[1587/7/67]¹

For the furtherance and setting forth of the criminal justice over all the realm

²Because of the great delay in actions criminal through the not holding of justice ayres twice in the year, according to the ancient and lovable order established by diverse good laws and acts of parliament made of before, considering the ordinary judgement in criminal causes is only now at Edinburgh, where particular diets are set for certain special and highest crimes, the punishment of other offences whereby the commonwealth is greatly grieved left to the justice ayres that are seldom held and through which are becoming contemptible; therefore, and for ease and relief of the subjects that are so frequently disquieted by coming in convocation to days of law and to pass upon assizes in Edinburgh, where the courts are often times continued in hindrance of justice and to the great trouble and needless expenses of the king's lieges, it is therefore statute and ordained by our sovereign lord, with advice of his three estates convened in this present parliament, that justice ayres shall be held twice every year in time coming over all the shires of this realm in the months of April and October, beginning in the month of October 1587 if conveniently it may be. And by reason the matter cannot be ordered and overtaken attains by any few number to pass successively over all the whole realm from one shire to another, that our sovereign lord shall cause [Archibald Campbell, earl of Argyll], his justice general, make eight deputes, or else his highness shall make so many by his own commissions under the testimonial of the great seal, of some of the senators of the college of justice or certain well experimented advocates that are most able for travail, appointing two over every quarter of the realm, which contains seven sheriffdoms or thereby, with a depute of the treasurers and another of the justice clerks; and that the stewartries and bailiaries come to the head burghs of the sheriffdoms wherein they lie before the coming of the which justice's deputes, dittays shall be taken up and the persons indicted arrested in manner hereafter specified, which justices so directed shall be received at their entry in the shire by the sheriff principal or his sufficient depute, as also by the wardens within the wardenries or their deputes, being knights or gentlemen landed, with the freeholders of the same sheriffdom, that shall be warned by the sheriff to that effect by proclamation for convening at the place and time appointed, which shall convey the said justice's deputes to the head burgh of the shire and accompany them during their remaining there and until they be out of the bounds of the said shire and received by the next sheriff or his depute; and upon the morning after the coming of the said justice deputes to every head burgh of the shire, if the day be lawful, and failing thereof, the next lawful day, they shall begin and fence their ayre, call the suits and put the offenders, if any be already in prison, to the knowledge of an assize and as they be found culpable or innocent, to administer justice upon them according to the laws of the realm; thereafter, to call the pledges and cautioners of persons that have found surety to underlie the law the third day of the ayre or sooner, upon 15 days' warning; and thirdly, the persons newly indicted and arrested and do justice likewise upon them, and that they direct their precepts for summoning of assizes, one or more, each person under the pain of £40, and having ended their justice ayres, they shall deliver the extract thereof, subscribed with their hands, by indenture to [Thomas Lyon of Baldukie], treasurer, or his depute, which shall cause take up the sums contained in the said extract and make account of the sums contained therein at the next exchequer before the auditors thereof, in the first end of which sums shall be allowed to the treasurer or his depute the charges and expenses of the justices and clerks as the same shall be modified and appointed by the lords, auditors of his highness exchequer, or any five of them. And to the effect that all executions and arrestments requisite may be duly prepared before the coming of the said justice deputes, it is statute and ordained that our sovereign lord, with advice of [John Maitland of Thirlestane], chancellor, treasurer and [Sir Lewis Bellenden of Auchnoull], justice clerk, shall nominate and give commission to honourable and worthy persons, being known of honest fame and esteemed no maintainers of evil or oppression, and in degree earls, lords, barons, knights and special gentleman landed, experimented in the lovable laws and customs of the realm, actual indwellers in the same shires, to the numbers hereafter limited according to the bounds and quantity of every shire: that is to say, within the countries and sheriffdom of Orkney and Shetland, fourteen; within Inverness and Cromarty, twenty-one; Nairn, seven; Elgin and Forres, seven; Banff, seven; Aberdeen, twenty-one; Kincardine, seven; Forfar, fourteen; Fife, fourteen; Kinross, seven; Clackmannan, seven; Perth, twenty-one; Stirling, seven; Dunbarton, seven; Linlithgow, seven; Edinburgh principal, seven; constabulary of Haddington, seven; Berwick, seven; Roxburgh, fourteen; Selkirk, seven; Peebles, seven; Lanark, fourteen; Renfrew, seven; Argyll, seven; Bute, seven; Ayr, twenty-one; Wigtown, seven; Dumfries, twenty-one; which shall be the king's commissioners and justices in the furtherance of justice, peace and quietness, together with four of the council of every burgh within the self, which shall be constant and continual takers of dittay, giving, granting and committing to them full power to take inquisition and make dittay by their own knowledge or by a sworn inquest or sworn particular man of all persons suspected culpable of the crimes and defaults contained in the table, to be made by the treasurer, justice clerk and [David MacGill of Nisbet and Cranstoun-Riddel], advocate, annexed to this present act divided in two sorts; and all persons dilated as culpable in the first degree, the said judges and commissioners shall either apprehend and commit to ward (if conveniently they can), or else shall deliver them in porteous³ to the crownar of the shire every month once, to be arrested and put under surety by him or his deputes to the next justice ayre to be held twice in the year by the king's justice deputes, directed from his highness in manner before specified; and upon all persons dilated and suspected as culpable of the other crime and defaults in the second degree, the said justices and commissioners in the shires shall proceed and do justice themselves at their courts and meetings to be kept four times every year: that is to say, at 1 May, at 1 August, at 1 November and at 1 February, or otherwise at any time, three of them being together and always sitting in the tolbooth of the head burgh of the shire, and that they remain at every one of the said four times in the year three days together, or longer or shorter as they find occasion, with power to them to direct their precepts and porteous to the crownars and their precepts to sheriffs or officers of arms to summoned assizes, each person under the pain of £10, as also to send their extracts to the treasurer after every one of their four meetings, to the effect the pains and penalties therein contained may be taken up, whereof account, reckoning and payment shall be made at the next exchequer and the charges and expenses of the said justices and commissioners allowed therein in such quantity as shall be modified and appointed by the lords of his highness's exchequer between now and 1 November 1587. And in case of disobedience or contempt, that they notify the same to the king's justice deputes at the said justice ayres, and if they also shall find them contemned and disobeyed in any way, to signify the same to our sovereign lord and his secret council, who shall provide for punishment of the contempt by force, to the terror and example of other offenders to commit the like in time coming, and the said justices of both sorts for the space of one year and further enduring our sovereign lord's will to endure.

Item, his highness ratifies the act made concerning the punishment of hochers⁴ of oxen, horses and goods in time of labouring, with this addition: that whatsoever person or persons cuts and destroys plough and plough gear in time of cultivation or wilfully destroys and cuts growing trees or corns shall be called for that before the justice or his deputes at justice ayres or particular diets and punished for that to the death as thieves; and the same pain to be extended and struck on breakers of mills or stickers, gorers and sellers of oxen and horses in time of leading of corns or fuel.

Item, it is statute and ordained that officers of arms committing falseness or oppression of the lieges in execution of their office shall be called for that before the justice or his deputes at justice ayres or particular diets and punished to the death in case they be found culpable.

Item, that all deforcers of officers in execution of their office be summoned upon 15 days' warning, civilly or criminally, at the option of the party, pursuer, and their lives and goods to be in the king's will for that.

Item, it is statute and ordained that seeing in times past letters of lawburrows being given with this word, 'accomplices', by the clerks of session, has imported and daily does import great hurt, damage and hardship to sundry of his highness's lieges by plain collusion between the parties, purchasers, and officers, executors of the same, that therefore no letters of lawburrows be granted in times coming by any clerk with power to charge accomplices and that caution be found to the justice clerk and his deputes that letters of lawburrows in times coming to be granted shall be duly executed upon all persons contained therein, either personally or at their dwelling places, and by open proclamation at the market cross of the head burgh of the shire where the parties dwell, between 8 o'clock in the morning and 12 o'clock at noon, summer and winter, in open time of day, in presence of reputable witnesses specially designated, and copies affixed upon the gates or doors of the dwelling houses of the persons contained therein, with the whole names, and another on the market cross under the pain of 200 merks; and wills and declares that this be also observed in all criminal letters and others whatsoever that import loss of life and moveable goods.

Item, it is statute and ordained that all judges and amongst the rest the justice deputes keep the hour of cause in fencing and proceeding in their courts in times coming, as was observed of old, namely, at 11 o'clock before noon.

Item, it is statute and ordained that where parties are maliciously charged to underlie the law at particular diets before the justice and his deputes, in case they be found innocent and cleansed thereof, that their expenses in time coming for keeping of the said diets be modified by the justice, justice clerk and their deputes, beside the ordinary pain of them that are either acquitted or passed free.

Likewise, it is statute and ordained that no officer nor officers summon any more persons upon assizes in time coming than 45 persons, to be given [in]⁵ roll subscribed by the party, purchaser of the said letters, or a notary in his name, nor yet put out nor put in the said roll any persons for gratitude or good deed, under the pain to be called for that at particular diets before the justice or his deputes and punished as common oppressors to the death, and that dittay be taken of all such officers as have used or shall use the same and they to be called and punished for that as said is.

Item, it is statute that all customs officers and searchers committing fraud in their office by oversight of the transporting of forbidden goods out of the country for gratitude given to them shall be called for that at justice ayres and particular diets and punished in their persons at our sovereign lord's will, and all their moveable goods to be escheat to his highness's use, in case of their conviction.

Our sovereign lord, considering the wrong allegedly sustained by diverse noblemen and other lieges of this realm, being accused of treason by soliciting, threatening and menacing of the assize after they were enclosed, the accusers and other persons, their favourers, having liberty to pass to the said assize and to produce to them such writs and witnesses and other probation as they pleased to verify the crime outwith the presence of the parties accused, whereby the just defence of their lives, lands and honours was taken away; therefore, our said sovereign lord, with advice and consent of the three estates of this present parliament, has statute, declared and ordained that in all time coming the whole accusation, reasoning, writs, witnesses and other probation and instruction whatsoever of the crime shall be alleged, reasoned and deduced to the assize in presence of the party accused in face of judgement and no other ways; and that all and whatsoever lieges of this realm accused of treason or for whatsoever crime shall have their advocates and procurators to use all their lawful defences, whom the judge shall compel to procure for them in case of their refusal, that the suit of the accuser be not taken for confession and the party accused prejudiced in any sort before he be convicted by lawful trial. And to the effect the said advocates and procurators may the more freely and willingly do their office in the premises, our said sovereign lord, with advice and consent aforesaid, annuls, abrogates and rescinds all and whatsoever acts of parliament and other statutes made by him or any of his predecessors of before in contrary hereof.

Item, it is statute and ordained that how soon the whole pursuit, defences and answer thereto are fully heard by the assize, if any of the said assizers has any doubt whereof, they would be resolved that they propose the same openly in presence of the parties in face of judgement before they pass out of judgement themselves, and immediately after that the said assize has chosen their chancellor, the clerk of the justiciary shall enclose the said assize, them alone or in a house by themselves, and suffer no person to be present with them or repair to them in any way, neither clerk nor others under pretence of further information, resolving of any doubt, or any other colour or occasion whatsoever, but that the said house be held fast and no man present therein but the said assizers; and that they be not suffered to come out of the said house for whatsoever cause, or to continue the giving of their sentence to another time, but that they be enclosed as said is to the time they be fully agreed and return their answer by the mouth of the said chancellor to the judge. And our sovereign lord, with advice aforesaid, decrees, declares and ordains that if any of the said accusers, informers of his highness's advocate or other persons whatsoever, pretend in any ways in time coming to inform, solicit, reason, dispute, speak or repair to the said assize after their removing forth of judgement and enclosing of them in manner above-written, or otherwise transgresses any point of this present act, in that case the party accused shall be held and pronounced clean and innocent of their crimes and treasons then laid to his charge. And this present act shall be a sufficient warrant to all assizers in criminal causes hereafter to pronounce the party accused clean and innocent in case any of the premises be contravened.