relating to criminal matters, the relevancy and punishment of many crimes being either founded upon or expressed in the word of God, whereof they are the authorised ministerial interpreters. It is true, it may be feared, that church discipline shall have but small success upon obdured or monstrous criminals; yet, it being a mean appointed by Jesus Christ for reclaiming of sinners, it should on that account be tried, and no more neglected than his word and sacraments, which very often have no better effects. This church hath very clearly expressed her opinion about the extent of the object of church discipline, Assembly 1638, sess. 23, 24, art. 13. where they ordain, that discipline in kirk-sessions (for there all processes against church members do first begin) strike, not only upon gross sins, as bloodshed, &c. but against all sins repugnant to the word of God,

2. Civilians define murder to be the killing man by man, unlawfully; and they divide it into that which is committed casually, in defence, culpably, or wilfully; casual homicide is, when a man is killed, 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 horse's hinder feet. 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 punished by an extraordinary or arbitrary punishment, but not by death. It is then necessary, that the committer used 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 the throwing he kill, he is to be cleared from murder. 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 used to be, he is judged by some lawyers to be guilty of faulty murder. If the committer do what is

against the law of nature, or what is criminal; or if what he doth may produce ill consequences and murder, though he designed not the same: in all which cases, he ought to be liable. And it seems reasonable, that he who killed, when he was doing what was unlawful, may be arbitrarily punished, though he did exact diligence to shun killing.

3. Homicidium necessarium, or homicide committed in self-defence, is, when a man being pursued, or reduced to inevitable necessity, has no way left him to evite his own death, but by killing the aggressor: This is in law called, Inculpata tutela, or, Moderamen inculpatæ tutela; within which moderation, if the defender contain himself, he is no way punishable; and so favourable is self-defence, that the exceeder is not liable to the ordinary punishment, but is punishable according to the excess, at the discretion of the judge. This moderation is said to be exceeded in these three: 1st, In arms, 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. And yet this conclusion is not infallible; for if the defender was much weaker than the aggressor, he might be excused to use such unequal weapons, according to Mackenzie on this Title. 2dly, The defender is said to exceed in time, if he strike the aggressor, antequam sit in actu proximo occidendi, for else it should be lawful to every man, upon the first apprehension of fear, to kill the aggressor. If he threaten to kill, and be one who is known to have any design to murder, or be a person who useth to execute what he threatens, and if he have a sword though not drawn, or a pistol though not cocked, if he hath either of these, according to the forecited author, he may be lawfully killed, because he is in actu proximo offendendi, and yet he thinks the defender may be arbitrarily punished. Sdly, The defender is said to exceed in the measure, as if he killed him for wounding, whom he might have shunned, or if he followed the aggressor. Although much be left to the arbitration of the judge, as to all the three; yet the general rule is, that if the defender exceed only in either of the three,

as v. g. in the arms or time, the excess is said to be culpa levissima: if in two of these, as in time and arms, then it is accounted culpa alevis, and is punishable: but if the defender exceed all the three, as in time, arms, and 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 æquiparatur dolo," yet it is a rule in criminalibus, that "culpa lata nunquam æquiparatur dolo, ubi agitur de pæna corporis afflictiva." This exception of self-defence must be proponed against the relevancy, and must be condescended upon, thus, the defender or pannel nowise acknowledging the killing, yet if he killed, it was done in his own defence, in so far as the defunct drew a sword and thrust, or offered a pistol. And though he prove not his exception of self-defence, he will not therefore be condemned, except the pursuer prove the libel. The way of proving this exception of self-defence is so favourable, that it may be proved by presumptions, and by witnesses, otherwise declinable, as cousins, servants, and witnesses who depone only upon credulity.

4. Homicidium culposum, or faulty slaughter, is, where the murder was not designed, and yet it was committed merely by accident, as if one should hound a dog at another, who should bite him at whom he was hounded, so that he should die thereby, in that and the like case, the offender is not to be punished with death, but arbitrarily, because aberat animus occidendi. The difference between this and casual homicide, is in this, the committer versatur in illicito, but not so in the other; yet they both agree in this, that they wanted all design of killing.

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5. Wilful murder is committed by fore-thought felony; and if he who intended to kill one, did not by a mistake kill him, but killed another, yet he is to die because he killed a man designedly. Since the design of killing depends much upon the nature of the wound given, then where the wound was not deadly, the inflictor thereof cannot be punished as a murderer, though the person wounded thereafter die: And though some be of opinion, that if the party live three days after receiving of

the wound, the same is thereby presumed not to be mortal; yet generally this is referred to the arbitriment 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 shall not incline to punish by death, but by an extraordinary punishment. For murder is not to be inferred but from a concluding probation and if the wound be but small, and a fever follow, then it is presumed that the party died rather of a fever, especially if the person wounded walked a foot for forty days: and seeing ordinarily, wounds that are mortal do kill the receiver in that time, it were therefore not hard to conclude, that he who dies thereafter, dies not of his wounds if he has walked a foot all that time.

6. Night thieves, robbers, and murderers, may be killed without any punishment, when private persons are warranted to pursue them by sheriffs, justices of the peace, or privy counsellors, and the robber or murderer resists to be apprehended. And by the civil law, it was lawful for a father to kill his own daughter, if he found her committing adultery, and to kill also her adulterer; and if the husband kill the adulterer of his wife, he was only to be punished by some arbitrary punishment, but not by death. See the Title of the Pandects, de Adulter. But there is no such decision yet happened in this country. In the Memoirs of the Marquis of Langallery, printed at London in the year 1708, p. 85, the following passage is related: viz. A citizen of Madrid, finding a Frenchman and his wife on the bed, stabbed them both. After the execution, he goes out with his dagger in his hand, stained with the blood of these two persons, and presents himself before the judges, who were then upon the bench. The court of justice, without any other formality, upon the recital of the action, declared him innocent; this he says happened in the year 1700, and the Frenchman was a gentleman of the retinue of the French ambassador.

7. Monomachus, or, the fighter of a single combat, is, "singulus qui pugnat cum singulo." By the 12th act of the 16th Parl. Jam. VI. all such fighters are punishable with death, although none of them be killed, and the pro

voker is to be punished with a more ignominious death than the defender. The giving or accepting challenges to fight, and those who carry them, and the seconds of such, may be punished by the council arbitrarily, although combat follow not, because they tend to disturb the peace. The General Assembly, by their act 1648, discharges duels, and ordains all who shall fight them, or make, write, or receive, or with their knowledge carry challenges, or go to the fields, either as principals or seconds to fight, the contraveners are to be brought into public twice, once in order to their being rebuked, and again, in order to the professing their repentance. (But the method of censuring such now, is to be regulate according to the Form of Process, enacted by Assembly 1707, of which more hereafter, Book 4.) If the person guilty be elder or deacon, he is to be deposed; and whosoever shall refuse to submit to the censure appointed by the church, shall be processed to excommunication. by cap. 14, art. 32, of the French Church Discipline, the

same upon

the matter is enacted.

And

8. Self-murder is punished with confiscation of moveables, and Christian burial is denied them. Furiosity and madness ought to defend against this punishment, even though he hath lucid intervals, seeing it is more humane to presume he killed himself in his madness, except it can be proved that he used even in his lucid intervals to wish he were dead, or to commend self-murder. An endeavour to kill one's self, is punishable by confiscation, as self-murder. But it may be reasonably feared, that the inflicting that punishment upon it, will tempt the poor creature to renew his endeavour with better success. Self-murder may likewise be committed by omission, as if a man should designedly starve himself.

9. Parricide is a crime which is committed by killing our parents, or, by the civil law, ascendants or descendants in any degree. By the 220th act, Parl. 14. James VI. parricide is punished only in him who kills his father or mother, good-sire or good-dame, and they are ordained to be disinherited in linea recta.

10. By the 21st act of King William and Queen