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in some cases, five times the value; in others less, 

 8fand, Exod. xxii. 1. et tea. ; and by the Roman, cither the 

 """"""*' double or quadruple, according to the circumstances 

 attending the crime. Our ancient law proportioned 

 the punishment of the theft to the value of the goods 

 :i : heightening it gradually from a slight corporal 

 punishment to a capital, if the value amounted to thir- 

 ty-two pennies Scots, which in the reign of David I. 

 wa the price of two sheep, R. M. 1. 4. c. 16. $ 3. L. B. 

 _ 1 . 6. In several later acts, it is taken for granted 

 that this crime is capital, 1587, c. 82. 1G06, c, 5, &c. 

 Bat where the thing stolen is of small value, we con- 

 sider it, not as theft, but as pickery, whicli is punished 

 either corporally or by banishment. The breaking of 

 orchard*, and the stealing of green wood, is punished 

 by a fine, which rises a* the crime is repeated, 1579, 

 c. 84. 



22. Theft may be aggravated into a capital crime, 

 though the value of the thing stolen be trifling, as theft 

 twice repeated, L. B. c. 121. < 5, or committed in the 

 night, arf. 1661, c. 22 ; or by landed men, or of things 

 set apart for sacred uses. The receivers and concealers 

 of stolen goods, knowing them to be such, suffer as 

 thieves. Those who barely harbour the person of the 

 criminal (rfceplalortt) within forty-eight hours either 

 before or after committing the crime, are punished as 

 partakers of the theft. Such as sell goods belonging to 

 thieves, or lawless persons, who dare not themselves 

 come to market, are punished with banishment and the 

 escheat of moveables. 



SS. Theft, attended with violence, is called robbery ; 

 and, in our old statutes, riff, 1477, c. 78, or stoulhrief, 

 c. _' ; under which class may be included lorning, 

 or the taking of meat and drink by force, without pay- 

 ing for it. Stouthrief came at last to be committed so 

 MKioujly, by bands of men associated together, that 

 it was thought necessary to vest all our freeholders 

 with a power of holding courts upon sorners and riev- 

 ers, and condemning them to death, 1594, c. 227. 

 Nay, all were capitally puni-hed, who, to secure their 

 lands from depreciation, paid to the rievers a yearly con- 

 (Uck trail, tribution, which got the name of black-mail, 1567, c. 21. 

 1587, c. 102. An act passed 1609, c. 18, command- 

 ing to banishment a band of sorners, who were origi- 

 nally from Egypt, called gi/ptiet, and adjudging to death 

 all that should be reputed Egyptians, if found thereaf- 

 ter within the kingdom. Robbery committed on the seas 

 it called piracy, and is punished capitally by the high 

 admiral. Several of the facts which constitute this 

 crime are set forth in a British statute, Geo. I. c. 24. 



I'altthood, in a Urge sense, is the fraudulent imi- 

 tation or suppression of truth to the damage of another. 

 The lives and goods of persons convicted of using false 

 weights or measures were, by our old law, in the King's 

 mercy ; and their heirs could not inherit but upon a 

 remission, L. B. c. 1 32. The latest statute against this 

 . 1 609, c 2, punishes it by confiscation of move- 

 ables. 



85. That particular species of falsehood which con- 

 in the falsifying of writings, passes by the name 

 i?rry, and was by the Roman law punished capi- 

 < hen the atrocity of the fact required it. By our 

 statute law, the punishment of this crime was at first 

 the amputation of 'he hand; afterwards proscription, 

 Imni .tii!.- nt, and dismembering of the hand and tongue, 

 joined with the other pains inflicted by the common 

 Jaw ; and at last it is declared, in general terms, to be 

 he pains due to the committers of falsehood, 1621, c. 

 Our practice Las now of a long time, agreeably to 



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the Roman law, made the crime capital, unless the for- Law 

 gery be of executions, or other writings of smaller mo- of Scotland? 

 ment ; in which case it is punished arbitrarily. W Y~ * 



26. Perjury, which is the judicial affirmation of a 3. Perjury, 

 falsehood on oath, really constitutes the cnmenfalsi; 



for he who is guilty of it does, in the most solemn 

 manner, substitute falsehood in the place of truth. To 

 constitute this crime, the violation of truth must be de- 

 liberately intended by the swearer; and, therefore, 

 reasonable allowances ought to be given to forgetful- 

 ness or misapprehension, according to his age, health, 

 and other circumstances. The breach of a promissory 

 oath does not infer this crime ; for he who promises 

 on oath, may sincerely intend performance when he 

 swears, and so cannot be said to call on God to attest a 

 falsehood. Though an oath, however false, if made 

 upon reference in a civil question, concludes the cause, 

 the person perjured is liable to a criminal trial ; for the 

 effect of the reference can go no farther than the pjri**-*- 

 vate right of the parties. Notwithstanding the mis- 

 chievous consequences of perjury to society, it is not 

 punished capitally either by the Roman law or by 

 ours. The special punishment of swearing falsely on 

 an assize, was confiscation of moveables, imprisonment 

 for a year, and infamy ; which punishment came, in 

 the course of time, to be transferred to perjury in gene- 

 ral, with a small variation, 1 555, c. 47. 



27. The crime of stcllionale, from steHio, Plin. Hist. 4. Stellio.- 

 Xat. I. 30, c. 10. includes every fraud which is not dis- nate. 

 tinguished by a special name, but is chiefly applied to 

 conveyances of the same numerical right, granted by 



the proprietor to different disponees. The punishment 

 of stellionate must necessarily be arbitrary to adapt it 

 to the various natures and different aggravations of the 

 fraudulent acts. The persons guilty of that kind of it 

 which consists in granting double.conveyances, are by 

 our law declared infamous, and their lives and goods at . 

 the king's mercy, 1540, c. 105. The cognizance of 

 fraudulent bankruptcy .is appropriated to the court of And, B. 

 session, who may inflict any punishment on the of- Fraudulent 

 fender that appears proportioned to his guilt, death ex- bankrupt- 

 cepted, 1696, c. 5. 



28. The crime of usury, before the Reformation, Usury. 

 consisted in the taking of any interest for the use 



of money ; and now in taking a higher rate than 

 is authorised by law. The punishment of usury was 

 by 1597, c. 847. declared to be the escheat of move- 

 ables, annulling the usurious contract, and a forfeiture 

 of the principal sum lent, with the lawful interest due 

 upon it, to the king or his donatory, with the burden 

 of restoring to the private party, in case he should con- 

 cur in the prosecution, the unlawful profits given by 

 him to the creditor. But, by 12 An. stat. 2. c. 16. the 

 usurious obligation is not only declared void, but the 

 creditor, if he has received any unlawful profits, forfeits 

 the treble value of the sums and goods lent Usury, 

 when it is to be pursued criminally, must be tried by 

 the justiciary ; but where the libel concludes only for 

 the voiding of the debt or restitution, the session is the 

 proper court. 



29. Injury, in its proper acceptation, is the reproach- Injury or 

 ing or affronting our neighbour. Injuries are either verbal libel; 



or real. A verbal injury, when directed against a pri- either TSr , . 

 vate person, consists in the uttering contumelious words, baJ, 

 whicn tend to expose our neighbour's character by mak. 

 ing him little or ridiculous. Where these words are 

 uttered in the heat of a dispute, and spoken to the per- 

 son's face, the law does not presume any malicious in- 

 tention in the utterer, whose resentment generally sub- 



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