             soon
             they
             knew
             him
             to
             be
             a
             Robber
             ,
             they
             should
             have
             deserted
             his
             service
             ;
             and
             by
             the
             19.
             
               chap.
               num
            
             .
             9.
             
               stat
               .
               Will.
            
             the
             Servant
             is
             punishable
             though
             he
             obey
             his
             Master
             ,
             if
             he
             do
             not
             desert
             his
             Master
             ,
             or
             desert
             his
             service
             .
             In
             lesser
             crimes
             the
             command
             of
             the
             Master
             excuseth
             altogether
             ,
             
               l.
               liber
               homo
               ,
               ff
               .
               ad
               l.
               aquil
               .
            
          
           
             VI.
             The
             command
             also
             of
             a
             Rather
             excuseth
             the
             Son
             ,
             in
             lesser
             ,
             but
             not
             in
             atrotious
             crimes
             ,
             except
             other
             favourable
             circumstances
             concurr
             ;
             and
             thus
             
               Iohn
               Rae
            
             was
             not
             put
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             because
             he
             was
             young
             ,
             and
             had
             concurred
             in
             the
             Theft
             ,
             at
             the
             command
             of
             his
             Father
             ,
             1.
             
             Ianuary
             1662.
             
             All
             which
             is
             most
             fully
             treated
             by
             
               Menoch
               ,
               de
               arbitr
               .
               Cas.
            
             353.
             
             And
             I
             find
             in
             our
             Law
             ,
             that
             a
             wife
             is
             liable
             to
             the
             ordinary
             punishment
             ,
             though
             she
             obey
             her
             husband
             ,
             in
             committing
             atrocious
             crimes
             ,
             
               Stat.
               Will.
               cap.
            
             19.
             num
             .
             8.
             
             From
             which
             I
             conclude
             ,
             that
             by
             the
             same
             Statute
             ,
             she
             had
             not
             been
             liable
             in
             lesser
             crimes
             .
          
           
             VII
             .
             The
             assister
             is
             art
             and
             part
             of
             the
             Crime
             by
             our
             Law
             ;
             and
             assistance
             by
             the
             Civil
             Law
             ,
             and
             Doctors
             is
             variously
             
             punished
             ,
             for
             these
             who
             give
             assistance
             before
             the
             crime
             be
             committed
             ,
             are
             punishable
             in
             the
             same
             manner
             with
             the
             committer
             ,
             
               l.
               nihil
               ff
               .
               ad
               .
               leg
               .
               Cor.
               de
               siccar
               nihil
               interest
               occidat
               quis
               an
               causam
               mortis
               praebeat
               ,
            
             but
             this
             conclusion
             holds
             ,
             only
             where
             the
             assister
             knew
             not
             ,
             that
             the
             assistance
             he
             gave
             ,
             tended
             to
             the
             commission
             of
             the
             crime
             ;
             which
             knowledge
             is
             not
             presumed
             ,
             but
             must
             be
             proved
             :
             This
             conclusion
             also
             holds
             ,
             only
             where
             the
             assistance
             did
             influence
             the
             crime
             immediatly
             ,
             but
             not
             in
             remote
             assistances
             ,
             such
             as
             the
             lending
             of
             Armes
             ,
             for
             remote
             assistance
             is
             only
             punishable
             
               paena
               extraordinaria
               Menoch
               .
               de
               arbitr
               .
               cas
               .
            
             349.
             
          
           
             Assistance
             given
             during
             the
             Commission
             of
             the
             crime
             is
             also
             punishable
             in
             the
             same
             manner
             as
             the
             principal
             crime
             ,
             except
             the
             assistance
             given
             be
             very
             remote
             ,
             or
             that
             the
             assister
             was
             ignorant
             ,
             as
             if
             one
             should
             assist
             a
             person
             to
             drive
             away
             Cattel
             ,
             which
             the
             driver
             said
             to
             be
             his
             own
             Cattel
             .
          
           
             It
             is
             here
             resolved
             by
             the
             Doctors
             ,
             that
             he
             who
             was
             in
             Arms
             upon
             the
             place
             where
             the
             crime
             was
             committed
             ,
             is
             repute
             an
             assister
             ,
             if
             he
             stood
             very
             near
             the
             place
             ,
             and
             was
             a
             known
             Enemy
             to
             the
             person
             killed
             ,
             or
             a
             known
             Friend
             to
             the
             Committer
             ,
             and
             had
             no
             business
             else
             in
             that
             place
             ,
             at
             that
             time
             ;
             or
             if
             the
             invader
             wax'd
             bolder
             ,
             or
             the
             person
             invaded
             weaker
             by
             their
             presence
             :
             But
             if
             these
             or
             such
             like
             circumstances
             concur
             not
             ,
             a
             meer
             by
             stander
             is
             not
             art
             and
             part
             .
             And
             I
             remember
             ,
             that
             it
             was
             decided
             in
             the
             case
             of
             
               Iohn
               Mackintosh
            
             ,
             that
             naked
             presence
             was
             not
             accession
             ,
             
               si
               navabat
               operam
               rei
               licitae
            
             ,
             as
             the
             assisting
             a
             Messenger
             ;
             and
             in
             the
             case
             of
             a
             Baxter
             ,
             who
             was
             pursued
             for
             the
             tumult
             ,
             in
             Anno
             1666.
             at
             which
             time
             ,
             
               nuda
               assistentia
            
             ,
             was
             not
             found
             punishable
             .
             And
             it
             is
             so
             ordinary
             for
             people
             to
             run
             together
             ,
             where
             noise
             or
             confusion
             is
             ,
             and
             the
             assistance
             is
             ofttimes
             too
             advantagious
             ,
             either
             to
             relieve
             the
             weaker
             ,
             or
             to
             seperat
             and
             red
             ,
             as
             we
             say
             ,
             both
             parties
             ;
             that
             if
             were
             unfit
             ,
             I
             as
             well
             as
             unjust
             ,
             to
             punish
             meer
             by-standers
             :
             but
             this
             depends
             upon
             many
             circumstances
             ,
             
               &
               
               est
               quastio
               arbitria
               addit
               ,
               ad
               Cl.
               quest
            
             90.
             num
             .
             17.
             yet
             I
             would
             advise
             the
             redder
             ,
             or
             assister
             ,
             to
             cry
             ,
             that
             he
             intends
             to
             do
             no
             prejudice
             to
             either
             party
             ,
             or
             not
             to
             interest
             himself
             ,
             except
             he
             be
             known
             to
             be
             very
             neutral
             .
          
           
             These
             who
             kept
             the
             cloaths
             or
             baggage
             of
             the
             committers
             ,
             are
             guilty
             of
             assistance
             ,
             
               Ioh.
               de
               Annan
            
             ,
             as
             are
             these
             also
             who
             hindered
             others
             to
             rescue
             the
             persons
             invaded
             .
          
           
             Assistance
             given
             after
             the
             Crime
             is
             committed
             ,
             scarce
             deserves
             the
             name
             of
             assistance
             ,
             as
             Bartol
             .
             observes
             ,
             
               ad
               l.
            
             3.
             
             §
             .
             51.
             
               quisquam
               ff
               .
               ad
               Sillan
            
             .
             And
             therefore
             the
             Laws
             of
             Millan
             do
             only
             inflict
             a
             pecuniary
             mulct
             in
             this
             case
             ,
             as
             Menoch
             observes
             ,
             cas
             .
             349.
             
             And
             I
             have
             seen
             the
             Council
             inflict
             only
             an
             arbitrary
             punishment
             upon
             him
             who
             assisted
             to
             make
             the
             escape
             of
             a
             person
             who
             had
             recently
             committed
             a
             murder
             .
             But
             in
             general
             ,
             I
             approve
             
             Bartol's
             Doctrine
             ,
             who
             thinks
             ,
             that
             whether
             the
             help
             and
             assistance
             was
             given
             before
             the
             committing
             ,
             at
             the
             time
             of
             the
             commission
             ,
             or
             after
             it
             ,
             yet
             the
             assister
             is
             punishable
             as
             the
             chief
             actor
             ,
             if
             the
             commission
             of
             the
             Crime
             was
             resolved
             upon
             by
             both
             at
             the
             beginning
             ,
             and
             before
             the
             Crime
             was
             committed
             ,
             
               &
               ita
               spes
               data
               auxilii
               ad
               evadendum
               dicitur
               auxilium
               ad
               maleficium
               committendum
               ,
               Bartol
               .
               ad
               l.
               furti
               .
               ff
               .
               de
               furto
               ,
            
             else
             the
             Crime
             is
             not
             punishable
             in
             him
             who
             assisted
             only
             after
             it
             was
             committed
             ,
             as
             severely
             as
             in
             the
             chief
             actor
             .
             But
             the
             Doctors
             do
             not
             distinguish
             here
             ,
             whether
             the
             Crime
             would
             have
             been
             committed
             by
             the
             principal
             party
             ,
             though
             the
             assisters
             had
             denyed
             their
             help
             ;
             yet
             does
             this
             lessen
             the
             assisters
             guilt
             ,
             though
             it
             does
             not
             distinguish
             it
             ,
             
               Clar.
               quest
            
             .
             90.
             num
             .
             7.
             and
             so
             lessens
             the
             punishment
             in
             many
             cases
             .
          
           
             VIII
             .
             The
             ratifying
             a
             Crime
             is
             not
             punishable
             ,
             according
             to
             the
             Doctors
             ,
             in
             Crimes
             which
             are
             chiefly
             committed
             to
             satisfie
             the
             lust
             of
             the
             offender
             ,
             as
             if
             one
             should
             ratifie
             the
             Adultery
             committed
             by
             another
             ,
             meerly
             to
             affront
             the
             Husband
             ,
             
               quo
               casu
            
             ,
             the
             Doctors
             think
             ,
             that
             the
             ratifier
             may
             be
             punished
             arbitrarly
             ;
             but
             the
             ratifying
             Crimes
             which
             are
             chiefly
             committed
             
             to
             offend
             others
             ,
             as
             Murder
             ,
             Theft
             ,
             &c.
             is
             punishable
             ,
             if
             the
             Crime
             was
             committed
             by
             the
             actor
             ,
             in
             the
             name
             of
             the
             ratifier
             ,
             and
             if
             the
             ratifier
             knew
             it
             was
             committed
             in
             his
             name
             ,
             when
             he
             did
             ratifie
             it
             ;
             but
             except
             these
             two
             concur
             ,
             Lawyers
             think
             that
             the
             ratifier
             is
             not
             punishable
             :
             and
             yet
             in
             the
             general
             ,
             the
             approving
             or
             owning
             Crimes
             ,
             seems
             to
             be
             of
             ill
             example
             and
             therefore
             punishable
             in
             some
             degree
             ,
             by
             the
             example
             of
             that
             excellent
             Law
             ,
             
               l.
               si
               quis
               ,
               §
               .
               qui
               Abortionis
               ,
               ff
               .
               de
               paenis
               .
            
          
           
             By
             our
             custome
             ,
             ratification
             ,
             or
             ratihabition
             of
             a
             Crime
             ,
             as
             we
             call
             it
             ,
             falls
             not
             properly
             under
             art
             and
             part
             ,
             no
             more
             then
             under
             the
             general
             word
             auxilium
             ,
             except
             the
             ratifier
             had
             done
             some
             deed
             ,
             or
             been
             in
             some
             accession
             to
             what
             was
             done
             before
             the
             Crime
             was
             committed
             ,
             as
             was
             found
             in
             Mackintoshes
             case
             ,
             11.
             
             Iune
             1673.
             
             For
             it
             were
             hard
             to
             infer
             a
             Crime
             from
             any
             words
             approving
             the
             deed
             ,
             it
             being
             most
             ordinar
             for
             men
             to
             say
             
               it
               was
               well
               bestowed
               ,
               or
               I
               am
               glad
               ,
            
             when
             they
             heat
             of
             the
             murder
             of
             him
             whom
             they
             would
             not
             have
             killed
             ,
             as
             Bart.
             observes
             ;
             and
             therefore
             it
             seems
             not
             to
             be
             punishable
             by
             our
             Law
             ,
             which
             punishes
             only
             either
             the
             Crime
             it self
             ,
             or
             these
             who
             are
             art
             and
             part
             .
             And
             I
             remember
             ,
             that
             when
             the
             Laird
             of
             Assint
             was
             pursued
             as
             accessory
             to
             the
             murder
             of
             Montrose
             ,
             in
             swa
             far
             as
             he
             had
             at
             least
             ratihabited
             the
             Crime
             ,
             having
             vaunted
             ,
             that
             he
             had
             taken
             him
             Prisoner
             at
             his
             own
             house
             ,
             
               &
               jactatio
               ,
               &
               gloriatio
            
             ,
             were
             punishable
             ,
             as
             Menoch
             observes
             ,
             
               de
               arbitr
               .
               casu
            
             ,
             331.
             
             Yet
             the
             Parliament
             inclined
             not
             to
             punish
             him
             ,
             if
             nothing
             else
             could
             be
             proved
             .
             But
             whatever
             may
             be
             said
             of
             ratihabition
             in
             general
             ,
             yet
             certainly
             ,
             ratihabition
             of
             Treason
             ,
             is
             punishable
             as
             Treason
             ;
             and
             it
             may
             be
             also
             contended
             ,
             that
             the
             excepting
             of
             a
             reward
             by
             one
             ,
             as
             if
             the
             Crime
             had
             been
             committed
             by
             him
             ,
             is
             punishable
             ,
             since
             that
             reaches
             further
             than
             a
             naked
             ratihabition
             ;
             so
             that
             certainly
             Assint
             had
             been
             punisht
             as
             a
             Traitor
             for
             that
             accession
             ,
             if
             he
             had
             not
             been
             secured
             by
             an
             Act
             of
             Indemnity
             .
          
           
           
             IX
             .
             There
             remains
             yet
             two
             practical
             questions
             to
             be
             resolved
             ;
             The
             first
             is
             ,
             whether
             such
             as
             are
             accessory
             can
             be
             pursued
             ,
             till
             the
             chief
             actors
             be
             first
             discust
             ,
             and
             either
             found
             guilty
             ,
             or
             assoilzied
             .
             And
             that
             the
             chief
             or
             principal
             actors
             ought
             to
             be
             first
             discust
             ,
             seems
             most
             reasonable
             ,
             1.
             
             Because
             it
             is
             the
             nature
             of
             what
             is
             accessory
             ,
             to
             follow
             ,
             and
             not
             to
             preceed
             that
             to
             which
             it
             is
             accessory
             .
             2.
             
             The
             principal
             party
             might
             have
             a
             defence
             ,
             which
             the
             assister
             doth
             not
             know
             ,
             at
             least
             cannot
             prove
             .
             As
             for
             instance
             ,
             if
             a
             man
             be
             pursued
             as
             art
             and
             part
             of
             driving
             away
             Cattel
             ,
             possibly
             he
             was
             but
             a
             servant
             to
             the
             person
             who
             did
             drive
             them
             ,
             and
             who
             ,
             if
             he
             had
             compeared
             ,
             had
             proved
             that
             the
             goods
             were
             his
             own
             ;
             or
             if
             he
             were
             pursued
             as
             art
             and
             part
             of
             convocating
             the
             Liedges
             ,
             or
             of
             rising
             in
             Arms
             ;
             possibly
             if
             the
             principal
             convocator
             were
             pursued
             ,
             he
             would
             alledge
             he
             had
             done
             so
             by
             warrand
             from
             Authority
             ,
             and
             would
             produce
             his
             warrand
             ,
             which
             none
             else
             could
             have
             in
             keeping
             .
             3.
             
             By
             the
             opinion
             of
             
               Clar.
               quest
            
             .
             90.
             num
             .
             6.
             and
             other
             Doctors
             ,
             
               quando
               proceditur
               contra
               aliquem
               tanquam
               quod
               prestiterit
               auxilium
               delicto
               debet
               primo
               in
               processu
               constare
               principalem
               deliquisse
               .
            
             4.
             
             By
             the
             26
             Chap.
             4.
             
             
               Book
               ,
               Reg.
               Maj.
            
             entituled
             ,
             
               Of
               the
               order
               of
               accusing
               Malefactors
               for
               Crimes
               ,
            
             it
             is
             said
             ,
             that
             the
             principal
             Thief
             should
             be
             pleaded
             and
             discust
             before
             him
             who
             commanded
             the
             same
             to
             be
             done
             ,
             or
             before
             the
             resetter
             .
             And
             in
             the
             4.
             vers
             .
             of
             that
             Chap.
             it
             is
             generally
             said
             ,
             and
             swa
             it
             is
             manifest
             ,
             that
             the
             commander
             or
             resetter
             shall
             not
             be
             charged
             ,
             till
             the
             principal
             doer
             be
             first
             convict
             by
             an
             Assize
             .
             From
             which
             words
             ,
             and
             from
             the
             general
             Rubrick
             ,
             it
             is
             clear
             ,
             that
             this
             conclusion
             holds
             ,
             not
             only
             in
             Theft
             ,
             but
             in
             other
             Crimes
             .
             Likeas
             ,
             Skeen
             in
             his
             Annotations
             upon
             these
             words
             ,
             observes
             from
             this
             Text
             ,
             that
             
               complices
               criminis
               non
               possunt
               accusa●i
               ante
               pricipalem
               malefactorem
               nam
               sicut
               re●●oto
               principali
               removetur
               accessorium
               ,
               ita
               absoluto
               malefactore
               absolvuntur
               complices
               &
               consentientes
               ,
            
             and
             cites
             for
             this
             opinion
             ,
             
               Gloss.
               in
               cap.
            
             1.
             
               de
               offic
               .
               jud
               .
               de
               legat
               .
            
             which
             conclusion
             is
             also
             clear
             ,
             as
             
             to
             Theft
             ,
             from
             the
             83.
             
             
               Chap.
               quon
               .
               attach
            
             .
             Upon
             which
             Law
             a
             verdict
             fyling
             
               George
               Grahame
            
             ,
             as
             receptor
             of
             Theft
             ,
             was
             rescinded
             ,
             by
             warrand
             from
             the
             Council
             ,
             because
             the
             principal
             Thief
             was
             not
             first
             discust
             .
             And
             as
             to
             all
             Crimes
             ,
             by
             the
             29.
             
             
               Chap.
               Stat.
               David
            
             2.
             entituled
             ,
             
               The
               complices
               should
               not
               be
               punished
               before
               the
               principal
               malefactor
               .
            
             It
             is
             also
             observable
             from
             the
             last
             vers
             .
             26.
             
               chap.
               lib.
            
             4.
             
             
               Reg.
               Maj.
            
             that
             the
             principal
             malefactor
             should
             be
             not
             only
             accused
             ,
             but
             convict
             by
             an
             Assize
             ,
             before
             the
             complices
             can
             be
             accused
             ;
             so
             that
             it
             is
             not
             enough
             the
             principal
             actor
             be
             declared
             fugitive
             ,
             which
             is
             likewise
             conform
             to
             
               Clar.
               quest
            
             .
             90.
             num
             .
             6.
             
               nam
               non
               sufficit
            
             ,
             saith
             he
             ,
             
               contumacia
               ficta
            
             ,
             which
             answers
             to
             our
             denouncing
             fugitive
             ,
             as
             I
             formerly
             observed
             .
             I
             find
             likewise
             that
             by
             the
             Law
             of
             England
             the
             principal
             ought
             to
             be
             attained
             after
             verdict
             or
             confession
             ,
             or
             by
             outlawrie
             ,
             before
             any
             judgement
             can
             be
             given
             against
             the
             accessory
             ;
             but
             the
             principal
             must
             be
             surely
             kept
             until
             the
             accessory
             be
             attainted
             ,
             
               Bolton
               cap.
            
             24.
             num
             .
             38.
             
          
           
             Notwithstanding
             of
             all
             which
             ,
             
               Charles
               Robertson
            
             being
             pursued
             as
             accessory
             to
             the
             casting
             down
             of
             a
             house
             belonging
             to
             Iollie
             ,
             which
             house
             was
             libelled
             to
             have
             been
             cast
             down
             by
             his
             sons
             and
             servants
             ,
             at
             his
             command
             .
             The
             Justices
             found
             that
             he
             might
             be
             put
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             albeit
             the
             children
             and
             servants
             were
             not
             first
             discus'd
             ,
             because
             the
             Act
             appointing
             a
             Libel
             to
             be
             relevant
             ,
             bearing
             art
             and
             part
             ,
             did
             abrogat
             the
             foresaid
             ,
             4.
             vers
             .
             26.
             
             
               Chap.
               l.
            
             4.
             
             
               R.
               M.
            
             since
             such
             as
             are
             pursued
             as
             art
             and
             part
             are
             all
             principals
             :
             And
             the
             Advocat
             alledg'd
             ,
             that
             it
             were
             absurd
             that
             the
             King
             should
             be
             prejudg'd
             by
             the
             absence
             of
             the
             principal
             party
             .
             To
             which
             it
             was
             answered
             ,
             that
             the
             Act
             of
             Parliament
             ,
             and
             the
             Law
             cited
             out
             of
             
               R.
               M.
            
             were
             in
             
               materia
               diversa
            
             ,
             and
             very
             consistent
             ,
             since
             the
             one
             determined
             only
             the
             manner
             of
             procedure
             ,
             and
             the
             other
             what
             Libel
             was
             relevant
             ,
             &
             since
             that
             Act
             it
             was
             constantly
             found
             that
             the
             Thief
             behov'd
             to
             be
             punish'd
             before
             the
             Resetter
             ,
             which
             shews
             the
             foresaid
             Law
             of
             the
             Majesty
             is
             not
             abrogated
             ;
             nor
             
             was
             the
             King
             prejudg'd
             ,
             seing
             if
             the
             principal
             party
             were
             discus'd
             and
             denounced
             fugitive
             ,
             the
             accessory
             might
             be
             proceeded
             against
             ,
             but
             on
             the
             contrary
             ,
             the
             Liedges
             would
             be
             much
             prejudged
             ,
             if
             this
             order
             were
             not
             observed
             ,
             for
             probation
             might
             be
             led
             against
             absents
             ,
             
               eo
               casu
            
             ,
             contrair
             to
             the
             fundamental
             Law
             of
             the
             Nation
             .
             
               V.
               g.
            
             if
             
               A.
               B.
            
             were
             pursued
             as
             hounder
             out
             of
             
               C.
               D.
            
             to
             commit
             a
             Murder
             ,
             probation
             behov'd
             to
             be
             led
             that
             
               C.
               D.
            
             committed
             the
             Murder
             ,
             albeit
             absent
             ,
             else
             the
             hounder
             out
             could
             not
             be
             punish'd
             ,
             
               nam
               primo
               debet
               constare
               de
               corpore
               de
               licti
               :
            
             Nor
             can
             any
             man
             be
             guilty
             of
             hounding
             out
             ,
             except
             where
             the
             Crime
             is
             committed
             .
             And
             it
             were
             not
             only
             against
             our
             Law
             ,
             but
             against
             reason
             ,
             to
             suffer
             Witnesses
             to
             be
             led
             for
             proving
             that
             the
             person
             who
             was
             absent
             committed
             the
             Crime
             :
             For
             in
             that
             case
             his
             greatest
             enemies
             may
             be
             led
             as
             Witnesses
             ,
             and
             his
             strongest
             defences
             may
             be
             omitted
             ;
             and
             though
             the
             probation
             led
             against
             him
             in
             absence
             will
             not
             be
             concluding
             ,
             yet
             
               semper
               gravat
               famam
            
             ,
             and
             leaves
             still
             a
             disadvantagious
             impression
             .
          
           
             In
             this
             case
             it
             was
             likewise
             found
             ,
             that
             ratihabition
             of
             a
             Crime
             might
             be
             inferred
             from
             the
             said
             
               Charles
               Robertson
            
             his
             resetting
             the
             committers
             of
             the
             Crime
             ,
             though
             they
             were
             neither
             declared
             fugitives
             ,
             nor
             Letters
             of
             Intercommuning
             against
             him
             :
             And
             his
             saying
             these
             words
             ,
             
               They
               did
               too
               little
               ,
               and
               I
               wish
               that
               they
               had
               taken
               a
               Collop
               out
               of
               his
               Cheek
               ,
            
             was
             a
             ratifying
             of
             the
             Crime
             ,
             since
             the
             Crime
             was
             committed
             by
             his
             own
             sons
             and
             servants
             .
          
           
             X.
             The
             second
             Question
             is
             ,
             whether
             the
             complices
             ,
             and
             such
             as
             are
             art
             and
             part
             of
             a
             Crime
             ,
             should
             be
             punished
             by
             the
             punishment
             due
             to
             the
             principal
             Malefactor
             ?
             That
             they
             should
             ,
             seems
             clear
             by
             the
             Act
             151.
             
             Parl.
             12.
             
             
               K.
               I.
            
             6.
             where
             the
             Libel
             bearing
             art
             and
             part
             ,
             is
             ordained
             to
             be
             found
             relevant
             ,
             which
             implyes
             ,
             that
             art
             and
             part
             should
             inferr
             the
             punishment
             concluded
             in
             the
             Libel
             ;
             for
             that
             is
             only
             relevant
             which
             can
             inferr
             the
             conclusion
             .
             2.
             
             It
             is
             said
             ,
             cap.
             38.
             
               quon
               .
               attach
            
             .
             and
             then
             
             it
             shall
             be
             conform
             to
             that
             which
             is
             said
             ,
             
               Consenters
               and
               doers
               should
               be
               punished
               with
               the
               same
               pain
               .
            
             3.
             
             By
             constant
             custome
             in
             all
             Criminal
             Courts
             ,
             art
             and
             part
             is
             punished
             as
             the
             principal
             Crime
             .
             Notwithstanding
             of
             all
             which
             ,
             I
             think
             ,
             the
             foresaid
             conclusion
             very
             rigorous
             ,
             for
             
               paena
               est
               commensuranda
               de
               licto
            
             ;
             and
             to
             punish
             the
             more
             and
             the
             less
             guilty
             equally
             ,
             seems
             against
             nature
             and
             justice
             :
             And
             by
             the
             Laws
             of
             all
             other
             Nations
             ,
             and
             the
             opinion
             of
             all
             Doctors
             ,
             accessions
             are
             punishable
             according
             to
             their
             proportional
             degrees
             of
             guilt
             ;
             and
             albeit
             the
             Act
             above
             cited
             ,
             sustains
             the
             Libel
             ,
             yet
             it
             ordains
             not
             the
             punishment
             of
             art
             and
             part
             ,
             to
             be
             the
             same
             with
             the
             punishment
             of
             the
             principal
             offenders
             ;
             but
             though
             the
             Act
             did
             bear
             the
             same
             expresly
             ,
             yet
             by
             the
             opinion
             of
             the
             Doctors
             ,
             a
             Statute
             ,
             bearing
             that
             such
             as
             are
             accessory
             shall
             be
             pun●shed
             as
             the
             principal
             malefactors
             ,
             is
             to
             be
             restricted
             ,
             
               ad
               opem
               quae
               dedit
               causam
               maleficio
               ,
               &
               non
               de
               quolibet
               modo
               auxiliandi
               annot
               .
               ad
               Clar.
               quest
               .
            
             90.
             num
             .
             28.
             
             It
             would
             therefore
             seem
             just
             ,
             that
             not
             only
             the
             Justices
             ,
             or
             parties
             ,
             should
             make
             application
             to
             the
             Councel
             ,
             and
             interpose
             that
             the
             punishment
             should
             be
             mitigat
             according
             to
             the
             degrees
             of
             the
             guilt
             ,
             as
             the
             custom
             now
             is
             ,
             but
             that
             the
             Justices
             should
             have
             an
             innate
             power
             to
             propo●tion
             the
             punishment
             to
             the
             guilt
             proved
             ;
             for
             none
             can
             understand
             so
             well
             the
             nature
             of
             the
             guilt
             ,
             as
             the
             justices
             who
             hear
             the
             probation
             :
             and
             it
             is
             hard
             that
             the
             poor
             Pannel
             should
             lye
             under
             so
             great
             hazard
             ,
             as
             to
             be
             exposed
             to
             a
             capital
             sentence
             ,
             whereas
             it
             may
             be
             the
             Council
             will
             not
             sit
             so
             soon
             ,
             as
             that
             he
             may
             interpose
             with
             them
             .
          
        
         
           
           
             Some
             Crimes
             punished
             amongst
             the
             Romans
             ,
             which
             are
             not
             directly
             in
             use
             with
             us
             .
          
           
             HAving
             finished
             in
             the
             last
             Title
             what
             belongs
             to
             those
             Crimes
             ,
             which
             our
             Law
             pun●shes
             directly
             ,
             I
             resolved
             here
             to
             touch
             overly
             even
             those
             crimes
             which
             are
             little
             considered
             among
             us
             ,
             not
             only
             that
             we
             might
             thereby
             know
             the
             genius
             of
             that
             wise
             Nation
             ;
             but
             that
             we
             may
             consider
             how
             far
             it
             were
             fit
             to
             renew
             amongst
             us
             these
             excellent
             Laws
             .
          
           
             The
             Romans
             considering
             how
             destructive
             those
             were
             to
             the
             Common-wealth
             ,
             who
             endeavoured
             by
             all
             indirect
             means
             to
             screw
             themselves
             into
             publict
             employments
             ,
             did
             therefore
             make
             this
             indirect
             dealing
             to
             be
             a
             Crime
             ,
             and
             called
             it
             Ambitus
             ,
             which
             punished
             
               lege
               julia
            
             ,
             those
             who
             gave
             money
             ,
             for
             making
             themselves
             Magistrats
             ,
             or
             that
             they
             might
             attain
             to
             honou●s
             .
          
           
             It
             is
             commonly
             thought
             ,
             that
             how
             soon
             the
             power
             was
             transferred
             from
             the
             pople
             to
             the
             Senate
             ,
             and
             from
             the
             Senate
             to
             the
             Prince
             ,
             this
             crime
             ceased
             ,
             because
             the
             Prince
             having
             the
             sole
             power
             of
             bestowing
             Magistracy
             and
             honour
             ,
             is
             still
             presumed
             in
             Law
             to
             bestow
             them
             upon
             those
             deserve
             best
             ,
             who
             
               Groneveg
               de
               leg
               .
               abrogat
               .
               ad
               h.
               t.
            
             but
             yet
             I
             see
             not
             why
             the
             Prince
             may
             not
             justly
             cause
             punish
             such
             who
             have
             wronged
             both
             the
             publick
             interest
             ,
             and
             his
             favour
             ,
             in
             prostituting
             both
             to
             so
             unworthy
             a
             sale
             :
             and
             since
             Commissioners
             for
             Parliaments
             ,
             and
             Magistrats
             of
             Towns
             are
             still
             elected
             by
             plu●ality
             of
             suff●●ges
             ,
             I
             see
             not
             why
             such
             as
             bribe
             the
             electors
             may
             not
             be
             lyable
             to
             the
             same
             accusation
             .
          
           
             The
             pun●shment
             of
             this
             crime
             ,
             was
             depo●tation
             which
             was
             much
             like
             our
             banishment
             ,
             and
             in
             the
             lesse
             .
             Towns
             it
             was
             punished
             
             by
             a
             Fyne
             of
             an
             hundred
             Crowns
             ,
             and
             infamy
             ;
             and
             since
             it
             is
             a
             kind
             of
             bribing
             ,
             I
             think
             it
             should
             be
             punished
             with
             us
             as
             such
             .
          
           
             
               Residuorum
               crimen
            
             ,
             was
             committed
             by
             him
             who
             converted
             the
             publick
             money
             with
             which
             he
             was
             intrusted
             to
             his
             own
             private
             use
             ,
             and
             was
             punished
             ,
             by
             fyning
             him
             who
             was
             guilty
             in
             a
             third
             more
             then
             he
             owed
             .
          
           
             This
             crime
             is
             punished
             by
             no
             expresse
             Law
             with
             us
             ,
             but
             that
             this
             is
             a
             crime
             with
             us
             ,
             appears
             clearly
             from
             its
             being
             excepted
             from
             the
             late
             Act
             of
             Indemnity
             amongst
             the
             other
             Crimes
             .
             The
             words
             whereof
             are
             ,
             
               Excepting
               all
               privat
               murders
               ,
               &c.
               and
               the
               accompts
               of
               all
               such
               persons
               ,
               as
               have
               intrometted
               with
               any
               of
               His
               Majesties
               Revenues
               ,
               publick
               impositions
               ,
               Excise
               ,
               Fines
               ,
               Forf●itures
               ,
               Sequestrations
               ,
               and
               all
               other
               publick
               money
               ,
               for
               which
               they
               had
               not
               order
               ,
               warrant
               ,
               or
               assignment
               ,
               (
               for
               their
               own
               privat
               use
               )
               or
               for
               which
               they
               have
               not
               duly
               counted
               ,
               and
               received
               discharges
               thereof
               from
               such
               as
               pretend
               to
               have
               authority
               for
               the
               time
               to
               do
               the
               same
               .
            
          
           
             I
             doubt
             not
             but
             the
             Exchequer
             might
             be
             Judges
             competent
             to
             this
             crime
             ,
             if
             committed
             by
             their
             own
             members
             ,
             and
             the
             Council
             ,
             if
             done
             by
             any
             of
             His
             Majesties
             servants
             ,
             since
             there
             can
             be
             no
             greater
             injury
             done
             to
             His
             Majesties
             Government
             ,
             then
             to
             abstract
             or
             invert
             his
             money
             ,
             which
             is
             the
             nerves
             ,
             not
             only
             of
             War
             ,
             but
             of
             all
             power
             .
          
           
             Peculatus
             ,
             is
             a
             stealing
             of
             the
             publick
             money
             ,
             as
             the
             other
             was
             a
             concealing
             of
             it
             ,
             and
             this
             was
             punished
             in
             publick
             Ministers
             capitally
             ,
             
               l.
               un
               .
               c.
               h.
               t.
            
             Though
             other
             thefts
             was
             not
             capitally
             punished
             among
             the
             Romans
             ,
             so
             attrocious
             a
             crime
             did
             they
             judge
             the
             breach
             of
             trust
             ,
             and
             so
             easy
             a
             thing
             it
             is
             for
             publick
             Ministers
             to
             steal
             publick
             money
             if
             they
             please
             .
          
           
             This
             crime
             is
             certainly
             punishable
             with
             us
             by
             death
             ,
             since
             all
             theft
             is
             so
             punishable
             :
             Plagium
             ,
             was
             the
             stealing
             of
             men
             ,
             and
             was
             punishable
             by
             death
             ,
             l.
             7.
             
               &
               ult
               .
               c.
               h.
               t.
            
             which
             agrees
             with
             the
             Law
             of
             God
             ,
             Exod.
             21.16
             .
             Deut.
             24.7
             .
             and
             with
             us
             
             Aegyptians
             and
             others
             stealing
             children
             ,
             have
             been
             likewise
             punished
             by
             death
             ,
             and
             such
             as
             force
             away
             men
             to
             be
             Souldiers
             ,
             should
             be
             liable
             to
             the
             same
             punishment
             ,
             though
             the
             Council
             uses
             to
             punish
             them
             only
             by
             an
             arbitrary
             punishment
             ;
             and
             such
             as
             take
             away
             mens
             childeren
             upon
             pretext
             to
             marry
             them
             ,
             before
             they
             come
             to
             the
             years
             wherein
             they
             may
             give
             a
             legal
             consent
             (
             which
             is
             12.
             in
             women
             ,
             and
             14.
             in
             men
             )
             ought
             in
             my
             Judgement
             to
             be
             so
             punished
             .
             I
             have
             treated
             
               crimen
               repetundarum
            
             in
             the
             Title
             
               Brybing
               ,
               &
               crimen
               annonae
            
             ,
             in
             the
             Title
             Fore-stallers
             .
          
           
             I
             shall
             end
             this
             first
             part
             relating
             to
             crimes
             ,
             with
             Theophils
             apologie
             Subjoyned
             to
             his
             Title
             of
             Crimes
             .
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
        
         
           FINIS
           .
        
      
       
         
         
         
           PART
           II.
           
        
         
           
             TITLE
             I.
             Of
             Jurisdiction
             in
             general
             .
          
           
             
               1.
               
               
                 Iurisdiction
                 defined
                 ,
                 and
                 divided
              
               ,
               in
               imperium
               merum
               ,
               mixtum
               &
               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
               imperium
               ,
               mixtum
               imperium
               ,
               &
               jurisdictionem
               simplicem
               .
               Merum
               ,
               imperium
               est
               abere
               potestatem
               gladii
               ad
               animadvertendum
               in
               facinerofos
               ,
               &
               potestatas
               etiam
               appellatur
               ,
               Mixtum
               imperium
               est
               potestas
               qua
               jure
               proprio
               Magistratui
               competit
               cui
               jurisdictio
               inhaeret
               &
               inest
               ,
               &
               dicitur
               mixtum
               quia
               cum
               jurisdictione
               est
               conjunctum
               .
               Iurisdictio
               simplex
               differt
               secundum
               Bartolum
               a
               mixto
               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
             Commissars
             ,
             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
               &
               delegatam
            
             ,
             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
             unnecessary
             if
             the
             power
             of
             delegation
             were
             inhaerent
             naturally
             in
             Jurisdiction
             .
             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
               principe
               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
             distinction
             is
             used
             very
             much
             in
             our
             Law
             ,
             and
             especially
             by
             
               Craig
               ,
               pag
            
             192.
             who
             layes
             it
             down
             as
             rule
             ,
             that
             
               omnis
               curia
               delegatur
               tantum
               cumulative
               ,
               sed
               nunquam
               privative
               ;
               non
               est
               enim
               quasi
               translatio
               juris
               ex
               una
               persona
               in
               alium
               sed
               tantum
               mandata
               jurisdictio
               quae
               non
               obstante
               jurisdictione
               sive
               mandato
               ad
               huc
               remanet
               in
               delegante
               nec
               minus
               dominus
               post
               juvestituram
               vassallo
               factam
               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
             Edinburgh
             ,
             Sir
             
               Gilbert
               Stewart
            
             in
             the
             Sherifdom
             of
             Perth
             .
             And
             it
             was
             found
             ,
             that
             though
             a
             prelat
             had
             appointed
             an
             heretable
             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
               judicium
            
             ,
             is
             to
             submit
             to
             a
             Judicatory
             altogether
             incompetent
             .
          
           
             It
             is
             a
             received
             conclusion
             amongst
             Lawyers
             ,
             that
             a
             Delinquent
             may
             prorogat
             his
             Ju●isdiction
             :
             who
             has
             a
             Criminal
             Jurisdiction
             ,
             but
             that
             by
             an
             Act
             of
             his
             ,
             as
             by
             compearance
             ,
             and
             answering
             before
             an
             incompetent
             Judge
             ,
             the
             Delinquent
             cannot
             prorogat
             that
             Judges
             Jurisdiction
             ,
             who
             has
             no
             Criminal
             Jurisdiction
             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
             competent
             ;
             but
             a
             privat
             delinquent
             ,
             by
             prorogating
             the
             ●udges
             Jurisdiction
             ;
             as
             said
             is
             ,
             can
             only
             prejudge
             himself
             by
             his
             own
             complyance
             ,
             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
                 strangers
                 .
              
            
             
               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
               competens
            
             ;
             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
             injured
             may
             be
             somewhat
             repair'd
             ,
             by
             seeing
             the
             Law
             justly
             reveng
             their
             wrong
             ;
             and
             in
             the
             place
             where
             the
             crime
             was
             committed
             ,
             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
             taken
             with
             the
             things
             stoln
             ,
             
               Carleval
               de
               judiciis
               ,
               pag.
            
             156.
             
             But
             the
             Judge
             of
             the
             place
             where
             he
             was
             taken
             ,
             can
             only
             proceed
             against
             the
             thief
             in
             that
             case
             ,
             if
             he
             be
             present
             ,
             but
             cannot
             cite
             him
             if
             he
             be
             absent
             ;
             wheras
             the
             Judge
             of
             the
             place
             where
             the
             House
             was
             broke
             ,
             may
             cite
             him
             though
             he
             be
             absent
             :
             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
             judged
             .
             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
             respect
             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
             committed
             in
             another
             place
             ,
             or
             should
             ratifie
             in
             one
             place
             ,
             what
             was
             comm●tted
             in
             another
             place
             ;
             and
             in
             that
             case
             ,
             
               Clar.
               Bartel
            
             .
             and
             others
             ,
             are
             of
             opinion
             ,
             that
             the
             crime
             should
             be
             tryed
             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
             Jurisdiction
             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
             English
             Souldiers
             having
             in
             Anno
             1662.
             killed
             a
             man
             in
             Edinburgh
             ,
             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
             English
             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
             English
             did
             think
             this
             hard
             ,
             since
             they
             had
             execute
             Queen
             Mary
             ,
             though
             a
             Queen
             :
             and
             the
             Bishop
             of
             Ross
             ,
             though
             an
             Ambassadour
             ,
             for
             alledged
             Treasons
             committed
             in
             England
             .
          
           
             The
             reason
             why
             the
             Judges
             of
             that
             place
             where
             the
             delinquent
             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
             delinquent
             ,
             which
             none
             can
             do
             so
             well
             ,
             as
             
               judex
               domicilii
            
             :
             And
             therefore
             these
             two
             ,
             
               domicilii
               &
               originis
            
             ,
             are
             still
             equiparat
             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
             conclusions
             ,
          
           
             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
             person
             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
             instance
             of
             a
             private
             party
             ,
             and
             then
             
               judex
               domicilii
            
             ,
             is
             competent
             ,
             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.
             
             Because
             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
               apud
               judicem
               loci
               ubi
               ipsa
               commissa
               sunt
               ,
               aut
               loci
               ubi
               reus
               ad
               est
               .
            
          
           
             And
             with
             us
             ,
             Criminal
             pursuits
             are
             sustained
             at
             the
             instance
             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
             conclude
             .
          
           
             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
             Burghtown
             dwelt
             then
             in
             Ireland
             ,
             though
             he
             was
             cited
             in
             Scotland
             .
          
           
             III.
             Vagabonds
             may
             be
             punished
             where
             ever
             they
             are
             apprehended
             ,
             for
             having
             no
             certain
             domicile
             ,
             every
             place
             is
             in
             
               ipsorum
               praejudicium
            
             allowed
             to
             be
             their
             domicile
             ,
             
               Boss.
               de
               foro
               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
             tryed
             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
             liberty
             to
             Ministers
             ,
             and
             might
             encourage
             them
             by
             adhering
             no
             
             one
             another
             ,
             to
             enveigh
             against
             ,
             and
             disturb
             the
             Civil
             Government
             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
               aliquam
               ,
               antequamalius
               judex
               circa
               eam
               jurisdictione
               utatur
               ,
            
             Prevention
             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
             preventions
             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
             prevention
             is
             inferred
             by
             our
             Law
             ,
             are
             only
             these
             which
             are
             enumerated
             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
             ordinary
             conclusions
             for
             peference
             are
             ,
             1.
             
             That
             when
             one
             Judge
             use
             first
             real
             citations
             ,
             that
             is
             to
             say
             ,
             appehends
             the
             offender
             ,
             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
             thereafter
             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
             cited
             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
             tryal
             ,
             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
             defences
             are
             common
             defences
             ,
             
               Boss.
               num
            
             .
             109.
             
             But
             I
             think
             this
             conclusion
             should
             not
             hold
             ,
             except
             the
             other
             Judge
             be
             presently
             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
             exclude
             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
             before
             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
                 Parliament
                 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
             proceed
             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
             Delinquents
             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
               against
               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
             Inferiour
             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
             Judicatory
             ;
             for
             these
             words
             ,
             
               Lawfully
               and
               orderly
               led
            
             ,
             seem
             unnecessary
             ,
             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
             Fugitive
             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
             procedure
             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
             before
             
             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
             pronounced
             by
             Commissioners
             of
             Parliament
             ,
             are
             reputed
             with
             us
             Decreets
             of
             Parliament
             ,
             and
             since
             Decreets
             pronounced
             by
             Commissioners
             ,
             for
             valuation
             of
             Teinds
             ,
             are
             not
             reduceable
             ,
             because
             these
             Decreets
             are
             repute
             Decreets
             of
             Parliament
             ,
             as
             being
             pronounced
             by
             such
             Commissioners
             of
             Parliament
             ;
             it
             seems
             that
             Decreets
             pronounced
             by
             such
             Commissioners
             ,
             in
             Crimes
             ,
             after
             probation
             ,
             could
             not
             be
             quarrelled
             and
             reduced
             by
             the
             Session
             ,
             or
             other
             Inferiour
             Judicatories
             .
          
        
         
           
           
             TITLE
             IV.
             The
             Jurisdiction
             of
             the
             High-Constable
             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
                 Majesties
                 Castles
                 .
              
            
          
           
             I.
             SOme
             describe
             the
             word
             Constable
             ,
             from
             the
             word
             Coning
             ,
             which
             signifies
             a
             King
             ;
             and
             Staple
             ,
             which
             signifies
             a
             Stay
             or
             Hold
             in
             the
             Saxon
             language
             ,
             because
             Constabularies
             were
             only
             erected
             in
             those
             places
             where
             the
             King
             keeped
             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
             
               penult
               March
            
             1631.
             to
             the
             Persons
             therein
             specified
             ,
             or
             any
             nine
             of
             them
             ,
             impowering
             them
             to
             search
             the
             Acts
             of
             Parliament
             ,
             consuetude
             ,
             Monuments
             and
             Registers
             of
             the
             Kingdom
             ,
             and
             all
             Evidents
             that
             the
             Earl
             of
             Errol
             ,
             or
             the
             Lord
             Hay
             his
             Son
             ,
             should
             produce
             concerning
             their
             Honours
             ,
             Hostilogies
             ,
             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
             Commissioners
             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
             Priviledge
             ;
             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
               representing
               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
             obliedged
             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
             clearly
             evident
             ,
             by
             production
             of
             Warrands
             granted
             by
             His
             Majesties
             Predecessors
             to
             that
             effect
             :
             and
             which
             likewise
             appeared
             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.
             
             Registrat
             
             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
             Riots
             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
             Secret
             Council
             ,
             to
             have
             the
             sole
             criminal
             Jurisdiction
             ,
             and
             did
             repledge
             servant
             to
             Sir
             
               Thomas
               N●colson
            
             ,
             the
             Kings
             Advocat
             ,
             arraigned
             before
             the
             Magistrats
             of
             Edinburgh
             for
             a
             Slaughter
             ,
             and
             Assoilzied
             him
             upon
             production
             of
             a
             Remission
             .
             And
             upon
             the
             5.
             of
             September
             1672.
             
             Gilbert
             Earle
             of
             Errol
             ,
             did
             repledge
             
               Iames
               Iohnstoun
            
             Violer
             ,
             arraigned
             before
             the
             Magistrats
             of
             Edinburgh
             (
             as
             Sheriffs
             within
             themselves
             )
             for
             stabbing
             of
             his
             Wife
             the
             day
             before
             Easter
             ,
             the
             Magistrats
             had
             taken
             his
             judicial
             confession
             ,
             and
             summonded
             the
             Assize
             :
             there
             was
             no
             formal
             repledgiation
             ,
             because
             the
             Magistrats
             passed
             from
             him
             upon
             the
             Constables
             application
             ;
             and
             upon
             the
             6.
             of
             that
             Moneth
             of
             September
             ,
             the
             Constables
             Deputs
             sentenced
             him
             to
             be
             hang'd
             ,
             and
             to
             have
             his
             right
             hand
             ,
             which
             gave
             the
             stroak
             ,
             cut
             off
             ,
             and
             affixed
             upon
             
               Lieth
               wind
            
             Port
             ,
             and
             ordained
             the
             Magistrats
             of
             Edinburgh
             to
             cause
             put
             the
             sentence
             to
             execution
             upon
             the
             9.
             of
             that
             Moneth
             .
          
           
             Likeas
             ,
             the
             Coach-man
             of
             a
             Noble-man
             ,
             having
             about
             the
             same
             time
             wounded
             a
             Child
             ,
             the
             Constable
             commanded
             the
             Towns
             Guards
             to
             apprehend
             the
             Delinquent
             ,
             which
             they
             accordingly
             did
             ,
             till
             he
             was
             freed
             by
             a
             Remission
             .
          
           
             II.
             Out
             of
             this
             high
             Magistracy
             of
             Constable
             (
             sayes
             Lambert
             
             an
             English
             Lawyer
             )
             were
             drawn
             those
             inferiour
             Constables
             of
             hundreds
             ,
             which
             Office
             we
             borrowed
             from
             them
             ,
             and
             they
             are
             with
             us
             subservient
             to
             the
             Justices
             of
             Peace
             ,
             and
             are
             to
             be
             chosen
             by
             them
             two
             out
             of
             every
             Paroch
             ,
             and
             as
             many
             in
             Towns
             as
             may
             be
             proportional
             to
             the
             greatnesse
             thereof
             ;
             and
             they
             have
             power
             to
             apprehend
             all
             suspicious
             ,
             idle
             ,
             or
             guilty
             persons
             ,
             and
             may
             require
             the
             neighbours
             to
             assist
             them
             ;
             and
             if
             the
             guilty
             persons
             flee
             ,
             they
             may
             require
             the
             master
             of
             the
             house
             to
             make
             open
             doors
             :
             all
             which
             ,
             with
             many
             other
             particulars
             are
             entrusted
             to
             them
             ,
             by
             the
             38.
             
             Act.
             1.
             
             
               Par.
               Ch.
            
             the
             2.
             
          
           
             III.
             His
             Majesties
             Predecessors
             used
             of
             old
             ,
             to
             build
             Castles
             in
             the
             considerable
             Towns
             of
             the
             Kingdom
             ,
             and
             for
             preserving
             the
             Peace
             both
             in
             that
             Town
             ,
             and
             in
             the
             adjacent
             Countrey
             ;
             and
             the
             Governours
             of
             those
             Castles
             were
             called
             Constables
             ,
             though
             they
             were
             more
             properly
             Castellains
             ,
             or
             Chastellains
             ,
             as
             the
             English
             Lawyers
             observe
             ,
             these
             had
             the
             power
             of
             riding
             the
             Fairs
             ,
             and
             having
             had
             the
             Keys
             of
             the
             Tolbooth
             delivered
             to
             them
             ,
             they
             exercised
             a
             criminal
             jurisdiction
             ,
             during
             those
             Fairs
             :
             but
             it
             was
             found
             ,
             that
             this
             jurisdiction
             did
             not
             extend
             to
             Fairs
             that
             were
             granted
             posterior
             to
             the
             Office
             of
             Constabulary
             ,
             nor
             to
             the
             customes
             thereof
             ,
             as
             was
             found
             the
             18.
             of
             Iuly
             1676.
             betwixt
             the
             Earl
             of
             Kinghorn
             ,
             and
             the
             Town
             of
             Forfar
             ;
             but
             these
             Offices
             depend
             absolutely
             upon
             prescription
             ,
             use
             ,
             or
             custome
             ,
             which
             either
             extinguisheth
             ,
             or
             limits
             them
             most
             variously
             :
             but
             because
             those
             Constables
             use
             to
             extort
             customes
             at
             those
             Fairs
             ,
             it
             is
             therefore
             appointed
             by
             the
             60.
             and
             61.
             
             Acts
             13.
             
             
               Parl.
               Ia.
            
             2.
             that
             the
             Constable
             shall
             not
             exact
             any
             such
             customes
             ,
             
               except
               his
               Festment
               bear
               him
               thereto
               ,
               and
               that
               old
               use
               and
               custome
               shall
               not
               be
               sufficient
            
             :
             Which
             Acts
             are
             ratified
             ,
             by
             the
             33
             Act
             5.
             
             
               Parl.
               Ia.
            
             3.
             
             But
             if
             the
             Infestment
             in
             the
             general
             bear
             ,
             
               cum
               feudis
               
               &
               devoriis
            
             ,
             &c.
             
             Possession
             by
             vertue
             of
             that
             general
             Right
             ,
             will
             be
             found
             sufficient
             ,
             though
             the
             particular
             Casualities
             be
             not
             exprest
             in
             the
             Infestment
             ,
             as
             was
             found
             in
             the
             former
             case
             ,
             betwixt
             the
             Earle
             of
             Kinghorn
             ,
             and
             the
             Town
             of
             Forfar
             ,
          
           
             This
             Officer
             was
             amongst
             the
             Athenians
             ,
             call'd
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
        
         
           
           
             TITLE
             V.
             The
             Jurisdiction
             competent
             to
             the
             High
             Chamberlain
             ,
             and
             Magistrats
             of
             Burghs
             Royal.
             
          
           
             THe
             Chamberlain
             was
             an
             office
             to
             whom
             belonged
             the
             judging
             of
             all
             Crimes
             committed
             within
             Burgh
             ,
             and
             he
             was
             in
             effect
             Justice-general
             over
             the
             Burrows
             ,
             and
             was
             to
             hold
             Chamberlain-Aus
             every
             year
             for
             that
             effect
             ;
             the
             form
             whereof
             is
             set
             down
             in
             
               Reg.
               Maj.
            
             in
             a
             Book
             intituled
             the
             Chamberlain-Air
             ,
             
               Iter
               Camerarii
            
             ,
             he
             was
             a
             Supream
             Judge
             ,
             nor
             could
             his
             Decreets
             be
             questioned
             by
             any
             Inferiour
             Judicatory
             ,
             
               Iter.
               Cam.
               cap.
            
             35.
             and
             his
             sentences
             were
             to
             be
             put
             to
             execution
             by
             Bailiffs
             of
             Burghs
             ,
             
               ibid.
               cap.
            
             37.
             he
             made
             the
             prices
             of
             all
             Victual
             within
             Burgh
             ,
             cap.
             33.
             and
             of
             these
             who
             wrought
             in
             the
             Mint-house
             ,
             
               Statute
               Da.
            
             2.
             cap.
             38.
             
          
           
             He
             is
             called
             
               Camerarius
               à
               Camera
               ,
               (
               id
               est
               .
               testudine
               sive
               fornice
               ,
               )
               quia
               custodit
               pecunias
               quae
               in
               Camer
               is
               praecipue
               reservantur
               .
            
          
           
             This
             office
             belonged
             heretably
             to
             the
             Duke
             of
             Lennox
             ,
             but
             its
             priviledges
             are
             by
             his
             absence
             run
             in
             desuetude
             :
             Magistrats
             of
             Burghs
             ,
             as
             such
             ,
             have
             no
             Jurisdiction
             but
             what
             is
             competent
             by
             their
             Charter
             of
             erection
             ,
             wherein
             ordinarily
             they
             have
             power
             of
             Pit
             and
             Gallows
             ;
             but
             sometimes
             they
             are
             Justices
             within
             themselves
             ,
             as
             Edinburgh
             ,
             who
             have
             right
             also
             to
             all
             
             escheats
             of
             their
             own
             Burgesses
             ,
             or
             other
             Criminals
             judged
             by
             them
             ,
             for
             crimes
             committed
             within
             their
             own
             Burgh
             :
             Sometimes
             they
             are
             Sheriffs
             within
             themselves
             ,
             and
             ordinarily
             they
             are
             Justices
             of
             peace
             within
             their
             own
             Jurisdiction
             .
          
           
             The
             King
             may
             erect
             a
             Burgh
             Royal
             within
             the
             bounds
             of
             another
             Jurisdiction
             ,
             as
             of
             a
             Regality
             ;
             but
             in
             that
             case
             ,
             though
             the
             Lord
             of
             Regality
             consent
             to
             the
             erection
             ,
             yet
             it
             will
             not
             prejudge
             the
             Bailie
             of
             Regality
             ,
             whose
             Right
             of
             Bailiery
             was
             constitute
             ,
             prior
             to
             the
             erection
             of
             the
             Casualities
             ,
             that
             were
             formerly
             due
             to
             him
             :
             albeit
             it
             was
             alledged
             that
             the
             Lord
             of
             Regality
             might
             disolve
             ,
             and
             dismember
             that
             part
             from
             the
             Regality
             ,
             without
             the
             Bailies
             consent
             ;
             and
             so
             it
             not
             being
             in
             the
             Regality
             ,
             it
             could
             not
             be
             subject
             to
             the
             Bailiery
             ,
             the
             27.
             of
             February
             1666.
             
             Lord
             
               Colvil
               contra
            
             the
             Town
             of
             Culross
             .
          
        
         
           
           
             TITLE
             VI.
             The
             Jurisdiction
             of
             His
             Majesties
             Privy
             Council
             in
             Criminals
             .
          
           
             
               1.
               
               
                 In
                 what
                 consists
                 the
                 Iurisdiction
                 of
                 the
                 Council
                 ,
                 their
                 President
                 and
                 number
                 .
              
            
             
               2.
               
               
                 Their
                 procedur
                 in
                 punishing
                 Ryots
              
               .
            
             
               3.
               
               
                 Whether
                 a
                 power
                 to
                 eject
                 ,
                 be
                 a
                 sufficient
                 defence
                 against
                 a
                 Ryot
                 .
              
            
             
               4.
               
               
                 The
                 punishment
                 of
                 Riots
              
               .
            
             
               5.
               
               
                 Precognitions
                 fully
                 considered
              
               .
            
             
               6.
               
               
                 The
                 Council
                 name
                 Assessors
                 to
                 the
                 Iustices
                 ,
                 and
                 sometimes
                 review
                 their
                 Sentences
                 .
              
            
             
               7.
               
               
                 They
                 grant
                 Letters
                 of
                 Intercommuning
                 ,
                 and
                 Commissions
                 for
                 Fire
                 and
                 Sword.
                 
              
            
             
               8.
               
               
                 They
                 sometimes
                 ordain
                 Houses
                 to
                 be
                 delivered
                 ,
                 under
                 pain
                 of
                 Treason
                 .
              
            
          
           
             I.
             THe
             Affairs
             of
             this
             ,
             as
             of
             all
             other
             Nations
             ,
             are
             either
             such
             as
             concern
             the
             policy
             of
             the
             Kingdom
             in
             general
             ,
             or
             such
             as
             respect
             the
             distributing
             of
             Justice
             betwixt
             privat
             parties
             ;
             the
             policy
             or
             government
             of
             the
             Kingdom
             ,
             
             is
             regulated
             by
             His
             Majesties
             Privy
             Council
             ,
             in
             which
             the
             Chancelor
             is
             President
             ,
             if
             he
             be
             present
             ,
             but
             in
             his
             absence
             ,
             the
             President
             of
             the
             Council
             precedes
             .
             This
             Office
             of
             Precedent
             of
             the
             Council
             is
             a
             distinct
             imployment
             ,
             and
             it
             gives
             him
             the
             precedency
             from
             all
             the
             Nobility
             .
             The
             number
             of
             this
             Judicator
             is
             not
             definit
             ,
             depending
             upon
             His
             Majesties
             Commission
             ,
             but
             all
             the
             Officers
             of
             State
             are
             Members
             of
             it
             ,
             
               ratione
               officii
            
             ,
             it
             has
             its
             own
             Signet
             ,
             and
             its
             Letters
             past
             by
             a
             Bill
             ,
             subscribed
             by
             any
             one
             of
             the
             Council
             :
             upon
             which
             warrand
             ,
             the
             Letters
             are
             in
             their
             several
             forms
             ,
             extended
             and
             subscribed
             by
             the
             Clerk
             of
             the
             Council
             ;
             and
             they
             bear
             also
             to
             be
             ,
             
               ex
               deliberatione
               Dominorum
               Secreti
               Consilii
            
             ,
             they
             must
             be
             execute
             ,
             at
             least
             upon
             six
             free
             dayes
             ,
             and
             a
             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
             Chamber
             ,
             he
             will
             not
             be
             thereafter
             oblieged
             to
             attend
             ,
             nor
             can
             he
             be
             denounced
             Fugitive
             for
             being
             absent
             ;
             for
             seeing
             it
             is
             peremptory
             against
             him
             ,
             it
             is
             reasonable
             that
             it
             should
             be
             peremptory
             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
             lyable
             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
             answer
             ,
             will
             not
             be
             allowed
             ,
             
               nam
               noxa
               caput
               sequi
               debet
            
             ,
             and
             no
             
             man
             can
             bind
             his
             body
             for
             another
             ,
             
               nam
               nemo
               est
               dominus
               suorum
               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
             answer
             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
             Councellor
             ,
             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
             Judicator
             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
             Council
             ,
             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
             Riot
             is
             a
             breach
             of
             the
             Peace
             ,
             committed
             by
             oppression
             ,
             or
             wronging
             His
             Majesties
             Lieges
             ,
             by
             force
             and
             violence
             ;
             instances
             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
             persons
             are
             wronged
             ,
             by
             the
             prejudice
             done
             .
             Upon
             which
             account
             ,
             the
             Law
             hath
             furnisht
             more
             remedies
             against
             this
             ,
             then
             any
             other
             crime
             ;
             for
             either
             it
             may
             be
             pursued
             civilly
             ,
             
               per
               interdictum
               
               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
             ,
             
               actione
               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
             ,
             
               beneficium
               ,
               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
             moveables
             can
             be
             otherwise
             proved
             ,
             then
             by
             possession
             :
             the
             Law
             did
             most
             reasonably
             ,
             both
             for
             securing
             Property
             ,
             and
             punishing
             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
             punish
             arbitrarly
             the
             violence
             committed
             ,
             for
             we
             have
             no
             expresse
             Statute
             taxing
             the
             punishment
             .
             By
             the
             Law
             of
             England
             it
             is
             accounted
             no
             Riot
             ,
             or
             routs
             except
             three
             at
             least
             were
             present
             ,
             and
             that
             something
             was
             done
             ,
             
               ad
               terrorem
               populi
            
             ,
             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
             opposition
             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
             insert
             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
               nullam
               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
             Tennent
             ,
             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
             prejudg'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
             before
             ,
             possest
             himself
             violently
             ,
             and
             it
             was
             lawful
             for
             the
             defender
             ,
             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
               factum
               quod
               factum
               est
               priusquam
               ad
               aliud
               negotium
               fuerit
               recessum
               ,
            
             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
               tantum
               diciturex
               incontinenti
               fieri
               quod
               fit
               in
               ipso
               flagranti
               crimine
               .
            
          
           
             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
             criminally
             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
             conclusion
             of
             restitution
             ,
             seing
             that
             is
             a
             civil
             conclusion
             ;
             and
             it
             may
             be
             debated
             ,
             that
             the
             maxim
             ,
             
               spoliatus
               ante
               omnia
               est
               restituendus
            
             loses
             its
             vigor
             after
             that
             time
             ,
             so
             that
             one
             pursued
             for
             a
             ryotous
             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
               vindictam
               tunc
               una
               agitur
               ad
               vindictam
               altera
               vero
               ad
               prosecutionem
               rei
               familiaris
               :
            
             and
             thus
             the
             having
             obtained
             a
             Decreet
             of
             ejection
             ,
             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
             considerable
             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
             cement
             old
             differences
             ,
             the
             Council
             
               in
               quorum
               tutela
               est
               pax
               publica
               ,
            
             cognosce
             upon
             the
             crime
             ,
             and
             remit
             much
             of
             the
             ordinary
             rigor
             .
          
           
             The
             2.
             case
             is
             ,
             when
             the
             crime
             is
             so
             ci●cumstantiat
             ,
             that
             it
             requires
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             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
             representing
             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
             direct
             ,
             citing
             both
             parties
             .
             His
             Majesty
             having
             with
             consent
             of
             Parliament
             appointed
             that
             the
             Justice-court
             should
             be
             served
             by
             many
             of
             the
             Lords
             of
             Session
             ,
             did
             ,
             because
             of
             their
             number
             and
             ability
             ,
             discharge
             all
             precognition
             in
             their
             Commission
             ;
             and
             yet
             because
             these
             precognitions
             were
             not
             discharged
             in
             the
             Commission
             granted
             to
             the
             Council
             ,
             the
             Council
             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
             pursued
             a
             precognition
             brought
             to
             condigne
             punishment
             ;
             and
             whereas
             it
             is
             pretended
             that
             there
             are
             some
             cases
             wherein
             the
             severity
             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
             trying
             the
             merits
             of
             the
             Pannels
             pretences
             ,
             or
             alter
             that
             the
             Justices
             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
             accessory
             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
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             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
             condemned
             for
             Usury
             ,
             in
             so
             far
             as
             he
             had
             taken
             Anualrent
             a
             month
             before
             the
             term
             of
             payment
             ,
             upon
             his
             Debtors
             voluntar
             offer
             ;
             And
             sometimes
             they
             ordain
             some
             of
             their
             own
             number
             to
             revise
             the
             processe
             and
             verdict
             ;
             Which
             Assessors
             do
             ranverse
             the
             whole
             Process
             ,
             and
             ordain
             it
             to
             be
             torn
             out
             of
             the
             Criminal
             Registers
             ,
             as
             in
             the
             case
             of
             
               George
               Grahame
            
             ,
             who
             being
             pursued
             for
             theft
             ;
             it
             was
             alledged
             that
             the
             Assize
             had
             found
             him
             guilty
             of
             recept
             ,
             and
             so
             the
             verdict
             was
             found
             disconform
             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
             refused
             to
             review
             the
             verdict
             ,
             as
             unwarrantable
             ;
             for
             they
             found
             that
             they
             could
             not
             quarrel
             an
             Assize
             ,
             which
             condemned
             ,
             seing
             Assizers
             can
             only
             be
             quarrelled
             for
             error
             ,
             when
             they
             assoilzie
             .
             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
             ignorance
             ,
             it
             shall
             be
             lawful
             to
             him
             to
             cite
             them
             before
             the
             Council
             ,
             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
             relevancy
             ,
             or
             if
             the
             Assize
             find
             that
             proved
             which
             was
             not
             remitted
             to
             them
             ,
             that
             in
             either
             of
             these
             cases
             the
             Council
             may
             review
             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
             probation
             ;
             So
             that
             the
             Justices
             have
             only
             the
             execution
             of
             their
             sentence
             remitted
             to
             them
             :
             Thus
             Fleeming
             was
             convict
             before
             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
             obedience
             ,
             
               via
               ordinaria
            
             ,
             by
             the
             Criminal
             sentence
             ,
             then
             the
             Council
             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
             ,
             without
             any
             previous
             tryal
             ,
             as
             they
             did
             against
             the
             Laird
             of
             Dinbaith
             ,
             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
             ,
             under
             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
             Taxes
             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
             extraordinary
             remedies
             should
             be
             allowed
             ,
             untill
             his
             Majesties
             Laws
             be
             obeyed
             ,
             and
             the
             party
             so
             injured
             be
             fully
             and
             finally
             repaired
             .
          
        
         
           
           
             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
             manage
             His
             Majesties
             Rents
             ;
             so
             that
             this
             is
             
               jurisdictio
               emanat●
            
             ,
             founded
             upon
             that
             rule
             ,
             
               quando
               aliquid
               conceditur
               omnia
               concessa
               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
             Signature
             ,
             subscribed
             by
             the
             King
             ,
             and
             ordain'd
             to
             be
             filled
             up
             by
             the
             Exchequer
             :
             which
             some
             thought
             irregular
             :
             for
             either
             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
               criminibus
               repetundarum
               &
               de
               residuis
            
          
           
             The
             Commissioners
             of
             the
             Thesaury
             did
             ,
             in
             Iune
             1669.
             ordain
             two
             Skippers
             in
             Bruntistand
             ,
             to
             be
             scourged
             at
             that
             Mercat
             Cross
             :
             because
             ,
             when
             a
             Customer
             came
             to
             enter
             a
             Boat
             wherein
             unfree
             Goods
             were
             were
             alledged
             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
                 another
                 ,
                 during
                 the
                 dependence
                 of
                 a
                 Processe
                 before
                 the
                 Session
                 .
              
            
             
               
               8.
               
               
                 They
                 grant
                 Warrand
                 to
                 Advocats
                 ,
                 to
                 compear
                 for
                 such
                 as
                 are
                 pursued
                 for
                 Treason
                 .
              
            
          
           
             I.
             THE
             Lords
             of
             Session
             have
             regularly
             no
             jurisdiction
             in
             criminals
             ;
             and
             yet
             they
             pass
             the
             Bills
             whereupon
             all
             criminal
             Summonds
             are
             rais'd
             :
             For
             all
             Summonds
             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
             residenters
             in
             Town
             (
             their
             sallaries
             not
             being
             sufficient
             for
             defraying
             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
             Parliament
             ,
             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
             refuse
             to
             pass
             these
             Bills
             ,
             whereby
             the
             Liedges
             are
             preju●ged
             .
             And
             it
             is
             most
             unreasonable
             ,
             that
             the
             Justices
             should
             not
             know
             what
             they
             are
             to
             judge
             ;
             especially
             this
             warrand
             being
             a
             part
             of
             the
             Process
             ,
             and
             so
             falls
             naturally
             under
             the
             cognition
             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
             ,
             being
             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
             refuses
             to
             condemn
             upon
             that
             warrand
             ,
             they
             are
             of
             new
             inclosed
             :
             as
             was
             done
             in
             Binnies
             case
             ;
             and
             will
             be
             liable
             to
             an
             Assize
             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
             ,
             according
             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
             suspension
             ,
             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
               incidenter
               crimen
               esse
               comissum
               potest
               de
               crimine
               illo
               cognoscere
               ,
               C.
               si
               adversus
               liber
               .
               l.
               pen.
            
             And
             the
             example
             of
             this
             rule
             is
             instanced
             ,
             in
             
               Charta
               falsa
               .
               l.
               pen.
               C.
               de
               probat
               .
            
             And
             upon
             improving
             an
             Instrument
             ,
             or
             Writ
             ,
             they
             have
             ordained
             ,
             
               omnes
               testes
               instrumentarios
               ,
               &
               falsi
               fabricatores
               ,
            
             to
             be
             
               fal
               sari●s
            
             ,
             and
             remitted
             them
             to
             the
             Justices
             ,
             the
             16.
             of
             February
             1660.
             
             
               Fern
               ,
               Innes
            
             and
             Tarbat
             hang'd
             .
             But
             I
             remember
             not
             that
             they
             have
             in
             any
             other
             case
             cognosced
             upon
             crimes
             incidenter
             ;
             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
             declared
             ,
             that
             all
             landed
             men
             should
             be
             esteemed
             
               pares
               curiae
            
             ,
             and
             might
             sit
             upon
             Noble-mens
             Assizes
             ,
             being
             pursued
             ,
             
               tanquaritemerè
               jurantes
               sup
               .
               assisa
            
             :
             and
             the
             Council
             uses
             to
             consult
             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
             reason
             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
             likewise
             ,
             of
             all
             sentences
             in
             the
             Justice
             Courts
             ;
             but
             these
             Suspentions
             ,
             when
             once
             raised
             ,
             are
             discust
             before
             the
             Justices
             .
          
           
             They
             likewise
             ,
             sometimes
             discuss
             these
             Suspentions
             before
             the
             Session
             .
             And
             thus
             an
             Assithment
             modified
             by
             the
             Justices
             ,
             being
             exorbitant
             ,
             the
             Lords
             ,
             by
             way
             of
             Suspension
             ,
             did
             lessen
             the
             sum
             .
             The
             reason
             of
             which
             Decision
             was
             ,
             because
             they
             found
             this
             case
             to
             be
             but
             of
             the
             nature
             of
             damnage
             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
             ,
             during
             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
             pursuer
             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
             ,
             except
             summar
             cognition
             ,
             to
             be
             taken
             by
             conviction
             ,
             or
             putting
             the
             committer
             to
             the
             Horn
             ,
             and
             denouncing
             him
             fugit●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
             prorogat
             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
             cognition
             be
             first
             taken
             by
             the
             Justices
             ,
             or
             other
             criminal
             ,
             and
             competent
             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
             Hamiltoun
             ;
             where
             it
             was
             debated
             ,
             whether
             the
             Lords
             might
             summarly
             receive
             probation
             of
             it
             themselves
             ,
             or
             remit
             the
             tryal
             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
             order
             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
             probable
             ,
             
               pro
               ut
               de
               jure
            
             ,
             yet
             here
             ,
             
               quo
               ad
               civilem
               effectum
            
             ,
             it
             could
             not
             be
             so
             proved
             :
             for
             else
             a
             Noble-mans
             whole
             and
             ancient
             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
             alledgiances
             ,
             
             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
             also
             found
             ,
             that
             the
             certification
             of
             this
             Act
             ,
             did
             reach
             such
             as
             wounded
             one
             another
             ,
             during
             the
             dependence
             of
             a
             pursuit
             ,
             before
             an
             Inferiour
             Court
             ;
             though
             it
             was
             alledged
             ,
             that
             this
             respect
             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
             punishment
             for
             an
             incident
             Riot
             ,
             before
             an
             Inferiour
             Court.
             
          
           
             I
             find
             likewise
             ,
             that
             one
             Weir
             having
             been
             pursued
             for
             slaughter
             ,
             the
             15.
             of
             Iune
             1591.
             he
             alledged
             ,
             he
             was
             absolved
             by
             a
             Rolment
             of
             Court
             at
             Aberdene
             .
             To
             which
             it
             was
             replyed
             ,
             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
             privat
             Rescript
             ,
             not
             subscribed
             by
             the
             Chancellour
             ,
             nor
             past
             Council
             :
             And
             in
             respect
             ,
             the
             Lords
             of
             Session
             had
             given
             a
             Warrand
             to
             proceed
             ,
             notwithstanding
             of
             the
             Kings
             privat
             Warrand
             .
             It
             is
             also
             observable
             (
             though
             I
             think
             it
             irregular
             )
             that
             Ludwharn
             having
             raised
             ,
             in
             Anno
             1596.
             a
             pursuit
             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
             Leivtennent
             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
             ,
             ordaining
             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
             Pannell'd
             before
             the
             Justices
             :
             yet
             I
             find
             that
             the
             Lords
             granted
             a
             Warrand
             in
             Balmerinochs
             case
             ,
             to
             Advocats
             to
             compear
             for
             him
             .
             And
             seing
             Advocats
             are
             subject
             to
             the
             Jurisdiction
             of
             the
             Lords
             ,
             it
             is
             most
             reasonable
             ,
             that
             the
             application
             be
             made
             to
             them
             :
             for
             the
             same
             reason
             likewise
             ,
             I
             find
             ,
             that
             when
             any
             of
             the
             Lords
             are
             appointed
             Assessors
             ,
             in
             Criminal
             cases
             by
             the
             Council
             ,
             that
             they
             must
             have
             a
             Warrand
             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
                 execute
                 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
               ,
               &
               jurisdictionem
               simplicem
               ;
               potest
               enim
               non
               solum
               jus
               dicere
               ,
               quod
               est
               jurisdictionis
               simplicis
               ,
               exequi
               ,
               imperare
               ,
               judices
               dane
               ,
               coercere
               ;
               quae
               sunt
               meri
               imperii
               ,
               sed
               est
               in
               facinerosos
               animadvertere
               ,
               quod
               est
               meri
               imperii
               ,
               de
               omnibus
               igitur
               contraversiis
               marinis
               cognoscere
               potest
               Amirans
               .
               marinas
               intelligo
               ,
               quae
               negotiationis
               causa
               ineuntur
               ,
               sive
               extra
               mare
               ,
               sive
               in
               mari
               celebrantur
               delicta
               tamen
               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
             assistance
             ,
             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
               Robertson
            
             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
             committed
             
             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
             Jurisdiction
             ,
             &
             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
             established
             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
             takers
             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-defence
             ;
             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
             Enland
             ,
             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
             doubted
             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
             lyable
             to
             their
             Jurisdiction
             ,
             
               nec
               ratione
               loci
               delicti
               ,
               nec
               originis
               ,
               nec
               domicilii
               ,
            
             yet
             he
             who
             is
             of
             no
             Nation
             ,
             is
             of
             all
             nations
             ,
             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
               continentiam
               causae
               ,
            
             as
             if
             a
             man
             rescue
             a
             Pirat
             out
             of
             Prison
             ,
             though
             this
             Crime
             be
             committed
             without
             Flood-mark
             ,
             yet
             the
             Admiral
             is
             Judge
             ,
             because
             it
             hath
             dependance
             upon
             ,
             and
             arises
             from
             the
             principal
             Crime
             to
             which
             he
             is
             Judge
             :
             and
             if
             the
             Admiral
             begin
             to
             present
             Pirats
             ,
             or
             Malefactors
             at
             Sea
             ,
             he
             may
             continue
             his
             pursuit
             ,
             and
             apprehend
             them
             at
             Land
             ,
             and
             without
             his
             own
             jurisdiction
             ,
             but
             he
             must
             in
             that
             case
             seek
             concurrence
             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
             vertue
             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
             Anno
             .
             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
             Commissars
             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
             ;
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             
               A
               bloodless
               Iurisdiction
            
             ,
             upon
             which
             account
             ,
             the
             Law
             gives
             them
             ,
             
               audientiam
               ,
               sed
               non
               jurisdictionem
               ,
               
               tit
               .
               C.
               de
               Episcop
               .
               audient
               .
            
             With
             us
             these
             Bishops
             abstain
             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
            
             ,
             considers
             these
             verbal
             Injuries
             as
             Scandals
             ,
             and
             so
             they
             are
             allowed
             ,
             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
             alledged
             ,
             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
             Injuries
             ,
             where
             they
             are
             Scandals
             ;
             yet
             in
             verbal
             Injuries
             done
             to
             persons
             of
             quality
             ,
             which
             are
             called
             in
             Law
             ,
             
               scandala
               magnatum
            
             ,
             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
             Magistrats
             ,
             the
             Council
             are
             also
             Judges
             ,
             Magistrats
             representing
             the
             King
             ,
             and
             being
             his
             Instruments
             in
             the
             Government
             .
          
           
             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
             ,
             depending
             before
             any
             other
             Court
             ,
             as
             the
             Session
             ,
             Sheriff
             ,
             &c.
             do
             abuse
             contumeliously
             any
             third
             Party
             ,
             though
             no
             Member
             :
             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
             complain
             to
             the
             Lords
             ,
             but
             cannot
             imprison
             them
             summarly
             ,
             because
             ,
             if
             this
             were
             allowed
             ,
             these
             Members
             might
             be
             abstracted
             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
             nothing
             in
             them
             of
             Scandal
             ,
             but
             are
             rather
             reflections
             upon
             the
             Honour
             of
             the
             party
             injured
             ,
             as
             to
             call
             a
             Gentle-man
             a
             Puppy
             ,
             or
             an
             Ass
             ;
             it
             may
             be
             the
             Privy
             Council
             ,
             and
             not
             the
             Commissars
             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
             improbation
             ,
             that
             is
             to
             say
             ,
             by
             presumptions
             ,
             for
             that
             way
             of
             tryal
             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
             ,
             incidenter
             :
             but
             after
             sentence
             ,
             they
             are
             functi
             ;
             as
             was
             found
             the
             29.
             of
             Ianuary
             1677.
             
             
               Cowan
               ,
               contra
            
             the
             Commissar
             of
             Glasgows
             Phiscal
             ,
             and
             according
             to
             these
             conclusions
             ,
             the
             late
             instructions
             given
             to
             the
             Commissars
             ,
             are
             to
             be
             interpreted
             .
          
        
         
           
           
             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
                 Regality
                 .
              
            
             
               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
             priviledges
             as
             immediatly
             belong
             to
             the
             Crown
             ,
             and
             do
             not
             originally
             
             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
             Charter
             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
             expresly
             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
             Sheriffs
             ,
             Lords
             of
             Regality
             ,
             or
             other
             inferiour
             Judge
             ,
             shall
             only
             pay
             a
             hundred
             Pounds
             ;
             but
             though
             they
             be
             accounted
             inferiour
             Judges
             ,
             when
             compared
             with
             the
             Justices
             ,
             or
             Commissioners
             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
             allowance
             with
             the
             Justices
             ,
             except
             when
             an
             express
             Law
             makes
             a
             difference
             betwixt
             them
             .
          
           
             The
             43.
             
             Act
             ,
             11.
             
             Parl.
             K.
             Ia.
             2.
             appoints
             that
             no
             Regalities
             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
               habentia
               ,
               &
               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
             Superiority
             ;
             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
             Cranburn
             .
          
           
             IV.
             Whether
             His
             Majesty
             may
             erect
             Regalities
             within
             the
             bounds
             of
             Heritable
             Sheriff-ships
             ,
             is
             controverted
             with
             us
             ;
             and
             if
             he
             may
             ,
             certainly
             he
             may
             thereby
             evacuat
             the
             Office
             of
             Sheriff-ships
             ,
             though
             bought
             with
             real
             Money
             ,
             which
             is
             hard
             .
             And
             yet
             the
             Exchequer
             past
             a
             Signator
             of
             Drumlanrigs
             ,
             albeit
             Niddisdale
             ,
             within
             the
             bounds
             of
             which
             Sheriff-ship
             it
             is
             erected
             ,
             be
             an
             Heritable
             Sheriff-ship
             ,
             and
             the
             like
             decision
             is
             related
             by
             
               Hop
               .
               M.
               h.
               t.
            
             and
             the
             reason
             seems
             to
             be
             ,
             that
             His
             Majesty
             by
             granting
             an
             Heritable
             Sheriff-ship
             ,
             alters
             not
             its
             nature
             ;
             and
             the
             nature
             of
             a
             Sheriff-ship
             ,
             is
             ,
             that
             His
             Majesty
             is
             not
             thereby
             divested
             of
             Jurisdiction
             ,
             and
             the
             Sheriff
             appointed
             ,
             being
             but
             His
             Majesties
             Deput
             ,
             his
             Creation
             cannot
             hinder
             His
             Majesty
             to
             erect
             a
             new
             Jurisdiction
             within
             its
             bounds
             ,
             as
             he
             may
             erect
             a
             Burgh-royal
             therein
             ,
             or
             a
             Justiciary
             ,
             &c.
             
             When
             Lands
             are
             dispon'd
             in
             Conjunctsee
             ,
             the
             Heritor
             retains
             still
             the
             Office
             of
             Regality
             ,
             
               Hop
               .
               hoc
               .
               tit
            
             .
          
           
             V.
             Albeit
             it
             be
             regularly
             true
             ,
             that
             Lords
             of
             Regality
             have
             the
             same
             jurisdiction
             with
             His
             Majesties
             Justices
             :
             yet
             this
             rule
             suffers
             two
             exceptions
             ,
             1.
             
             In
             the
             case
             of
             Treason
             ,
             
             to
             which
             the
             justices
             are
             only
             judges
             competent
             ,
             and
             that
             not
             only
             where
             the
             Treason
             libelled
             ,
             amounts
             to
             the
             crime
             of
             Perduellion
             ;
             but
             even
             in
             Statutory
             Treasons
             ,
             such
             as
             firing
             of
             Coal-heughs
             ,
             theft
             in
             landed
             men
             ,
             &c.
             
             And
             some
             Lawyers
             are
             likewise
             of
             opinion
             ,
             that
             these
             crimes
             which
             are
             declared
             to
             be
             the
             four
             Points
             of
             the
             Crown
             ,
             viz.
             Robbery
             ,
             Murder
             ,
             Fire-raising
             ,
             and
             Ravishing
             of
             Women
             ,
             should
             not
             be
             liable
             to
             their
             jurisdiction
             ;
             which
             opinion
             is
             founded
             upon
             the
             2.
             
               cap.
               leg
               .
               Malcolm
            
             .
             2.
             
             By
             which
             it
             is
             Statute
             ,
             that
             all
             Robbers
             ,
             Forces
             of
             Women
             ,
             Murderers
             of
             Men
             ,
             and
             Burners
             of
             Houses
             ,
             shall
             answer
             before
             the
             Kings
             Justiciar
             ;
             and
             are
             therefore
             called
             Pleys
             of
             the
             Crown
             .
             And
             by
             the
             14.
             
               cap.
               Stat.
               Alex.
            
             2.
             it
             is
             ordained
             ,
             that
             in
             all
             the
             Courts
             of
             Bishops
             ,
             Abbots
             ,
             and
             the
             Lords
             whatsomever
             ,
             these
             four
             Pleys
             shall
             be
             reserved
             from
             their
             Court
             ,
             to
             the
             Kings
             own
             Court
             ,
             because
             they
             belong
             to
             the
             Crown
             :
             which
             is
             confirmed
             by
             the
             76.
             
               cap.
               quon
               .
               Attach
            
             .
             Likeas
             
               Skeen
               de
               verb.
               signif
            
             .
             Upon
             the
             Word
             Placitum
             ,
             is
             clear
             ,
             that
             these
             four
             Pleys
             of
             the
             Crown
             ,
             belong
             only
             to
             the
             Crowns
             jurisdiction
             ,
             or
             Justice-general
             ,
             in
             the
             same
             manner
             with
             Treason
             he
             there
             likewise
             observes
             ,
             that
             they
             are
             called
             placita
             ,
             from
             the
             French
             Word
             placitare
             ,
             which
             signifies
             Litigare
             ,
             as
             Mollineus
             ,
             observes
             ,
             
               Sup.
               cur
               .
               Parl.
               parti
               .
               Primo
               cap.
               Sexto
            
             :
             And
             yet
             
               de
               facto
            
             ,
             Lords
             of
             Regality
             do
             ordinarly
             judge
             upon
             these
             crimes
             without
             any
             Commission
             .
             And
             I
             find
             that
             the
             22.
             of
             
               Iuly
               ,
               Brown
            
             is
             assoilzied
             from
             a
             pursuit
             of
             Fire-raising
             ,
             because
             he
             had
             been
             formerly
             pursued
             before
             the
             Marquess
             of
             Hamiltoun
             ,
             and
             assoilzied
             .
             Actions
             of
             Deforcement
             also
             ,
             in
             my
             opinion
             ,
             being
             intented
             before
             the
             Iustices
             ,
             cannot
             be
             repledged
             ,
             for
             the
             Kings
             Messenger
             being
             then
             Deforced
             ,
             it
             is
             not
             fit
             that
             His
             Majesty
             should
             be
             oblieged
             to
             seek
             justice
             from
             inferiour
             Judges
             ,
             where
             His
             Officers
             of
             State
             cannot
             attend
             to
             pursue
             ,
             and
             cap.
             27.
             l.
             4.
             
             
               Reg.
               Maj.
            
             it
             is
             said
             ,
             that
             
               ad
               solam
               curiam
               Regis
               pertinet
               placitum
               
               de
               namo
               vetito
               ,
            
             and
             this
             the
             Justices
             sustain'd
             ,
             the
             23.
             of
             November
             1675.
             in
             the
             case
             of
             
               William
               Crighton
            
             ,
             though
             the
             debate
             was
             not
             allow'd
             to
             be
             booked
             .
          
           
             The
             2.
             exception
             is
             ,
             that
             no
             Bailie
             of
             Regality
             can
             repledge
             from
             Justice
             Airs
             ,
             Act
             29.
             
             Parl.
             11.
             
             Ia.
             6.
             which
             was
             likewise
             Statute
             formerly
             ,
             by
             the
             26.
             
             
               Act
               ,
               Ia.
            
             2.
             
             Parl.
             6.
             
             But
             in
             this
             case
             ,
             the
             Bailie
             of
             Regality
             may
             sit
             with
             the
             Justice-general
             ,
             yet
             seing
             the
             forsaid
             Act
             of
             the
             11.
             
             Parl.
             King.
             Ia.
             6
             allowes
             only
             no
             Repledgiation
             to
             be
             from
             Justice
             Airs
             ,
             holden
             by
             the
             Justice-general
             ,
             it
             may
             be
             doubted
             ,
             if
             when
             Justices
             Airs
             are
             holden
             by
             the
             Justice
             Deputs
             ,
             or
             others
             ,
             by
             vertue
             of
             particular
             Commissions
             ,
             there
             may
             not
             be
             Repledgiation
             allowed
             in
             that
             case
             ;
             but
             I
             think
             there
             cannot
             ,
             seing
             the
             Act
             of
             
               Parl.
               Ia.
            
             2.
             is
             general
             :
             and
             Skeen
             remarks
             this
             as
             a
             priviledge
             of
             the
             Justice
             Air
             ,
             
               qua
               talis
            
             .
          
           
             VI.
             Regalities
             are
             divided
             with
             us
             ,
             in
             Ecclesiastick
             ,
             and
             Laick
             ;
             Ecclesiastick
             Regalities
             were
             such
             ,
             as
             were
             erected
             in
             favours
             of
             Bishops
             ,
             Abbots
             ,
             &c.
             
             And
             there
             are
             but
             very
             few
             Abbacies
             in
             Scotland
             which
             were
             not
             erected
             in
             Regalities
             ;
             and
             when
             these
             were
             annexed
             to
             the
             Crown
             ,
             by
             the
             foresaid
             29.
             
             
               Act
               ,
               Parl.
            
             11.
             
             K.
             Ia.
             6.
             
             It
             is
             declared
             ,
             that
             the
             Bailie
             ,
             or
             Stewart
             of
             the
             Regality
             shall
             have
             the
             same
             power
             he
             had
             before
             to
             Repledge
             ,
             from
             the
             Sheriff
             ,
             or
             Justice-general
             ,
             in
             case
             he
             have
             prevented
             the
             Justice-general
             ,
             by
             apprehending
             ,
             or
             citing
             the
             Person
             ,
             before
             he
             be
             apprehended
             ,
             or
             cited
             by
             the
             Justice
             ;
             but
             ,
             if
             the
             Justice
             have
             prevented
             ,
             as
             said
             is
             ,
             then
             the
             Bailie
             ,
             or
             Stewart
             of
             the
             Regality
             ,
             shall
             not
             have
             power
             to
             Repledge
             ,
             but
             he
             may
             sit
             with
             the
             Justice-general
             ,
             if
             he
             pleases
             :
             so
             that
             in
             effect
             ,
             by
             this
             act
             ,
             there
             is
             difference
             betwixt
             Ecclesiastick
             and
             Laick
             Regalities
             ;
             that
             in
             Laick
             Regalities
             ,
             there
             is
             a
             Right
             of
             Repledging
             still
             ,
             as
             said
             is
             ;
             wheras
             Ecclesiastick
             Regalities
             have
             not
             this
             priviledge
             ,
             except
             they
             preveen
             the
             Justices
             ;
             but
             otherwise
             ,
             the
             Bailie
             of
             Regality
             may
             only
             sit
             with
             them
             :
             Which
             difference
             seems
             
             to
             ●e
             acknowledged
             in
             the
             debate
             ,
             at
             His
             Majesties
             Advocats
             instance
             ,
             against
             several
             Fore-stallers
             ,
             upon
             the
             26.
             of
             Iune
             1596.
             
             And
             thus
             Mr.
             
               Iohn
               Prestoun
            
             ,
             then
             Depute
             to
             the
             Regality
             of
             Musselburgh
             ,
             was
             not
             allowed
             to
             Repledge
             ,
             but
             to
             sit
             with
             the
             Justices
             ,
             in
             the
             tryal
             of
             some
             Witches
             ,
             upon
             the
             29.
             of
             Iuly
             1661.
             
             The
             reason
             of
             this
             difference
             was
             ,
             that
             the
             Regalities
             having
             been
             only
             granted
             ,
             in
             favours
             of
             the
             Religious
             Houses
             which
             were
             supprest
             .
             The
             Regalities
             became
             extinguisht
             with
             them
             ,
             and
             His
             Majesty
             having
             ,
             
               ex
               gratia
            
             ,
             only
             renewed
             their
             Offices
             to
             the
             Lords
             of
             Erection
             ,
             he
             thought
             that
             they
             were
             abundantly
             gratified
             ,
             by
             this
             new
             concession
             ,
             without
             allowing
             them
             the
             power
             to
             exclude
             his
             own
             Justices
             ,
             in
             case
             of
             prevention
             ;
             and
             this
             was
             also
             a
             favour
             to
             the
             Liedges
             ,
             in
             not
             troubling
             them
             with
             two
             Courts
             .
             Nor
             were
             the
             Lords
             of
             Regality
             much
             prejudged
             ;
             for
             by
             this
             same
             Act
             ,
             they
             retain
             the
             whole
             right
             to
             the
             Escheats
             ,
             and
             Fines
             ,
             even
             of
             these
             who
             are
             condemned
             by
             the
             Justices
             .
             And
             therefore
             the
             Lords
             found
             ,
             that
             the
             Lord
             of
             Regality
             had
             right
             to
             the
             Escheats
             of
             such
             as
             were
             condemned
             by
             the
             Justices
             ,
             or
             Justices
             of
             Peace
             ,
             the
             22.
             of
             Iuly
             1664.
             
             
               Elizabeth
               Sutherland
               contra
               Conradge
            
             :
             so
             that
             this
             holds
             not
             only
             where
             the
             Justices
             sit
             with
             the
             Lord
             of
             Regality
             :
             but
             likewise
             where
             the
             Justices
             condemn
             without
             the
             others
             concourse
             ;
             and
             yet
             it
             may
             be
             urged
             ,
             that
             since
             the
             Lord
             of
             Regality
             serves
             not
             in
             that
             case
             ,
             he
             ought
             not
             to
             get
             these
             Casualities
             ,
             which
             are
             the
             reward
             due
             to
             these
             who
             do
             justice
             ,
             and
             the
             Lord
             of
             Regality
             has
             himself
             only
             to
             blame
             ,
             who
             did
             not
             either
             preveen
             ,
             or
             repledge
             .
          
           
             Bailies
             of
             Regalities
             may
             likewise
             repledge
             from
             the
             Kings
             Lievtenent
             ,
             as
             was
             found
             the
             19.
             of
             August
             1596.
             
             And
             as
             is
             clear
             by
             the
             foresaid
             Act
             of
             Annexation
             :
             and
             likewise
             from
             any
             Commissioners
             appointed
             by
             the
             Council
             ,
             as
             was
             found
             in
             May
             1568.
             
             And
             from
             the
             Justices
             of
             Peace
             ,
             in
             Riots
             ,
             and
             Bloods
             :
             as
             was
             found
             by
             the
             Lords
             of
             Session
             ,
             Iuly
             1617.
             though
             
             these
             causes
             being
             of
             small
             moment
             ,
             and
             requiring
             summar
             and
             unexpensive
             cognitions
             ,
             seem
             to
             require
             easier
             ,
             and
             less
             solemn
             tryals
             in
             the
             procedor
             ,
             then
             repledgiations
             will
             allow
             .
             And
             yet
             by
             c.
             11.
             
               de
               appell
            
             .
             I
             find
             that
             
               licebat
               in
               remimina
               appellare
            
             ;
             nor
             can
             the
             parties
             injured
             complain
             ,
             since
             they
             might
             have
             made
             their
             application
             to
             the
             Lord
             of
             Regality
             :
             Nor
             should
             their
             errour
             prejudge
             his
             jurisdiction
             .
          
           
             VII
             .
             The
             manner
             of
             repledgiation
             from
             any
             Court
             ,
             is
             ,
             that
             either
             the
             party
             himself
             ,
             who
             hath
             the
             power
             of
             repledging
             ,
             or
             some
             other
             having
             a
             Procurator
             from
             him
             ,
             compears
             and
             produces
             his
             Charter
             of
             Erection
             ;
             from
             the
             production
             of
             the
             Seasing
             is
             not
             sufficient
             ,
             seing
             that
             is
             but
             
               assertio
               Notarii
            
             :
             yet
             sometimes
             without
             production
             of
             the
             Charter
             ,
             repledgiation
             will
             be
             sustain'd
             :
             because
             it
             is
             notour
             that
             the
             repledger
             hath
             a
             Regality
             ;
             as
             in
             the
             Duke
             of
             Lennox
             case
             ,
             1637.
             
             As
             also
             ,
             repledgiation
             will
             be
             sustain'd
             ,
             upon
             production
             of
             the
             criminal
             Register
             ,
             bearing
             ,
             that
             it
             was
             formerly
             sustain'd
             to
             the
             same
             persons
             ,
             May
             1668.
             
             Arducaple
             against
             the
             Commissioners
             of
             the
             High-lands
             :
             Yet
             it
             may
             be
             doubted
             ,
             whether
             the
             production
             of
             a
             Lord
             of
             Regalities
             retour
             ,
             will
             be
             sufficient
             to
             instruct
             that
             he
             hath
             a
             Regality
             :
             and
             it
             appears
             it
             should
             ,
             since
             a
             retour
             is
             a
             sentence
             ,
             and
             so
             is
             a
             sufficient
             instruction
             ,
             till
             it
             be
             reduced
             .
          
           
             He
             who
             offers
             to
             repledge
             ,
             must
             find
             Caution
             of
             Culrach
             to
             do
             justice
             ,
             within
             year
             and
             day
             ,
             upon
             the
             person
             whom
             he
             repledges
             ;
             and
             if
             the
             Judge
             to
             whom
             he
             is
             repledged
             ,
             doth
             not
             justice
             within
             year
             and
             day
             ,
             he
             
               tines
               his
               Court
            
             (
             as
             we
             call
             it
             )
             for
             year
             and
             day
             ;
             and
             the
             Culrach
             (
             for
             so
             the
             Cautioner
             is
             called
             )
             who
             hath
             ,
             upon
             his
             becoming
             Cautioner
             ,
             borrowed
             the
             Defender
             ,
             is
             in
             an
             unlaw
             ,
             and
             the
             Judge
             from
             whom
             he
             was
             borrowed
             ,
             or
             repledged
             ,
             may
             proceed
             to
             do
             justice
             ,
             as
             formerly
             :
             
               Skeen
               ,
               de
               verb.
               sig
            
             .
             The
             Pannel
             likewise
             ,
             who
             is
             repledged
             ,
             must
             find
             Caution
             for
             his
             own
             appearance
             
             before
             the
             Lord
             of
             Regality
             ,
             to
             underly
             the
             Law
             ,
             for
             the
             crimes
             laid
             to
             his
             charge
             ,
             the
             16.
             of
             May
             1599.
             
             
               Patrick
               M
               
               ckalla
            
             ,
             against
             the
             Regality
             of
             Lennox
             .
          
           
             No
             person
             can
             be
             repledged
             ,
             except
             he
             be
             present
             at
             the
             Court
             ,
             from
             which
             he
             is
             desired
             to
             be
             repledged
             :
             for
             a
             party
             ,
             who
             is
             absent
             ,
             cannot
             find
             Caution
             to
             sist
             himself
             before
             the
             Court
             ,
             to
             which
             he
             is
             repledged
             ;
             as
             was
             found
             in
             the
             case
             of
             Armstrong
             ,
             who
             being
             pursued
             for
             murdering
             some
             Customers
             ,
             was
             desired
             to
             be
             repledged
             by
             the
             Earl
             of
             
               Annandale
               ,
               Anno
            
             1666.
             
             Nor
             can
             a
             person
             be
             repledged
             after
             defences
             are
             proponed
             for
             him
             :
             for
             this
             being
             ,
             
               recusatio
               judicis
            
             ,
             it
             must
             be
             ,
             
               ante
               omnia
            
             ,
             propon'd
             ,
             
               dum
               res
               est
               integra
            
             .
          
           
             VIII
             .
             When
             Regalities
             are
             erected
             ,
             there
             is
             a
             Burgh
             of
             Regality
             expressed
             therein
             ;
             and
             though
             that
             Burgh
             may
             choose
             Bailies
             ,
             yet
             the
             Bailie
             of
             Regality
             hath
             still
             a
             cumulative
             jurisdiction
             with
             those
             Bailies
             of
             the
             Burgh
             of
             Regality
             ,
             in
             that
             same
             way
             that
             other
             Superiours
             retain
             still
             a
             cumulative
             jurisdiction
             with
             their
             Regality
             ;
             as
             was
             found
             the
             24.
             of
             Ianuary
             1668.
             betwixt
             the
             Bailie
             of
             Killimure
             ,
             and
             the
             Burgh
             thereof
             .
             This
             Burgh
             is
             oblig'd
             to
             maintain
             a
             sufficient
             Prison
             ,
             not
             only
             for
             Criminals
             ,
             but
             for
             Debitors
             ,
             by
             the
             273.
             
             Act
             ,
             15.
             
             
               Parl.
               Ia.
            
             6.
             
             And
             all
             Captions
             bear
             the
             Letters
             ,
             to
             be
             direct
             to
             Bailies
             of
             Regalities
             ,
             &c.
             
             And
             yet
             by
             that
             Act
             ,
             these
             Burghs
             seem
             only
             to
             be
             oblig'd
             to
             intertain
             Prisoners
             ,
             where
             there
             are
             Provost
             ,
             Bailies
             ,
             and
             Common-good
             ,
             Nota
             ,
             that
             these
             words
             of
             that
             Act
             ,
             
               by
               the
               Sheriff
               to
               Stewarts
               ,
               and
               Bailies
               of
               Regalities
               ,
               are
               ill
               printed
            
             ;
             for
             the
             word
             to
             should
             be
             or
             ,
             The
             Lords
             likewise
             decided
             thus
             against
             the
             Bailies
             of
             Regalities
             ,
             the
             7.
             of
             Iuly
             1668.
             
             
               Hamiltoun
               contra
               Callender
            
             .
             In
             this
             Burgh
             all
             Courts
             must
             be
             holden
             ,
             Yet
             defenders
             are
             oblidg'd
             to
             compear
             at
             any
             other
             place
             within
             the
             Regality
             ,
             to
             which
             they
             were
             expresly
             cited
             :
             As
             Had
             ,
             observes
             in
             a
             case
             ,
             the
             16.
             of
             March
             1622.
             
             
             Or
             ,
             if
             the
             Lord
             of
             Regality
             was
             in
             use
             to
             hold
             his
             Court
             else
             where
             ,
             for
             a
             considerable
             time
             ,
             without
             interruption
             ,
             the
             Vassals
             ,
             or
             any
             other
             Defender
             ,
             is
             oblidg'd
             to
             appear
             thereat
             ,
             though
             it
             be
             not
             the
             place
             design'd
             ,
             in
             the
             Charter
             of
             Erection
             ,
             as
             Had.
             observes
             ,
             December
             1624.
             
             And
             if
             the
             party
             ,
             who
             is
             desired
             to
             be
             Repledged
             ,
             dwelt
             within
             the
             Regality
             ,
             the
             time
             of
             the
             committing
             of
             the
             Crime
             ,
             the
             Repledgiation
             will
             be
             sustain'd
             ,
             though
             at
             the
             time
             of
             his
             being
             accused
             ,
             he
             be
             removed
             without
             the
             Regality
             :
             as
             was
             found
             ,
             the
             21.
             of
             November
             1632.
             in
             the
             case
             of
             one
             Weems
             ,
             who
             was
             desired
             to
             be
             Repledged
             ,
             to
             the
             Regality
             of
             Methwen
             .
          
           
             Lords
             of
             Regality
             are
             oblidged
             to
             hold
             Justice-Courts
             twice
             a
             Year
             ,
             3.
             
             
               Parl.
               K.
               Ia.
            
             2.
             
             Act.
             5.
             and
             if
             they
             be
             negligent
             in
             causing
             rest
             and
             stolen
             Goods
             be
             restored
             ,
             the
             Sheriff
             may
             fulfil
             their
             place
             ,
             Act
             11.
             
             Parl.
             15.
             
             Ia.
             2.
             
             And
             when
             Erections
             fall
             into
             the
             Kings
             hand
             ,
             the
             Inhabitants
             thereof
             may
             be
             
               justified
               ,
               id
               est
            
             ,
             judged
             by
             the
             Justices
             ,
             Act
             26.
             
             Par.
             6.
             
             K.
             I.
             6
             but
             this
             Act
             can
             only
             take
             place
             ,
             till
             a
             Stewart
             ,
             or
             Bailie
             be
             appointed
             .
             For
             Regulariter
             ,
             the
             Kings
             own
             Stewarts
             of
             Regalities
             may
             repledge
             from
             the
             Justices
             .
          
           
             A
             Lord
             of
             Regality
             cannot
             fit
             himself
             in
             his
             own
             Court
             ,
             but
             must
             administer
             by
             a
             Bailie
             ,
             who
             is
             sometimes
             admitted
             by
             a
             simple
             Commission
             ,
             during
             his
             life
             ;
             or
             otherwise
             he
             is
             admitted
             to
             be
             Heritable
             Bailie
             :
             which
             Right
             passes
             by
             Infestment
             ;
             but
             this
             Bailie
             is
             in
             Lands
             belonging
             to
             the
             King
             ,
             and
             is
             properly
             call'd
             the
             Stewart
             of
             the
             Regality
             :
             though
             sometimes
             the
             Kings
             Deputs
             in
             Regalities
             ,
             are
             likewise
             call'd
             Bailies
             ,
             as
             in
             the
             5.
             
             Act.
             3.
             
             
               Parl.
               K
               I.
            
             2.
             
          
           
             IX
             .
             Lords
             of
             Regality
             cannot
             cite
             Witnesses
             ,
             without
             their
             own
             jurisdiction
             ,
             but
             they
             must
             have
             Letters
             of
             Supplement
             for
             that
             Office
             ;
             though
             generally
             they
             may
             proceed
             in
             the
             same
             way
             that
             the
             Justice-General
             doth
             ;
             but
             they
             
             may
             exact
             Caution
             to
             enter
             as
             Law-will
             ,
             from
             the
             defenders
             ,
             after
             sentence
             is
             given
             ,
             as
             was
             found
             the
             7.
             of
             October
             1668.
             betwixt
             Mr.
             
               Iohn
               Prestoun
            
             ,
             and
             Mr.
             
               Iohn
               Pape
            
             ,
             which
             seems
             to
             be
             a
             greater
             priviledge
             then
             the
             Justices
             have
             ,
             who
             cannot
             presently
             exact
             Caution
             of
             any
             person
             ,
             for
             paying
             an
             unlaw
             ,
             but
             can
             only
             raise
             Letters
             of
             Horning
             upon
             the
             Act
             of
             Adjournal
             .
          
           
             The
             Lords
             of
             Regalities
             have
             right
             to
             the
             single
             Escheat
             of
             rebels
             ,
             living
             within
             their
             jurisdiction
             ;
             as
             also
             to
             the
             Escheats
             of
             all
             persons
             ,
             condemned
             for
             crimes
             ,
             committed
             by
             the
             Inhabitants
             within
             their
             jurisdiction
             ,
             albeit
             condemned
             by
             the
             Justices
             :
             from
             which
             general
             rule
             ,
             Hope
             in
             his
             lesser
             Practiques
             ,
             excepts
             only
             the
             case
             of
             Treason
             ;
             but
             it
             may
             be
             doubted
             ,
             whether
             exception
             may
             not
             be
             likewise
             made
             of
             all
             other
             Pleys
             of
             the
             Crown
             ,
             seeing
             the
             Lord
             of
             Regality
             is
             no
             more
             Judge
             competent
             to
             these
             ,
             then
             he
             is
             to
             Treason
             .
          
           
             I
             was
             once
             consulted
             ,
             whether
             a
             Lord
             of
             Regality
             might
             place
             a
             Gallows
             upon
             any
             part
             of
             his
             Vassals
             Land
             ,
             lying
             within
             his
             Regality
             ?
             and
             at
             first
             it
             seem'd
             that
             he
             might
             :
             for
             ,
             
               unaquaeque
               gleba
               servit
            
             :
             and
             what
             was
             lawful
             in
             some
             part
             ,
             was
             ,
             where
             there
             is
             no
             restriction
             lawful
             in
             any
             part
             :
             but
             if
             there
             was
             a
             former
             place
             fix'd
             upon
             by
             custome
             ,
             I
             think
             the
             Lord
             of
             Regality
             could
             not
             alter
             the
             same
             .
             2.
             
             If
             there
             were
             any
             apparent
             design
             of
             affronting
             the
             Vassal
             ,
             I
             believe
             he
             could
             not
             use
             this
             priviledge
             ;
             as
             if
             he
             did
             offer
             to
             place
             the
             Gallows
             ,
             at
             his
             Vassals
             Gate
             ,
             or
             at
             his
             Garden-door
             ,
             or
             any
             such
             places
             :
             for
             ,
             where
             the
             Law
             sayes
             ,
             that
             
               quilibet
               potest
               uti
               jure
               suo
            
             ,
             it
             adds
             ,
             
               modo
               hoc
               non
               faciat
               principaliter
               in
               aemulationem
               alterius
               .
            
             3.
             
             Even
             in
             other
             places
             ,
             there
             is
             some
             
               moderamon
               &
               decorum
            
             ,
             to
             be
             observed
             :
             and
             I
             doubt
             not
             ,
             but
             upon
             application
             to
             the
             Council
             ,
             they
             would
             appoint
             some
             persons
             to
             choose
             an
             indifferent
             place
             :
             for
             even
             in
             these
             servitudes
             ,
             
               ubi
               unaquequae
               gleba
               servit
               ;
               hoc
               accipiendum
               est
               ●iviliter
            
             
             (
             sayes
             the
             Law
             )
             
               &
               non
               judaice
            
             .
             for
             if
             a
             man
             should
             grant
             me
             a
             servitude
             of
             a
             way
             to
             my
             house
             through
             any
             part
             of
             his
             ground
             ,
             yet
             I
             could
             not
             compel
             him
             to
             throw
             down
             his
             Garden
             walls
             ,
             or
             to
             suffer
             me
             to
             go
             thorrow
             his
             Corns
             ,
             if
             there
             were
             ,
             or
             might
             be
             another
             passage
             found
             ,
             though
             it
             were
             not
             so
             near
             .
          
        
         
           
             TITLE
             XII
             .
             The
             Jurisdiction
             of
             Sheriffs
             in
             Criminals
             .
          
           
             
               1.
               
               
                 The
                 origine
                 of
                 this
                 office
                 ,
                 and
                 how
                 it
                 is
                 conveyed
                 in
              
               Scotland
               .
            
             
               2.
               
               
                 He
                 is
                 the
                 chief
                 preserver
                 of
                 the
                 peace
                 ,
                 and
                 so
                 many
                 convocat
                 the
                 Liedges
                 ,
                 apprehend
                 sayers
                 of
                 Masse
                 ,
                 false
                 Coyners
                 ,
              
               &c.
               
            
             
               3.
               
               
                 He
                 is
                 not
                 Iudge
                 to
                 the
                 four
                 Pleys
                 of
                 the
                 Crown
                 .
              
            
             
               4.
               
               
                 The
                 way
                 of
                 procedure
                 before
                 the
                 Sheriffs
                 .
              
            
             
               5.
               
               
                 Whether
                 he
                 may
                 judge
                 where
                 no
                 privat
                 party
                 complains
                 ?
              
            
             
               
               6.
               
               
                 He
                 should
                 attend
                 the
                 Iustice
                 Aires
                 .
              
            
             
               7.
               
               
                 How
                 he
                 is
                 to
                 be
                 punished
                 if
                 he
                 transgress
                 in
                 his
                 office
                 ?
              
            
          
           
             ALluredus
             ,
             in
             the
             League
             made
             with
             Guntherus
             King
             of
             Denmark
             ,
             divided
             England
             ,
             in
             
               Satrapias
               ,
               centurias
               ,
               &
               decurias
               ,
            
             and
             called
             Satrapiam
             a
             Shire
             ,
             that
             is
             to
             say
             ,
             a
             Section
             or
             division
             of
             Land
             ,
             from
             the
             word
             Shire
             ,
             which
             signifies
             to
             cut
             ,
             so
             that
             a
             Sherifdom
             is
             a
             Jurisdiction
             within
             the
             bounds
             of
             a
             particular
             limited
             Countrey
             :
             It
             is
             called
             in
             our
             Latine
             stile
             ,
             
               vice
               comitatus
            
             ;
             and
             though
             most
             of
             the
             Shires
             in
             Scotland
             be
             erected
             in
             Sherifdomes
             by
             particular
             Acts
             of
             Parliament
             ,
             yet
             by
             an
             unprinted
             Act
             in
             Anno
             1504.
             
             It
             is
             declared
             that
             His
             Majesty
             may
             erect
             ,
             unite
             ,
             or
             divide
             Sherifdoms
             without
             consent
             of
             Parliament
             :
             And
             though
             his
             Majesty
             erect
             a
             Burgh-royal
             ,
             or
             Barrony
             within
             the
             Sherifdome
             ,
             yet
             they
             still
             continue
             to
             be
             under
             the
             Jurisdiction
             of
             the
             Sheriff
             ,
             and
             they
             have
             a
             cumulative
             Jurisdiction
             with
             him
             ;
             but
             not
             privative
             of
             him
             .
             Sheriffs
             in
             Scotland
             ,
             are
             either
             during
             life
             ,
             and
             then
             the
             office
             passes
             by
             a
             signatour
             ,
             and
             passes
             the
             great
             Seal
             ,
             or
             otherwise
             it
             is
             conferred
             as
             an
             heretable
             right
             ,
             
               quo
               casu
            
             ,
             though
             it
             be
             transmitted
             in
             the
             same
             way
             and
             manner
             with
             other
             heretable
             rights
             ,
             yet
             because
             it
             is
             
               merum
               jus
               incorporeum
            
             ,
             it
             requires
             no
             seasing
             ,
             but
             albeit
             all
             these
             heretable
             offices
             were
             upon
             good
             reasons
             discharged
             by
             the
             44
             Act
             11.
             
             
               Parl.
               K.
               I.
            
             6.
             seing
             
               industria
               personae
               respicitur
               in
               judice
            
             ;
             And
             albeit
             .
             K.
             I.
             6.
             and
             King
             Charles
             the
             first
             ,
             did
             design
             to
             buy
             in
             all
             the
             heretable
             Sherifships
             ,
             and
             bought
             in
             many
             ,
             yet
             there
             are
             many
             of
             them
             to
             this
             day
             injoyed
             by
             Noble-men
             and
             others
             .
          
           
             II.
             The
             Sheriffs
             of
             Scotland
             ,
             have
             a
             Civil
             and
             Criminal
             Jurisdiction
             ,
             but
             the
             last
             of
             these
             ,
             is
             that
             which
             we
             are
             only
             to
             consider
             as
             peculiar
             to
             this
             Treatise
             .
          
           
             The
             Sheriff
             is
             in
             effect
             the
             supreme
             Justice
             of
             peace
             ,
             to
             whom
             is
             mainly
             entrusted
             by
             the
             Law
             ,
             the
             securing
             of
             the
             quiet
             ,
             
             and
             tranquility
             of
             that
             part
             of
             the
             Kingdom
             which
             is
             subject
             to
             his
             Jurisdiction
             ;
             and
             therefore
             though
             no
             other
             person
             be
             allowed
             to
             ride
             with
             gatherings
             of
             the
             Liedges
             ,
             yet
             the
             Sheriffs
             is
             ,
             nor
             can
             he
             be
             pursued
             for
             a
             convocation
             upon
             that
             account
             ;
             seing
             he
             may
             convocat
             at
             his
             pleasure
             for
             repressing
             of
             tumults
             ,
             and
             upon
             many
             other
             accounts
             ,
             as
             was
             found
             in
             February
             1664
             betwixt
             the
             Earl
             of
             Seaforth
             ,
             and
             the
             Laird
             of
             Ballingown
             ,
             for
             it
             doth
             belong
             to
             his
             office
             ,
             to
             discharge
             all
             convocations
             of
             the
             Liedges
             ,
             and
             if
             they
             refuse
             ,
             he
             should
             continue
             his
             Court
             ,
             and
             advertise
             the
             King.
             K.
             Ia.
             3.
             
             Parl.
             14.
             
             Act.
             104.
             
          
           
             Albeit
             ,
             
               in
               civilibus
            
             ,
             neither
             the
             Sheriff
             ,
             nor
             Barrons
             ,
             can
             hold
             Courts
             
               in
               feriat
            
             ,
             or
             close
             ,
             time
             of
             vacance
             .
             Yet
             in
             Criminals
             he
             may
             hold
             Courts
             during
             the
             time
             of
             vacance
             
               quia
               periculum
               est
               in
               mora
            
             ,
             as
             is
             observed
             by
             Haddingtoun
             ,
             the
             19.
             
             Ianuary
             ,
             1623.
             
             And
             Sheriffs
             has
             not
             power
             to
             exact
             caution
             from
             a
             Malefactor
             to
             underly
             the
             Law
             ,
             for
             he
             cannot
             proceed
             except
             either
             the
             defender
             be
             cited
             ,
             or
             ,
             
               deprehensus
               inflagranti
               crimine
            
             ,
             25.
             
             Mart.
             1628.
             
          
           
             The
             Sheriff
             is
             Judge
             competent
             to
             the
             crime
             of
             Witch-craft
             ,
             Quen
             Mary
             her
             9.
             
             
               Parl.
               Act.
            
             37.
             albeit
             
               de
               praxi
            
             ,
             none
             used
             to
             judge
             Witch-craft
             ,
             but
             the
             Justices
             ,
             or
             such
             as
             have
             a
             particular
             commission
             from
             the
             Council
             .
             They
             should
             apprehend
             the
             sayers
             and
             hearers
             of
             Masse
             ,
             Act
             5.
             
             Pa.
             1.
             
             K.
             I.
             6.
             
             And
             the
             strikers
             of
             false
             Coyn
             ,
             I.
             3.
             
             Pa.
             3.
             cap.
             18.
             but
             they
             are
             not
             allowed
             by
             the
             Law
             expresly
             to
             proceed
             in
             either
             of
             these
             cases
             ;
             from
             which
             it
             may
             be
             argued
             that
             they
             are
             not
             Judges
             competent
             thereto
             ,
             for
             else
             the
             Law
             had
             expresly
             allowed
             them
             the
             same
             ,
             (
             
               &
               inclusio
               unius
               est
               exclusio
               alterius
               :
               )
            
             They
             should
             apprehend
             ,
             punish
             and
             banish
             Sorners
             ,
             I.
             2.
             
             P.
             6.
             cap.
             22.
             
             Egyptians
             ,
             I.
             6.
             
             P.
             12.
             cap.
             124.
             
             Idle-men
             ,
             Ia.
             1.
             
             P.
             3.
             cap.
             66.
             
             Shooters
             with
             fire-works
             .
             Q.
             
               Mary
               .
               Par.
            
             4.
             cap.
             9.
             
             Fore-stallers
             ,
             I.
             5.
             
             P.
             4.
             cap.
             20.
             
             Transporters
             of
             Neat
             and
             Sheep
             ,
             and
             other
             Cattel
             ,
             Ia.
             6.
             
             Par.
             7.
             cap.
             124.
             
             Ia.
             6
             ,
             
             Par.
             12.
             cap.
             129.
             
             The
             destroyers
             of
             Planting
             ,
             
               K.
               I.
            
             6.
             
             P.
             6.
             cap.
             84.
             
          
           
             III.
             Sheriffs
             may
             at
             any
             time
             condemn
             for
             Blood-weits
             ,
             but
             the
             penalty
             cannot
             exceed
             fifty
             Pounds
             .
          
           
             The
             Sheriff
             nor
             no
             other
             inferiour
             Judge
             ,
             can
             Judge
             the
             four
             Pleys
             of
             the
             Crown
             ,
             viz.
             open
             Robbery
             ,
             Fire
             raising
             ,
             and
             ravishing
             of
             Women
             ,
             and
             Murder
             .
             Yet
             of
             old
             ,
             Sheriffs
             might
             sit
             upon
             Slaughter
             ,
             if
             the
             committers
             were
             attactht
             within
             fourty
             days
             thereafter
             ,
             cap.
             59.
             
               quon
               .
               attach
            
             .
             And
             Act
             89.
             
             Par.
             6.
             
             I.
             1.
             
             And
             if
             he
             be
             taken
             red
             hand
             ,
             he
             should
             be
             execute
             by
             the
             Sheriff
             within
             that
             Sun
             ,
             ibid.
             And
             yet
             by
             the
             28
             
               Act
               ,
               Parl.
            
             3.
             
             
               K.
               I.
            
             4.
             
             Three
             Suns
             are
             allowed
             conform
             to
             the
             old
             Laws
             ;
             and
             if
             the
             committer
             of
             the
             Slaughter
             flee
             ,
             the
             Sheriff
             shall
             acquaint
             the
             next
             Sheriff
             ,
             and
             so
             from
             one
             Judge
             to
             another
             ,
             until
             the
             committer
             be
             apprehended
             ,
             and
             when
             he
             is
             taken
             ,
             he
             is
             to
             be
             sent
             back
             to
             that
             Sheriff
             where
             the
             crime
             was
             committed
             ,
             where
             justice
             is
             to
             be
             done
             upon
             him
             ,
             and
             if
             he
             be
             found
             guilty
             of
             Fore-thought
             Fellony
             ,
             he
             shall
             dye
             ;
             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
             apprehended
             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.
             observes
             ,
             
             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
             knowledge
             of
             an
             Assize
             ,
             as
             was
             found
             24.
             
             Iuly
             1633.
             
             
               Dickson
               contra
               Halyday
            
             .
             And
             albeit
             a
             blood
             proven
             by
             confession
             ,
             may
             be
             punished
             by
             an
             unlaw
             of
             fifty
             pounds
             ;
             yet
             when
             blood
             is
             punished
             upon
             contumacious
             refusal
             to
             swear
             ,
             the
             unlaw
             cannot
             exceed
             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
             proceed
             ,
             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
             accompts
             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
             interim
             .
             
               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
             commissionated
             
             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
             during
             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
             pleasure
             ,
             Ia.
             2.
             
             Par.
             14.
             cap.
             37.
             
             And
             yet
             the
             Lord
             Yester
             ,
             having
             suffered
             two
             Thieves
             negligently
             to
             escape
             ,
             and
             his
             heretable
             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
             .
             likewise
             in
             his
             larger
             Practiques
             .
          
           
             If
             the
             Sheriff
             absolutly
             refuse
             to
             do
             Justice
             ,
             he
             loses
             likewise
             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
             damnage
             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
             Deputs
             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
             Barron
             properly
             ,
             is
             he
             who
             is
             Infest
             with
             power
             of
             Pit
             and
             Gallows
             ,
             
               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
             vacance
             ,
             to
             judge
             these
             crimes
             ,
             to
             which
             he
             is
             otherwise
             competent
             .
             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
             Nation
             .
          
           
             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
               potestas
               gladii
               est
               meri
               imperii
               quae
               nullo
               modo
               delegari
               potest
               ,
            
             except
             there
             be
             an
             express
             power
             given
             by
             the
             Soveraign
             for
             that
             effect
             ,
             as
             in
             the
             case
             of
             Justices
             ,
             and
             Sheriffs
             ,
             who
             have
             power
             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
             ,
             founded
             upon
             a
             confession
             ,
             though
             the
             confession
             be
             not
             subscribed
             ,
             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
             consent
             of
             the
             Clerk.
             
          
           
             Albeit
             by
             the
             75.
             
             
               Act
               Parl.
            
             6.
             
             
               K.
               Ia.
            
             5.
             the
             Barrons
             Precepts
             (
             for
             Summonds
             in
             that
             Court
             is
             so
             called
             )
             should
             be
             execute
             ,
             as
             Summonds
             before
             the
             Lords
             ,
             and
             Coppies
             should
             be
             left
             ,
             and
             they
             indorsed
             upon
             ;
             yet
             the
             11.
             of
             Iuly
             1634.
             
             Hay
             ,
             against
             Airth
             ,
             it
             was
             found
             ,
             that
             executions
             by
             a
             Barrons
             Officer
             are
             valid
             ,
             though
             not
             given
             in
             Writ
             ,
             and
             that
             the
             same
             are
             probable
             by
             Witnesses
             .
          
           
             III.
             A
             Barron
             having
             power
             ,
             may
             judge
             of
             Theft
             ,
             if
             the
             Thief
             be
             taken
             in
             the
             fang
             ,
             
               quon
               .
               attach
               .
               cap.
            
             100.
             where
             it
             is
             Statuted
             ,
             that
             
               baro
               qui
               libertatem
               habet
               de
               sock
               ,
               &
               sack
               ,
               toll
               .
               &
               theam
               possunt
               judicare
               furem
               sasitum
               de
               aliquo
               furto
               manifesto
               :
               sicut
               haud
               haebband
               ,
               &
               back
               beirand
               .
               de
               praxi
               :
            
             Barrons
             do
             not
             punish
             Slaughter
             ;
             yet
             it
             may
             be
             urg'd
             ,
             that
             they
             have
             power
             to
             do
             so
             :
             because
             ,
             1.
             
             The
             power
             of
             Pit
             and
             Gallows
             would
             import
             ,
             the
             power
             of
             judging
             life
             and
             death
             .
             2.
             
             By
             
             the
             77.
             
               cap.
               quon
               attach
               .
               omnes
               Barrones
               qui
               habent
               furcam
               &
               Fossam
               de
               latrocinio
               ,
               de
               hominis
               occissione
               habeant
               furcam
               ,
               id
               est
               curiam
               ,
            
             as
             the
             marginal
             note
             bears
             :
             and
             by
             the
             13.
             
               cap.
               Leg.
               Mal.
            
             2.
             
             It
             is
             Statute
             ,
             that
             Malefactors
             ,
             who
             hold
             of
             Barrons
             ,
             may
             be
             condemned
             after
             the
             same
             manner
             ,
             that
             other
             Malefactors
             are
             ,
             except
             in
             the
             four
             Pleys
             of
             the
             Crown
             ,
             in
             which
             ,
             Barrons
             have
             no
             power
             ;
             from
             which
             it
             may
             be
             very
             clearly
             inferred
             ,
             that
             
               quo
               ad
            
             ,
             other
             crimes
             they
             have
             ,
             
               nam
               exceptio
               firmat
               regulam
               in
               non
               exceptis
               .
            
             3.
             
             By
             the
             91.
             
             
               Act
               ,
               Parl.
            
             1.
             
             I.
             2.
             
             It
             is
             Statute
             ,
             if
             a
             man
             be
             slain
             in
             the
             Barrony
             ,
             if
             the
             Barron
             be
             Infest
             with
             such
             freedom
             ,
             he
             may
             proceed
             as
             the
             Sheriff
             doth
             .
             And
             albeit
             Hope
             in
             his
             larger
             Practiques
             ,
             observes
             ,
             that
             these
             words
             of
             the
             Act
             
               (
               if
               he
               be
               Infest
               with
               such
               freedom
            
             )
             may
             receive
             various
             interpretations
             ;
             yet
             I
             see
             no
             interpretation
             they
             can
             properly
             receive
             ,
             except
             this
             ,
             that
             these
             words
             are
             meant
             ,
             if
             he
             have
             the
             Jurisdiction
             proper
             and
             competent
             to
             a
             Barron
             ,
             which
             is
             Pit
             and
             Gallows
             ,
             
               nam
               verba
               generabia
               interpretanda
               sunt
               secundum
               subjectam
               materiam
               .
            
          
           
             Albeit
             wilful
             Fire-raising
             be
             one
             of
             the
             Pleys
             of
             the
             Crown
             ,
             yet
             a
             Barron
             may
             cognosce
             upon
             ,
             and
             punish
             the
             raisers
             of
             Fire
             rashly
             ,
             within
             Husband
             Towns
             in
             the
             Barrony
             ,
             I.
             1.
             
             Parl.
             4.
             cap.
             75.
             
             The
             words
             of
             which
             Statutes
             ,
             are
             ,
             if
             Fire
             happen
             within
             Husband
             Towns
             of
             Barronies
             ,
             we
             leave
             them
             to
             be
             punished
             by
             their
             Lords
             ,
             in
             like
             manner
             ,
             as
             Bailiffs
             in
             Towns
             do
             within
             Burgh
             ;
             in
             which
             Act
             ,
             by
             the
             word
             ,
             Lords
             ,
             are
             meant
             Barrons
             ,
             for
             they
             are
             in
             several
             Acts
             of
             Parliament
             ,
             called
             Lords
             of
             their
             own
             Land
             ,
             or
             Barrony
             .
          
           
             A
             Barron
             may
             unlaw
             for
             absence
             ,
             for
             ten
             Pounds
             ,
             but
             not
             above
             ,
             and
             for
             blood
             ,
             he
             may
             unlaw
             for
             fifty
             Pounds
             ,
             but
             not
             above
             .
          
        
         
           
           
             VITLE
             XIV
             .
             Of
             Justices
             of
             Peace
             .
          
           
             OUr
             Justices
             of
             peace
             ,
             were
             called
             Irenarchae
             ,
             which
             signifies
             in
             the
             Greek
             ,
             the
             keeper
             of
             the
             peace
             ,
             
               irenarchae
               erant
               qui
               ad
               provinciarum
               tutelam
               quietis
               ac
               pacis
               per
               singula
               territoria
               faciunt
               stare
               concordiam
               ,
               dicebantur
               etiam
               latrunculatores
               ,
               sen
               latronum
               expulsores
               .
            
             Their
             Office
             was
             to
             apprehend
             Rebels
             and
             Thieves
             ,
             whom
             they
             could
             only
             examine
             ,
             and
             send
             to
             the
             President
             of
             the
             Province
             ,
             but
             could
             not
             judge
             them
             themselves
             ;
             their
             office
             is
             more
             fully
             described
             ,
             lib.
             10.
             
             
               C.
               tit
            
             .
             75.
             but
             to
             speak
             properly
             ,
             latrunculatores
             ,
             were
             our
             Constables
             called
             by
             the
             Greek
             Lawyers
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
          
           
             Justices
             of
             peace
             ,
             and
             Constables
             were
             once
             fully
             settled
             amongst
             us
             by
             K.
             I.
             6.
             but
             their
             office
             having
             fallen
             in
             desuetude
             ,
             it
             was
             revived
             by
             38.
             
             Act
             ,
             1.
             
             Parl.
             1.
             
             
               Sess.
               K.
               Ch.
            
             the
             2.
             
          
           
             By
             this
             Act
             they
             are
             allowed
             to
             meet
             four
             times
             in
             the
             year
             ,
             and
             to
             adjudge
             of
             Servants
             fees
             ,
             and
             of
             mending
             the
             high
             wayes
             ,
             they
             have
             power
             to
             punish
             the
             cutters
             and
             destroyers
             of
             planting
             ,
             green
             wood
             ,
             slayers
             of
             red
             and
             black
             Fishes
             ,
             makers
             of
             moor-burn
             ,
             keepers
             of
             Crooves
             ,
             wilful
             Beggars
             ,
             Egyptians
             and
             their
             receptors
             ,
             Drunkards
             ,
             prophaners
             of
             the
             Sabbath
             ,
             as
             to
             all
             which
             His
             Majesty
             promises
             to
             give
             them
             ample
             commissions
             :
             and
             to
             the
             end
             ,
             their
             power
             may
             not
             prejudge
             any
             other
             Court
             formerly
             erected
             ,
             it
             is
             appointed
             by
             that
             Act
             ,
             that
             fifteen
             dayes
             shall
             expire
             after
             the
             committing
             of
             the
             fact
             ,
             
             for
             which
             the
             committer
             is
             to
             be
             conveened
             .
             Which
             interval
             is
             given
             to
             the
             Judge
             competent
             to
             do
             diligence
             ,
             and
             if
             he
             omit
             the
             same
             during
             that
             time
             ,
             then
             the
             Justices
             may
             judge
             the
             same
             ,
             and
             one
             Justice
             has
             power
             to
             bind
             the
             party
             complained
             upon
             ,
             to
             the
             peace
             ,
             under
             such
             pecunial
             Sums
             as
             he
             shall
             think
             fit
             ,
             and
             that
             either
             at
             the
             instance
             of
             a
             complainer
             ,
             who
             shall
             give
             his
             oath
             that
             he
             dreads
             harm
             or
             the
             Justice
             himself
             may
             exact
             the
             sum
             ,
             though
             none
             complain
             .
             And
             if
             any
             person
             being
             charged
             to
             make
             his
             appearance
             before
             the
             Justice
             of
             peace
             shall
             refuse
             ,
             it
             he
             be
             a
             landed
             man
             ,
             whose
             rent
             exceeds
             a
             thousand
             Merks
             ,
             or
             ten
             Chalders
             of
             Victual
             ,
             then
             he
             shall
             inform
             any
             of
             his
             Majesties
             Privy
             Council
             ,
             or
             if
             he
             be
             a
             meaner
             person
             ,
             he
             may
             cause
             bring
             him
             by
             force
             before
             himself
             .
          
           
             If
             the
             Sheriff
             ,
             or
             Bailiff
             condemn
             any
             person
             in
             blood-weit
             ,
             or
             any
             other
             pain
             ,
             but
             not
             proportionally
             to
             the
             offence
             ;
             then
             the
             Justices
             shall
             inform
             the
             Privy
             Council
             ,
             that
             they
             may
             take
             order
             therewith
             ;
             but
             if
             there
             be
             no
             satisfaction
             made
             by
             the
             Sheriff
             or
             Bailiff
             to
             the
             party
             ,
             the
             Justices
             may
             modify
             a
             reasonable
             satisfaction
             .
          
           
             If
             the
             Sheriff
             or
             Bailiff
             do
             by
             collusion
             ,
             clear
             the
             Delinquent
             of
             an
             Assize
             ,
             the
             party
             once
             cleared
             is
             not
             to
             be
             further
             questioned
             ,
             but
             the
             Judges
             are
             to
             be
             punished
             by
             the
             Privy
             Council
             .
          
           
             The
             Justices
             of
             peace
             are
             declared
             Judges
             competent
             to
             all
             Ryots
             ,
             and
             breaking
             of
             peace
             ,
             if
             the
             committee●s
             be
             under
             the
             degree
             of
             Noblemen
             ,
             Prelats
             Councellours
             ,
             and
             Senators
             of
             the
             Colledge
             of
             Justice
             ,
             who
             may
             refer
             the
             Summonds
             to
             the
             parties
             oath
             ,
             if
             he
             be
             personally
             Summoned
             ,
             and
             thereupon
             hold
             him
             as
             confest
             ,
             but
             if
             the
             Summonds
             be
             not
             personally
             execute
             ,
             then
             the
             defender
             is
             to
             be
             summoned
             of
             new
             at
             his
             dwelling
             house
             ,
             and
             these
             two
             citations
             at
             his
             dwelling
             house
             shall
             be
             equivalent
             to
             one
             that
             is
             personal
             :
             if
             the
             committers
             be
             above
             the
             foresaid
             quality
             ,
             then
             the
             Justices
             ,
             though
             they
             
             cannot
             judge
             them
             ,
             may
             for
             preventing
             of
             Ryots
             ,
             command
             them
             to
             find
             caution
             for
             keeping
             of
             the
             peace
             ,
             and
             to
             compear
             before
             the
             Privy
             Council
             ,
             and
             though
             they
             compear
             not
             ,
             yet
             whatever
             breach
             they
             commit
             in
             the
             interim
             ,
             shall
             be
             repute
             as
             great
             a
             contravention
             ,
             as
             if
             they
             had
             found
             caution
             :
             At
             the
             end
             of
             every
             quarter
             Session
             ,
             the
             Justices
             of
             peace
             ,
             are
             to
             send
             to
             the
             Clerk
             of
             the
             Council
             ,
             a
             Catalogue
             of
             all
             such
             persons
             ,
             as
             they
             either
             have
             committed
             ,
             or
             have
             under
             surety
             ,
             with
             a
             short
             abreviat
             of
             the
             cause
             thereof
             (
             which
             is
             that
             which
             the
             Civil
             Law
             in
             the
             former
             Title
             cals
             
               transmittere
               cum
               elogio
            
             )
             to
             the
             end
             that
             the
             Council
             may
             determin
             betwixt
             and
             the
             quarter
             Session
             what
             shall
             be
             done
             with
             them
             .
          
        
         
           
           
             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
             errour
             can
             seldom
             be
             repair'd
             .
             The
             Athenians
             had
             the
             Areopage
             for
             their
             Criminal
             Court
             ,
             which
             was
             the
             most
             famous
             Court
             ,
             then
             in
             the
             World
             ,
             of
             whom
             the
             Grecians
             us'd
             to
             say
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             they
             judged
             Homicide
             ,
             in
             a
             particular
             place
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             it
             was
             very
             numerous
             ,
             and
             the
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             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
               augustalis
               ,
               Comes
               Orientis
               ,
               &
               vicarius
               praefecti
               praetorio
               ,
            
             had
             also
             a
             criminal
             jurisdiction
             .
          
           
             The
             Justice
             Court
             with
             us
             ,
             had
             for
             its
             Members
             ,
             the
             Justice-General
             ,
             the
             Justice-Clerk
             ,
             the
             Justice-Deputs
             ,
             the
             Clerk-Depute
             ,
             the
             Dempster
             ,
             the
             Officer
             ,
             and
             the
             Macers
             .
          
           
             II.
             The
             Justice-General
             is
             constitute
             by
             a
             Gift
             under
             the
             great
             Seal
             ,
             either
             
               ad
               vitam
            
             ,
             or
             by
             a
             temporary
             Commission
             ,
             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
             Sallary
             ,
             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
             Exchequer
             .
          
           
             The
             Justice-Court
             of
             old
             ,
             was
             the
             only
             Soveraign
             Court
             of
             the
             Nation
             ,
             and
             had
             then
             a
             great
             part
             of
             that
             Jurisdiction
             ,
             which
             the
             Session
             hath
             now
             ;
             for
             they
             were
             Judges
             to
             Recognitions
             ,
             Brieves
             of
             
               Mortancestrie
               ,
               Dissasine
               ,
               Purpresture
            
             ,
             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
             remain'd
             still
             Judges
             to
             Perambulations
             ,
             and
             Brieves
             were
             directed
             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
             tumults
             ,
             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
             instance
             of
             some
             Iedburgh
             men
             ,
             to
             the
             Justice-general
             ,
             
               ex
               hoc
               capite
            
             ,
             the
             Lords
             would
             not
             sustain
             the
             Advocation
             ;
             but
             remitted
             
             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
             universality
             of
             the
             Jurisdiction
             ;
             and
             to
             distinguish
             them
             from
             Justices
             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
             declar'd
             ,
             that
             they
             accepted
             only
             of
             the
             remit
             ,
             as
             meaning
             they
             were
             His
             Majesties
             Justice-deputs
             :
             and
             when
             His
             Majesty
             directs
             any
             Letter
             to
             them
             ,
             he
             directs
             it
             to
             our
             trusty
             and
             well
             beloved
             Cozen
             and
             Councellour
             ,
             to
             our
             trusty
             and
             well
             beloved
             ,
             our
             Justice-general
             ,
             and
             Justice-deputs
             .
          
           
             Of
             old
             ,
             I
             find
             there
             were
             eight
             Justice-deputs
             .
             The
             Justice-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
               justiciarii
               ,
               quon
               .
               attach
               .
               c.
            
             61.
             
               &
               assis
               .
               R.
               David
               .
               c.
               nullus
               .
            
             
             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
             ,
             adorned
             with
             white
             ;
             and
             this
             I
             find
             the
             Kings
             of
             old
             ,
             had
             
               vestem
               purpuream
               sed
               albi
               habens
               non
               nihil
               admixtam
               .
               Perion
               .
               de
               magistr
               .
               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
             ,
             
               clericus
               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
             ordained
             to
             be
             modified
             ,
             to
             the
             party
             cleansed
             ,
             by
             the
             ●ustice
             ,
             Justice-clerk
             ,
             and
             their
             Deputs
             ,
             
               sed
               ita
               est
            
             ,
             that
             modification
             of
             expences
             ,
             is
             a
             judicial
             sentence
             ,
             at
             least
             ,
             is
             
               actus
               jurisdictionis
               &
               jurisdictio
               tantum
               explica●i
               potest
               per
               judicem
               &
               non
               peractuarium
               vel
               referendarium
               .
            
             As
             to
             the
             reason
             of
             the
             name
             of
             justice-clerk
             ,
             it
             is
             received
             by
             Tradition
             ,
             that
             because
             clerici
             ,
             or
             Church-men
             of
             old
             could
             not
             sit
             in
             Criminal
             Courts
             ,
             seing
             the
             Law
             gives
             them
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             a
             bloodless
             jurisdiction
             ,
             therefore
             they
             were
             allow'd
             to
             nominat
             a
             Clerk
             ,
             who
             might
             represent
             them
             ;
             who
             was
             therefore
             called
             ,
             
               non
               clericus
               justiciarii
            
             ,
             the
             Clerk
             of
             the
             Justice
             Court
             ,
             but
             
               justiciarius
               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
             Deputation
             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
             Officer
             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
             absent
             .
          
           
             The
             Justice
             Court
             have
             a
             Seal
             ,
             which
             they
             append
             to
             publick
             Acts
             ,
             and
             is
             kept
             by
             the
             Justice-cle●k-deput
             .
             This
             Deput
             is
             admitted
             by
             the
             Justice
             clerk
             ,
             by
             way
             of
             Commission
             ,
             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
             Justice-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
             Justice-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
             ,
             Murther
             ,
             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
               .
               Molineus
               in
               stil.
               cur
               .
               paris
               part
               .
            
             1.
             c.
             13.
             observes
             ,
             that
             in
             France
             ,
             three
             crimes
             belong
             to
             the
             cognition
             of
             the
             High
             Justices
             ,
             wilful
             Fire
             ,
             ravishing
             of
             Women
             ,
             and
             Murder
             ;
             nor
             can
             any
             other
             Judge
             proceed
             to
             judge
             these
             Crimes
             ,
             except
             they
             be
             particularly
             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
            
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             &c.
             
             Yet
             ordinarly
             ,
             even
             the
             Grecians
             had
             their
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             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
             Murders
             ,
             
               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
             Militiary
             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
                 Romans
                 .
              
            
          
           
             I.
             ALbeit
             Souldiers
             should
             be
             tryed
             by
             a
             Court
             martial
             ,
             for
             crimes
             committed
             by
             them
             ,
             in
             a
             Military
             capacity
             ,
             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
               militum
               sunt
               vel
               communia
               ,
               vel
               propria
               ,
               lib.
            
             2.
             
               de
               remilit
            
             .
             And
             thus
             French
             ,
             and
             two
             other
             Soul●iers
             under
             Morgan
             in
             the
             English
             Garison
             of
             Leith
             ,
             were
             put
             to
             the
             knowledge
             of
             an
             inquest
             ,
             for
             killing
             a
             Burgesse
             of
             Edinburgh
             ,
             albeit
             Morgan
             ,
             offered
             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
             Ryots
             and
             Crimes
             committed
             when
             he
             was
             in
             the
             West
             ,
             they
             would
             not
             remit
             him
             to
             a
             Council
             of
             War
             ,
             albeit
             that
             declinator
             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
             February
             ,
             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
             countrey
             men
             had
             formed
             themselves
             in
             an
             Army
             ,
             and
             were
             declared
             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
             Traitors
             ,
             it
             was
             alledged
             for
             them
             ,
             that
             they
             could
             not
             be
             put
             to
             the
             knowledge
             of
             an
             inquest
             before
             the
             Justices
             ,
             because
             they
             having
             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
             quarter
             ,
             but
             where
             there
             is
             a
             
               bellum
               justum
            
             ,
             and
             it
             is
             not
             the
             number
             ,
             
             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
             effect
             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
             Souldiers
             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
             Souldiers
             ,
             as
             such
             :
             and
             as
             the
             Council
             ,
             without
             expresse
             remission
             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
            
             ,
             concludes
             ,
             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
             giving
             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
             repelled
             ,
             and
             the
             Pannels
             condemned
             ,
             and
             thereafter
             execute
             .
          
           
             The
             second
             question
             was
             ,
             that
             which
             was
             debated
             in
             Haddo's
             
             case
             ,
             16.
             
             March
             1642.
             
             At
             which
             time
             that
             Loyal
             Gentleman
             Haddo
             ,
             being
             pursued
             ,
             for
             killing
             Mr.
             
               Iames
               Stalker
            
             ,
             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
             seeking
             ,
             and
             thereupon
             ordered
             to
             kill
             him
             ,
             which
             was
             accordingly
             done
             ;
             by
             which
             it
             clearly
             appears
             ,
             that
             this
             was
             a
             privat
             murder
             done
             in
             cold
             blood
             ,
             and
             upon
             premeditat
             malice
             ,
             and
             Mr.
             
               Iames
               Stalker
            
             ,
             being
             a
             Prisoner
             ,
             any
             who
             killed
             him
             ;
             was
             liable
             for
             his
             murder
             ,
             
               ex
               jure
               militari
            
             ,
             and
             the
             pacification
             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
             excepted
             from
             the
             pacification
             .
             2.
             
             Haddo
             was
             no
             general
             person
             ,
             and
             so
             could
             not
             give
             order
             for
             his
             execution
             ;
             and
             so
             the
             killing
             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
             engaged
             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
             manner
             ,
             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
             command
             that
             party
             which
             was
             equivalent
             to
             his
             being
             a
             general
             person
             ;
             and
             albeit
             the
             pacification
             did
             expresly
             except
             murders
             ,
             yet
             that
             behoved
             only
             to
             be
             interpret
             of
             such
             murders
             ,
             
             as
             had
             no
             contingency
             with
             the
             troubles
             ,
             nor
             were
             occasioned
             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
             accordingly
             .
             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
             observeable
             ,
             that
             one
             Mr.
             
               Alexander
               Henderson
            
             ,
             as
             Procurator
             Fiscal
             ,
             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
             punishable
             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
             Treason
             ,
             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
             Military
             
             cases
             ;
             and
             if
             Souldiers
             had
             offended
             ,
             the
             Civil
             Magistrat
             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
             Criminal
             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
                 competency
                 .
              
            
          
           
             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
               absque
               provocatione
               facta
               translatio
               Gail
               .
               lib.
            
             1.
             obs
             .
             41
             ,
             num
             .
             7.
             and
             is
             founded
             upon
             
               cap.
               ut
               nostrum
               de
               appell
               ,
               &
               l.
               jud
               .
               solvitur
               ff
               .
               de
               jud
               .
            
          
           
             II.
             Their
             is
             no
             Advocation
             raised
             of
             pursuits
             ,
             intented
             before
             the
             Justices
             ,
             but
             if
             ther
             be
             any
             design
             of
             stopping
             a
             pursuit
             depending
             before
             them
             ,
             there
             useth
             to
             be
             a
             Petition
             given
             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
             :
             sometimes
             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
             Advocations
             .
          
           
             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
             alledged
             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
             pursuit
             ,
             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
             Advocat
             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
             Summonds
             ;
             for
             in
             effect
             ,
             an
             Advocation
             is
             a
             Summonds
             ,
             and
             the
             Diets
             in
             Advocations
             are
             peremptor
             ,
             as
             in
             all
             other
             criminal
             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
             defender
             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
             Advocation
             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
             remitted
             to
             the
             Justices
             ;
             but
             ,
             if
             that
             Advocation
             be
             raised
             before
             the
             Council
             ,
             it
             is
             called
             before
             the
             Justices
             ,
             and
             they
             are
             Judges
             to
             the
             relevancy
             of
             the
             reasons
             ,
             and
             both
             pursuer
             ,
             and
             defender
             ,
             must
             prove
             all
             that
             they
             alledge
             instantly
             .
          
           
             The
             Advocation
             of
             a
             criminal
             pursuit
             ,
             doth
             contain
             the
             reasons
             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
               criminalibus
            
             ,
             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
             reason
             .
          
           
             IV.
             The
             ordinary
             reasons
             of
             Advocation
             ,
             are
             ,
             1.
             
             Consanguinity
             ,
             or
             Affin●ty
             within
             degrees
             defendant
             ,
             viz.
             cousins
             german
             ,
             or
             nearer
             ,
             for
             whatever
             is
             a
             sufficient
             reason
             to
             cast
             a
             Witnesse
             ,
             should
             (
             in
             my
             opinion
             )
             much
             more
             be
             sufficient
             to
             decline
             a
             Judge
             ,
             since
             there
             may
             be
             penury
             of
             Witnesses
             ,
             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
             ordinarly
             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
             ,
             because
             of
             their
             great
             Eminency
             ,
             and
             Trust
             ,
             are
             not
             to
             be
             as
             easily
             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
             Justice-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
             ,
             because
             of
             their
             Eminency
             ,
             and
             presum'd
             integrity
             ,
             that
             therefore
             they
             being
             the
             same
             persons
             ,
             ought
             to
             have
             the
             same
             priviledges
             ,
             
             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
             Statute
             should
             be
             extended
             to
             him
             ;
             because
             men
             of
             meaner
             parts
             may
             officiat
             there
             .
          
           
             It
             may
             be
             also
             doubted
             ,
             whether
             this
             declinator
             against
             fathers
             ,
             brothers
             ,
             and
             sons
             ,
             should
             extend
             to
             the
             degrees
             of
             affinity
             ,
             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
             Parliament
             must
             be
             strictly
             interpreted
             ,
             yet
             where
             there
             is
             a
             parity
             of
             reason
             ,
             and
             the
             words
             may
             in
             propriety
             admit
             of
             the
             extension
             ,
             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
             witnesses
             may
             be
             cast
             upon
             the
             suspition
             of
             affinity
             ;
             why
             may
             not
             Judges
             ?
             especially
             seing
             in
             the
             Statute
             1621.
             against
             dispositions
             made
             by
             Bankrupts
             :
             and
             in
             the
             opinion
             of
             Lawyers
             ,
             degrees
             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.
             
             Ianuary
             ,
             1629.
             
          
           
             Whether
             this
             statute
             is
             to
             be
             extended
             to
             unlawful
             relations
             ;
             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
               fraternitatis
               
               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
               ,
               anno
            
             .
             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
             defence
             ,
             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
             inferred
             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
             sustain'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
             Removings
             ,
             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
             Advocations
             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
             caution
             is
             necessary
             ,
             because
             the
             Judicature
             before
             which
             the
             caution
             was
             found
             ,
             is
             altered
             ,
             and
             neither
             the
             pursuer
             ,
             nor
             his
             cautioner
             ,
             
             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
             Advocated
             ,
             the
             raiser
             of
             the
             Advocation
             should
             intimat
             to
             His
             Majesties
             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
             Justices
             cannot
             judge
             ,
             whether
             they
             be
             competent
             Judges
             in
             causes
             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
             remit
             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
             soverain
             Judges
             ,
             as
             well
             as
             the
             Lords
             of
             Session
             ,
             and
             since
             the
             Justices
             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
             exactly
             :
             as
             for
             instance
             ,
             I
             have
             seen
             an
             Advocation
             raised
             of
             a
             Libel
             
             in
             the
             case
             of
             Treason
             ,
             from
             before
             a
             Lord
             of
             Regalities
             Court
             ,
             upon
             this
             reason
             ,
             viz.
             that
             the
             ground
             of
             the
             accusation
             was
             for
             drowning
             a
             Coal-heugh
             ,
             which
             was
             Treason
             in
             our
             Law
             ,
             to
             the
             which
             crime
             of
             Treason
             ,
             none
             but
             the
             Justices
             were
             Judges
             competent
             .
             In
             which
             Advocation
             these
             points
             were
             necessarily
             debated
             ,
             1.
             
             Whether
             Lords
             of
             Regality
             were
             Judges
             to
             Treason
             .
             2.
             
             Whether
             though
             they
             were
             Judges
             competent
             to
             Treason
             ,
             founded
             upon
             the
             common
             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
             :
             Likeas
             ,
             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
             immediatly
             upon
             the
             Advocation
             ,
             caution
             is
             found
             in
             the
             books
             of
             adjournal
             ,
             and
             to
             answer
             before
             the
             Justices
             ,
             and
             the
             Justices
             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
             information
             ,
             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
             criminal
             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
             informed
             .
             
             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
             Canon
             Law
             ,
             Inquisition
             was
             declared
             to
             be
             an
             ordinary
             remedy
             :
             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
             consonant
             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
             formalities
             ;
             but
             nothing
             can
             follow
             ,
             till
             after
             information
             be
             taken
             ,
             an
             Enditement
             ,
             or
             Summonds
             be
             raised
             ,
             which
             is
             followed
             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
               extraordinarium
               remedium
               dum
               locus
               est
               ordinario
            
             :
             and
             albeit
             Inquisition
             be
             declared
             by
             the
             Doctors
             ,
             to
             be
             an
             ordinary
             remedy
             ,
             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
             himself
             ,
             which
             may
             be
             prejudged
             ,
             either
             by
             the
             want
             of
             information
             ,
             or
             zeal
             of
             the
             Judge
             ordinar
             ,
             and
             sometimes
             by
             collusion
             ;
             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
             party
             wronged
             appeared
             ,
             and
             offered
             to
             pursue
             ,
             but
             was
             not
             admitted
             .
             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
             prosecution
             .
             And
             therefore
             ,
             albeit
             the
             Council
             may
             in
             publick
             crimes
             ,
             where
             the
             peace
             of
             the
             Countrey
             is
             chiefly
             concerned
             ,
             take
             precognition
             of
             it
             ,
             and
             stop
             accusations
             ,
             raised
             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
             Depredations
             ,
             in
             August
             .
             1668.
             yet
             they
             refuse
             to
             stop
             accusations
             ,
             and
             will
             not
             grant
             precognitions
             ,
             in
             privat
             murders
             ,
             or
             such
             like
             crimes
             ,
             where
             privat
             persons
             are
             principally
             wronged
             ,
             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
             Majesties
             instance
             ,
             if
             no
             privat
             follower
             appears
             ,
             and
             Ia.
             6.
             
             Parl
             ,
             11.
             cap.
             76.
             where
             it
             is
             Statute
             ,
             that
             the
             Thesaurer
             ,
             and
             Advocat
             ,
             may
             pursue
             privat
             crimes
             ,
             although
             the
             parties
             be
             silent
             ,
             or
             would
             agree
             .
             From
             which
             Acts
             ,
             two
             things
             may
             be
             concluded
             ,
             1.
             
             That
             of
             old
             ,
             it
             was
             doubted
             if
             the
             King
             could
             pursue
             privat
             crimes
             ,
             without
             an
             accuser
             .
             2.
             
             That
             pursuits
             at
             His
             Majesties
             instance
             ,
             for
             privat
             crimes
             ,
             are
             yet
             only
             subsidiary
             ,
             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
               inquisitionem
            
             .
          
           
             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
             probable
             ,
             that
             a
             pursuit
             at
             the
             Thesaurers
             instance
             ,
             would
             be
             sustain'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
               diffamatio
               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
             Inquisition
             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
             Fiskal
             ,
             in
             inferiour
             Courts
             ;
             and
             they
             may
             pursue
             ,
             or
             inform
             in
             Inquisitions
             ,
             
               sine
               paena
               calumniae
               quia
               cessat
               in
               iis
               suspicio
               calumniae
               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
             previous
             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
             Magistrat
             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
             interrogators
             .
          
        
         
           
           
             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
                 pursue
                 .
              
            
             
               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
                 calumnious
                 .
              
            
             
               9.
               
               
                 The
                 pursuer
                 must
                 aliment
              
               .
            
          
           
             I.
             AFter
             inquisition
             is
             taken
             (
             which
             is
             not
             necessary
             ,
             but
             is
             still
             arbitrary
             with
             us
             )
             the
             party
             is
             either
             imprisoned
             ,
             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
               ,
               deferre
               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
             differs
             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
             declared
             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
             ,
             
               inducias
               deliberatorias
            
             ,
             allowed
             to
             such
             as
             are
             at
             liberty
             ,
             and
             are
             pursued
             by
             a
             Libelled
             Summonds
             ,
             but
             a
             day
             or
             two
             is
             sufficient
             ,
             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
             persons
             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
             justice
             ,
             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
             Chapter
             ,
             
             and
             likewise
             upon
             the
             2.
             
               cap.
               num
            
             .
             2.
             
             
               David
               Stat.
            
             2.
             does
             observe
             ,
             that
             all
             Criminal
             accusations
             are
             either
             by
             an
             inditement
             ,
             or
             by
             a
             certain
             accuser
             ;
             and
             from
             this
             difference
             ariseth
             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
             Sheriff
             ,
             or
             at
             inferiour
             Courts
             ,
             malefactors
             may
             be
             pursued
             either
             by
             a
             libelled
             Summonds
             ,
             at
             the
             instance
             of
             any
             particular
             accuser
             ,
             or
             at
             the
             instance
             of
             the
             Procurator
             fiskal
             ,
             by
             way
             of
             indictment
             ;
             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
             ,
             without
             the
             concurse
             of
             an
             accuser
             .
          
           
             It
             is
             indeed
             the
             interest
             of
             the
             Common-wealth
             ,
             
               ne
               crimina
               maneant
               impunita
            
             .
             And
             therefore
             in
             Crimes
             which
             immediatly
             concern
             the
             welfare
             of
             the
             State
             ;
             such
             as
             Treason
             ,
             Sedition
             ,
             &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
               accus●ndum
               ,
               nisi
               qui
               suam
               aut
               suorum
               injuriam
               insequebatur
            
             :
             and
             
               Farinac
               .
               states
               suorum
               injuriam
            
             ,
             to
             extend
             ,
             
               ad
               quartum
               gradum
            
             ,
             and
             it
             seems
             to
             be
             extended
             with
             us
             within
             degrees
             defendant
             ,
             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
             ,
             without
             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
             accuse
             .
          
           
           
             And
             suitable
             to
             this
             ,
             the
             Justices
             refused
             to
             grant
             processe
             ,
             at
             the
             instance
             of
             
               William
               Umphray
            
             ,
             against
             
               Iohn
               Meldrum
            
             ,
             because
             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
             imprudence
             ,
             either
             pursuing
             injustly
             such
             as
             are
             most
             innocent
             ,
             or
             else
             by
             managing
             unwisely
             the
             Criminal
             pursuite
             ,
             if
             it
             were
             competent
             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
             accuse
             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
             Rebellion
             ,
             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
             Rebels
             
             for
             Civil
             pursuites
             ,
             
               non
               possunt
               impunae
               offendi
            
             ,
             and
             therefore
             it
             appears
             most
             reasonable
             ,
             that
             they
             should
             not
             be
             debarred
             from
             pursuing
             wrongs
             done
             them
             ;
             for
             if
             a
             person
             at
             the
             Horn
             ,
             could
             not
             pursue
             the
             wrongs
             done
             him
             ,
             then
             any
             person
             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
             alledged
             that
             ,
             1.
             
             By
             the
             11.
             
               cap.
               Stat.
               Will.
            
             These
             who
             contemn
             the
             Statutes
             of
             the
             Church
             ,
             shall
             not
             be
             admitted
             to
             accuse
             .
             2.
             
             It
             is
             a
             Rule
             in
             Law
             ,
             that
             
               frustra
               legem
               implorat
               qui
               coptra
               legem
               peccat
               .
            
             3.
             
             A
             person
             at
             the
             horn
             ,
             is
             by
             the
             English
             Law
             ,
             alwayes
             and
             oftentimes
             in
             our
             Law
             ,
             said
             to
             be
             outlawed
             ,
             and
             to
             be
             outlawed
             ,
             imports
             the
             losing
             all
             the
             priviledges
             of
             Law
             ;
             and
             in
             our
             Law
             ,
             they
             are
             said
             ,
             
               non
               habere
               personam
               standi
               in
               judicio
               .
            
             Nor
             puts
             our
             Law
             any
             distinction
             betwixt
             Civil
             and
             Criminal
             causes
             :
             for
             reconciling
             which
             difficulty
             ,
             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
             accompt
             ,
             cannot
             be
             pursued
             till
             they
             be
             relaxt
             ,
             which
             is
             incontravertedly
             true
             in
             our
             Law
             ;
             seing
             if
             a
             person
             be
             denounced
             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
             defender
             in
             this
             case
             ;
             for
             it
             seems
             unreasonable
             ,
             that
             he
             who
             accuses
             another
             for
             a
             crime
             ,
             should
             debar
             him
             from
             self-defence
             ,
             though
             the
             debarring
             him
             from
             pursuit
             ,
             be
             not
             so
             unfavourable
             ,
             and
             upon
             this
             accompt
             ,
             in
             a
             case
             betwixt
             
               Ninian
               Spence
            
             and
             
               Hector
               Bannatine
            
             ,
             the
             Justices
             found
             ,
             that
             the
             pursuer
             
             in
             a
             Criminal
             pursuite
             ,
             could
             not
             by
             horning
             debar
             
               à
               defendendo
            
             ,
             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
             Rebellion
             ,
             as
             the
             Fisk
             is
             ;
             but
             this
             last
             distinction
             ,
             is
             rather
             reasonable
             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
             enumerat
             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
               ,
               &
               ecclesiastica
               statuta
               contemnunt
               ;
               omnes
               sures
               ,
               sacrilegio
               .
            
          
           
             3.
             
             
               Omnes
               capitalibus
               criminibus
               irretitos
               ,
               Sepulchrorum
               violatores
               ,
               Apostolorum
               ,
               Successorumque
               eorum
               &
               Reliquorum
               Sanctorum
               Patrum
               ,
               libenter
               ,
               violantes
               Statuta
               .
            
          
           
             4.
             
             
               Et
               omnes
               qui
               adversus
               Patres
               armantur
               ,
               qui
               in
               omni
               mundi
               parte
               ,
               infamia
               notantur
               .
            
          
           
             5.
             
             
               Similiter
               incestuosos
               ,
               perjuros
               ,
               homicidas
               ,
               receptatores
               malefactorum
               ;
               adulteros
               ,
               raptores
               ;
               maleficos
               ,
               de
               bellis
               publicis
               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
               iracundiam
               provocant
               ,
               &
               omnes
               qui
               pro
               suis
               sceleribus
               ,
               ab
               ecclesia
               expelluntur
               .
            
          
           
             6.
             
             
               Et
               omnes
               quos
               ecclesiasticae
               &
               seculares
               leges
               infames
               pronunciant
               :
               Item
               servos
               ante
               legitimam
               libertatem
               abeuntes
               ,
               publice
               paenitentes
               ,
               bigamos
               ,
               omnes
               qui
               non
               sunt
               integro
               corpore
               ;
               qui
               sanam
               mentem
               non
               habent
               vel
               intellectum
               ,
               qui
               furiosi
               manifestantur
               .
            
          
           
             7.
             
             
               Hi
               omnes
               supra
               dicti
               ,
               nec
               ad
               sacros
               ordines
               promoveri
               debent
               ,
               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
             ,
             accumulation
             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
             accuser
             ,
             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
             appears
             ,
             that
             accumulation
             of
             crimes
             is
             intented
             ,
             either
             to
             laese
             the
             same
             of
             the
             defender
             ,
             or
             to
             distract
             him
             from
             his
             defence
             .
          
           
             VIII
             .
             To
             the
             end
             that
             persons
             may
             not
             be
             unjustly
             pursued
             ,
             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
             malicious
             .
             As
             to
             the
             first
             ,
             the
             form
             amongst
             the
             Romans
             ,
             was
             ,
             that
             the
             accuser
             was
             oblidged
             ,
             
               de
               ferre
               nomen
               rei
               apud
               praetorem
               atque
               se
               inscribebat
               libello
               judici
               porrecto
               vel
               incodice
               publico
               ,
               quaerela
               deposita
               cui
               inscriptioni
               subscribebat
               &
               ad
               talionis
               paenam
               se
               obligabat
               in
               casum
               calumniae
               .
               Inscriptionis
               formula
               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
               domo
               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
             remitted
             ,
             even
             in
             attrocious
             crimes
             ,
             as
             when
             a
             Woman
             ,
             
               suorum
               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
             punished
             ,
             
             if
             he
             were
             found
             guilty
             of
             Calumny
             .
             Nor
             were
             these
             inscriptions
             necessar
             in
             reconventions
             ,
             
               &
               ante
               categoriis
            
             ,
             because
             ,
             in
             these
             ,
             the
             pursuer
             intended
             not
             to
             calumniat
             ,
             but
             only
             to
             defend
             himself
             ,
             by
             recriminating
             the
             pursuit
             .
          
           
             The
             inscriber
             was
             ,
             according
             to
             the
             Civil
             Law
             ,
             oblidged
             to
             find
             Caution
             ,
             
               se
               perseveraturum
               in
               accusatione
               usque
               ad
               sententiam
               ,
               l.
            
             7.
             
               ff
               .
               de
               accus
            
             .
             the
             reason
             whereof
             ,
             is
             by
             one
             of
             the
             Greek
             Scoliasts
             ,
             said
             to
             be
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             
               ne
               facile
               quis
               ad
               accusationem
               per
               currat
               .
            
             Suitable
             to
             this
             ,
             our
             Law
             has
             ordained
             ,
             that
             the
             pursuer
             ,
             when
             he
             raises
             a
             criminal
             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
             subscribed
             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
             appointed
             by
             the
             34.
             
             
               Act
               ,
               Parl.
            
             4.
             
             Ia.
             5.
             by
             which
             ,
             the
             Justice-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
             Civil
             Law
             )
             that
             the
             pursuer
             shall
             insist
             ,
             and
             the
             penalty
             appointed
             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
             behoved
             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
               anticategoriis
               ,
            
             the
             accuser
             must
             still
             find
             Caution
             ;
             wherein
             we
             do
             very
             reasonably
             differ
             from
             the
             Civil
             Law
             ,
             for
             the
             defender
             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
             Summonds
             is
             execute
             against
             him
             ,
             he
             find
             not
             Caution
             in
             the
             Books
             of
             Adjournal
             ,
             to
             the
             effect
             foresaid
             ;
             which
             Caution
             ,
             though
             it
             be
             found
             ,
             yet
             if
             it
             be
             not
             intimat
             to
             the
             Messenger
             ,
             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
               praesumitur
               calumnia
               :
            
             yet
             the
             Advocat
             in
             our
             practique
             ,
             doth
             ordinarly
             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
             interest
             ,
             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
               procurator
               fiscalis
               calumniose
               instigat
               judicem
               ad
               inquirendum
               tenetur
               in
               damna
               actione
               injuriarum
               &
               concremari
               debet
               ,
               l.
               universi
               C.
               ubi
               causa
               fiscal
               ,
            
             &c.
             
             And
             according
             to
             the
             opinion
             of
             the
             Doctors
             ,
             
               hodie
               &
               judex
               &
               procurator
               fisci
               affectate
               consequentes
               crimen
               extraordinarie
               sunt
               punendi
               ,
               Q.
               
            
          
           
             IX
             .
             The
             Justices
             ordain
             ,
             that
             because
             many
             poor
             persons
             were
             maliciously
             ,
             or
             ignorantly
             imprisoned
             ,
             that
             the
             Magistrates
             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
             appoint
             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
             exped
             very
             speedily
             ;
             and
             for
             this
             end
             ,
             the
             Bishop
             was
             appointed
             to
             visit
             the
             Prison
             every
             Friday
             and
             Wednesday
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             
               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
               allegatorem
            
             ,
             who
             can
             only
             propon
             what
             is
             nottour
             ,
             as
             that
             the
             party
             cited
             is
             known
             to
             be
             sick
             ,
             
               &
               procuratorem
            
             ,
             who
             must
             have
             a
             mandat
             ,
             and
             may
             propon
             declinators
             ,
             or
             dilators
             ,
             
               &
               defensorem
               innocentiae
            
             ,
             who
             not
             only
             can
             propon
             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
               judicium
               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
             pursuer
             ,
             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
             unreasonable
             but
             he
             should
             be
             present
             ,
             for
             else
             the
             defender
             is
             precluded
             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
             pursuer
             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
             admitted
             ,
             and
             this
             deput
             can
             desert
             a
             dyet
             ,
             though
             his
             Procuratory
             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
             produce
             
               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
             witnesses
             ,
             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
             Advocat
             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
             forefaulter
             ,
             without
             leave
             granted
             by
             the
             King
             ,
             Act
             135.
             
             Ia.
             6.
             
             Parl.
             8.
             
             But
             in
             other
             pursuits
             of
             Treason
             ,
             no
             Advocat
             is
             obliedged
             to
             crave
             a
             license
             ,
             and
             even
             the
             foresaid
             act
             is
             abrogated
             ,
             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
             former
             restriction
             has
             been
             founded
             upon
             
               C.
               falicis
               de
               paenit
            
             .
             in
             6.
             where
             to
             plead
             for
             Traitors
             is
             discharged
             ,
             
               nisi
               concedatur
               licentia
            
             .
          
           
             When
             Advocats-assist
             Pannels
             ,
             especially
             in
             Treason
             ,
             they
             use
             to
             protest
             that
             no
             escape
             of
             theirs
             in
             pleading
             ,
             may
             be
             misconstructed
             ;
             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
             accustomed
             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
             pursuits
             ,
             if
             this
             liberty
             were
             not
             allowed
             ,
             and
             it
             is
             against
             reason
             
             not
             to
             allow
             it
             ,
             where
             they
             are
             forced
             to
             plead
             ,
             as
             they
             ordinarily
             are
             in
             cases
             of
             Treason
             ,
             and
             yet
             if
             any
             Advocat
             will
             defend
             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
             defender
             ,
             where
             the
             pain
             to
             be
             inflicted
             was
             not
             corporal
             ,
             for
             the
             reason
             why
             personal
             presence
             was
             requisite
             ,
             viz.
             that
             the
             defender
             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
             Civil
             causes
             ,
             is
             a
             sufficient
             warrand
             ,
             for
             the
             constituting
             a
             Procurator
             .
          
           
             Noblemen
             ,
             likewise
             might
             by
             the
             Civil
             Law
             ,
             and
             the
             opinion
             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
             defender
             to
             compear
             personally
             ,
             which
             should
             much
             more
             be
             allowed
             with
             us
             ,
             where
             there
             is
             no
             such
             Statute
             ,
             but
             where
             this
             necessity
             is
             imposed
             by
             the
             will
             of
             the
             letters
             :
             
               Boss.
               tit
               .
               an
               incrimin
               .
               num
               .
            
             13.14
             .
             
               Fa●in
               .
               de
               var.
               quest
            
             .
             99.
             num
             168.
             and
             yet
             I
             have
             seen
             those
             who
             killed
             Armstrong
             the
             customer
             ,
             outlawed
             ,
             Iuly
             1668.
             
             Albeit
             it
             was
             alledged
             ,
             they
             dwelt
             within
             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
             compeared
             ,
             
               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
               causas
               probabiles
               ,
               &
               necessarias
               absentiae
               ,
            
             such
             as
             the
             want
             of
             a
             safe
             conduct
             ,
             
               requiritur
               mandatum
               ;
               quia
               absens
               iis
               renunciare
               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
             defended
             ;
             and
             with
             us
             ,
             a
             Mandat
             is
             not
             necessar
             ,
             if
             an
             Advocat
             be
             imployed
             ,
             for
             his
             Gown
             is
             his
             warrand
             :
             and
             where
             an
             Advocat
             is
             imployed
             ,
             I
             think
             ,
             the
             Cautioner
             may
             be
             admitted
             ,
             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
             requires
             two
             Nottars
             ,
             and
             four
             Witnesses
             ,
             in
             all
             cases
             of
             great
             importance
             ;
             yet
             seing
             
               quaelibet
               levis
               probatio
               absentiae
               sufficit
            
             ,
             it
             would
             appear
             ,
             that
             
               quodlibet
               mandatum
               hic
               sufficiat
            
             .
          
           
             IV.
             Albeit
             where
             the
             pursuer
             is
             a
             privat
             person
             ,
             he
             is
             oblidged
             to
             swear
             the
             Libel
             ;
             yet
             where
             the
             Kings
             Advocat
             pursues
             ,
             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
             August
             1598.
             
             
               Advocatus
               contra
            
             the
             Laird
             of
             Dalgety
             ,
             nor
             yet
             to
             
             declare
             who
             is
             his
             informer
             ,
             the
             20.
             of
             April
             1599.
             
             
               Advocatus
               contra
               Iohn
               Connel
            
             ,
             and
             others
             ,
             but
             this
             seems
             unreasonable
             ,
             seing
             the
             defender
             should
             not
             be
             prejudged
             ,
             by
             the
             intenting
             of
             a
             pursuit
             ,
             at
             the
             Advocats
             instance
             ;
             and
             
               jure
               naturali
            
             ,
             the
             pursuer
             ,
             or
             informer
             ,
             which
             is
             all
             one
             ,
             should
             not
             be
             a
             Witnesse
             ,
             nor
             can
             it
             be
             known
             who
             is
             pursuer
             ,
             without
             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
             Advocat
             ,
             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
             Advocats
             not
             swearing
             the
             Libel
             ,
             seems
             to
             be
             founded
             upon
             the
             opinion
             of
             the
             Doctors
             ,
             who
             contend
             ,
             that
             
               Procurator
               ex
               officio
               non
               tenetur
               prestare
               juramentum
               calumniae
               ,
               Gail
               .
               obs
               .
               lib.
            
             1.
             obser
             .
             88.
             
          
        
         
           
           
             TITLE
             XXI
             .
             Of
             Libels
             ,
             and
             the
             forms
             of
             Proces
             thereto
             relating
             .
          
           
             
               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
                 thereto
                 relating
                 .
              
            
          
           
             I.
             A
             Libel
             is
             generally
             by
             Lawyers
             thought
             to
             be
             a
             Syllogism
             ,
             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
             ,
             whereupon
             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
             Moneth
             must
             be
             exprest
             ,
             is
             more
             controverted
             ;
             and
             by
             the
             formula
             ,
             exprest
             in
             the
             former
             Law
             ,
             the
             Place
             and
             Moneth
             ,
             are
             necessar
             ,
             and
             to
             that
             formula
             ,
             is
             there
             subjoined
             ,
             thir
             words
             ,
             
               neque
               diem
               neque
               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
             accuser
             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
             ;
             because
             the
             expression
             thereof
             is
             not
             necessary
             ,
             for
             the
             relevancy
             of
             his
             Libel
             ,
             but
             only
             for
             the
             clearing
             of
             the
             others
             innocence
             ,
             Bertr
             .
             and
             lib.
             6.
             
             Consil.
             61.
             
             As
             also
             ,
             if
             the
             pursuer
             can
             upon
             Oath
             depone
             ,
             that
             he
             doth
             not
             remember
             the
             Day
             ,
             and
             that
             he
             does
             not
             omit
             the
             same
             maliciously
             ,
             
               eo
               casu
            
             ,
             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
             unjust
             :
             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
             exprest
             ,
             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
             apprehendded
             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
             insert
             ,
             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
             Moneths
             ,
             Weeks
             ,
             or
             Dayes
             of
             the
             said
             Moneths
             ,
             but
             the
             expressing
             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
             relevant
             ,
             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
             alibi
             ,
             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
             accused
             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
             Witnesses
             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
             manner
             :
             as
             for
             instance
             ,
             if
             it
             should
             be
             subsumed
             upon
             the
             Acts
             against
             fore-stalling
             and
             regrating
             ,
             that
             the
             defender
             did
             forestal
             ,
             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
             constantly
             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
             general
             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
             common
             usury
             ,
             if
             that
             crime
             of
             common
             usury
             ,
             may
             be
             sustained
             without
             any
             particular
             condescention
             ,
             because
             both
             the
             relevany
             ,
             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
             regularly
             the
             particular
             way
             ,
             and
             manner
             must
             be
             condescended
             upon
             ;
             else
             that
             particular
             dispensation
             had
             not
             been
             necessary
             .
             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
             Criminal
             ,
             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
             petition
             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
             general
             ,
             and
             I
             perceive
             that
             most
             of
             the
             practitioners
             are
             of
             opinion
             ,
             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
             person
             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
             amount
             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
             pursuer
             
             could
             not
             in
             the
             construction
             of
             Law
             be
             repute
             a
             Magistrat
             ,
             because
             he
             had
             not
             taken
             the
             Declaration
             ,
             it
             was
             thereafter
             alledged
             ,
             that
             the
             Libel
             being
             only
             founded
             upon
             the
             foresaid
             Statute
             conceived
             in
             favours
             of
             Magistrats
             ,
             and
             the
             conclusion
             being
             against
             oppression
             ,
             and
             not
             against
             beating
             the
             pursuer
             ,
             could
             no
             more
             insist
             upon
             that
             Libel
             ,
             which
             was
             repelled
             ,
             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
             proposition
             of
             the
             Libel
             ,
             did
             not
             bear
             ,
             that
             beating
             was
             punishable
             ,
             nor
             did
             the
             conclusion
             bear
             ,
             that
             at
             least
             the
             Panel
             was
             punishable
             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
             treating
             of
             Criminal
             Libels
             ,
             have
             laid
             it
             down
             as
             a
             principle
             ,
             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
               concludendi
            
             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
                     Umquhile
                     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
                     injury
                     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
                     ,
                     lately
                     ,
                     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
                     bruised
                     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
                     ,
                     
                       tanquam
                       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
                     buried
                     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
                     Authority
                     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
                     proclamation
                     ,
                     at
                     the
                     Mercat
                     Crosse
                     of
                     the
                     head
                     Burgh
                     of
                     the
                     Shyre
                     ,
                     Stewatry
                     ,
                     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
                     surety
                     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
                     Registrat
                     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
                     person
                     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
                     Incest
                     ,
                     being
                     so
                     odious
                     ,
                     and
                     detestable
                     in
                     the
                     presence
                     of
                     Almighty
                     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
                     persons
                     ,
                     
                     commits
                     the
                     said
                     abominable
                     crime
                     of
                     Incest
                     ,
                     shall
                     be
                     punished
                     to
                     the
                     death
                     ,
                     as
                     the
                     saids
                     Acts
                     of
                     Parliament
                     ,
                     in
                     themselves
                     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
                     copulation
                     ,
                     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
                     
                     Majesti's
                     Laws
                     ,
                     and
                     evil
                     example
                     of
                     others
                     ,
                     to
                     run
                     in
                     the
                     like
                     filthy
                     and
                     abominable
                     vice
                     ,
                     if
                     the
                     famine
                     be
                     suffered
                     to
                     remain
                     unpunished
                     ,
                     as
                     at
                     length
                     is
                     contained
                     in
                     the
                     said
                     Dittay
                     ,
                     produced
                     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
             Treason
             ,
             should
             be
             execute
             only
             by
             Heraulds
             ,
             and
             Pursevants
             ,
             bearing
             Coats
             of
             Arms
             ,
             or
             by
             Macers
             ,
             which
             must
             be
             understood
             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
             Execution
             ,
             is
             ,
             that
             there
             be
             a
             full
             Coppy
             of
             the
             Letters
             delivered
             to
             the
             defender
             ,
             if
             he
             be
             personally
             apprehended
             ,
             or
             if
             he
             cannot
             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
               broken
               men
               ,
               having
               no
               certain
               dwelling
               ,
               and
               haunts
               ,
               and
               frequents
               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
               Presents
               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
             party
             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
             Copy
             be
             given
             ;
             for
             the
             Dyets
             in
             the
             Criminal
             Court
             being
             peremptor
             ,
             the
             Summonds
             is
             not
             given
             up
             to
             see
             ,
             as
             in
             other
             Courts
             ;
             and
             therefore
             the
             defender
             should
             have
             a
             full
             Copy
             ,
             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
             raised
             Exculpation
             ,
             and
             cited
             the
             Witnesses
             therefore
             upon
             the
             place
             .
             Thir
             Executions
             should
             be
             subscribed
             by
             the
             Executer
             ,
             and
             stamped
             ,
             and
             Sealed
             before
             Witnesses
             ,
             else
             they
             are
             null
             ,
             Act
             32.
             
             Parl.
             5.
             
             I.
             3.
             
             And
             Letters
             should
             not
             be
             direct
             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
             Moveable
             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
             formerly
             ,
             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
             Prison
             ,
             should
             have
             fifteen
             Dayes
             at
             least
             ,
             that
             he
             might
             within
             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
             Article
             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
             criminally
             pursued
             ;
             yet
             it
             having
             exprest
             the
             reason
             ,
             for
             which
             this
             indulgence
             is
             to
             be
             given
             ,
             viz.
             that
             the
             party
             might
             either
             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
               conceditur
               ,
               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
             only
             introduced
             to
             make
             Judges
             diligent
             ,
             but
             not
             at
             all
             to
             preclude
             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
             Witnesses
             for
             that
             effect
             .
          
           
             VI.
             Whether
             a
             person
             who
             is
             cited
             to
             compear
             in
             a
             criminal
             Court
             ,
             as
             defender
             ,
             at
             a
             particular
             day
             exprest
             in
             the
             Summonds
             ,
             may
             not
             before
             that
             day
             appear
             in
             Edinburgh
             ,
             though
             he
             be
             banisht
             ,
             was
             doubted
             ,
             in
             the
             Action
             pursued
             at
             His
             Majesties
             instance
             ,
             against
             several
             Gentle-men
             ,
             in
             Anno
             1674.
             and
             that
             they
             might
             come
             to
             Edinburgh
             ,
             was
             allowed
             ;
             because
             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
             inditements
             bear
             not
             to
             appear
             betwixt
             and
             such
             a
             day
             ,
             but
             at
             such
             a
             day
             .
             2.
             
             When
             men
             are
             under
             Caption
             ,
             they
             may
             be
             taken
             ,
             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
             citation
             
             would
             be
             a
             Protection
             ,
             and
             yet
             Protections
             are
             ordained
             to
             be
             granted
             to
             defenders
             in
             such
             cases
             .
          
           
             As
             also
             it
             was
             doubted
             there
             ,
             if
             such
             as
             were
             cited
             upon
             sixty
             days
             ,
             might
             compear
             with
             others
             of
             their
             complices
             ,
             who
             were
             cited
             upon
             six
             dayes
             ,
             for
             it
             was
             urg'd
             ,
             that
             the
             appearing
             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
             sometimes
             to
             divide
             the
             defenders
             ,
             and
             sometimes
             his
             Probation
             cannot
             be
             sooner
             ready
             .
          
           
             When
             there
             are
             more
             pursuers
             ,
             each
             Libelling
             a
             distinct
             interest
             ,
             as
             three
             brothers
             pursuing
             for
             the
             murther
             of
             their
             deceast
             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
             complext
             ,
             but
             I
             conceive
             ,
             that
             the
             interests
             there
             were
             very
             distinct
             ,
             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
             peremptor
             ,
             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
             Fugitive
             ,
             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
             reporting
             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
             Criminal
             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
               effectu
            
             ,
             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
               mensis
               per
            
             and
             marks
             such
             a
             man
             entered
             upon
             the
             Pannel
             ,
             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
             Advocats
             for
             the
             defender
             ,
             dictat
             both
             the
             Dilator
             ,
             and
             peremptor
             defences
             ,
             as
             the
             Advocats
             for
             the
             pursuer
             ,
             do
             his
             repleys
             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
             ,
             
               Quintil
               .
               Athenis
            
             (
             speaking
             of
             the
             
               Areopage
               )
               affectus
               movere
               etiam
               per
               praeconem
               prohibebatur
               orator
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             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
             priviledges
             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
                 exculpations
                 .
              
            
             
               5.
               
               
                 Witnesses
                 for
                 exculpating
                 may
                 be
                 admitted
                 ,
                 though
                 not
                 cited
                 .
              
            
             
               6.
               
               
                 Whether
                 a
                 man
                 may
                 be
                 punished
                 ,
                 though
                 he
                 has
                 not
                 fully
                 proved
                 his
                 exculpation
                 .
              
            
             
               7.
               
               
                 How
                 the
                 defender
                 may
                 exculpat
                 if
                 the
                 pursuer
                 insist
                 not
                 .
              
            
             
               8.
               
               
                 Whether
                 the
                 Iustices
                 ,
                 or
                 Assizers
                 are
                 judges
                 to
                 exculpations
                 .
              
            
             
               9.
               
               
                 What
                 if
                 the
                 pursuer
                 cite
                 as
                 parties
                 ,
                 the
                 defenders
                 necessary
                 witnesses
                 .
              
            
          
           
             ALbeit
             after
             a
             crime
             is
             proved
             ,
             the
             Pannel
             is
             most
             unfavourable
             ,
             yet
             till
             then
             ,
             he
             is
             still
             presumed
             innocent
             ,
             
               &
               praestat
               nocentem
               absolvere
               ,
               quam
               innocentem
               condemnare
               ,
               &
               
               Petr.
               de
               Anach
               .
               consil
               .
            
             23.
             observes
             well
             ,
             that
             the
             Court
             deserves
             much
             more
             honour
             ,
             when
             they
             absolve
             ,
             then
             when
             they
             condemn
             .
             The
             reason
             of
             which
             is
             ,
             because
             when
             an
             innocent
             person
             is
             condemned
             ,
             the
             wrong
             cannot
             be
             repaired
             ,
             but
             when
             a
             guilty
             person
             is
             absolved
             ,
             yet
             God
             will
             either
             suffer
             him
             him
             to
             fall
             in
             a
             second
             snare
             ,
             whereby
             the
             first
             crime
             may
             be
             also
             punished
             ,
             or
             at
             least
             ,
             his
             infinite
             Justice
             will
             punish
             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
             English
             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
             witnesses
             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
             witnesses
             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
             ,
             beside
             these
             adduced
             by
             the
             pursuer
             ,
             and
             it
             is
             not
             safe
             to
             presume
             ,
             that
             these
             will
             come
             without
             a
             citation
             ,
             or
             if
             they
             come
             without
             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
             warrand
             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
             granted
             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
             Advocat
             doth
             propon
             the
             defence
             ,
             or
             exculpation
             ,
             
               v.
               g.
            
             if
             the
             Libel
             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
             accordingly
             admitted
             .
          
           
             If
             the
             Justices
             refuse
             to
             passe
             a
             warrand
             for
             Letters
             of
             exculpation
             ,
             the
             defender
             ought
             not
             to
             be
             thereby
             prejudged
             ,
             but
             the
             dyet
             will
             be
             continued
             ,
             till
             Letters
             of
             Exculpation
             be
             raised
             ,
             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
             unnecessarily
             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
             servant
             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
             contrary
             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
             circumstantiat
             his
             Libel
             ,
             upon
             design
             ,
             as
             that
             the
             only
             exculpation
             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
             exclusive
             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
             proved
             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
             principle
             did
             generally
             hold
             ,
             then
             self-defence
             ,
             and
             casual
             homicide
             could
             never
             be
             allowed
             as
             Exculpations
             ,
             for
             both
             these
             are
             directly
             
             contrary
             to
             the
             Libel
             ,
             used
             in
             the
             case
             of
             Homicide
             ;
             which
             bears
             still
             premeditation
             ,
             and
             fore-thought-fellony
             .
             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
             absolutely
             contrary
             to
             the
             Libel
             ,
             it
             ought
             only
             to
             be
             admitted
             to
             probation
             .
             2.
             
             Though
             it
             be
             contrary
             to
             the
             Libel
             ,
             yet
             according
             to
             the
             Doctors
             ,
             a
             conjunct
             probation
             should
             be
             granted
             ,
             for
             besides
             the
             former
             reasons
             ,
             I
             find
             the
             Civilians
             debate
             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
             needless
             ,
             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
             ordinary
             rules
             to
             be
             followed
             are
             ,
             that
             1.
             
             The
             defenders
             probation
             is
             to
             be
             preferred
             ,
             
               Gloss
               in
               cap
               in
               nostris
               detest
            
             ;
             because
             it
             is
             admitted
             by
             the
             presumption
             ,
             that
             
               nemo
               presumitur
               diliquisse
               ,
               Boss.
               ibid.
            
             But
             if
             the
             probation
             be
             not
             equal
             ,
             the
             greater
             number
             ,
             or
             these
             who
             depon
             what
             is
             most
             probable
             ,
             or
             the
             worthiest
             persons
             ought
             to
             be
             believed
             ,
             
               Boss.
               ibid.
            
             
          
           
             How
             far
             this
             Doctrine
             is
             allowed
             by
             our
             practique
             ,
             will
             appear
             ,
             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
             provocked
             ,
             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
             provocation
             ,
             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
             proved
             ,
             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
             quality
             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
             probation
             ;
             but
             so
             that
             if
             the
             Judge
             find
             alibi
             ,
             not
             to
             be
             clearly
             proved
             ,
             then
             only
             he
             should
             allow
             the
             pursuer
             to
             prove
             his
             Libel
             ,
             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
             proving
             his
             defence
             ,
             doth
             not
             ,
             
               in
               criminalibus
            
             ,
             relieve
             the
             accuser
             from
             the
             necessity
             of
             proving
             his
             Libel
             ,
             as
             it
             doth
             in
             civil
             cases
             .
             And
             this
             seems
             to
             be
             our
             Law
             ,
             and
             more
             just
             and
             Christian
             ,
             then
             conjunct
             Probations
             are
             .
          
           
             IV.
             According
             to
             the
             opinion
             of
             the
             Doctors
             ,
             Exculpation
             
             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
               asserunt
               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
             necessar
             ;
             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
             Witnesses
             to
             exculpat
             ,
             except
             they
             be
             cited
             ,
             and
             all
             the
             formalities
             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
             habiles
             ,
             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
             testes
             ,
             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
             examined
             :
             And
             whereas
             ,
             it
             is
             urg'd
             ,
             that
             they
             must
             be
             presumed
             partial
             ,
             who
             come
             there
             meerly
             to
             be
             examined
             ,
             and
             this
             is
             the
             same
             thing
             ,
             as
             if
             they
             offered
             themselves
             ;
             it
             is
             answered
             ,
             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
             objected
             ,
             by
             causing
             cite
             them
             .
             Others
             use
             a
             strang
             evasion
             in
             this
             case
             ,
             for
             though
             they
             confess
             that
             Witnesses
             may
             be
             examined
             in
             Exculpations
             ,
             though
             not
             cited
             ;
             yet
             if
             a
             Summonds
             be
             once
             raised
             ,
             they
             conceive
             that
             none
             should
             be
             allowed
             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
             contrary
             were
             allowed
             ,
             there
             needed
             no
             Summonds
             of
             Exculpation
             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
             citations
             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
             Witnesses
             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
             Witnesses
             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
             Witnesses
             .
          
           
             But
             I
             find
             no
             such
             speciality
             in
             our
             Law
             ,
             nor
             is
             that
             priviledge
             reasonable
             ,
             for
             men
             are
             prone
             ,
             though
             they
             have
             no
             relation
             ,
             to
             depone
             in
             favours
             ,
             rather
             of
             the
             Pannel
             ,
             then
             of
             the
             accuser
             ;
             and
             therefore
             it
             is
             ,
             that
             our
             Law
             allows
             an
             Assize
             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
             arbitrary
             .
             But
             it
             is
             questioned
             what
             punishment
             should
             be
             inflicted
             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
             Probation
             ,
             and
             in
             that
             case
             they
             think
             it
             ought
             not
             to
             be
             respected
             ,
             both
             because
             it
             is
             in
             it self
             imperfect
             ,
             and
             because
             it
             is
             contrary
             to
             a
             concluding
             Probation
             :
             but
             if
             it
             be
             not
             fully
             contrary
             ,
             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
             defender
             ought
             not
             to
             be
             punished
             with
             death
             ,
             which
             punishment
             ought
             only
             to
             be
             inferred
             ,
             
               per
               probationem
               omni
               exceptione
               majorem
               ,
               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
             punishment
             .
          
           
             VII
             .
             If
             the
             pursuer
             insist
             not
             ,
             so
             that
             the
             defenders
             Probation
             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
             relations
             ,
             and
             His
             Majesties
             Advocat
             ,
             and
             in
             it
             he
             may
             conclude
             ,
             that
             the
             depositions
             of
             the
             Witnesses
             ,
             
               ad
               defensam
            
             ,
             may
             be
             taken
             to
             ly
             ,
             
               in
               retentis
               ,
               ad
               futuram
               rei
               memoriam
               .
            
          
           
             VIII
             .
             When
             Witnesses
             are
             led
             ,
             they
             should
             presently
             depon
             ,
             and
             the
             Justices
             should
             be
             Judges
             to
             what
             they
             depon
             ,
             and
             it
             ought
             not
             to
             be
             remitted
             to
             the
             Assizer
             ;
             because
             ,
             
               non
               constat
            
             ,
             till
             the
             probation
             be
             led
             ,
             whether
             the
             Exculpation
             be
             exclusive
             of
             the
             Libel
             ,
             or
             eleids
             it
             ;
             and
             so
             the
             Libel
             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
             Inquest
             ;
             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
             ,
             acknowledges
             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
             incline
             ,
             
               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
             Pannel
             ,
             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
             pursuers
             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
             Feuary
             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
             Justices
             ,
             regulariter
             ,
             as
             in
             civil
             cases
             ;
             yet
             in
             many
             cases
             ,
             incidents
             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
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             where
             murder
             was
             try'd
             ,
             but
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             
               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
                 inclosed
                 .
              
            
             
               12.
               
               
                 Wilful
                 errour
                 in
                 Assisers
                 ,
                 how
                 punished
                 :
                 and
                 by
                 whom
                 .
              
            
          
           
             I.
             ALL
             judgements
             were
             at
             first
             pronounced
             by
             neighbours
             ,
             and
             thus
             amongst
             the
             Romans
             ,
             were
             
               centum
               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
               condigni
            
             .
          
           
             The
             Word
             Assize
             is
             originally
             French
             ,
             and
             signifies
             properly
             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
             ,
             signifies
             a
             Judicator
             ;
             and
             in
             our
             Law
             it
             is
             often
             taken
             for
             a
             constitution
             ,
             or
             Statute
             which
             is
             made
             by
             that
             Session
             ,
             or
             sitting
             of
             the
             Judges
             ,
             and
             thus
             the
             Statutes
             of
             King
             David
             ,
             are
             called
             
               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
             
               assisa
               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
             determine
             ,
             either
             in
             civil
             ,
             or
             criminal
             cases
             ,
             the
             matter
             of
             Probation
             ,
             and
             are
             in
             effect
             neither
             properly
             Judges
             ,
             nor
             Witnesses
             ,
             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
             pursuer
             ,
             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
             being
             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
             allow
             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
               scientia
            
             ;
             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
             custom
             of
             some
             places
             allowing
             ,
             
               domino
               electionem
               parium
               (
               pares
               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
             interest
             ,
             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
             competent
             .
             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
             Article
             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
             Assizers
             .
          
           
             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
             thereafter
             ,
             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
             Assizers
             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.
             seing
             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
             Pannel
             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
             Justices
             find
             the
             Pannel
             should
             go
             to
             the
             knowledge
             of
             an
             Inquest
             ,
             either
             the
             Pannel
             confesses
             ,
             
               &
               quia
               in
               confessum
               nullae
               sunt
               partes
               judicis
               ,
            
             therefore
             he
             may
             be
             banished
             ,
             or
             scourged
             ,
             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
             willingly
             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
             cognitions
             ,
             becomes
             very
             oft
             difficult
             upon
             these
             two
             accounts
             ,
             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
             albeit
             the
             greatest
             debate
             concerning
             relevancy
             ,
             amongst
             Lawyers
             in
             criminal
             cases
             ,
             did
             arise
             upon
             these
             common
             places
             ,
             
               cujus
               ope
               ,
               auxilio
               ,
               assistentia
               ,
               mandato
               ,
            
             &c.
             
               ea
               crimina
               erant
               commissa
            
             ,
             and
             from
             what
             circumstances
             these
             could
             be
             inferred
             ,
             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
             debated
             ,
             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
             pursuer
             to
             condescend
             ,
             
               quo
               modo
            
             ,
             art
             and
             part
             ;
             albeit
             this
             be
             very
             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
             Assise
             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
             Statute
             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
             Assisers
             ,
             seems
             most
             unjust
             ,
             seing
             as
             has
             been
             said
             before
             ,
             in
             committing
             the
             greatest
             questions
             of
             the
             Law
             ,
             to
             the
             most
             ignorant
             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
             hindred
             justice
             ,
             for
             the
             relevancy
             is
             debated
             now
             ,
             as
             copiously
             as
             before
             that
             act
             ,
             with
             this
             only
             difierence
             ,
             that
             it
             was
             then
             debated
             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
             reason
             
             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
             deposition
             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
             determin
             ,
             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
             Advocats
             ,
             who
             may
             byasse
             them
             by
             their
             repute
             ,
             authority
             ,
             or
             confidence
             .
             3.
             
             Albeit
             the
             Assize
             be
             Judges
             of
             the
             Probation
             ,
             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
             Action
             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
             probation
             whatsoever
             to
             be
             taken
             ;
             and
             thus
             often
             times
             in
             the
             criminal
             Registers
             ,
             Assizers
             have
             caused
             read
             Testificats
             from
             Chirurgians
             ,
             and
             others
             ,
             
               licet
               regulariter
               testibus
               ,
               non
               testimoniis
               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
             thereafter
             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
             defences
             ,
             and
             ordains
             the
             Pannel
             to
             passe
             thereupon
             to
             the
             knowledge
             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
             upon
             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
             intricat
             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
             Libelled
             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
             relevancy
             of
             almost
             all
             cases
             ,
             and
             are
             put
             to
             decide
             what
             has
             troubled
             the
             ablest
             Doctors
             and
             Authors
             ,
             and
             so
             often
             times
             they
             return
             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
             concondemning
             ,
             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
             dangerous
             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
             learned
             ,
             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
             committed
             ,
             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
             penult
             of
             Iune
             ,
             1614.
             
             Ronald
             was
             tried
             ,
             and
             convict
             ,
             for
             dismembering
             Donaldson
             ,
             by
             an
             Assize
             of
             thirteen
             persons
             .
             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
             Assise
             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
             condemn
             ,
             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
             themselves
             ,
             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
               present
               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
             Party
             ,
             yet
             they
             do
             never
             tender
             to
             them
             this
             Oath
             ;
             except
             either
             the
             Judge
             ,
             or
             Party
             be
             jealous
             of
             the
             Assisers
             .
          
           
             Assisers
             are
             party
             Judges
             ,
             partly
             Witnesses
             ,
             as
             has
             been
             said
             before
             ,
             they
             are
             Judges
             in
             so
             far
             as
             they
             consider
             the
             Probation
             led
             by
             others
             ,
             and
             judge
             whether
             proved
             ,
             or
             not
             proved
             :
             They
             are
             Witnesses
             in
             so
             far
             as
             they
             may
             condemn
             ,
             upon
             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
             exeemed
             ,
             by
             
               Q.
               Mary
            
             ,
             from
             being
             cited
             upon
             Assises
             ;
             because
             of
             the
             peremptoriness
             of
             the
             employment
             ,
             which
             was
             sustained
             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
             ,
             without
             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
             subvassal
             by
             a
             subvassal
             ,
             and
             a
             Burges
             by
             a
             Burges
             ,
             but
             a
             lower
             person
             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
             Session
             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
             debated
             ,
             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
             importance
             ,
             are
             ordinarily
             judged
             ,
             and
             in
             which
             the
             Sentence
             pronounced
             may
             be
             easier
             repealed
             .
             4.
             
             Dyets
             before
             the
             Justice-Courts
             being
             alwayes
             peremptor
             ,
             it
             is
             probable
             that
             dyets
             behoved
             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
             binding
             ,
             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
             Parliament
             ,
             by
             which
             they
             are
             condemned
             are
             much
             more
             their
             Peers
             .
          
           
             To
             the
             fourth
             ,
             it
             was
             duplyed
             ,
             that
             inconveniences
             are
             only
             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
             Tradsmen
             ,
             should
             be
             admitted
             to
             try
             a
             Duke
             ,
             or
             Marquesse
             ;
             and
             it
             was
             a
             vast
             mistake
             to
             think
             that
             Assizes
             are
             only
             witnesses
             ,
             and
             not
             Judges
             ;
             seing
             they
             vote
             ,
             and
             their
             verdict
             is
             called
             a
             Sentence
             ,
             and
             if
             Art
             and
             Part
             be
             Libelled
             ,
             the
             relevancy
             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
             conjectural
             ,
             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
             disjunctive
             .
             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
             summonded
             ,
             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
             escheat
             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
             
               Allexander
               Seatons
            
             case
             ,
             
               quē
               sequitur
               in
               comodum
            
             ,
             &c.
             
             Whereas
             in
             Law
             ,
             all
             Barrons
             may
             have
             Heirs
             ,
             nor
             did
             the
             instances
             adduced
             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
             appearent
             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
             publictly
             ,
             defenders
             might
             propon
             interrogators
             ,
             whereby
             the
             matter
             of
             Fact
             might
             be
             more
             fully
             cleared
             ,
             and
             even
             the
             Witnesses
             own
             mistakes
             might
             be
             removed
             ;
             of
             all
             which
             just
             advantages
             ,
             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
             it
             s
             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
             never
             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
               debent
               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
             albeit
             ,
             it
             may
             be
             objected
             ,
             that
             
               in
               crimine
               falsi
            
             ,
             the
             Probation
             led
             before
             the
             Lords
             ,
             is
             not
             repeated
             before
             the
             Justice
             ,
             and
             Assisers
             ,
             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
             sentence
             ,
             
               habetur
               pro
               veritate
            
             ,
             and
             is
             
               probatio
               probata
            
             ;
             so
             tha●
             the
             producing
             of
             it
             ,
             is
             the
             leading
             of
             Probation
             before
             the
             Assise
             .
             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
             therefore
             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
             Triplys
             used
             ;
             and
             it
             was
             the
             priviledge
             of
             His
             Majesties
             Advocat
             to
             be
             the
             last
             speaker
             ;
             which
             priviledge
             was
             assumed
             likewise
             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
             Rebellion
             ;
             so
             that
             this
             priviledge
             holds
             only
             in
             Perduellion
             ,
             but
             not
             in
             ordinary
             Treason
             .
          
           
             X.
             When
             both
             these
             discourses
             are
             ended
             ,
             then
             the
             Assize
             are
             inclosed
             ;
             but
             before
             they
             be
             inclosed
             ,
             they
             should
             endeavour
             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
             impressing
             ,
             or
             suborning
             the
             Assize
             ,
             and
             therefore
             ,
             the
             practice
             allows
             Assizers
             sometimes
             to
             send
             out
             some
             of
             their
             number
             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
             verdict
             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.
             wherein
             the
             Justices
             found
             ,
             that
             themselves
             were
             Judges
             competent
             
             to
             the
             relevancy
             of
             any
             such
             alledgeance
             ;
             but
             that
             it
             belonged
             to
             the
             Assize
             to
             judge
             the
             Probation
             of
             that
             exception
             ,
             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
             absurd
             ,
             that
             they
             should
             be
             Judges
             to
             their
             own
             Delinquency
             .
             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
             Advocats
             ,
             but
             are
             not
             allowed
             to
             make
             any
             address
             to
             them
             after
             inclosure
             ,
             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
             President
             ,
             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
             into
             the
             Court
             ,
             and
             there
             the
             verdict
             is
             read
             ,
             and
             the
             Chancellour
             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
             Chancelour
             shall
             think
             fit
             ,
             never
             to
             be
             opened
             ,
             but
             by
             orders
             from
             the
             Judge
             ;
             of
             which
             verdict
             ,
             the
             Clerk
             is
             to
             have
             the
             keeping
             ,
             and
             if
             he
             open
             the
             same
             ,
             he
             is
             to
             be
             deposed
             ,
             and
             further
             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
             lawful
             to
             dismisse
             them
             until
             they
             did
             enter
             ,
             and
             return
             their
             verdict
             ,
             and
             the
             reason
             of
             that
             opinion
             is
             ,
             because
             after
             the
             Probation
             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
             Sedition
             ,
             the
             Justices
             did
             ,
             at
             my
             Lord
             Advocats
             earnest
             solicitation
             ,
             dissolve
             the
             Court
             after
             Probation
             was
             led
             ,
             and
             continued
             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
             continued
             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
             ,
             November
             1669.
             
          
           
             XII
             .
             When
             the
             Advocat
             closes
             his
             discourse
             for
             the
             pursuer
             ,
             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
             allowed
             ,
             
             except
             it
             be
             protested
             for
             .
             And
             it
             was
             debated
             in
             the
             case
             betwixt
             the
             Lady
             ,
             and
             Laird
             of
             Milntoun
             ,
             if
             a
             reprobator
             could
             be
             raised
             ,
             where
             the
             party
             laesed
             protested
             not
             for
             it
             ,
             seing
             Protestations
             were
             such
             solemn
             Acts
             as
             the
             Law
             required
             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
             decided
             ;
             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
             Protestation
             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
             hazard
             ,
             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
             pronouncing
             an
             unjust
             verdict
             ,
             and
             by
             our
             Law
             ,
             an
             Assize
             condemning
             ,
             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
             innocent
             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
             person
             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
             punished
             ;
             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.
             
             Assizers
             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
             condemned
             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
             concluding
             ,
             seing
             ,
             else
             it
             might
             by
             the
             same
             argument
             be
             concluded
             ,
             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
             decision
             ,
             murdering
             the
             person
             pannelled
             before
             them
             ;
             because
             forsooth
             it
             is
             not
             presumeable
             ,
             that
             a
             Witness
             ,
             or
             Judge
             would
             murder
             an
             innocent
             by
             their
             sentence
             ,
             or
             deposition
             .
             To
             the
             second
             ,
             it
             is
             answered
             ,
             that
             all
             men
             may
             be
             forced
             to
             passe
             upon
             Assizes
             ,
             upon
             their
             perril
             ,
             and
             thus
             Assizers
             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
             unjustly
             ,
             
             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
             Common
             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
             Sederunt
             ,
             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
               innocentiae
            
             )
             the
             punishment
             of
             such
             as
             are
             found
             guilty
             by
             an
             Asssize
             of
             errour
             ,
             is
             the
             escheating
             of
             the
             Moveables
             ,
             and
             a
             Years
             imprisonment
             ,
             cap.
             14.
             l.
             1.
             
             
               Reg.
               Maj.
            
             which
             is
             ratified
             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
             ,
             neither
             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
             Chancellor
             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
             errour
             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
             pursued
             ,
             though
             the
             absolvitur
             be
             found
             unjust
             ,
             
               per
               argumentum
               à
               contrario
               ,
               vid.
               titl
               .
            
             of
             the
             Council
             ,
             where
             this
             question
             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
                 Probations
                 .
              
            
             
               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
             Cannenists
             ,
             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
             probation
             ,
             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
             emitted
             negligently
             ,
             the
             confessors
             thinking
             that
             their
             privat
             confessions
             cannot
             prejudge
             them
             ,
             therefore
             the
             Law
             doth
             only
             give
             credit
             to
             judicial
             confessions
             ,
             and
             not
             to
             these
             that
             are
             extrajudicial
             ,
             
               &
               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
             presence
             of
             the
             Assize
             .
          
           
             III.
             This
             Maxime
             doth
             admit
             in
             
               Farin
               icius
            
             opinion
             ,
             many
             limitations
             ,
             as
             1.
             
             That
             if
             the
             extrajudicial
             confession
             be
             adminiculat
             by
             other
             presumptions
             ,
             it
             is
             sufficient
             ,
             but
             except
             the
             presumptions
             be
             very
             violent
             ,
             I
             cannot
             allow
             this
             limitation
             ,
             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
             certainly
             such
             prevarication
             ,
             and
             abusing
             of
             truth
             ,
             and
             Judges
             deserves
             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
             confessor
             knew
             that
             he
             should
             not
             die
             upon
             such
             a
             confession
             ;
             for
             which
             reason
             likewise
             ,
             I
             approve
             not
             the
             third
             and
             fourth
             limitations
             ,
             which
             are
             ,
             that
             if
             the
             extrajudicial
             confession
             be
             geminata
             ,
             and
             reiterated
             ,
             or
             emitted
             in
             presence
             of
             a
             multitude
             ,
             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
             retracted
             ,
             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
             ,
             either
             
               per
               surorem
               ,
               vel
               ex
               taedio
               vitae
               .
            
          
           
             The
             seventh
             limitation
             ,
             is
             ,
             that
             an
             extrajudicial
             confession
             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
             extrajudicial
             confession
             ,
             and
             so
             this
             limitation
             may
             be
             true
             in
             that
             sense
             .
             All
             these
             limitations
             are
             largely
             ,
             rather
             then
             exactly
             set
             down
             ,
             by
             
               Farin
               .
               de
               reo
               confesso
               ,
               quest
               .
            
             81.
             
             Reg.
             10.
             
          
           
             Confession
             though
             extrajudicial
             ,
             may
             be
             sufficient
             (
             if
             adminiculat
             )
             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
             emitted
             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
             removed
             
             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
             presence
             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
             albeit
             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
             Probation
             should
             by
             the
             Act
             of
             Parliament
             foresaid
             ,
             be
             led
             in
             presence
             of
             the
             Assize
             ;
             and
             therefore
             when
             the
             Probation
             was
             founded
             upon
             confession
             ,
             the
             confession
             should
             have
             been
             originally
             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
             ;
             seing
             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
             extrajudicial
             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
             confessor
             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
             Justices
             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
             thereupon
             convict
             accordingly
             ,
             and
             hang'd
             ;
             but
             if
             the
             confession
             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
             depend
             upon
             one
             single
             Testimony
             ,
             which
             were
             very
             dangerous
             ,
             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
             condemned
             ,
             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
             acknowledged
             ,
             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
             confession
             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
             ,
             appearing
             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
             before
             the
             Justices
             prove
             .
             But
             to
             this
             it
             is
             answered
             ,
             that
             confessions
             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
             rejected
             ,
             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
             openly
             used
             before
             the
             Pannel
             .
             Likeas
             ,
             Assizers
             do
             frequently
             condemn
             with
             us
             upon
             such
             confessions
             .
          
           
             The
             second
             question
             which
             may
             be
             here
             debated
             ,
             is
             ,
             whether
             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
             pursued
             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
             confession
             being
             qualified
             ,
             was
             no
             confession
             without
             the
             qualification
             ,
             and
             therefore
             there
             was
             no
             Probation
             beyond
             the
             quality
             ;
             I
             know
             that
             the
             Doctors
             do
             in
             this
             case
             ,
             distinguish
             betwixt
             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
             order
             
             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
             adjecting
             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
             altogether
             reprobated
             ,
             for
             as
             it
             was
             not
             the
             design
             of
             the
             confessor
             ,
             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
               indubio
               non
               dolose
               sed
               ad
               defensionem
               factum
               praesumitur
               &
               sic
               qualitas
               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
             witchcraft
             ,
             before
             the
             Presbytrie
             ,
             they
             would
             not
             decide
             it
             ,
             albeit
             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
               condemnandum
               Farin
               .
               de
               reo
               .
               confess
               .
               cap.
            
             6.
             
               licet
               sufficiat
               ad
               torturam
               &
               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
             obtaining
             a
             devorce
             ,
             and
             Fornication
             ,
             to
             obtain
             a
             consent
             of
             the
             Father
             ,
             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
             omitted
             by
             a
             man
             before
             the
             Kirk-Session
             ,
             
               ad
               exonerationem
               conscientiae
            
             ,
             
             to
             operat
             against
             him
             in
             any
             other
             Court
             ;
             because
             they
             thought
             that
             this
             would
             continue
             men
             in
             impenitency
             ,
             and
             retard
             their
             repenting
             ;
             which
             Decision
             was
             much
             applauded
             ,
             licet
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             VI.
             By
             the
             Civil
             Law
             ,
             
               l.
               clarum
               C.
               de
               authoritate
               prestunda
               ,
               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
             betwixt
             such
             crimes
             as
             fall
             under
             sence
             ,
             as
             Murder
             ,
             and
             such
             as
             principally
             require
             Judgement
             ,
             as
             Blasphemy
             ,
             Witchcraft
             ,
             &c.
             
             In
             which
             last
             ,
             hardly
             should
             Minors
             be
             punished
             ,
             
               paena
               ordinaria
            
             ,
             upon
             their
             own
             confession
             ,
             and
             scarce
             after
             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
             executed
             :
             yet
             whether
             he
             may
             revoke
             this
             confession
             ,
             and
             be
             reponed
             against
             the
             same
             ,
             because
             of
             his
             minority
             ,
             was
             debated
             the
             28.
             of
             February
             1676.
             in
             the
             case
             of
             a
             young
             boy
             called
             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
             reponed
             
             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
             confession
             being
             a
             contrivance
             to
             poyson
             by
             Droggs
             ,
             and
             Medicaments
             ,
             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
             answered
             ,
             that
             since
             Minors
             may
             be
             punishable
             crimes
             ,
             they
             may
             consequently
             b●nd
             a
             guilt
             upon
             themselves
             ,
             by
             their
             confessions
             ,
             for
             if
             the
             Law
             did
             not
             consider
             them
             as
             so
             far
             ,
             
               doli
               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
             committing
             crimes
             ,
             the
             judgement
             of
             the
             wisest
             is
             ordinarly
             blinded
             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
             restored
             ,
             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
             Incest
             ;
             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
             confest
             upon
             the
             promise
             of
             indemnity
             ,
             or
             by
             the
             fear
             of
             threatnings
             ,
             and
             were
             able
             to
             prove
             either
             ,
             and
             by
             this
             just
             temprement
             ,
             
             the
             interest
             of
             the
             Common-wealth
             ,
             and
             the
             imbicility
             of
             Minors
             are
             both
             salved
             :
             and
             therefore
             when
             Law
             ,
             or
             Lawyers
             say
             that
             a
             Minor
             may
             be
             restored
             against
             his
             confession
             ,
             their
             meaning
             only
             is
             ,
             that
             he
             may
             be
             restored
             if
             he
             can
             prove
             his
             error
             and
             mistake
             .
             3.
             
             This
             being
             a
             confession
             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
             remain
             with
             any
             disinterested
             person
             .
             This
             case
             was
             not
             decided
             ,
             but
             I
             conceive
             that
             a
             Minor
             cannot
             be
             restored
             against
             his
             own
             confession
             ,
             except
             he
             shew
             ,
             wherein
             he
             was
             either
             circumveen'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.
             
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             suitable
             to
             l.
             4.
             
               ff
               .
               de
               confessis
               .
               
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
                 〈◊〉
              
               ,
               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
             Presumptions
             .
          
           
             
               1.
               
               
                 In
                 what
                 cases
                 is
                 a
                 Pannel
                 obliged
                 to
                 give
                 his
                 Oath
                 .
              
            
             
               2.
               
               
                 Whether
                 a
                 Pannel
                 is
                 obliged
                 to
                 depon●
                 ,
                 when
                 the
                 Iudge
                 declares
                 that
                 his
                 deponing
                 shall
                 not
                 infer●
                 a
                 corporal
                 punishment
                 .
              
            
             
               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
             probative
             ,
             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
             because
             it
             is
             unjust
             ,
             to
             force
             a
             man
             to
             condemn
             himself
             ,
             and
             because
             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
             defender
             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
               quoad
               hoc
               aquiparantur
               .
            
             2.
             
             That
             a
             person
             accused
             may
             be
             obliged
             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
             Kingdom
             .
          
           
             II.
             It
             is
             oft
             contraverted
             ,
             both
             in
             the
             Council
             ,
             and
             Criminal
             Court
             ,
             whether
             though
             the
             crime
             be
             in
             it self
             ,
             such
             as
             deserves
             a
             corporal
             punishment
             ,
             yet
             if
             the
             pursuer
             ,
             and
             His
             Majesties
             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
             question
             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
             Declarations
             as
             these
             ,
             in
             effect
             remit
             crimes
             .
             3.
             
             The
             Declaration
             of
             the
             Council
             is
             not
             sufficient
             ,
             because
             they
             may
             not
             prejudge
             a
             criminal
             action
             ,
             which
             may
             be
             intented
             before
             the
             Justice
             
             Court
             ,
             as
             was
             found
             in
             the
             case
             of
             some
             Gentlemen
             ,
             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
             Declaration
             of
             the
             pursuer
             ,
             nor
             defender
             ,
             even
             in
             a
             criminal
             pursuit
             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
             convict
             upon
             clear
             Probation
             ;
             for
             His
             Majesty
             ,
             and
             the
             Publicks
             interest
             can
             never
             be
             prejudged
             by
             any
             Declaration
             of
             His
             Officers
             ,
             nor
             can
             any
             remit
             crimes
             ,
             as
             I
             said
             formerly
             .
          
           
             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
             Witnesses
             ,
             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
             subscribed
             by
             him
             ,
             and
             not
             Holograph
             ,
             and
             the
             subscription
             having
             
             been
             proved
             ,
             
               per
               comparationem
               literarum
            
             ,
             which
             were
             very
             hard
             in
             other
             cases
             ;
             seing
             
               compara●io
               literarum
            
             ,
             is
             but
             a
             presumption
             ,
             and
             mens
             hands
             are
             oft-times
             ,
             and
             easily
             imitated
             ,
             and
             one
             mans
             write
             will
             differ
             from
             it self
             at
             several
             occasions
             .
          
           
             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
               praesumptiones
               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
             reasons
             ,
             1.
             
             Presumptions
             are
             only
             founded
             upon
             verisimilitude
             ,
             and
             what
             may
             be
             ,
             may
             not
             be
             ;
             whereas
             all
             Probations
             ,
             especially
             in
             criminals
             ,
             should
             be
             infallible
             ,
             and
             certain
             ,
             
               &
               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
             number
             ,
             and
             weight
             of
             Presumptions
             ,
             as
             it
             doth
             in
             other
             Probations
             .
             3.
             
             The
             Doctors
             universally
             conclude
             ,
             that
             Presumptions
             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
               idoniis
               testibus
               vel
               apertissimis
               documentis
               vel
               judiciis
               judubitatis
               probari
               &
               l.
            
             2.
             
               ff
               .
               quon
               .
               apell
               .
               non
               recip
               .
               ubi
               jubetur
               curialis
               observare
               ne
               quis
               homicidarum
               Adulterorum
               ,
            
             &c.
             
               Argumentis
               convictus
               ,
               testibus
               superatus
               ,
               vel
               voce
               propria
               confessus
               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.
             
             Presumptions
             are
             in
             many
             cases
             allowed
             as
             a
             sufficient
             Probation
             ,
             as
             the
             presumption
             of
             Cohabitation
             ,
             after
             the
             parties
             are
             discharged
             ,
             is
             sufficient
             be
             Act
             of
             Parliament
             ,
             to
             infer
             Adultery
             .
             
             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
             killing
             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
             Presumptions
             may
             infer
             ,
             
               paenam
               extraordinariam
               ,
               sed
               non
               ordinariam
               ,
               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
             committing
             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
                 Majesties
                 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
             Summonds
             contains
             a
             warrand
             to
             cite
             witnesses
             ;
             but
             if
             the
             pursuite
             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
             Mackalla
             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
             repel
             a
             witnesse
             ,
             but
             because
             objections
             against
             the
             witnesses
             ,
             or
             
               oppositiones
               contra
               testes
            
             ,
             as
             Farinacius
             calls
             them
             ,
             are
             so
             largely
             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
             therefore
             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
             Civil
             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
             witnesses
             even
             in
             Civil
             cases
             ,
             
               ergo
               à
               fortiori
            
             ,
             they
             ought
             to
             be
             rejected
             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
             ,
             except
             
               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
             received
             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
             
               mulier
               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
             regulariter
             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
             
               Margaret
               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
             corruption
             ;
             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
             question
             ,
             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
             proving
             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
             objection
             is
             justly
             reprobat
             by
             our
             custome
             :
             by
             which
             likewise
             Servants
             are
             received
             to
             be
             witnesses
             ,
             notwithstanding
             of
             the
             former
             Law
             against
             it
             ;
             but
             not
             for
             their
             Masters
             :
             but
             whether
             he
             who
             hath
             redeemed
             himself
             from
             Justice
             by
             a
             Remission
             ,
             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
             
               semel
               malus
               semper
               praesumitur
               malus
            
             ,
             which
             wicked
             disposition
             cannot
             be
             altered
             by
             a
             Remission
             ;
             and
             since
             the
             King
             cannot
             make
             a
             man
             good
             ,
             it
             follows
             ,
             that
             he
             cannot
             make
             him
             a
             sufficient
             witness
             .
             3.
             
             It
             hath
             been
             found
             by
             several
             Decisions
             ,
             that
             a
             person
             convict
             ,
             and
             brought
             off
             by
             a
             Remission
             ,
             
               redemptus
               à
               justitia
            
             ,
             as
             this
             Law
             calls
             him
             ,
             hath
             been
             therefore
             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
             reconcile
             these
             two
             opinions
             ,
             I
             think
             we
             should
             distinguish
             betwixt
             such
             as
             make
             use
             of
             the
             Remission
             ,
             before
             they
             be
             convict
             ,
             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
               testes
               .
            
          
           
             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
             sometimes
             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
             criminal
             pursuit
             against
             a
             witnesse
             ,
             should
             cast
             him
             ,
             if
             it
             was
             intented
             before
             his
             citation
             ,
             to
             be
             a
             witness
             ,
             else
             every
             witness
             might
             be
             cast
             ,
             by
             intenting
             a
             criminal
             pursuit
             against
             him
             .
          
           
             VII
             .
             These
             within
             degrees
             defendant
             ,
             by
             blood
             ,
             or
             affinity
             ,
             are
             likewise
             repelled
             by
             the
             foresaid
             Act.
             Degrees
             defendant
             ,
             are
             by
             our
             Law
             the
             fourth
             degree
             ,
             or
             Cousen
             Germans
             ,
             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
             .
             Excommunicat
             persons
             cannot
             by
             that
             Law
             be
             witnesses
             ,
             nor
             such
             as
             are
             incarcerat
             :
             yet
             
               de
               practica
            
             ,
             such
             as
             are
             incarcerat
             ,
             are
             received
             ,
             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
             ;
             except
             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
             having
             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
             former
             Law
             ,
             of
             
               K.
               Robert
               ,
               nec
               aliquis
               tenens
               terram
               de
               eo
               adfirmam
               ,
               vel
               ad
               annuum
               reditum
               ,
            
             and
             Farin
             .
             doth
             ,
             regulariter
             ,
             conclude
             ,
             that
             
               Colonus
               non
               ●dmittitur
               ad
               testificandum
               pro
               domino
               suo
            
             ;
             and
             yet
             
               Glossa
               ad
               ca●
               .
               in
               literis
               extra
               de
               testibus
            
             adheres
             to
             the
             distinction
             allowed
             in
             our
             practice
             ,
             and
             concludes
             ,
             that
             
               aut
               coloni
               sunt
               tales
               quibus
               imperare
               potest
               dominus
               ,
               &
               tunc
               repelluntur
               ,
               alias
               non
               ,
               sed
               its
               tantum
               creditur
               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
             ,
             
               habet
               merum
               ,
               et
               mixtum
               imperium
               ,
               in
               vassallos
               ,
            
             the
             Vassal
             there
             cannot
             be
             received
             witness
             for
             him
             ,
             but
             with
             us
             ,
             Vassals
             of
             Regalities
             ,
             are
             received
             witnesses
             for
             the
             Lord
             of
             Regality
             ,
             which
             seems
             very
             unjust
             ;
             seing
             as
             Farin
             .
             there
             observes
             ,
             
               Dominus
               intales
               vassalos
               minacem
               terrorem
               ,
               et
               timorem
               incutere
               potest
               .
            
          
           
             IX
             .
             Though
             moveable
             Tennents
             cannot
             be
             witnesses
             ,
             yet
             Cotta●s
             may
             ,
             as
             the
             custom
             now
             runs
             ,
             whether
             they
             be
             Cottars
             to
             Tennents
             ,
             who
             are
             not
             receiveable
             ,
             or
             not
             ,
             11.
             
             December
             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
             accused
             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
             admitted
             .
          
           
             In
             the
             pursuit
             of
             
               Charles
               Robertson
            
             ,
             it
             was
             alledged
             ,
             that
             
               socii
               criminis
            
             might
             be
             witnesses
             ,
             where
             the
             punishment
             was
             pecuniary
             ,
             
               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
             Common-wealth
             was
             not
             so
             much
             concerned
             ,
             which
             was
             the
             reason
             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
               criminis
            
             ,
             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
             proved
             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
             ,
             because
             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
             defenders
             ,
             whom
             they
             think
             may
             be
             led
             as
             witnesses
             against
             them
             ;
             and
             it
             is
             ordinarly
             controverted
             ,
             whether
             in
             such
             mutual
             pursuits
             ,
             
               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
             objection
             ,
             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
             presumptions
             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
             witnesse
             ,
             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
             witnesses
             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
             witnesses
             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
             because
             of
             his
             relation
             to
             the
             party
             wrong'd
             ,
             as
             that
             he
             is
             Servant
             ,
             or
             within
             degrees
             defendant
             to
             the
             party
             wrong'd
             ,
             then
             though
             the
             party
             wrong'd
             insist
             not
             ;
             yet
             these
             witnesses
             cannot
             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
             presum'd
             ,
             that
             his
             relations
             will
             retain
             a
             privat
             grudge
             ,
             or
             malice
             ,
             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
             
               Margaret
               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
             admitted
             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
             ,
             albeit
             the
             Libel
             was
             not
             raised
             at
             the
             instance
             of
             Muir
             ,
             nor
             none
             of
             his
             relations
             ,
             which
             I
             think
             both
             irregular
             ,
             and
             dangerous
             .
          
           
             Albeit
             these
             be
             relevant
             objections
             against
             witnesses
             ,
             yet
             if
             the
             proponer
             of
             the
             objection
             ,
             cite
             them
             also
             at
             his
             own
             instance
             ,
             
               eo
               ipso
            
             ,
             he
             acknowledge
             the
             witnesses
             to
             be
             ,
             
               habiles
               
               testes
            
             ,
             but
             sometimes
             he
             may
             notwithstanding
             ,
             propon
             objections
             ,
             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
             servant
             .
          
           
             IV.
             The
             objections
             ,
             
               contradicta
               testium
            
             ,
             are
             singularity
             ,
             and
             contrariety
             ,
             and
             the
             not
             giving
             a
             sufficient
             
               causa
               scientiae
            
             .
          
           
             Singularity
             is
             ,
             when
             the
             witnesse
             who
             depons
             ,
             hath
             no
             concurring
             witness
             ,
             and
             this
             singularity
             is
             divided
             ,
             
               in
               obstativam
               ,
               adminiculativam
               ,
               &
               diversificativam
               .
            
          
           
             
               Singularitas
               obstativa
            
             ,
             is
             ,
             
               in
               acta
               non
               reiterabili
            
             ,
             an
             instance
             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
             murder
             .
          
           
             
               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
             different
             Acts
             ,
             as
             in
             a
             crime
             which
             is
             reiterable
             ,
             and
             thus
             the
             Adultery
             against
             
               Iohn
               Maxwel
            
             ,
             was
             found
             by
             the
             Lords
             to
             be
             sufficiently
             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
             committed
             ,
             yet
             they
             were
             contestes
             ,
             and
             did
             prove
             sufficiently
             ,
             
               etiam
               ad
               paenam
               mortis
               infligendam
            
             ,
             as
             was
             found
             in
             the
             probation
             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
             conjoyned
             ,
             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
             substantial
             ,
             but
             though
             they
             differ
             in
             some
             extrinsick
             circumstances
             ,
             yet
             they
             prove
             ,
             
               &
               verba
               sunt
               improprianda
               ,
               nut
               testes
               concordentur
               ,
               &
               etiam
               concordari
               debent
               aliquando
               à
               judice
               per
               interpretationem
               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
             witnesses
             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
             given
             ,
             
             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
             deponers
             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
             juster
             ,
             than
             the
             Laws
             of
             other
             Nations
             are
             ,
             who
             allow
             neither
             Advocat
             ;
             nor
             party
             to
             be
             present
             ,
             whilst
             the
             witnesses
             depons
             ,
             
               Gomes
               .
               de
               delict
               .
               cap.
            
             1.
             num
             .
             65.
             
             And
             in
             this
             also
             we
             agree
             with
             the
             Civil
             Law
             ,
             
               l.
               Custodias
               ff
               .
               de
               publ
               .
               judiciis
               .
            
          
           
             XVII
             .
             Witnesses
             are
             sometimes
             received
             ,
             
               in
               criminalibus
               ,
               ad
               futuram
               rei
               memoriam
               ,
            
             for
             the
             defender
             ,
             but
             never
             for
             the
             accuser
             ;
             and
             that
             because
             the
             accuser
             may
             blame
             himself
             ,
             for
             not
             pursuing
             sooner
             ,
             which
             is
             not
             in
             the
             defenders
             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
             depositions
             of
             witnesses
             ,
             to
             lie
             
               in
               retentis
            
             ;
             but
             this
             form
             is
             not
             allowable
             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
             diligence
             
             for
             proving
             thereof
             ;
             for
             remedy
             whereof
             ,
             by
             the
             11.
             
             Article
             of
             the
             Regulations
             of
             the
             Justice-Court
             ,
             it
             was
             appointed
             ,
             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
             murmured
             ,
             that
             first
             this
             would
             be
             very
             difficult
             ;
             for
             the
             pursuer
             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
             corrupting
             witnesses
             ,
             and
             Assizers
             ,
             who
             if
             known
             ,
             might
             be
             practised
             .
          
           
             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
             penalty
             :
             And
             this
             objection
             would
             tend
             much
             more
             against
             all
             continuation
             of
             Assizers
             for
             a
             whole
             year
             ,
             which
             is
             very
             ordinary
             .
             To
             the
             second
             it
             may
             be
             answered
             ,
             that
             either
             the
             witnesses
             to
             be
             adduced
             ,
             are
             honest
             ,
             and
             then
             there
             is
             no
             fear
             of
             practising
             ,
             or
             they
             are
             false
             and
             obnoxious
             to
             corruption
             ,
             and
             then
             they
             should
             not
             be
             received
             at
             all
             :
             And
             it
             were
             inhumane
             that
             a
             mans
             life
             and
             fortune
             should
             be
             laid
             open
             to
             the
             depositions
             of
             these
             ,
             whom
             the
             Law
             durst
             not
             allow
             to
             be
             known
             ,
             for
             fear
             of
             being
             brib'd
             ,
             and
             corrupted
             .
             And
             this
             inconveenience
             could
             hardly
             have
             been
             evited
             before
             thir
             regulations
             ,
             for
             ordinarily
             the
             defender
             knows
             who
             were
             present
             ,
             and
             needed
             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
             witnesses
             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
             immediatly
             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
             proved
             ,
             therefore
             it
             seems
             hard
             ,
             that
             the
             dyet
             should
             not
             be
             even
             
               eo
               casu
            
             ,
             continued
             :
             And
             at
             other
             times
             there
             may
             be
             objections
             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
             apprehend
             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
             separat
             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
               testibusque
               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
                 Tortured
                 .
              
            
             
               4.
               
               
                 Who
                 are
                 exeemed
                 from
                 Torture
              
               .
            
             
               5.
               
               
                 How
                 should
                 such
                 be
                 punished
                 ,
                 who
                 Torture
                 unjustly
                 ?
              
            
          
           
             I.
             TOrture
             is
             seldom
             used
             with
             us
             ;
             because
             some
             obstinat
             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
             sometimes
             ,
             
             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
             offers
             to
             abide
             the
             Torture
             ,
             purges
             all
             other
             presumptions
             ,
             whi●h
             can
             be
             adduc'd
             against
             him
             ;
             and
             yet
             
               Alexander
               Kennedy
            
             being
             pursued
             for
             forging
             some
             Bonds
             ,
             and
             nothing
             being
             adduced
             for
             proving
             the
             crimes
             ,
             save
             presumptions
             ,
             offered
             to
             abide
             the
             Torture
             ,
             but
             th●s
             was
             refused
             .
          
           
             Torture
             likewise
             being
             adduced
             ,
             purges
             all
             former
             presumptions
             ,
             which
             preceeded
             the
             Torture
             ,
             if
             the
             person
             Tortureed
             ,
             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
             
               Frendraught
               ,
               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
             cleared
             ,
             but
             would
             confess
             ,
             and
             not
             endure
             so
             much
             torment
             unnecessarly
             ;
             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
             condemned
             after
             Torture
             ,
             upon
             other
             probation
             then
             was
             deduc'd
             before
             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
             Lawyers
             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
             cannot
             be
             subjected
             to
             Torture
             ,
             lest
             the
             tenderness
             both
             of
             their
             age
             ,
             and
             judgement
             ,
             make
             them
             fail
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             
               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
                 justice
                 .
              
            
          
           
             WHen
             the
             Judges
             has
             pronounced
             his
             Sentence
             ,
             he
             is
             
               functus
               officio
            
             ,
             and
             the
             punishment
             irrogat
             by
             him
             ,
             can
             only
             be
             remitted
             by
             the
             Prince
             ,
             though
             the
             Council
             may
             moderat
             ,
             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
             allowed
             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
               delictum
               ,
               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
             reconciled
             with
             these
             Doctors
             ,
             for
             even
             with
             us
             ,
             the
             taking
             a
             remission
             doth
             not
             prove
             the
             crime
             ,
             since
             that
             may
             be
             done
             sometime
             ,
             rather
             upon
             the
             accompt
             of
             security
             ,
             then
             guilt
             ,
             
               &
               licet
               se
               redimere
               à
               lite
            
             ▪
             and
             therefore
             Braids
             escheat
             ,
             as
             an
             adulterer
             ,
             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
             Statutes
             .
          
           
             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
               approbatio
               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
             design
             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
             presented
             ,
             
               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
               &
               qualitates
               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
             committed
             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
               concessit
               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
             notwithstanding
             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.
             
             Albe●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
             remission
             ,
             
             must
             find
             caution
             to
             refound
             the
             party
             injured
             ,
             of
             all
             his
             damnage
             and
             interest
             ,
             within
             fourty
             dayes
             after
             he
             produces
             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
             declared
             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
             dangerous
             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-raising
             ;
             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
             remission
             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
             ,
             alledged
             upon
             a
             Remission
             .
             To
             which
             it
             was
             answered
             ,
             that
             the
             remission
             was
             null
             ;
             because
             he
             returned
             before
             it
             was
             obtained
             ,
             and
             past
             the
             Seals
             ,
             nor
             was
             it
             yet
             past
             .
             Upon
             which
             the
             dyet
             was
             continued
             ,
             the
             23.
             of
             Febr.
             1622.
             
             But
             it
             is
             observeable
             ,
             that
             the
             pursuit
             was
             here
             at
             the
             Advocats
             instance
             only
             ,
             who
             could
             not
             quarrel
             his
             Majesties
             remission
             upon
             no
             account
             .
          
           
             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
               ,
               &
               interesse
               ,
               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
             indemnity
             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
               interesse
               habenti
               ,
               quando
               damnandus
               laborasset
               pro
               bono
               reipublicae
               &
               fecisset
               illud
               ,
               per
               quod
               multorum
               salus
               causata
               esset
               .
               l.
               non
               omnes
               .
               §
               .
               fin
               .
               ff
               .
               de
               re
               militari
               .
            
             By
             thir
             Remissions
             ,
             the
             party
             is
             not
             restored
             to
             his
             good
             fame
             ,
             l.
             3.
             
             
               C.
               de
               gen
               .
               abolit
               indulgentia
               patres
               conscripti
               quos
               liberat
               ,
               notat
               ,
               nec
               infamiam
               criminis
               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
             condemned
             ,
             by
             way
             of
             Justice
             ,
             
               per
               modum
               justitiae
            
             ,
             which
             he
             doth
             by
             rescinding
             the
             sentence
             ,
             that
             stands
             against
             him
             as
             injust
             ;
             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
             restored
             ,
             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
             Argile
             .
          
        
         
           
             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
             ,
             Paricide
             ,
             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
               temporibus
               arcetur
               apostotarum
               accusatio
            
             ,
             that
             must
             be
             interpret
             ,
             
               de
               prescriptione
               vigniti
               annorum
            
             ,
             which
             is
             in
             Law
             ,
             called
             
               longissum
               
               tempus
            
             ,
             but
             the
             crimes
             of
             Adultery
             ,
             and
             peculatus
             ,
             prescribe
             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
             warranting
             prescription
             in
             criminals
             .
             And
             if
             prescriptions
             founded
             upon
             the
             Civil
             Law
             ,
             had
             been
             sufficient
             in
             Scotland
             ,
             there
             needed
             not
             any
             particular
             Acts
             to
             have
             been
             made
             in
             civil
             cases
             ;
             but
             since
             our
             Law
             thought
             necessary
             to
             make
             Laws
             as
             to
             presc●iption●
             in
             civil
             causes
             ,
             they
             had
             much
             more
             determined
             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
               quaesitum
            
             to
             the
             King
             ,
             by
             the
             committing
             of
             the
             crime
             ,
             both
             
               quoad
               vindictam
               ,
               et
               bonafisco
               applicanda
               ,
            
             that
             Right
             cannot
             be
             taken
             away
             from
             him
             ,
             but
             by
             a
             publick
             Law
             ,
             or
             His
             own
             privat
             Remission
             .
             3.
             
             It
             seems
             unreasonable
             ,
             that
             because
             a
             privat
             party
             will
             not
             inform
             ,
             being
             either
             affraid
             ,
             or
             negligent
             ,
             that
             the
             publick
             should
             therefore
             suffer
             .
             4.
             
             There
             is
             no
             instance
             in
             all
             our
             Practiques
             ,
             where
             prescription
             hath
             been
             sustained
             ;
             but
             one
             the
             contrair
             ,
             crimes
             of
             an
             old
             date
             ,
             even
             after
             fourty
             years
             ,
             have
             been
             punished
             .
             5.
             
               ●emel
               malus
               ,
               semper
               praesumitur
               esse
               malus
               in
               eodem
               genere
               malitiae
            
             ;
             and
             therefore
             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
             publick
             is
             presumed
             to
             have
             forgot
             ,
             that
             any
             such
             crime
             was
             committed
             ,
             and
             the
             parties
             injured
             ,
             or
             presumed
             to
             have
             forgot
             ,
             and
             remitted
             their
             privat
             revenge
             ,
             for
             satisfying
             whereof
             ,
             punishments
             
             are
             inflicted
             .
             2.
             
             After
             so
             long
             a
             time
             ,
             any
             probation
             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
             only
             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
             ,
             Usury
             ,
             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
               naturale
               ,
               quam
               unumquodque
               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
             defenders
             death
             ,
             there
             should
             be
             no
             period
             of
             time
             ,
             whereby
             Families
             might
             be
             secure
             ;
             and
             that
             it
             should
             be
             lawful
             ,
             after
             two
             ,
             or
             three
             hundred
             yeares
             ,
             to
             vex
             Families
             ,
             of
             great
             Honour
             ,
             and
             Interest
             upon
             pretext
             of
             crimes
             committed
             by
             their
             Predecesso●s
             .
             5
             This
             prescription
             is
             very
             justly
             introduced
             ,
             to
             punish
             the
             negligence
             of
             such
             ,
             as
             will
             not
             pu●sue
             crimes
             ;
             and
             it
             is
             most
             presumeable
             ,
             that
             if
             they
             pursue
             ,
             after
             they
             have
             delayed
             for
             so
             long
             a
             time
             ,
             that
             any
             pursuit
             thereafter
             intented
             ,
             is
             rather
             intented
             upon
             some
             supervenient
             
             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
             unnecessary
             .
          
           
             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
             several
             other
             Nations
             ,
             who
             have
             many
             Statutes
             in
             other
             cases
             ,
             have
             yet
             allowed
             of
             this
             prescription
             without
             any
             particular
             Statute
             .
             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
             altered
             by
             all
             Nations
             ,
             according
             to
             the
             particular
             state
             of
             their
             affairs
             ;
             but
             in
             criminals
             ,
             their
             prescription
             was
             exactly
             observed
             ,
             by
             all
             Nations
             ,
             and
             was
             very
             reasonable
             ;
             and
             there
             being
             exp●esly
             ,
             
               jus
               quaesitum
               incivilibus
            
             ,
             to
             every
             privat
             person
             ,
             it
             was
             necessary
             that
             should
             have
             been
             taken
             away
             by
             an
             expresse
             Statute
             ;
             but
             it
             is
             not
             so
             in
             crimes
             ,
             where
             in
             effect
             .
             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
             sentence
             ,
             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
             Arguments
             ,
             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
             Traitors
             in
             absence
             ;
             in
             either
             of
             which
             cases
             ,
             there
             was
             neither
             Act
             ,
             nor
             Practique
             ;
             nor
             could
             any
             thing
             have
             been
             alledged
             ,
             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
             .
             relates
             ,
             
             that
             albeit
             by
             the
             Statutes
             of
             Saxonie
             ,
             prescription
             is
             only
             introduced
             by
             expresse
             Statute
             ,
             in
             moveables
             ,
             and
             heritage
             ,
             and
             that
             there
             is
             no
             express
             Statute
             ,
             as
             to
             prescription
             in
             criminals
             ,
             yet
             these
             prescribe
             also
             in
             twenty
             years
             ;
             because
             that
             prescription
             introduced
             by
             the
             Civil
             Law
             ,
             is
             not
             expresly
             abrogated
             amongst
             them
             ,
             
               nam
               non
               praesumendum
               est
               totam
               praescriptionum
               observationem
               tantis
               vigiliis
               excogitatam
               ,
               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
                 punishments
                 .
              
            
             
               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
                 command
                 ,
                 either
                 excuse
                 from
                 punishments
                 ,
                 or
                 lessen
                 them
                 .
              
            
             
               7.
               
               
                 How
                 far
                 doth
                 Nobility
                 ,
                 or
                 great
                 Merit
                 ,
                 excuse
                 ,
                 or
                 mitigat
                 punishment
                 .
              
            
             
               8.
               
               
                 How
                 far
                 doth
                 the
                 inconsiderableness
                 of
                 the
                 transgression
                 mitigat
                 ,
                 or
                 lessen
                 the
                 punishment
                 .
              
            
          
           
             I.
             PUnishments
             are
             inflicted
             ,
             not
             only
             to
             satisfy
             ,
             either
             the
             publick
             revenge
             of
             the
             Law
             ,
             or
             the
             privat
             revenge
             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
             execute
             very
             early
             in
             the
             morning
             ,
             for
             bestiality
             ,
             which
             was
             occasioned
             by
             the
             confession
             of
             one
             ,
             who
             asserted
             ,
             that
             the
             reason
             of
             his
             committing
             that
             crime
             ,
             was
             a
             curiosity
             he
             contracted
             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
             necessary
             to
             none
             ,
             some
             may
             be
             more
             properly
             punished
             privatly
             ,
             then
             publictly
             ,
             and
             thus
             such
             persons
             as
             are
             popular
             ,
             and
             are
             execute
             only
             for
             crimes
             ,
             for
             which
             the
             people
             have
             a
             kindness
             ,
             will
             be
             more
             happily
             execute
             privatly
             ,
             then
             publickly
             ,
             because
             the
             persons
             executed
             ,
             are
             by
             publick
             executions
             obleidged
             to
             die
             rebelliously
             ,
             and
             the
             people
             are
             confirmed
             
             in
             their
             good
             opinion
             of
             them
             ,
             by
             their
             courage
             at
             death
             .
          
           
             II.
             Constantine
             did
             forbid
             ,
             
               that
               any
               Malefactor
               should
               be
               crucified
               ,
            
             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
               formerly
            
             ;
             and
             I
             have
             oft
             thought
             it
             inhumane
             ,
             to
             send
             our
             Malefactors
             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
             publick
             ,
             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
             Countreys
             ,
             and
             so
             cannot
             make
             any
             Acts
             ,
             nor
             pronounce
             any
             sentences
             relative
             to
             them
             .
          
           
             Torturing
             punishments
             at
             death
             ,
             are
             also
             very
             inexcuseable
             ,
             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
             himself
             never
             to
             return
             to
             Scotland
             ,
             under
             the
             pain
             of
             death
             ;
             thus
             Hamiltoun
             was
             hang'd
             ,
             Anno
             1649.
             for
             returning
             to
             Scotland
             after
             she
             ha●
             enacted
             her self
             ,
             never
             to
             return
             under
             pain
             
             of
             death
             ,
             and
             her
             dittay
             was
             only
             founded
             upon
             that
             contravention
             ;
             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
             Parliament
             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
             opinion
             ,
             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
             arbitrarly
             punished
             .
             Whereas
             ,
             if
             arbitrary
             punishment
             might
             be
             extended
             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
             design
             of
             the
             Law-giver
             .
             5.
             
             Arbitrary
             punishment
             is
             appointed
             
             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
             power
             to
             infl●ct
             death
             ,
             
               eo
               casu
            
             ;
             and
             yet
             
               Skeen
               ad
               cap.
            
             6.
             
               l.
               Malcolimbi
               .
               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
             arbitrary
             ,
             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
             November
             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
             pursued
             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
             punishable
             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
               ,
               damnatus
               vero
               cujus
               bona
               tacite
               ,
               publicatio
               enim
               bonorum
               sequebatur
               tacite
               paenam
               capitalem
               ,
            
             Matheus
             cap.
             2.
             
               de
               Sicartis
               ,
               num
            
             .
             2.
             
             And
             albeit
             the
             Judge
             should
             omit
             in
             his
             Sentence
             ,
             the
             punishment
             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
             conform
             to
             l.
             1.
             
             &
             2.
             
               ff
               .
               de
               bon
               .
               damnat
               .
               &
               l.
            
             2.
             
             
               C.
               de
               bon
               .
               proscrip
            
             .
             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
             Children
             ,
             and
             not
             the
             committers
             only
             ,
             and
             since
             this
             having
             been
             only
             invented
             by
             
               Iulius
               Caesar
            
             ,
             as
             Suet.
             observes
             ,
             Iustinian
             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
             Herodot
             .
             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
             express
             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
               facit
               quis
               de
               linquendo
               quantum
               facere
               potest
               contrahendo
            
             ;
             And
             therefore
             since
             he
             cannot
             alienat
             them
             by
             contracting
             ,
             so
             neither
             should
             he
             be
             able
             to
             alienat
             them
             by
             delinquency
             ,
             especially
             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
               concepta
               ,
            
             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
             confession
             emited
             by
             them
             ,
             without
             the
             consent
             of
             these
             to
             whom
             they
             are
             interdited
             .
             
               Cabal
               .
               Cas.
            
             48.
             
             
               Bald.
               ad
               l.
            
             1.
             
             
               C.
               de
               confess
            
             .
             But
             they
             think
             that
             if
             the
             crime
             be
             proved
             against
             them
             ,
             then
             their
             Goods
             may
             be
             confiscated
             ,
             for
             this
             priviledge
             of
             interdiction
             being
             introduced
             in
             their
             favours
             ,
             ought
             not
             to
             be
             advantagious
             to
             them
             ,
             in
             defending
             them
             against
             guilt
             ,
             
               Castrens
               .
               ad
               l.
               etiam
               .
               ff
               .
               Solut.
               matr
               .
            
             And
             with
             us
             ,
             since
             interdiction
             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
             decollation
             ,
             in
             place
             of
             
               damnatio
               ad
               metallum
            
             ,
             Succeeded
             the
             Gallies
             in
             Erance
             ,
             and
             the
             Correction-house
             with
             us
             .
             Deportatio
             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
             debated
             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
               proveniat
               exfacto
               adversarii
               ,
               sive
               tertii
               ,
               licet
               hoc
               non
               sit
               sine
               scrupulo
               Farin
               .
               quest
               .
            
             91.
             
             But
             I
             think
             that
             it
             should
             only
             lessen
             the
             punishment
             in
             arbitrary
             cases
             ,
             but
             not
             in
             statutory
             punishmen●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
             somewhat
             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
               faciunt
               .
            
             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
             ,
             because
             it
             is
             the
             custome
             of
             their
             Countrey
             .
             And
             I
             think
             this
             may
             be
             alledged
             ,
             to
             defend
             such
             as
             are
             accused
             for
             Witchcraft
             ,
             in
             consulting
             such
             as
             can
             tell
             where
             they
             may
             find
             what
             they
             lost
             ,
             or
             was
             stollen
             from
             them
             ,
             but
             not
             from
             all
             punishments
             .
          
           
           
             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
             observed
             in
             the
             Title
             Sedition
             ,
             and
             Messengers
             in
             executing
             Decreets
             ,
             as
             hath
             been
             observed
             in
             the
             Title
             Deforcement
             ,
             a
             son
             also
             is
             to
             be
             excused
             if
             he
             obey
             his
             father
             ,
             
               &
               in
               atrocioribus
               à
               paena
               ordinaria
               &
               omnino
               in
               laevioribus
               ,
            
             as
             is
             observed
             in
             the
             Title
             Art
             and
             part
             .
          
           
             7.
             
             Noblemen
             should
             get
             some
             allowance
             during
             the
             dependance
             of
             the
             process
             ,
             and
             are
             never
             to
             be
             sent
             to
             correction
             houses
             ,
             Pillories
             ,
             &c.
             and
             as
             in
             no
             crime
             they
             were
             punished
             by
             the
             Civil
             Law
             ,
             till
             the
             prince
             was
             first
             consulted
             (
             which
             we
             observe
             not
             )
             so
             if
             they
             commit
             a
             delict
             ,
             or
             lesser
             Crime
             ,
             innecessary
             defence
             of
             their
             honour
             they
             are
             to
             be
             excused
             
               à
               paena
               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
             disobedience
             .
          
           
             9.
             
             These
             who
             are
             pursued
             at
             the
             Kings
             instance
             ,
             for
             crimes
             committed
             in
             another
             Countrey
             are
             to
             be
             more
             gentlely
             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
             ,
             therefore
             after
             long
             silence
             ,
             the
             punishment
             is
             to
             be
             moderated
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             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
               .
               mulctae
               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
             punishment
             ,
             seems
             to
             be
             dubious
             ;
             because
             of
             the
             undigested
             discourses
             ,
             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
             only
             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
             remitted
             by
             the
             Judge
             ,
             As
             if
             the
             Law
             appoint
             Theft
             to
             be
             punishable
             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
               commisisse
               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
             ,
             because
             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
             Countrey
             ,
             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
             Justices
             .
             2.
             
             Where
             the
             punishment
             is
             statutory
             ,
             and
             determined
             by
             a
             special
             Law
             ,
             as
             in
             Treason
             ,
             &c.
             it
             may
             be
             argued
             ,
             that
             there
             the
             Council
             can
             no
             more
             mitigat
             ,
             then
             they
             can
             remit
             .
             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
                 pronunced
                 .
              
            
             
               2.
               
               
                 The
                 debate
                 is
                 not
                 insert
                 in
                 the
                 Sentence
                 .
              
            
             
               3.
               
               
                 Whether
                 the
                 Sentence
                 be
                 null
              
               ,
               in
               totum
               ,
               
                 if
                 the
                 Iudge
                 punish
                 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
                 execution
              
            
             
               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
             sentence
             ,
             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
             absolved
             from
             all
             punishment
             :
             and
             this
             Sentence
             is
             in
             criminals
             ,
             by
             our
             stile
             ,
             call'd
             an
             Act
             of
             conviction
             ,
             or
             an
             Act
             of
             absolviture
             :
             But
             acta
             ,
             in
             the
             stile
             of
             Lawyers
             ,
             expresses
             only
             the
             middle
             Acts
             of
             the
             Process
             ,
             
               acta
               judicilia
            
             ,
             but
             not
             the
             Sentence
             .
             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
             conviction
             ,
             or
             absolviture
             ;
             but
             that
             part
             of
             it
             ,
             which
             irrogats
             the
             punishment
             ,
             is
             called
             the
             doom
             ;
             and
             these
             two
             are
             sometimes
             separate
             ,
             which
             falls
             out
             when
             a
             long
             time
             interveens
             ,
             betwixt
             the
             finding
             a
             person
             guilty
             ,
             and
             the
             pronuncing
             of
             his
             punishment
             :
             but
             ordinarly
             they
             are
             conjoyned
             .
             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
                     ,
                     accused
                     ,
                     and
                     pursued
                     ,
                     be
                     vertue
                     of
                     Our
                     Soveraign
                     Lords
                     Letters
                     ,
                     raised
                     at
                     the
                     instance
                     of
                     A
                     and
                     B.
                     Advocat
                     to
                     Our
                     Soveraign
                     Lord
                     ,
                     for
                     His
                     Highness
                     interest
                     ,
                     who
                     compeared
                     personally
                     ,
                     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
                     thereof
                     ,
                     
                     that
                     the
                     said
                     matter
                     should
                     not
                     passe
                     to
                     the
                     knowledge
                     of
                     an
                     Assize
                     ,
                     and
                     answers
                     made
                     thereto
                     ,
                     be
                     Our
                     Soveraign
                     Lords
                     Advocat
                     ,
                     and
                     writes
                     produced
                     be
                     him
                     ,
                     for
                     veryfying
                     thereof
                     .
                     The
                     Iustice
                     fand
                     the
                     dittay
                     relevant
                     ,
                     and
                     did
                     put
                     the
                     samen
                     to
                     the
                     knowledge
                     of
                     an
                     Assize
                     ,
                     of
                     persons
                     following
                     they
                     are
                     to
                     say
                     ,
                     〈◊〉
                     whilks
                     persons
                     of
                     Assize
                     being
                     chosen
                     ,
                     sworn
                     ,
                     and
                     admitted
                     ,
                     and
                     the
                     said
                     〈◊〉
                     being
                     accused
                     of
                     the
                     dittay
                     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
                     verification
                     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
                     dittay
                     ,
                     for
                     the
                     whilks
                     cause
                     ,
                     the
                     Iustice
                     be
                     the
                     mouth
                     of
                     〈◊〉
                     dempster
                     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
                     botkin
                     ,
                     and
                     thereafter
                     banisht
                     this
                     Realm
                     ,
                     not
                     to
                     be
                     found
                     thereintil
                     under
                     the
                     pain
                     of
                     death
                     :
                     Or
                     to
                     be
                     scourged
                     ,
                     and
                     all
                     their
                     moveable-goods
                     to
                     be
                     escheat
                     ,
                     which
                     was
                     pronunced
                     for
                     doom
                     ,
                     extracted
                     .
                  
                
              
            
          
           
             
               
                 
                   
                   
                     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
                     knowledge
                     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
                     altogither
                     furth
                     of
                     Court
                     ,
                     to
                     the
                     Assize
                     house
                     ,
                     where
                     they
                     be
                     plurality
                     of
                     vots
                     ,
                     elected
                     and
                     choosed
                     the
                     said
                     in
                     Chancellour
                     ,
                     reasoned
                     ,
                     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
                     〈◊〉
                     sufficient
                     Letters
                     of
                     slaynes
                     ,
                     for
                     demembring
                     him
                     of
                     his
                     little
                     finger
                     ,
                     who
                     fand
                     〈◊〉
                     with
                     themselves
                     ,
                     conjunctly
                     and
                     severally
                     ,
                     soverty
                     ,
                     and
                     cautioner
                     fore-payed
                     of
                     the
                     said
                     three
                     hundred
                     Merks
                     ,
                     to
                     the
                     said
                     〈◊〉
                     in
                     full
                     satisfaction
                     ,
                     and
                     assithment
                     ,
                     of
                     demembering
                     him
                     ,
                     of
                     his
                     midle
                     finger
                     ,
                     he
                     grant
                     and
                     ,
                     and
                     giving
                     a
                     sufficient
                     Letter
                     of
                     slaynes
                     ,
                     as
                     said
                     is
                     ,
                     and
                     al
                     's
                     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
             magistratus
             signatumque
             quaerenti
             tradit
             ,
             ille
             adversarium
             &
             testes
             citat
             ,
             si
             quid
             ambiguum
             ,
             &
             majoris
             momenti
             ,
             ad
             12.
             (
             quos
             claves
             appellant
             )
             refertur
             ,
             atque
             ita
             sine
             scriptis
             aut
             impensis
             lites
             dirimi
             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
             Sentences
             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
               confessionem
               ,
               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
             dempster
             ,
             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
             pronunced
             the
             pun●shment
             ,
             and
             this
             I
             give
             for
             Doom
             .
             And
             I
             find
             ,
             that
             by
             the
             custome
             of
             Italy
             ,
             the
             Clerk
             reads
             the
             Sentence
             ,
             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
             ,
             contain'd
             in
             the
             Sentence
             ,
             ●ight
             to
             put
             in
             execution
             ,
             or
             to
             exact
             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
             thousand
             Merks
             ,
             or
             to
             go
             to
             Barbodoes
             ,
             in
             obedience
             to
             which
             Decreet
             ,
             he
             payed
             the
             two
             thousand
             Merks
             .
             Notwithstanding
             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
             answered
             ,
             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
             custome
             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
             ,
             pronunced
             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
             Predecessors
             :
             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
             define
             ,
             that
             albeit
             regularly
             ,
             a
             Judge
             ought
             to
             proceed
             in
             open
             day
             ,
             to
             sentence
             criminals
             ,
             yet
             he
             may
             pronunce
             Sentences
             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
             Justices
             ,
             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
             Pannel
             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
             Malefactors
             ,
             in
             lesser
             Crimes
             ,
             
               sine
               strepitu
               ,
               &
               forma
               judicii
            
             sumarly
             ,
             by
             ordaining
             them
             to
             be
             scourged
             ,
             or
             banisht
             ;
             instances
             
             whereof
             ,
             are
             given
             in
             the
             Titles
             of
             Murder
             ,
             and
             Witchcraft
             ;
             and
             the
             Justices
             allowed
             this
             custome
             in
             the
             procedure
             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
               .
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             And
             though
             Durhie
             observes
             ,
             that
             the
             Lords
             found
             ,
             that
             Sheriffs
             ,
             and
             other
             inferiour
             Judges
             ,
             could
             not
             fine
             in
             Bloodwites
             ,
             for
             above
             ten
             Pounds
             ,
             without
             an
             Inquest
             ;
             yet
             now
             Sheriffs
             fine
             ,
             and
             imprison
             for
             all
             Bloodwites
             ,
             and
             lesser
             delicts
             upon
             probation
             ,
             led
             before
             themselves
             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
             abstained
             ,
             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
             reconciling
             which
             Laws
             ,
             Cujac
             .
             thinks
             ,
             that
             generally
             the
             punishment
             should
             be
             presently
             inflicted
             ,
             and
             that
             thirty
             dayes
             are
             only
             to
             be
             allowed
             where
             the
             Prince
             himself
             has
             imposed
             a
             severe
             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
               ,
            
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
          
           
             And
             though
             l.
             19.
             
             
               Basil.
               de
               custod
               .
               reor
               .
               &
               cum
               fuerit
               conv●ctus
               ,
               non
               statim
               paenam
               pendere
               ;
               sed
               rursus
               conjici
               in
               custodiam
               ,
               
               iterumque
               eductum
               audiri
               ,
               nam
               haec
               dilatio
               iram
               judicum
               moderatiorem
               reddit
               .
            
             Yet
             by
             the
             word
             Convictus
             ,
             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
             observes
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             .
             It
             may
             be
             likewise
             observed
             ,
             that
             the
             former
             ,
             l.
             5.
             doth
             not
             ordain
             that
             the
             Sentence
             shall
             be
             presently
             put
             to
             execution
             ,
             but
             that
             prisoners
             shall
             be
             presently
             tryed
             ,
             for
             the
             words
             are
             ,
             
               de
               his
               quos
               tenet
               carcer
               inclusos
               ,
               sancimus
               ut
               aut
               convictos
               velox
               paena
               subducat
               ,
               aut
               liberandos
               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
               comprehensus
               est
               ,
               mancat
               in
               custodia
               opportet
               enim
               eum
               cito
               absolvi
               ,
               vel
               puniri
               .
            
          
           
             The
             reason
             of
             allowing
             thir
             thirty
             dayes
             ,
             was
             ,
             because
             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
             abominat
             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
               legumlator
               possi
               fieri
               ;
               ut
               deciperetur
               accusator
               ,
               modo
               ut
               calumniaretur
               .
            
             And
             though
             it
             may
             be
             urged
             ,
             that
             a
             present
             Execution
             is
             convenient
             ;
             because
             that
             prevents
             the
             prisoners
             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
             Christian
             Magistrat
             ,
             should
             allow
             sometime
             to
             the
             Malefactor
             ,
             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
             guilty
             Pannel
             ,
             who
             gets
             not
             this
             time
             to
             settle
             his
             affairs
             :
             and
             it
             hath
             been
             oft
             found
             ,
             that
             persons
             thus
             too
             hastily
             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
               Lutorius
            
             ,
             ordered
             ,
             that
             no
             man
             should
             be
             Execute
             within
             ten
             dayes
             after
             the
             Sentence
             ,
             
               Dion
               .
               in
               Tiber.
               lib.
            
             57.
             
               vid.
               Sidon
               .
               Epist.
            
             7.
             lib.
             1.
             
             By
             this
             delay
             likewise
             ,
             the
             persons
             convict
             ,
             have
             oft-times
             been
             induced
             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
             Execution
             ,
             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
             appointed
             to
             oversee
             the
             Execution
             ,
             and
             to
             restrain
             Tumults
             .
             Especially
             seing
             common
             Executioners
             were
             so
             infamous
             ,
             that
             they
             could
             not
             be
             advanced
             ever
             thereafter
             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
             negligence
             ,
             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
             officiat
             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
             persons
             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
             ,
             cannot
             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
             Justice
             Court
             ,
             can
             only
             write
             the
             Letters
             ;
             yet
             if
             the
             fine
             be
             to
             be
             payed
             to
             any
             privat
             person
             ,
             any
             Writer
             to
             the
             Signet
             may
             write
             the
             Letters
             ;
             and
             though
             the
             126.
             
             Act
             ,
             1.
             
             
               Parl.
               Ia.
            
             6.
             appoints
             that
             all
             Criminal
             Letters
             should
             not
             be
             registrat
             ,
             as
             other
             Letters
             ,
             but
             returned
             to
             the
             Adjournal
             ;
             yet
             
               de
               praxi
            
             ,
             such
             Hornings
             are
             sometimes
             Registrat
             ,
             in
             the
             ordinary
             Register
             of
             Horning
             ;
             likeas
             ,
             albeit
             the
             Escheat
             of
             him
             who
             is
             denunced
             ,
             cannot
             fall
             upon
             a
             denounciation
             ,
             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
             common
             Bill
             ,
             past
             by
             the
             Lords
             of
             Session
             ,
             by
             which
             all
             the
             Leidges
             are
             discharged
             to
             intercommune
             with
             the
             Rebel
             ,
             which
             must
             be
             execute
             at
             the
             Mercat
             Crosse
             of
             the
             respective
             Shires
             ,
             and
             Registrat
             there
             ,
             or
             in
             the
             general
             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
             also
             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
             ordinary
             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
             Officers
             to
             certain
             hazard
             ,
             as
             in
             the
             case
             where
             a
             person
             is
             denounced
             fugitive
             for
             deforcing
             Messengers
             ,
             or
             hath
             convocat
             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
             Decreets
             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
             execution
             of
             deforcement
             is
             not
             sufficient
             in
             that
             case
             ,
             without
             a
             sentence
             ensuing
             on
             it
             ,
             and
             that
             the
             deforcers
             be
             registrat
             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
             ordinar
             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
             ,
             
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
               〈◊〉
            
             ,
             l.
             56.
             
             
               Basil.
               de
               paen
            
             .
             but
             he
             ought
             to
             acquaint
             the
             Council
             ,
             and
             they
             may
             interceed
             for
             his
             Remission
             ,
             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
             person
             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
             probation
             ,
             much
             less
             upon
             the
             old
             probation
             ,
             accuse
             a
             person
             once
             assoilzied
             by
             an
             Assize
             ,
             though
             he
             may
             accuse
             the
             Assize
             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
             suspense
             .
             3.
             
             If
             the
             pursuer
             did
             collude
             with
             the
             defender
             ,
             so
             that
             the
             defender
             was
             assoilzied
             by
             a
             white
             Assize
             ,
             in
             abstracting
             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
               criminibus
               ,
               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
             intented
             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
             Civil
             pursuit
             ,
             may
             be
             sustained
             for
             damnage
             ,
             and
             interest
             ,
             and
             expences
             of
             a
             Crimin●l
             pursuit
             ,
             even
             against
             the
             Malefactors
             Heir
             ,
             as
             was
             also
             decided
             by
             the
             Senat
             of
             
               Savoy
               ,
               Cod.
               Fab.
               tit
               .
               de
               accusat
               .
               def
               .
            
             15.
             
          
        
         
           FINIS
           .