judice incompetente, and when the question is who is to be reputed judex incompetens, it is pofitively refolved that omnis judex eft incompetens who could not proceed ad condemnationem as to the cryme as to which the confeffion is emitted; and certainly tho any confeffion wer produced, emitted before the Lords of Privie Councell, they have no criminall jurisdiction, so as to proceed ad condemnandum in crimine capitali, that being cleare by Craige, lib. 1, dieg. 8, that ex eorum ftatutis nec periculum vitæ, hæreditatis, aut omnium fortunarum fubire poffe. And wheras it is urged that the Lords of Privie Councell have a mixed jurifdiction, and may proceed be way of precognition, et per modum inquifitionis, and may refolve doubtfull cafes and qualifie fentences,-it is answered, That it is not denyed that the Lords of Privie Councell have and doe verie weel deferve that jurifdi&tione; but as to criminal jurisdiction in capitall cafes, it is only competent before the Lords of the Jufticiarie, and the precognitions or prævious inquifitions tend not ad condemnationem, but only as to this, whither to stoppe or remitt to the Lords of the Jufticiarie; and nothing is confidered as a judiciall confeffion but wher ther is formatus proceffus, and wher a partie is called coram judice competente, and he is fub inftante periculo vitæ, and knowes that the infallible import of his confeffion is to that verie effect for his condemnation, non of which can be pretended wher the confeffion is emitted coram judice incompetente ad condemnandum.

Lanfrancum

cisione 104

And wheras it is alledged, That a confeffion in the opinion of Lawiers Omnino, vide cannot be retracted unleffe the partie could docere de errore, and purge Balbum dehis innocence, and did it ex incontinente,-it is anfwered The alledgeance & 462. is groundles; for tho a confeffion wer emitted coram judice competente pro tribunali, it might be retracted ex incontinenti, if he wer able docere de errore; and ther is no lawier ever requyred it in other termes. But wher the confeffion is emitted coram judice incompetente fidem non facit quoad probationem delicti, and may be retracted eyther er incontinenti, or

ex intervallo, and without fhueing of any error or purgeing of innocence fuch confeffions in law not amounting to any probatione, no more then as lawiers argue if the depofitiones of witneffes fhould be taken in uno judicio, wold fidem facere either in caufa civili aut criminali in alio judicio; and certainly ther is leffe reafone for confeffions wher parties difoune the fame and retracts them if emitted, and much more heir, wher the pretended confeffion wes elicit fub fpe venice; fo farre wes the pannell from thinking that the emitting of his confeffion wes in order to his condemnatione, speciallie feing it neither is nor can be proven that the said pretended confeffion wes fo much as judiciallie given in face of the Councell, wher his Grace the D. of Lauderdale, being then Commiffioner, wes prefent, and the pannells procurators will not debate the import of the fame, but remitt it to the Commiffion itselfe in cafe it be offered to be proven that the confeffion wes emitted judicially before the P. Councell: And wheras it is alledged, that the Act of Parliament, A& 91, Par. ij J. 6, ordaining all probatione to be led in presence of the affyfe, does not concern the cafe, and is misunderstood, fieing heir the confeffion will be produced in prefence of the affyfe,-it is answered, The A&t of Parliament is cleare to the contrare, and can admit of no fuch interpretatione; for albeit the narrative of the Act of Parliament wes only caufa impulfiva, and the statutorie part of that Act of Parliament is cleare and pofitive, that all probatione should be deduced in prefence of the affyfe, and of all uther probatione ther is the greatest reafone that the verie act of confeffione should be in prefence of the affyfe, who are judges to the probatione, and who are to proceed upon oathe, and whofe confciences are to be fatiffied and instructed as to the way, and manner, and conditions, and termes wherupon fuch confeffions wer emitted, all which are concealled wher ther is nothing produced to them but a confeffion taken without ther prefence, especiallie fieing the pannell alleadges and offers to prove, that severall poynts of fact and other particulars wer condescended vpon

and declared, non of which are mentioned in this pretended confeffion, all which should have been infert, and could not be divyded as being in articulo connexo.

And wheras it is pretended that a decreit pronounced by the Lords of the Seffion is probatio probata, and wherupon affyfers may and ought to condemne, it is answered, The argument is in materia difparata, and does not concerne the matter of confeffion, and is only in a speciall cafe of falfhood, and that upon a speciall reafone. Becaus the investigatione of falfhood depended upon a tryall and concurfe of many and violent prefumptions, which may requyre a longe tract of tyme and examination of parties and witneffes, it wer impoffible that fuch tryalls could be deduced before ane inqueift, theffe depending feverall yeirs many tymes before the Seffion before they can be brought to a clofe. And therfor law and cuftome in that cafe hes fuftained a decreit before the Lords of the Seffion as a probatione in judicio criminali. But it is abfolutely denyed that it wold hold in any other cryme, and certainly if the cryme of theft wer perfhued civilly before the Lords of Seffione, ad damnum et intereffe, tho the theft should be proven or confeffed before the Lords of Seffion, it wold not fidem facere in judicio criminali, as is evident by the authoritie of lawiers, who agree, that Acta probatoria in uno judicio fidem non faciunt in alio; nay, which is more acta probatoria in uno processu fidem non faciunt in alio proceffu coram eodem judice; and as to the inftance of the practique of McNabbe, the pannell oppones the fame as not probative, but, on the contrare, it does appeare in the case of Frazer, in the yeir 1641, that Sir Thomas Hope, being then his Majesty's Advocat, declared, that a confeffion emitted before a fhireff-depute, who hes a criminall jurifdiction in fome cafes in the fines allowed be law, and who, beyond all doubt, is judge competent per modum inquifitionis; yet fo convinced wes he that it wes an extrajudiciall confeffion, that he only infifted theron per modum adminiculi, and joyned it with the other probatione mentioned in that practique

which wes per fe convincing and fufficient. As alfo fince his Majesty's happy reftitution, in the cafe of on Robertfon, altho the confeffion wes emitted before on of the Lords of Jufticiarie and his Majefty's Advocat for the tyme; yet he wes so convinced of the infufficiency of the fame, that after it wes produced per modum probationis, he took up the famen even in that estate of the process when the affyfe wes fworne. And as to the inftance of divinitie in David's practife, it does not concerne the poynt of law, and cannot be made appear that the partie retracted his confeffion, and it is a practique that eyther nimium or nihil probat. In respect whereof, &c.

Followes the Interlocutor.

The Lords Commiffioners of Jufticiary having confidered the dittay and debate relating therto, find that article of the dittay founded upon the 4th A&t in 1600, bearing the pannell's invadeing of St. Andrews ane Privie Counsellor, for doeing of his Majesty's service, relevantly lybelled ; his Majefty's Advocat proving the prefumption that it wes for St. Andrews perfecuting theffe at Pentland Hills, or fome words to that purpose, relevant to inferre the pain contained in the faid A&t of Parliament, and remitts the fame to the knowledge of ane Affyfe. And lykewayes, that part of the dittay anent invadeing Bifchops and Minifters, to inferre ane arbitrarie punishment, and the wounding of the Bifchop of Orkney lykewayes to inferre ane arbitrarie punishment, and fuch lyke finds the confeffion emitted before the Committee of the Counfell, and renewed in presence of the Commiffionar and Lords of his Majefty's Privie Council, judiciall, and cannot be retracted; and lykewayes, that the fame wes emitted from promife of lyfe, finds the fame relevant to fecure the pannell as to lyfe and limb, in cafe the defence fhall be proven, referving to the faid Lords to inflict ane arbitrarie punishment upon the pannell, and remitt all to the knowledge of ane Affyfe.

No. IV.

AN ACCOUNT OF THE ARRAIGNMENT, TRYAL, ESCAPE, AND CONDEMNATION OF THE DOG OF HERIOT'S HOSPITAL IN SCOTLAND, THAT WAS SUPPOSED TO HAVE BEEN HANGED, BUT DID AT LAST SLIP THE HALTER.(1)

SIR,

Knowing that you are difirous to hear newes from Scotland, I thought fitt to fhow you that that A&t whereby all publick officers are obleadged to take the Teft, is rigorously put in executione, and therby many perfons, baith in kirk and state, throughout the haill kingdome, by reafone they are not free to take the said Teft, are incontinently turned out of their places; whilk feveritie gave occafione to a wheen loun ladds, belonging to the hospital of Hariot's Buildings in Edinbrough, to divert themselves with fomewhat like the following tragi-commedy.

The lounes it feems fell intil a debate amongift themselves, whither or no, ane Mastiffe Tyke, who keept the outmoft gate, might not, by reafone of his office of truft, come within the compaffe of the Act, and fwa be obleadged to take the Teft, or be turned out of his place.

(1) See page 55 of the present volume for Lord Fountainhall's allusion to this incident, intended as a burlesque on the Test Act, in 1681. It is given from the original broadside, printed probably at Edinburgh, although, for the sake of concealment, it has London on the imprint.