686 



LAW. 



Law of a parent, is not confined by our law to the criminal 

 oiVtkml; himself. All his posterity in the right line are declared 

 *y*^ incapable of inheriting, and the succession devolves on 

 the next collateral heir, 159*, c. 220. Even the curs- 

 ing or beating of a parent infers death, if the person 

 guilty be alxr . e sixteen years, and an arbitrary, punish- 

 ment if he be under it, 1661, c. 2. A prefian^tire or 

 statutory murder was constituted by 1690, c. 21, by 

 Murder of which any woman who should conceal her pregnancy 



."aunts. 



Duelling. 



Haim- 

 jsucken. 



Battery 

 pendents 

 lite. 



Wrongous 

 imprison- 

 ment. 



during its whole course, and should not call for or make 

 use of help in the birth was reputed the murderer, if 

 the child was found dead, or was missing. This act 

 was intended to discourage the unnatural practice, 

 which yet continues too frequent, of women making 

 away with their children begotten in fornication, to 

 avoid church censures. It is however now repealed by 

 49 Geo. III. c. 14, which enacts that the circumstances 

 mentioned in the act 1690, shall, infer the punishment 

 of imprisonment only, for a space not exceeding two 

 years. 



13. Duelling is the crime of fighting in single com- 

 bat, on previous challenges given and received. The 

 single combat was authorised by the Gothic polity, as a 

 method of determining both criminal and civil ques- , 

 tions ; but fighting in a duel without license from the 

 king, is by 1600, c. 12. made punishable by death. 

 This act is ratified by 1696, c. 35, which also enacts, 

 that whatever person, principal or second, shall give a 

 challenge to fight a duel, or shall accept a challenge, or 

 otherwise engage therein, shall be punished by banish- 

 ment and escheat of moveables, though no actual fight- 

 ing should ensue. 



14. Haimsucken (from halm, home, and socken, to 

 seek or pursue,) is the assaulting or beating of a per- 

 son in his own house. The punishment of this crime 

 is nowhere defined, except in the books of the majesty, 

 which make it the same as that of a rape ; and it is like 

 rape capital by our practice. The assaidt must be 

 made in the proper house of the person assaulted, 

 where he lies and rises daily and nightly ; so that nei- 

 ther a public-house, nor even a private, where one is 

 only transiently, falls within the law. 



15. Any parly to a law-suit who shall slay, U'ound, 

 or otherwise invade Ms adversary, at any period of time 

 between executing the summons and the complete exe- 

 cution of the decree, or shall be accessory to such inva- 

 sion, shall lose his cause, 1584, c. 138. 1594, c. 219. 

 As these acts direct, that proof shall be previously taken 

 of the invasion, by the justice or other competent judge, 

 the court of session sustain themselves judges, because 

 they are truly competent to all causes where the conclu- 

 sion is merely civil. The sentence pronounced 011 this 

 trial against him who has committed the battery, is by 

 the act declared not subject to reduction, either on the 

 head of minority, or any other ground whatever. And 

 if the person prosecuted for this crime shall be denoun- 

 ced for not appearing, his liferent as well as single es- 

 cheat falls upon the denunciation. 



16. The crime of tvroiigaus impritonment is descri- 

 bed, 1701, c. 6. It is inferred, by granting warrants 

 of commitment in order to trial, proceeding on infor- 

 mation not subscribed, or without expressing the cause 

 of commitment ; by receiving or detaining prisoners 

 on such warrants ; by refusing to a prisoner a copy of 

 the warrant of commitment ; by detaining him in close 

 confinement above eight days after his commitment ; 

 by not releasing him on bail where the crime is bail- 

 able ; and by transporting persons out of the kingdom, 

 without either their own consent or a lawful sentence. 



The persons guilty of wrongom imprisonment are pii- Law 

 nished by a pecuniary mulct, from 600 dewn to 400 of Scotland. 

 Scots, according to the ranK of the person detain- S -"""V*" 

 ed, and the judge or other person acting corttrary to 

 the directions of the act, is over and above subjected to 

 pay to the person detained a certain sum per diem pro- 

 portioned to his rank, and is declared incapable of pub- 

 lic tnist. All these penalties may be insisted for by a 

 summary action before the session, and are subject to 

 no modification. Private persons may be guilty of 

 this crime, 14 Dec. 1736, Paterson. 



17. Adultery is the crime by which the marriage lied Arlulter*. 

 is polluted. This crime could neither by the Roman 

 law, 1. 61, ad leg. Jiil. <le adult, nor the "Jewish, Lev. 

 xx. 10. Deut. xxvi. 22, be committed, but where the 

 guilty woman was the wife of another. By ours, it H 

 adultery if either the man or woman be married. We 

 distinguish between simple adultery, and that which i> 

 notorious or manifest. Open and manifest adulterers, 

 who continue incorrigible notwithstanding the censure 

 of the church, were punished 1551, c. 20, by the es- 

 cheat of moveables ; but soon thereafter, by 1563, c. 74, 

 the punishment of notorious and manifest adultery 

 made capital. This crime is distinguished by one or 

 other of the following characters. Where there is is- 

 sue procreated between the two adulterers; or where 

 they keep bed and company together notoriously ; or 

 where they give scandal to the church, and are, upon 

 their obstinate refusing to listen to its admonitions, 

 excommunicated, 1581, c. 105. The punishment of 

 simple adultery, not being defined by statute, is left to 

 the discretion of the judge ; but custom has made the 

 falling of the single escheat one of its penalties. 



18. Bigamy is a person's entering into the engage- Bigamy' 

 ment of a second marriage, in violation of a former 

 marriage-vow still subsisting. Bigamy, on the part of 

 the man, has been tolerated in many states before the 

 establishment of Christianity, even by the Jews them- 

 selves; but it is prohibited by the precepts of the 

 Gospel, and is punished by our law, whether on the 

 part of the man or of the woman, with the pains of 

 perjury, 1551, c. 19- 



1 9- Incest is committed by persons who Stand within fncest. 

 the degrees of kindred forbidden in Lev. xviii. and it 

 is punished capitally by 1567, c. 14. The same degrees 

 are prohibited in affinity as in consanguinity, Lev. xvii?. 

 14, el seq. As this crime is repugnant to nature itself, 

 it is an ill-founded opinion that incest cannot be com- 

 mitted but between persons born in lawful marriage ; 

 for, in questions of the law of nature, all children, 

 whether lawful or natural, stand on an equal footing : 

 Civilis ratio civiliaj ura csrrumpcre potest, non vero na- 

 turalia. It is difficult, indeed, to bring a legal proof . 

 of a relation merely natural on the side of the father ; 

 but the mother may be certainly known without mar- 

 riage. 



20. There is no explicit statute making rape, or 'the Rape, 

 ravishing of women capital ; but it is plainly supposed 



in act 1612, c. 4. by which the ravisher is exempted 

 from the pains of death, only in the case of the wo- 

 man's subsequent consent, or her declaration that she 

 went off with him of her own free will ; and even 

 then he is to suffer an arbitrary punishment, either by 

 imprisonment, confiscation of goods, or a pecuniary 

 fine.. 



21. Theft is defined a fraudulent intermeddling with Theft. 

 the property of another, with a view of making gain. 

 Neither the law of Moses nor of Rome punished theft 

 capitally. By the first the thief was bound to restore. 





