demned as accessory to the shedding of innocent blood. Before the witnesses be judicially examined, the accused party is to be called, and the relevancy of the libel discussed, sect. 10. cap. 2. act foresaid. But in causes intricate and difficult, the discussing of the relevancy may be delayed till probation be taken: and then, greater light being thereby given, both relevancy and probation may be advised jointly, as the Lords of Session and Privy Council have oftentimes done.

4. When the libel is read, the defender sometimes proposeth a defence, which, if admitted and proven, excul pates and clears him from the fault libelled, either in whole or in part; as, if the libel be murder, and the defence inculpata tutela; or, if the libel be adultery, at such a time and place, and the defence be alibi. But the party accused must, before probation, offer the grounds of exculpation to be proven by witnesses; in which case the moderator and clerk, if required, are to give warrant to cite witnesses upon the parties charges, the relevancy of the offered exculpation being first sustained by the judicature and if the exculpation be fully proven, all further proof of the libel must there sist. But if the substance of the scandal be once proven, there can be no place for exculpation, unless it be as to some extenuating circumstances, not contrary to, but consisting with the depositions already taken.

:

5. Probation is that, whereby the judge is convinced that what is asserted is true; and he must be convinced, either by confession or oath of party, or writ, witnesses, or presmptions, as follows: Probation by confession, if judicial, is the strongest of all probation; but if men confess a crime, rather from weariness of, or aversion to life, than from conscience of guilt; or, if there appear any signs of distraction or madness, then such confessions ought not to be rested upon, except they be adminiculate with other probation. Confessions before a church judicature are not rested upon before civil courts, except they be renewed before themselves; and so it is e contra, for men may incline to confess things before church judicatures, knowing that church discipline is " medicina, non pœna,"

or "ob levamen conscientiæ," which ought not to be discouraged whereas they may deny the same fault, and resile before the civil judge, for fear of corporal punish

ment.

6. An oath of calumny may be exacted of either party, whereby they swear that they believe or judge, that the points they insist on, are both just and true, and they will be holden as confessed, if they refuse to depone when required. By an oath of verity, or for confirmation, the swearer positively affirmeth by his oath, that what he asserteth is true; and it is the only oath sworn by a party which can terminate the plea and strife. But by an oath of credulity, the swearer doth not assert the verity of the matter, but the verity of his belief of the matter, which only terminates the plea in so far as to exclude him who sweareth, from insisting on these points contrary to his own belief or persuasion: See Stair's Instit. p. 698. 701.,

7. If the delated father of a child, after private conferences, do still deny, then the session is to cause cite him to appear before them: if he persist in his denial, when compearing, he is to be confronted with the woman, and the presumptions held forth as particularly as possible: and if after all this he deny, though the woman's testimony can be no sufficient evidence against him, yet pregnant presumptions, such as, suspicious frequenting her company, or being "solus cum sola, in loco suspecto," or in suspected postures, and such like, which he cannot disprove, may so lay the guilt upon him, as to shew him, that there appears no other way of removing the scandal, but his appearance to be publicly rebuked therefor: if he will not submit himself to be rebuked, it is safer that a true narrative of the case be laid before the congregation, and intimation given, that there can be no further procedure in the matter, till God in his providence give further light, than that an oath be pressed, and upon refusal, proceed to the higher excommunication. But if the person accused do offer his oath of purgation, and crave the privilege thereof, the presbytery may allow the same, the form whereof may be as follows.

8. I A. B. now under process before the presbytery

of

for the sin of

alleged to be committed by me with C. D. and lying under that heavy slander, being repute as one guilty of that sin: I, for ending the said process, and giving satisfaction to all good people, do declare before God, and this

free of the said sin of

that I am innocent and or having carnal knowledge of the said C. D. and hereby I call the great God the Judge and Avenger of all falsehood, to be witness and judge against me in this matter, if I be guilty; and this I do by taking his blessed name in my mouth, and in swearing by him who is the great Judge, Punisher, and Avenger, as said is, and that in the sincerity of my heart, according to the truth of the matter, and my own innocence, as I shall answer to God in the last and great day, when I shall stand before him, to answer for all that I have done in the flesh, and as I would partake of his glory in heaven, after this life is at an end.

9. But this oath is not allowed to be taken in any case but this, when the presumptions are so great, that they create such jealousy in that congregation and session, that nothing will remove the suspicion but the man's oath of purgation; and when his oath will indeed remove the scandal and suspicion; in all other cases this oath is in vain, and so should not be admitted, and never but by advice of the presbytery. It is to be taken either before the session, presbytery, or congregation, as the presbytery shall determine. And if it be taken before the session or presbytery, it is to be intimate to the congregation, that such a person hath taken such an oath, and the party may be obliged to be present in the congregation, and may be put publicly to own his purging himself by oath, and thereupon be declared free from the alleged scandal. All what concerns this oath, is recommended by cap. 4. sect. 6. &c. of the forecited act of Assembly.

10. After an end is made, as above, with the person delated as father, the woman is to be dealt with to give the true father; and if after all serious dealing and due diligence, she give no other, she is to be censured according to the quality of the offence confessed by her, with

out naming the person delated; the judicature reserving place for further censure, upon further discovery.

as

11. If a person do voluntarily confess uncleanness where there is no child, and the case be brought to the kirk-session, they are to enquire whether it floweth from disquietness of mind, or from sinistrous design; when a man suing to a woman for marriage, is denied, but spreads the report that he hath been guilty with her. If it be found that there is no ground for the confession, the person confessing is to be censured as defaming himself, and likewise as a slanderer of the other party; and withal, application is to be made by the session to the civil magistrate, that he may be punished according to law; see that forecited 4th chapter of the act of Assembly.

12. It is rare to prove a scandal by writ, but yet it may happen so to be proven, and the want of the writer's name and witnesses, ought to be no objection in church courts against writs, more than in bills of exchange. If one denieth that to be his subscription, it is hard to sustain its being proven to be his per comparationem literarum, which is but a presumption, and men's hands may be sometimes so artificially imitated, that it shall be hard to discern which is which; besides, one man's writ may. differ from itself at several occasions.

13. Probable presumptions, and many concurring, may do much to prove, especially in such things which rarely can be proven with ordinary clearness. The presumption of cohabitation, after the parties are discharged, is sufficient, as may be seen on that title, to infer adul tery; also, cohabitation, and behaving as man and wife, for some considerable time, presumeth marriage; and the depositions of witnesses, are sometimes founded upon. presumptions, as when they depone upon things which depend upon acts of the mind, as, ebriety, and dolus malus. But when a libel is only proven by presumptions, it is not so safe to pass the ordinary censure thereupon, as if it had been proven by unexceptionable witnesses and full probation.

14. Witnesses may be cited on fewer days than par

ties. The diligence against them may run in this form, viz. Mr A. B. moderator, &c. Forasmuch as

pur

suer, &c. having applied to us for a diligence to cite witnesses in the said matter, in manner and to the effect underwritten: Therefore we require you, that upon sight hereof, ye pass and lawfully summon personally, or at their dwelling places, to compear before us within the kirk of upon the day of in the hour of cause, with continuation of days, to bear leal and soothfast witnessing, upon the points and articles of the said process, in so far as they know, or shall be enquired at them; with certification as effeirs. And this our precept you are to return duly execute and indorsate. Given, &c. by warrant, &c. If witnesses refuse, after three citations, to compear, then they may be proceeded against as contumacious; or, if judged needful, after the first or second citation is disobeyed, application should be made to the civil magistrate, that he may oblige them to appear; see that 9th sect. cap. 2. of that frequently above cited act of Assembly.

15. In church judicatures, women and minors past fourteen years of age, are received witnesses. If the defender appear, he may object against any of them, and if the objection be relevant, and made evident to the judicature, the witnesses are to be cast. For which, see that same act. The objections of infamy, or enmity, are relevant to cast any witness; but the design of church courts being ad tollendum scandalum, et ad eruendam veritatem, they will sometimes receive witnesses cum nota, against whom some common and general objections have been made, reserving to themselves to consider how far they will make use of their testimony at advising the sufficiency of the probation.

16. Witnesses are to be sworn thus, lifting and holding up the right hand: They swear by God, and as they shall answer to Him, they shall tell the truth, and nothing but the truth, concerning the articles and points of the present process, in so far as they know, or shall be asked. Which oath the moderator is judicially to administer, and though there be no relevant objection against the wit