Jovis, 4 Junii, 1607

Union with Scotland.

THIS Forenoon the great Committee for hostile Laws, sat in the Court of Wards; and nothing in the mean time done in the House.

Paper respecting Scotch Law.

[a] A Paper, delivered to Mr. Speaker, declaring the Manner of Proceeding in Scotland, for Point of Testimony upon Trials in criminal Causes, &c. for Satisfaction of some Doubts made in that Point, read, as followeth :

IN Scotland, in civil Causes before the civil Judges, Witnesses are admitted for Probation, but that only in Favour of the Persuer ; for the Defender would prove against the Libel, if he had the Benefit of Witnesses ; which is altogether unlawful. And therefore, in many civil Actions, the Defender will press by all Means, either by another cross Libel, or by one Trick or another, to change the Nature of his Cause from a Defender to a Persuer, that he may thereby use the Benefit of Probation by Witness.

In criminal Causes, by the Civil Law, and, according thereunto, by the Practice of all Nations that are absolutely governed by it, there is no Jury called, nor admitted, upon Life or Death; and therefore the Judges admit Witnesses in Favour of the Party Persuer, but none in Favour of the Defender; because in all Causes (as I said before) either criminal or civil, no Man can be admitted to prove the contrary of his Accusation, or Persuit; for it is his Part who relevantly alleges it, sufficiently to prove the same: As, if A. accused B. for breaking his Stable, and stealing his Horse, such an Hour of such a Night; the Persuer may well be admitted to produce Witnesses for Verefication of his Alleageance, because, what by his Libel he allegeth, by his Witnesses he proves; but the Defendant can never he admitted to prove that he was alibi that Night; for that would be contrary to the Libel (as I said before) and therefore most unformal.

In Scotland, criminal Causes are not governed by the Civil Law ; but Ordanes and Juries to pass upon Life or Death, very near according to the Law here: Which Jury being chosen out of the Four Halfs about (as the Scottish Law terms it) which is to say, out of all Places round about, that are nearest to that Part, where the Fact was committed; the Law doth presume, that the Jury may the better discern of the Truth of the Fact by their own Knowlege ; and therefore are they not bound to examine any Witnesses, except out of their own Disposition they shall please to examine them, in favour of the Party Persuer, which is likewise very seldom, or almost never, used; but not lawful to be done in Favour of the Defendant.

It is of truth, that the Judge may, either privately beforehand, examine ex officio, such Witnesses as either the Party Persuer will offer unto him, or such others as in his own Judgment he thinks may best inform him of the Truth; and then, when as the Jury is publickly called,

and admitted, he will cause these Depositions to be produced, and read; and likewise, if the Party Persuer desire then any Witness here present to be examined, he will publickly do it, in Presence of the Jury and both Parties; but never in the Defendant's Favour.

And therefore it was a great mistaking of Sir William Seaton's Speech in the Lower House, that he should have said there, that he offered Barret the Benefit of Witnesses; for he, being Judge, as he was in that Cause, by Commission, could not have done it, except he had manifestly broken the Laws that he was born under: Indeed, he offered him an Advocate, or Prolocutor, according to the Scotts Law; but Witnesses could he not permit.

So, to conclude, to admit Witnesses, especially in favour of the Party Defendant, and in criminal Causes, is against the English Law, the Scotts Law, the Civil Law, and the Law of all Nations; and therefore Men should beware to change the old Law of their Kingdom, where they want both Reason and Example of a better.

Union with Scotland.

The Committee came into the House, and Sir Francis Bacon reporteth their Proceeding touching the Bill committed, and former intituled, B. For the Continuance and Preservation of the blessed Union, &c. now altered to this Title, B. for the utter Abolition of all Memory of Hostility, &c.

He said, there were many Alterations; yet (he conceived this being a Matter of such Weight and Consequence, it might well enough stand with Order, the whole Bill to be read first, as it is, and then the Alterations by themselves. Two Questions (he said) arising in the Committee, they referred to the House, as not willing to interpose Opinion in it:

1. Touching the Words" the Union already begun :" Some would have it, "begun, and grounded;" others, the Words " vested ;" others, " planted, " " settled," "inherent," &c.

2. Whether criminal Persons were to be admitted for Witnesses in favorem vitae: - Affirmed there, that there was the like Favour in Scotland.

Upon this, a Message was delivered in Committee, from his Majesty : That his Highness took Knowlege of the Clause moved : That his gracious Opinion was, that no Man would take upon him patrocinium latrocinii; and that there was no Law in Scotland to admit such Witnesses : With this further Intimation from the Messenger, that his Majesty thought that Clause would do more hurt, than all the rest good.

Moved, upon this Report by One, that the Clause might be inserted, before the Bill were read ; saying, that if it were agreed, upon Question, in Committee, no Question to be made after.

Ans. Every Question by Voice in Committee bindeth, and cannot be altered by themselves; but by the House it may.

Moved by another, that the Matter of Penalty, for remanding, was omitted in the Report; and desireth to know, whether it standeth with Order to omit any thing.

Ans. Every thing agreed, and directed by the Committee, ought to be reported : but not every thing spoken.

The Clause touching Witnesses; being reported; the whole Bill was read, and the Amendments by themselves.

The Dispute to be continued Tomorrow, and the Lawyers of the House commanded to attend at Eight a Clock in the Morning.

Call.

The House to be called Tomorrow in the Afternoon.