688 



LAW. 



or real. 



All higher 

 offences, a 

 mounting 

 to crimes, 

 must be 

 tried by a 

 jury- 



Probation 

 of crimes ; 



sides with his passion ; and yet, even in that case, the 

 truth of the injurious words seldom absolves entirely 

 from punishment. It does not seem that the twitting 

 one with natural defects, without any sarcastical reflec- 

 tions, though it be inhuman, falls under that descrip- 

 tion, as these imply no real reproach in the just opi- 

 nion of mankind. Where the injurious expressions 

 have a tendency to blacken one's moral character, or fix 

 somt particular guilt upon him, and are deliberately re- 

 peated in different companies, or handed about in whis- 

 pers to confidents, it then grows up to the crime of 

 slander, agreeably to the distinction of the Roman law, 

 1.15. _12. De Ij. And where a person's moral cha- 

 racter is thus attacked, the animus injuriandi is com- 

 monly inferred from the injurious words themselves, 

 unless special circumstances be offered to take off the 

 presumption ; ex. gr. that the words were uttered in 

 judgment in one's own defence, or by way of informa- 

 tion to a magistrate, and had* some foundation in fact. 

 The cognizance of slander was, and perhaps is to this 

 day, proper to the commissaries, -who, as the judices 

 Christianita/is, were the only judges of scandal; but, for 

 some time past, bare verbal injuries, or hasty words ut- 

 tered intemperately in' rixa, have been tried by other 

 criminal judges, and even by the session. It is pu- 

 nished either by a fine, proportioned to the condition 

 of the persons injuring and injured, and the circum- 

 stances 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 strict speech, a verbal injury, as it 

 does not affect the person's moral character ; yet, as it 

 may hurt his credit in the way of business, it founds 

 him in an action of damages, which must be brought 

 before the judge-ordinary. A real injury is inflicted by 

 any fact by which a person's honour or dignity is affect- 

 ed ; as striking one with a cane, or even aiming a blow 

 without striking ; spitting in one's face ; assuming a 

 coat of arms, or any other mark of distinction proper 

 to another, &c. The composing and publishing defa- 

 matory libels may be reckoned of this kind. Real in- 

 juries are tried by the judge-ordinary, and punished 

 either by fine or imprisonment, according to the de- 

 merit of the offenders. 



30. Anciently, no person could be convicted of the 

 smallest offence till he was found guilty by a jury of 

 his countrymen ; and though now, for more than a cen- 

 tury past, inferior judges have tried lesser breaches 

 of the peace de piano, yet to this day all prosecutions 

 of a higher nature, whether before the supreme or infe- 

 rior criminal courts, must proceed by jury ; and no 

 trial, even for a blood-wit, it' pursued' before the justi- 

 ciary, can be carried on without a jury. In the trial of 

 crimes competent to the court of session, the judges 

 may well be considered in the character both of court 

 and of jury. 



31. Crimes cannot, like debts, be referred to the de- 

 fender's oath; for no person is compellable to swear 

 against himself, where his life, limb, liberty, or state 

 is concerned ; nor even in crimes which infer infamy, 

 because one's good name is, in right estimation, as va- 

 luable as his life. The law is however forced, in the 

 crime of usury, to depart from some of its common 

 rules, that the crime may be brought to light. Where 

 the usury is founded on a written obligation, in the 

 hands of the defender, the pursuer may, by an exhi- 

 bition, force him to produce it in evidence of the crime, 

 contrary to the rule, Nemo tenetur edere instrument a 

 contra se; and where it is not founded upon writing, 



I 



the crime may be proved by the usurer's own oath, not. Law 

 withstanding the rule, Nemo tenelurjurare in tuam tur. of Scotland. 

 pitudinem, 1600, c. 7. Crimea therefore are, in the ge- > "-V" 1 '' 

 neral case, proveable only by the defender 1 ^ free con- 

 fession, or by writing, or by witnesses. No extrajudi- 

 cial confession, unless it is adhered to by the pannel in 

 judgment, can be admitted as evidence ; for the whole 

 proof must be deduced in open court, in presence of 

 the assize, or jury, as well as of the pannel. A judi- by judicial 

 cial confession ought to be received with all the quali- contl 

 ties that the pannel has thought fit to adject to it ; so 

 that the prosecutor, who pleads upon one part of it, 

 must admit the whole. Proof by writing is seldom by wr j lin g. 

 used but in usury, forgery, and perjury. Though, in 

 deforcement, the written execution of the messenger 

 or officer is sufficient evidence of the violence in all ci- 

 vil questions concerning the validity of the diligence, 

 till it be declared- false ; yet in a criminal trial moved 

 against the deforcers, the messenger's execution, who 

 is a party interested in the prosecution, is not regarded. 



32. All objections relevant against a witness in civil by w ;| nes , 

 cases, are also relevant in criminal. No witness is ad- S cs. 

 mitted who may gain or lose by the event of the trial. 

 Hence, in the crime of usury, the testimony of him \vho ad-* 

 who has given the unlawful profits is rejected, because missible. 

 he becomes a gainer by the conviction of the usurer, 



1600, c. 7- In deforcement, the persons employed by 

 the messenger to attest the execution are in some sense 

 parties, violence being commonly used against them 

 as well as against the messenger ; yet, as the proof of 

 the crime would be frequently impracticable if their 

 evidence were rejected, the law considers the messengeras 

 the only party against whom the violence is intended, and 

 therefore receives the testimony of the witnesses, though 

 they should be beaten. Socii criminis, or associates in 

 the same crime, are not admitted against one another, 

 except either in crimes against the state, as treason j in 

 occult crimes, where other witnesses cannot be had, as 

 forgery ; or in thefts or depredations committed in the 

 Highlands, 21 Geo. II. c. 34. 21. The testimony of 

 the private party injured may be received against the 

 pannel, where the king's advocate is the only prosecu- 

 tor, if, from the nature of the crime, there must needs 

 be a penury of witnesses, as in rape, robbery, Sec. 



33. Where a crime is to be proved by several circum- Must tw 

 stances connected together, every one of which makes witnesses 

 a part of the same criminal act, a single witness to each con <- ur to 

 circumstance is sufficient evidence. But it may be ea 

 doubted, whether this ought to obtain in crimes reite- 

 rated by different criminal acts; for if a single witness 

 should be deemed sufficient in such case for proof of 



each separate act, it would destroy one of the strongest 

 checks by which the testimony of false witnesses may 

 be controlled. Formerly, the depositions of witnesses 

 in all trials before the criminal court were reduced in- 

 to writing ; but that practice is abolished by 21, Geo. II. 

 c. 19, unless where the libel concludes for death or de- 

 membration. Crimes which, by their nature, hardly admit p roo ( by 

 direct evidence, may be proved by presumptive evidence ; presump- 

 and these presumptions ought, from the severity of the tior. 

 conclusions in criminal trials, to be so pregnant as ne- 

 cessarily to carry conviction along with them. But where 

 a crime is to be tried only ad civilem effectum, e. g. 

 where a process of adultery is brought for obtaining a 

 divorce, more slender presumptions will be received ; 

 so that the same proof that has been judged sufficient 

 for procuring a divorce before the commissaries, may 

 be cast if the crime should be afterwards tried crimi- 

 nally. 



