of the parish where the scandal was committed: declaring hereby, that any for the kirk-session or minister, having their warrant, may pursue any of these negligent judges before the Lords of Session, who are ordained to proceed summarily; and that it shall be a sufficient probation of the judges refusal, if the pursuer instruct, by an instrument under a notary's hand, and witnesses thereto subscribing, and deponing thereupon, that he made application to the said judge, unless the judge so pursued, condescend and instruct, that within the space of ten days after the said application, he gave orders to cite the party complained on, within the space of ten days, and at the day of compearance, he was ready to have taken cognition of the scandal complained on, and instruct and condescend on a relevant reason why the laws were not put in execution. By the 31st act, sess. 6. of King William's Parl. it is ordained, that in every parish, where any of the ordinary inferior judges happen to reside, they shall execute the laws against profaneness, and mocking religion and the exercise thereof, at the instance of any person whatsoever who shall pursue the same; certifying them, if they fail therein, either by themselves, or their deputes, the Lords of Session will appoint judges in that part. And in other parishes where no such magistrates do reside, it is ordained, that the foresaid persons shall appoint deputes for the said parishes, with the power and for the end foresaid, such as shall be named to them by the heritors and kirk-session thereof. But, really, it is foreign to members of a kirk-session, considered as such, to chuse or present a civil magistrate, even as it is to a civil court, as such, to chuse or present the members of a kirk-session. And farther, they discharge advocation, simpliciter, of processes, against immorality from these parish judges; and likewise, all suspensions of their sentences, without consignation or liquidate discharges. It is also ordained, that in case of calumnious suspending, the Lords of Session decern a third part more than is decerned, for expences; and likewise, they appoint the fines to be instantly paid in to the parish collector for the poor, or the party imprisoned

till sufficient caution be found for the payment of the. same, or otherwise to be exemplary punished in his person in case of inability. It is also enacted, that no pretence of different persuasion in matters of religion, shall exeem the delinquent from being censured and punished for such immoralities, as by the laws of this kingdom are declared to be punishable by fining. And it is recommended to the privy council, to take further effectual course against profaneness, and for encouraging of such as shall execute the laws against it.

9. By the acts of Assembly for suppressing profaneness, they appoint as follows. That church judicatures execute discipline faithfully against all scandalous conversation, and in particular, against drunkenness and swearing, but with that gravity, prudence, and meekness of wisdom, as may prove most effectual for reclaiming them. And ministers are to be free with persons of qua lity for amending of their faults; and if it be found need. ful, presbyteries are to appoint some of their number to concur with the minister in admonishing such. Masters of families are to receive no servants, but such as have testimonials of their honest behaviour, and none ought to get testimonials, but such as are free of scolding, swearing, and such like more common sins, as well as fornication, adultery, drunkenness, and other heinous gross evils. And the ordinary time of giving testimonials is to be in face of session; but if an extraordinary exigent happen, let it be given by the minister with consent of the elder of the quarter. If they have fallen, or relapsed into scandalous sins, let their testimonials bear both their fall and repentance; but it were more charitable that the scandal were suppressed, and remembered no more. And persons of quality removing to Edinburgh or elsewhere, with their families and followers, if they carry not testimonials along with them, the minister from whom they remove, shall advertise the minister to whom they come, if to his knowledge they be lying under any scandal. It is recommended to ministers, pres byteries, and sessions, to meet together for private fasting and prayer, and conference about the state of the church,

with respect to the growth and decay of godliness, and success of the gospel; and in these days the presbyteries ought to pass their privy censures, and both synods and they are exhorted to perform them with more accuracy, diligence, and zeal. It is appointed that ministers be frequent in private personal conference, with those of their charge, about the state of their souls. And presbyteries are to take special notice of ministers, who do converse frequently and ordinarily with malignants, and with scandalous and profane persons, especially such as belong to their parishes. Whereas men of business for their too late sitting in taverns, especially on Saturdays night, do pretend relaxation of their minds; therefore it is recommended to ministers, where such sinful customs are, to represent the evil thereof both publicly and privately, and call such to redeem that time, which they have from business, and employ the same in conversing with God. It is appointed likewise, that carriers and travellers bring testimonials from the places where they rested on those Lord's days wherein they were from home, to their own ministers. An abstract of all acts of Assemblies against profaneness, is to be got and printed, and also it is overtured, that an abstract of all acts of Parliament against the same be gotten. And each presbytery is to hear the same read twice a year, at two diets to be appointed for that effect. And it is likewise recommended to presbyteries, to prepare overtures to General Assemblies, that they being found proper means for curbing of vice, may by them be enacted. It is appointed, that persons grossly ignorant be debarred from the communion; for the first and second time suppressing their names; for the third time expressing their names; and for the fourth time let them be brought to public repentance: This is to be understood of those that profit nothing, nor labour for knowledge; for if they be labouring to profit, they ought by the act of Assembly to be treated with more forbearance. All which means for suppressing of profanity, are enacted by Assemblies, August 10. 1648, April 14. 1694, January 24. 1698; January 30. 1699.

TITLE XIII.

Of Theft, Sacrilege, Usury, Falsehood, Beggars and Vagabonds.

When

1. Theft is described by lawyers to be "fraudulosa contrectatio, lucri faciendi gratia, vel ipsius rei, vel etiam usus ejus possessionisve, quod lege naturali prohibitum est." By the word contrectatio they understand, not only the taking away of a thing, for theft is committed not only by concealing what was taken from another, but likewise the using a thing depositate or impignorate to other ends and uses than was agreed upon. one is urged by necessity, not from a desire to gain, to take food or raiment from the owners thereof, without their consent, he is not to be despised, but rather pitied and pardoned, Prov. vi. 30. By the 83d act, Parl. 11. James VI. it is statute, that whosoever destroys plough, or plough-graith in time of tilling, or wilfully destroys the corns, shall be punished therefor by the justices to the death as thieves. But our practice in this is a little arbitrary and uncertain. By the 26th act, sess. 1. Parl. 1. Car. II. it is appointed, that the persons from whom goods are stolen, pursuing the thief, usque ad sententiam, shall have his own goods again wherever they can be had, or the value, and he is to have his expenses of prosecuting the thief, out of the readiest of the thief's goods.

2. "Sacrilegus dicitur qui sacra legit." By the canon law, sacrilege is committed, either properly, when a thing sacred is taken out of a sacred place; or less properly, when a sacred thing is taken out of a profane place, or when a profane thing is taken out of a sacred place: This crime is likewise committed when sacred things are embezzled. Though with us, there be no formal consecrations of churches, vestments, cups, &c. yet to steal any thing destinate to God's service, or even to steal any thing out of a church, ought to be looked on as an aggravation of the crime of theft.

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3. The taking of more annual-rent, than the quota stated by law, is the first branch of usury; the second is, to take annual rents, before the term of payment; the third is, to take wadsets in defraud of the law; by doing this, they do not take more annual rent directly than what is prescribed by the law, but they take wadsets of land from the debtor, for more than their annual rents can extend to, and then they set back-tacks to him, for payment of what is agreed upon. The fourth branch of usury with us, is to take bud or bribe for the loan of money, or for continuing it. But it were against reason, that by lending money to my friend, I should become incapable of a donation from him. By the 7th act, Parl. 16, James VI. it is appointed, that usury shall be proved by the oath of the party receiver, of the unlawful annual rent, and witnesses insert, without receiving the oath of the giver of the usury, for eviting perjury. The pain of usury with us, is, that the debtor shall be free from his obligation, or have back his pledge; or if the debtor conceal, then the revealer shall have right to the sums. Act 222, Parl. 14, James VI. and by the 248th act, Parl. 15, James VI. it is appointed, that the usury bond or contract shall be reduced; and being reduced, the sum shall belong to his Majesty or his donators; and the party to have repetition of the unlawful annual rent paid by him, in case only he concur with the donator in the reduction. Usury is called crimen utriusque fori; and how ministers are to be censured for it, see Book 4. title 5.

4. Falsehood is a fradulent suppression, or imitation of truth in prejudice of another. This description of crimen falsi, or falsitas, doth agree with that given by the canonists, viz. "Est fraudelenta sive dolosa veritatis imitatio, vel occultatio." This crime is committed in writ, either by producing a false writ, if they knew it to be false, and abide by it, or by fabricating a false writ. Again, it is committed by omission, in a notary's not setting down what he was required to insert in his instrument, or the omitting to express the day and place, when the omitting thereof might have been disadvantageous.