deadly rancour, either the husband or the wife may 1773 prosecute the other for adultery to the effect of a capi. tal punishment.*

The healing hand of prescription is no less expedient in relation to the nature of our laws. To say what is a capital crime by the law of Scotland, and what not; or, at least, what has been, or has not been so, within these hundred years, is no easy matter.t Our indictments are laid sometimes on the statute, sometimes on the common, and sometimes on the Mosaic law alone. Many of our penal statutes are wild, tyrannical, and incorrect; and in few of them anterior to the present century, is there a limitation of the time of raising prosecutions upon them. Happily the Scottish treason laws are now abolished, and those of England substituted in their room. Prosecutions for witchcraft too are driven to the realms of night. But still the laws against Popery, blasphemy, duelling, adultery, and suicide,‡ may be used as ample engines of oppression. Besides, there truly is no reason why either the public or private prosecutor should be indulged with an unlimited time of bringing his action. If the accused absconds, his flight will not cut off the right of prose

See a remarkable trial of this sort infra. Index, Adultery, Haitly against Fraser.

If the reader is already satisfied of this from some of the trials for treason and murder presented above, he will not see occasion to alter his opinion, from a perusal of the subsequent part of this work,

As the penal consequences of this crime can only take place after death, if the right of prosecuting for the personal estate of the deceased be not limited by prescription, it must continue for

eper.

1773 cution; for, if he does not appear in Court to answer to the indictment which may be brought against him, the sentence of outlawry, which passes of course, will preserve to the prosecutor a perpetual right of action; therefore, the prosecutor may blame his own negligence, if he has lost his right of prosecution, by omitting to obtain a sentence of outlawry against the accused. And, if no symptoms, no suspicion of guilt, have been discovered in a period of twenty years, or, what is the same, none that can justify the raising a prosecution, it is better that the prosecutor should then be deprived of his right of action, than that a person should be called upon to defend himself against a capital indictment, at any distance of time, however so remote.

The Lords having considered the informations for his Majesty's Advocate, and for the prisoner, pronounced this interlocutor: In respect it does not appear that any sentence of fugitation passed against the pannel, they therefore sustain the de'fence, and dismiss the indictment and the pannel 'from the bar.'

I remember to have listened with attention to the pleadings in this cause, and to have looked with anxiety for their Lordships' judgement. The satisfaction I felt when it was pronounced, is not abated upon reflection. This judgement, indeed, is of a very different cast from the general stile of the decisions of this Court in the last century. It is a just, but trite remark, that a wise system of laws tends to humanize manners; but it is no less true, that liberality of sentiment, and gentleness of manners, humanize the rigorous doctrines and discipline of the law.

OF TUMULT WITHIN BURGH,

David Mowbray, Shoemaker, for exciting a Tumult in the City of Edinburgh, and rescuing a Baker whom the Hangman was whipping through the Canongate, by order of the Magistrates.

THE preamble to one of our old statutes emphatically describes the disorders which prevailed in this country from one of the worst of political evils, the relaxed arm of the civil magistrate. Forasmeikle (says the statute) as the oversight and negligence of ⚫ the civil magistrates, and judges ordinar within this realm, in putting of decreets to execution, punishing of malefactours and rebells, utherwise using of their offices, as becummis, partelie for regard, and 'feare of strang pairties, and hazard of their own lives; and pairtly throw want of sufficient prepar⚫ation for that effect, is the original and principale 'cause quhair fra* the great confusion and disordour 6 of this lande in all estaites proceedist.' Therefore by this, and other acts of parliament, it is statuted, that the raising or assembling within borough, conventions of the people, without special licence of the

*From which.

Mary, Parl. 9. c. SS.; James VI. Parl. 13. c. 184. Parl. 18. c. 17.

1686

1686 Sovereign, or authority from the magistrates of the borough; especially, if such people should presume to arm themselves, to display banners, to beat the drum, or sound the trumpet, or to make use of other warlike instruments whatever, it is statuted, that persons thus offending shall suffer the pain of death. It is further enacted, that, whoever shall disobey and resist the authority of the Magistrates of Edinburgh, or their officers, in the execution of their duty, shall suffer the like penalty.

The prisoner was tried on these statutes.-On Sunday the 31st of January, 1696, a rabble of journeymen and apprentices in Edinburgh, leagued with some students at the University, among whom fanatical principles had of late made an alarming progress,t assembled for the purpose of insulting and interrupting those of the Popish persuasion in the exercise of their religion. Their indignities were directed at the Chancellor's Lady, and other persons of that faith, when dismissing from their place of worship. The mob, many of which were armed, pelted the members of that congregation with stones and dirt, rifled some of them of their clothes, and mal

Upon Christmas-day, A. D, 1680, the Magistrates of Edinburgh, from that decent respect which was due to the Duke of York, who was then in the city, interrupted the students in their solemn procession of a Pope-burning; so that they were fain to burn him post haste in an obscure part of the town. On the 11th of the ensuing month of January, the house of Priestfield, the seat of Sir James Dick, Lord Provost of Edinburgh, was will fully set on fire, and with all the furniture, burnt to the ground, not without the most pregnant suspicion that it was set on fire by the students at the University. Arnot's Hist. of Edinburgh, P. 362.

treated them in their persons; and then proceeded 1686 to the High Street of Edinburgh, where, with ironbars, and other instruments,they attempted to break open the houses of several of the inhabitants, and did resist the magistrates of Edinburgh, and the Commander in Chief of his Majesty's forces, and the troops under their command, and wounded several of the soldiers who were assembled in order to disperse the mob.

The military having dispersed the mob, and several of the rioters being apprehended, the magistrates, next forenoon, ordained one Grieve, a baker, an active person in the tumult, to be instantly whipped through the city by the common executioner. To save the delinquent from undergoing the punishment awarded by the magistrates, the prisoner Mowbray, and his associates, collected a mob afresh, rescued the baker, from the town officers and the executioner, and carried him off in triumph.

The prisoner was served with an indictment, charging him with having transgressed the statutes already specified, by being engaged in this tumult; and his Majesty's Advocate declared, that he restriced the libel against the prisoner to his accession to 'the tumult on Monday in the forenoon, in rescuing the baker from the execution of justice.' The Lords found the libel, as restricted, relevant to infer the pain of death.

THE PROOF.

The prisoner judicially declared, that he was present at the tumult libelled, and assisted in rescuing the