Series 1 > Letters and papers illustrating the relations between Charles the Second and Scotland in 1650

182 CHARLES II. AND SCOTLAND IN 1650
for conviction; so sayes Clarus, Lib. 5t0, § finali, num. 9, and
does particularise the caice, viz., Si duo testes deponant contra
notarium quod eos corripuent non est sujfficiens ad probationem.
And it is generallie receaved by all the Doctors, that Nomina-
tio facta contra reum per sociam criminis alia non concurrente
presumptione non est sufficiens nodum ad torturam, so sayes the
same author in his 21 quest. Ibid. ; And it is statut by 2 M.,
9 par., 15 act anent raising bonds of men of weir, the penalties
in the statut is as weill againest those who ryses, as againest
the partie who is alleadged to be the convocator, so that such
a person cannot be receaved a witnes who is equallie guiltie
with the partie againest whom they are to depone.
His Majestie’s Advocat answers that to the objections forsd,
and first, that member of the same upon the regulation, he
oppones the execution and list of the witnesses containing the
witness objected against, and ther names and surnames; and
as to the second member of the said objection that the said
witness is socius criminis, the Advocat takes instruments upon
the proponing the said defence, and that the pannall does
thereby acknowledge the crime, and his societie and accession
to the same, seeing relata se probant, and a witness cannot be
socius to the pannall unles he wer gailtie himself. (2do.) The
objection of socius criminis is only competent in these caices,
viz., When any person that is pretendit to be socius is adduced
as witness for the person accused, in which caice the reason
adduced by Mr John Elies does not militat that it is presumed
that he is ellusurus criminis, and will declair both in favors of
the pannall and himself; and (2do), when a person being sus¬
pect and hath confest that he hath committed a cryme, does
lykwayes declair againest other persons as particeps, in which
caice, if by his own confession he made himself guiltie and
infamous, and having named others, it is to be presumed that
he will adhear to his declara113, it being the ordinar, tho miser¬
able solatium miserorum habere pares, and therefors in that
caice the opinion of lawyers cited be Mr Colt does militat et
non creditur sine tortura; or, thirdlie, when a person is convict
of a cryme by a crim11 sentance importing infamie; in that caice
such a person being socius criminis, cannot be a witnes, because
he wants fame and integritie, which is the fundation of all