crime, to the forms of trial, the corruption of blood, and all the penalties and forfeitures confequent on it.

10. It is high treafon, by the law of England, to imagine the death of the king, queen-confort, or of the heir apparent to the crown; to levy war against the king, or adhere to his enemies; to counterfeit the king's coin, or his great or privy feal; to kill the chancellor, treasurer, or any of the 12 judges of England, while they are doing their offices; which laft article is, by the forenamed act 7 Ann. applied to Scotland, in the cafe of flaying any judge of the feffion or of jufticiary fitting in judgment. Those who wash, clip, or lighten the proper money of the realm; who advifedly affirm by writing or printing, that the Pretender has any right to the crown, that the king and parliament cannot limit the fucceffion to it, or who hold correfpondence with the Pretender, or any perfon employed by him, are alfo guilty of treafon.

11. The forms of proceeding in the trial of treafon, whether against peers or commoners, are fet forth in a small treatise, published by order of the house of lords in 1709, fubjoined to a collection of statutes concerning treafon. By the conviction upon this trial, the whole eftate of the traitor becomes forfeited to the crown. His blood is also corrupted, fo that, on the death of an ancestor, he cannot inherit; and the estate which he cannot take, falls to the immediate fuperior as efcheat, ob defe&um hæredis, without diftinguishing whether the lands hold of the crown, or of a fubject. No attainder for treafon fhall, after the death of the Pretender and all his fons, hurt the right of any perfon, other than that of the offender, during his natural life; the rights of creditors and other third parties, in the cafe of forfeiture on treafon, must be determined by the law of England.

12. MISPRISION OF TREASON, from meprendre, is the overlooking or concealing of treafon. It is inferred by one's bare knowledge of the crime, and not discovering it to a magiftrate or other perfon entitled by his office to take examinations; though he should not in the least degree assent to it. The forefaid act 7 Ann. makes the English law of mifprifion ours. Its punishment is, by the law of England, perpetual imprisonment, together with the forfeiture of the offender's moveables, and of the profits of his heritable eftate, during his life; that is, in the style of our law, his fingle and liferent efcheat.

13. The crime of SEDITION Confifts in the raifing commotions or difturbances in the ftate. It is either verbal or real. Verbal fedition, or leafing making, is inferred from the uttering of words tending to create difcord between the king and his people. It is punished either by imprisonment, fine, or banishment, at the difcretion of the judge. Real fedition is generally committed by convocating together any confiderable number of people, without lawful authority, under the pretence of redreffing fome public grievance, to the difturbing of the public peace. Those who are convicted of this crime are punished with the confifcation of their goods; and their lives at the king's will. If any perfons, to the number of 12, fhall affemble, and being required by a magistrate or VOL. XIII. PART 1.

conftable to difperfe, fhall nevertheless continue together for an hour after fuch command, the perfons disobeying fhall fuffer death and confiscation of moveables.

14. JUDGES who, wilfully or through corruption, ufe their authority as a cover to injuftice or oppreffion, are punished with the lofs of honour, fame, and dignity. Under this head may be claffed theftbote (from bote, compenfation), which is the taking a confideration in money or goods from a thief to exempt him from punishment, or connive at his efcape from juftice. A fheriff, or other judge, guilty of this crime, forfeits his life and goods. And even a private perfon, who takes theft bote, fuffers as the principal thief. The buying of difputed claims concerning which there is a pending procefs, by any judge or member either of the feffion or of an inferior court, is punished by the lofs of the delinquent's office, and all the privileges thereto belonging.

15. DEFORCEMENT is the oppofition given, or refiftance made, to meffengers, or other officers, while they are employed in executing the law. The court of feffion is competent to this crime. It is punishable with the confifcation of moveables, the one half to the king, and the other to the creditor at whofe fuit the diligence was used. Armed persons, to the number of three or more, affifting in the illegal running, landing, or exporting of prohibited or uncustomed goods, or any who shall refift, wound, or maim any officer of the revenue, in the execution of his office, are punishable with death and the confiscation of moveables.

16. BREACH OF ARRESTMENT (fee CHAP. II. Sec. XVIII. § 5.) is a crime of the fame nature with deforcement, as it imports a contempt of the law and of our judges. It fubjects to an arbitrary corporal punishment, and the efcheat of moveables; with a preference to the creditor for his debt, and for fuch farther fum as fhall be modified to him by the judge. Under this head of crimes against good government and police, may be reckoned the forefalling of markets; that is, the buying of goods intended for a public marke, before they are carried there; which, for the third criminal act, infers the efcheat of moveables; as alfo flaying falmon in forbidden time, deftroying plough graith in time of tillage, flaying or houghing horfes or cows in time of harve!, and destroying or spoiling growing timber; as to the punishment of which, fee ftatutes 1503, c. 72-1587, c. 82. and 1689, c. 16.-1 Geo. I. St. 2. c. 48.

17. Crimes againft particular perfons may be directed either against life, limb, liberty, chastity, goods, or reputation. MURDER is the wilful taking away of a perfon's life, without a neceffary caufe. Our law makes no diftinction betwixt premeditated and fudden homicide; both are punished capitally. Cafual homicide, where the actor is in fome degree blameable; and homicide in felf-defence, where the juft bounds of defence have been exceeded, are punished arbitrarily; but the flaughter of night-thieves, houfe-breakers, affiftants in masterful depredations, or rebels denounced for capital crimes, may be committed with impunity. The crime of demembration, or the cutting off of a member, is joined with that of murder; but in practice, its punishment has I

been

an arbitrary punishment, either by imprisonment, confifcation of goods, or a pecuniary fine.

28. THEFT is defined, a fraudulent intermedling with the property of another, with a view of making gain. Our ancient law proportioned the punishment of the theft to the value of the goods ftolen; heightening it gradually, from all flight corporal punishment to a capital, if the value amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two fheep. In feveral later acts, it is taken for granted, that this crime is capital. But where the thing ftolen is of small value, we confider it not as theft but as pickery, which is punished either corporally or by banishment. The breaking of orchards, and the Rtealing of green wood, is punished by a fine, which rifes as the crime is repeated.

29. Theft may be aggravated into a capital crime, though the value of the thing ftolen be trifling; as theft twice repeated, or committed in the night, or by landed men; or of things fet apart for facred ufes. The receivers and concealers of stolen goods, knowing them to be fuch, fuffer as thieves. Thofe who barely harbour the perfon of the criminal within 48 hours either before or after committing the crime, are punished as partakers of the theft. Such as fell goods belonging to thieves or lawless perfons, who dare not themfelves come to market, are punished with banishment and the efcheat of moveables.

30. Theft attended with violence is called robbery; and in our old ftatutes, rief or fouthrief; under which clafs may be included forning, or the taking of meat and drink by force, without paying for it. Stouthrief came at laft to be committed fo audaciously, by bands of men affociated together, that it was thought neceffary to veft all our freeholders with a power of holding courts upon forners and rievers, and condemning them to death. Nay, all were capitally punished, who to fecure their lands from depredation, payed to the rievers a yearly contribution, which got the name of BLACK MAIL. An act alfo pafled, commanding to banishment a band of forners, who were originally from Egypt, called gypfies, and adjudging to death all that fhould be reputed Egyptians, if found thereafter within the kingdom. Robbery committed on the feas is called PIRACY, and is punished capitally by the high admiral, Several of the facts which conftitute this crime are set forth in ftat. 8 Geo. I. c. 24.

31. FALSEHOOD, in a large fenfe, is the fraudu lent imitation or fuppreffion of truth, to the damage of another. The lives and goods of perfons convicted of using falfe weights or measures were, by our old law, in the king's mercy; and their heirs could not inherit but upon a remiffion. The lateft ftatute against this crime punishes it by confifcation of moveables. That particular fpecies of falfehood, which confifts in the falfifying of writings, palles by the name of FORGERY. Our practice has now of a long time, agreeably to the Roman law, made this crime capital; unless the forgery be of executions, or other writings of fmaller moment; in which cafe it is punished arbitrarily.

33. The writing muft not only be fabricated,

but put to ufe, or founded on, in order to infer this crime. And though it be ftrictly criminal, yet the trial of it is competent to the court of feffion. Where improbation is moved against a deed by way of exception, the inferior judge, before whom the action lies, may try the queftion ad civilem effe&um. When it is pleaded as an exception, our practice, to difcourage affected delays, obliges the defender, who moves it, to confign L.40 Scots; which he forfeits, if his plea shall ap pear calumnious.

33. Where a person, found guilty of forgery by the court of feflion, is by them remitted to the jufticiary, an indictment is there exhibited against him, and a jury fworn, before whom the decree of feffion is produced, in place of all other evidence of the crime, in refpect of which the jury find the pannel guilty; fo that decree being pronounced by a competent court, is held as full proof, or, in the style of the bar, as probatio probata.

34. PERJURY, which is the judicial affirmation of a falfehood on oath, really conftitutes the crimen falfi; for he who is guilty of it does, in the moft folemn manner, fubftitute falsehood in the place of truth. To conftitute this crime, the violation of truth must be deliberately intended by the fwearer; and therefore reasonable allowance ought to be given to forgetfulness or misapprehenfion, according to his age, health, and other circumstances. The breach of a promiffory oath does not infer this crime; for he who promifes on oath, may fincerely intend performance when he fwears, and fo cannot be faid to call on God to atteft a falfehood. Though an oath, however falfe, if made upon reference in a civil queftion, concludes the caufe, the perfon perjured is liable to a criminal trial; for the effect of the reference can go no further than the private right of the parties.

35. Notwithstanding the mifchievous confequences of perjury to fociety, it is not punished capitally, but by confication of moveables, imprifonment for a year, and infamy. The court of feflion is competent to perjury incidenter, when, in any examination upon oath, taken in a cause depending before them, a perfon appears to have fworn falfely; but in the common cafe, that trial is proper to the jufticiary. SUBORNATION of perjury confifts in tampering with perfons who are to fwear in judgment, by directing them how they are to depofe; and it is punished with the pains of perjury.

36. The crime of STELLIONATE, from flellio, includes every fraud which is not diftinguished by a special name; but is chiefly applied to conveyances of the fame right, granted by the proprietor to different difponees. The punishment of ftellionate muft neceffarily be arbitrary, to adapt it to the various natures and different ag gravations of the fraudulent acts. The perfons guilty of that kind of it, which confifts in granting double conveyances, are by our law declared infamous, and their lives and goods at the king's mercy. The cognifance of fraudulent bankruptcy is appropriated to the court of feflion, who may inflict any punishment on the offender

I a

that

that appears proportioned to his guilt, death excepted.

37. The crime of USURY, before the reformation, confifted in the taking of any intereft for the ufe of money; and now in taking a higher rate of intereft than is authorifed by law. It is divided into ufura manifefta, or direct; and velata, or covered. One may be guilty of the first kind, either where he covenants with the debtor for more than the lawful intereft on the loan-money; or where one receives the intereft of a fum before it is due, fince thereby he takes a confideration for the ufe of money before the debtor has really got the ufe of it. Where a debt is clogged with an uncertain condition, by which the creditor runs the hazard of lofing his fum, he may covenant for an higher intereft than the legal, without the crime of ufury; for there the intereft is not given merely in confideration of the ufe of the money, but of the danger undertaken by the creditor.

38. Covered ufury is that which is committed ander the mask, not of a loan, but of fome other contract; e. g. a fale or an improper wadfet. And in general, all obligations entered into with an intention of getting more than the legal intereft for the use of money, however they may be difguifed, are ufurious As a farther guard against this crime, the taking more than the legal intereft for the forbearance of payment of money, merchandife, or other commodities, by way of loan, exchange, or other contrivance whatever, or the raking a bribe for the loan of money, or for de laying its payment when lent, is declared ufury. Where ufury is proved, the ufurious obligation is ot only declared void, but the creditor, if he has received any unlawful profits, forfeits the treble value of the fums or goods lent. Ufury, when it is to be pursued criminally, muft be tried by the jufticiary; but where the libel concludes only for voiding the debt, or reftitution, the feffion is the proper court.

39. INJURY, in its proper acceptation, is the reproaching or affronting our neighbour. Injuries. are either verbal or real. A verbal injury, when directed against a private perfon, confifts in the uttering contumelious words, which tend to expofe our neighbour's character by making him little or ridiculous. It does not feem that the twit ting one with natural defects, without any farcaftical reflections, though it be inhuman, falls under this defcription, as thefe imply no real reproach in the just opinion of mankind. Where the inju rious expreffions have a tendency to blacken one's moral character, or fix fome particular guilt upon him, and are deliberately repeated in different companies, or handed about in whispers to confidents it then grows up to the crime of flander; and where a perfon's moral character is thus atfacked, the animus injuriandi is commonly inferred from the injurious words themfelves, unless fpecial circumftances be offered to take off the prefumption; ex. gr. that the words were uttered in judgment in one's own defence, or by way of information to a magiftrate, and had fome foundation in fact. Though the cognitance of flander is proper to the commiffaries, who, as the judices Chriftianitatis, are the only judges of fcandal; yet

for fome time paît, bare verbal injuries have been tried by other criminal judges, and even by the feffion. It is punifhed either by a fine propor tioned to the condition of the person's injuring and injured, and the circumftances of time and place; or if the injury import scandal, by publicly acknowledging the offence; and frequently the two are conjoined. The calling one a bankrupt is not, in ftrict speech, a verbal injury, as it does not affect the perfon's moral character; yet, as it may hurt his credit in the way of bufinefs, it founds him in an action of damages, which must be brought before the judge ordinary. A real in jury is inflicted by any fact by which a perfon's honour or dignity is affected; as ftriking one with a cane, or even aiming a blow without striking; fpitting in one's face; affuming a coat of arms, or any other mark of diftinction proper to another, &c. The compofing and publifhing defamatory libels may be reckoned of this kind. Real injuries are tried by the judge-ordinary, and punished either by fine or imprisonment, according to the demerit of the offenders.

SECT. V. OF CRIMINAL JURISDICTION, the FORMS of TRIAL, and the EXTINCTION of CRIMES. 1. Criminal jurisdiction is founded, 1. Ratione domicilii, if the defender dwells within the territory of the judge. Vagabonds, who have no cer tain domicile, may be tried wherever they are apprehended. 2. Ratione deli&i, if the crime was committed within the territory. By a temporary act now expired, treafon committed in certain Scots counties, was made triable by the court of jufticiary, wherever it fhould fit.

2. No criminal trial can proceed, unless the perfon accufed is capable of making his defence. Abfents, therefore, cannot be tried; nor fatuous nor furious perfons, durante furore, even for crimes committed while they were in their fenfes. But our practice confiders every perfon who is capa ble of dole, to be alfo fufficiently qualified for making his defence in a criminal trial.

3. No perfon can be imprifoned in order to ftand trial for any crime, without a warrant in writing expreffing the caufe, and proceeding upon a subscribed information, unless in the cafe of indignities done to judges, riots, and other offences fpecially mentioned in act 1701, c. 6. Every prifoner committed for trial, if the crime of which he is accufed be not capital, is entitled to be releafed upon bail, the extent of which is to be modified by the judge, not exceeding 12,000 merks Scots for a nobleman, 6000 for a landed gentle man, 2000 for every other gentleman or burgefs, and 600 for any other inferior perfon; or, in the option of the judge, L.66 sterling. That perfons who, either from the nature of the crime with which they are charged, or from their low circumftances, cannot procure bail, may not lie for ever in prifon untried, it is lawful for every fuch prifoner to apply to the criminal judge, that his trial may be brought on. The judge must, within 24 hours after fuch application, iffue letters directed to meffengers, for intimating to the profecutor to fix a diet for the prifoner's trial, within 60 days after the intimation, under the pain of wrongous imprisonment: And if the profecutor does not in

fift within that time, or if the trial is not finished in 40 days more when carried on before the jufticiary, or in 30 days when before any other judge; the prifoner is, upon a 2d application, fetting forth that the legal time is elapfed, entitled to his freedom, under the fame penalty.

4. Upon one's committing any of the groffer crimes, it is ufual for a juftice of the peace, the riff, or other judge, to take a precognition of the facts, ie. to examine those who were prefent at the criminal act, upon the special circumftances attending it, in order to know whether there is ground for a trial, and to ferve as a direction to the profecutor, how to fet forth the facts in the libel; but the perfons examined may infift to have their declarations cancelled before they give teftimony at the trial. Juflices of the peace, fheriffs, and magiftrates of boroughs, are alfo authorifed to receive informations concerning crimes to be tried in the circuit courts; which informations are to be transmitted to the juftice-clerk 40 days before the fitting of the refpective courts. To difcourage groundless criminal trials, all profecutors, where the defender was abfolved, were condemned by ftatute, in cofts, as they should be modified by the judge, and befides were fubjected to a small fine, to be divided between the fifc and the defender: And where the king's advocate was the only purfuer, his informer was made liable. This fufficiently warrants the prefent practice of condemning vexatious profecutors in a pecuniary mulct, though far exceeding the ftatutory fum.

5. The forms of trial upon criminal accufations differ much from those observed in civil actions, if we except the cafe of such crimes as the court of feffion is competent to, and of leffer of fences tried before inferior courts. The trial of crimes proceeds either upon indictment, which is fometimes used when the perfon to be tried is in prifon; or by criminal letters iffuing from the fignet of the jufticiary. In either cafe, the defender must be served with a full copy of the indictment or letters, and with a lift of the witneffes to be brought against him, and of the perfons who are to pafs on the inqueft, and 15 free days must intervene between his being so served and the day of appearance. When the trial proceeds upon criminal letters, the private profecutor muft give fecurity, at raifing the letters, that he will report them duly executed to the jufticiary in the terms of 1535, C. 35; and the defender, if he be not already in prifon, is, by the letters, required to give caution, within a certain number of days after his citation, for his appearance upon the day fixed for his trial; and if he gives none within the days of the charge, he may be denounced rebel, which infers the forfeiture of his moveables.

6. That part of the indictment, or of the criminal letters, which contains the ground of the charge againft the defender, and the nature or degree of the punishment he ought to fuffer, is called the LIBEL. All libels must be special, fetting forth the particular facts inferring the guilt, and the particular place where thefe facts were done. The time of committing the crime may be libelled in more general terms, with an alternative as to the

month, or day of the month; but as it is not prac ticable, in moft cafes, to libel upon the precife circumftances of acceffion that may appear in proof, libels against acceffories are fufficient, if they mention, in general, that the perfons profecuted are guilty art and part.

7. The defender in a criminal trial may raise letters of exculpation, for citing witneffes in proof of his defences against the libel, or of his objections against any of the jury or witneffes; which must be executed on the fame day of appearance with that of the indictment or criminal letters. 8. The DIETS of appearance, in the court of jufticiary, are peremptory: The criminal letters must be called on the very day to which the defender is cited; and hence, if no accufer appears, their effect is loft, inftantia perit, and new letters must be raised. If the libel, or any of the executions, fhall to the profecutor appear informal, or if he be diffident of the proof, from the abfconding of a neceffary witnefs, or fuch like, the court will, upon a motion made by him, defert the diet pro loco et tempore; after which new letters become alfo neceflary. A defender, who does not appear on the very day to which he is cited, iş declared fugitive; in confequence of which his fingle efcheat falls. The defender, after his appearance in court, is called the PANNEL.

9. The two things to be chiefly regarded in a criminal libel, are, 1. The relevancy of the facts, i. e. their fufficiency to infer the conclufion; 2. Their truth. The confideration of the first belongs to the judge of the court; that of the other to the jury of affize. If the facts libelled be found irrelevant, the pannel is difmiffed from the bar if relevant, the court remits the proof thereof to be determined by the jury; which must confift of 15 men picked out by the court from a greater number not exceeding 45, who have been all fummoned, and given in lift to the defender at ferving him with a copy of the libel.

10. Crimes cannot, like debts, be referred to the defender's oath; for no person ́is compellable to fwear against himself, where his life, limb, liberty, or eftate, is concerned; nor even in crimes which infer infamy; becaufe one's good name is, in right eftimation, as valuable as his life. There is one exception, however, to this rule in trying the crime of ufury, which may be proved by the ufurer's own oath, notwithstanding the rule, Nemo tenetur jurare in fuam turpitudinem. Crimes therefore are, in the general cafe, proveable only by the defender's free confeffion, or by writing, or by witneffes. No extrajudicial confeffion, unless it is adhered to by the pannel in judgment can be admitted as evidence.

11. All objections relevant against a witness in civil cafes are alfo relevant in criminal. No witnefs is admitted, who may gain or lose by the event of the trial. Socii criminis, or affociates in the fame crime, are not admitted against one another, except either in crimes against the state, as treafon; in occult crimes, where other witnesses cannot be had, as forgery; or in thefts or depredations committed in the Highlands. The teftimony of the private party injured may be received against the pannel, where the king's advocate

is