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 Mr. 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. Mr. 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 .