L A W. 
tors, where the defender was abfolved, were condemned 
in cofts, as they (hould be modified, by the judge, which is 
iimilar to our taxation of colts; in'addition, they w'ere 
fubjedted to a fmall fine, which was to be divided between 
the fifk and the defender; and, where the king’s advocate 
•was the only purfuer, his informer was made liable to the 
payment thereof. This was the old practice, by virtue of 
fome ancient ftatutes; which liifficiently warrant the pre- 
fent practice of condemning vexatious profecutors in a 
pecuniary mulct, though far exceeding the Itatutory fum. 
Thefe particulars will remind our readers of theaftion for 
malicious profecution with us, which is a more circuitous 
mode than that adopted in Scotland for redrefling the 
injured party, and not equally effectual. 
For fome oftheaboveinformation, we have been indebted 
to Erlkine’s book on the Principles of the Law of Scot¬ 
land. We (hall next, from Hume’s Commentaries on the 
Law of Scotland, proceed to point out fome of the differ¬ 
ences, and lome of the coincidences, fubfiding in the 
criminal codes of the united kingdoms of England and 
Scotland: in the courfe of which inquiry it will appear, 
to adopt lord Karnes’s fentiment on this fubjedt, that 
“they have fuch refemblance as to bear a comparifon in 
a! mo It every branch ; and they fo far differ as to illudrate 
each other by their oppofition.” 
In the law of England, theft is only of things perfonal, 
and not of things real, or things which appertain to, or 
favour of, the realty. Under this rule, there is no theft, 
at common law, of nurfery-plants, nor of growing trees, 
nor of any of the growing fruits of the ground ; nor of 
hedge-paling, nor of lead, iron, or other thing united to 
a houfe : as alfo the writings of any real eftate are not 
fubiedts of this crime; neither are bonds, bills, or other 
chofes in adtion ; though for this a different reafon is 
given. But to all thefe (as we fiiould edeem them) ar¬ 
tificial diftindtions, the practice in Scotland has ever been 
a ((ranger, and recognifes the theft of every inanimate 
thing, which can be fevered from that which, either na¬ 
turally or by art, it is attached to, and be carried away. 
Thus, in the cafe of James Inglis, relevancy was found 
on the tearing of wool from fneep, and carrying it away ; 
and, long before this, fentence of death had palled upon 
James Gray, convidted of pulling wool from nine ewes, 
and dealing an ewe, and carrying off the wool which he 
had pulled; 17th March 1581. Alfo, in the cafe of 
James Miln, accufed of dealing (horn grain, (hearing grafs, 
and carrying it away, and pulling up growing peafe, and 
carrying them away, all of which were charged under the 
name of theft only, the trial proceeded on that footing as 
to the whole articles ; and the man was tranl’ported. It 
feems even to be the more probable opinion, according 
to the analogy of what is fettled, that the feparating and 
carrying away of part of the fubdance of the tenement 
itfelf diall be judged by the fame rule. It is true, that 
injuries of this fort are ordinarily done in that open 
manner, and are accompanied with thofe circumdances 
•which beap evidence of a trefpafs only or moledation ; 
but it feems to be only there that the diltindtion lies; for, 
if one come in the night-time and work coal in his neigh¬ 
bour’s pit, or done in his quarry, or fuel in his mofs, 
and carry it away and hide it, this feems to be jud fuch 
an adt as the cutting off the leaden fpouts or tearing up 
iron fpikes of his houfe, which is certainly theft. 
With refpedt to writings, the law has been fettled againd 
the thief, by repeated judgments. As long ago as the 2.3d 
June, 1599, Grizel Matthew had fentence of death, for deal¬ 
ing a coffer with writs and evidents. Alfo James and Wil¬ 
liam Wood, and Alexander Dow, had fentence of death, for 
breaking into the houfe of Bonnington, and dealing the 
whole writs and evidents of that edate, contained in a 
coffer, together with certain articles of furniture, and an¬ 
other coffer, alfo containing writs; as had Patrick Eviot, 
convidted of common theft, and of dealing a leather wal~ 
let, whereof the principal contents were certain title- 
deeds, which the owner was carrying to obtain a charter 
3!)1 
of confirmation. On the 6th of November, 1635, Michael 
Scot was fent to an afiife, on a charge of dealing certain 
bonds of borrowed money from the owlner’s ched ; but 
he was acquitted. Relevancy was found to the fame ef¬ 
fect in the following cafes : Againd Alexander Steel, 
for dealing three difpofitions and charters of the edates of 
Tawie; againd Janies Graham, alias Gramoch Gregorick, 
for invading the duke of Montrofe’s factor, when collecting 
rents at Chappell-aroch, and taking from him money or 
books, papers or accounts ; and againd John Johndotr 
for dealing a pocket-book, containing bank-notes, " with 
feveral other papers of lefs value.” In this cafe an ob¬ 
jection was dated to the charge, and was overruled. 
Hume's Comm. 
It is to be obferved that molt of the offences fpecified 
above, as not being felony by the Englifk law, have been 
made felony by various datutes; and it was only by the 
common law that a larceny was determined not to be com¬ 
mitted in fuch fubjedts. The punifhment of this offence 
is with us precife, fixed, and afcertained; in Scotland, it 
is difcretionary in the judges, from the lowed to the 
higheft meafure of punilhment, and is governed by the- 
circumdances of each individual cafe; it mud in courfe 
remain vague, uncertain, and differing according to the 
difpofitions and judgments of the perfons before whom 
the delinquency is tried. Refet of theft, which is receiv¬ 
ing and keeping ftolen goods,-knowing them to be fuch, 
and with the intention of concealing them from the ow¬ 
ner, is, according to the more received opinion, liable to- 
arbitrary pains fhort of death. 
The crime of arfon, or wilful fire-raifing, as it is more 
malignant in its nature and more pernicious in it's, confe- 
quences than mod other tranfgreflions, has been viewed' 
with the deeped indignation, and in mod countries pu- 
niflred with the greatelt feverity. In Scotland, this crime, 
by virtue of the oid datute 1528. cap. 8. was in certain 
cafes railed to the rank of treafon. “The auld iawes 
(fays that act) (hall be keeped with this addition, that 
quha cummis and burnis folkes in their houfes, and all 
burninges of houfes and cornes, and wilful fire-raifings, be- 
treafon, and crime of leffe majedie.” By the dat. 7 Anne, 
c. 21. this offence w’as lowered to the ordinary condi¬ 
tion of a capital offence, and was ordered to be punilhed 
as fuch. The dat. 8 Hen. VI. cap. 6. made arfon, under 
fome fpecial circumdances therein mentioned, amount to 
treafon ; but it was reduced to felony by the general adis 
of Edward VI. and queen Mary. 
To the crime of forgery this peculiarity belongs, that 
it is as competent to the court of feffion as to the court' 
of judiciary to try for this offence; and Mr. Hume men¬ 
tions the following reafons, which he calls obvious, for the 
practice : “ The crime often comes to light in the courfe 
of procefs depending in that court; whence arifes a con¬ 
tingent jurifdidtion over the offender, who is- chadifed 
fummarily and without delay, in the very tribunal where 
he has tranfgreffed, for his fcandalous attempt to impofe 
upon their wi(dom, and to pervert the court of juftice„. 
Another and an equally-fubdantial reafon, lies in the very 
difficult and tedious nature, generally fpeaking, of the 
proof of forgery, which is often iinpoflible to be abfolv¬ 
ed, as mud be the cafe with every trial by affife and in the 
criminal court, in the courfe of a fingle fitting.” We 
prefume, from this circumdance, that the intervention of 
a jury is neceffary in one court, and inadmiffible in the 
other; which is a material objection to this concurrence 
of jurifdidtion. We are aware that a perfon found guilty 
by the court of feffion may by them be remitted to the 
court of judiciary; in which cafe an indictment is there 
exhibited againd him, and a jury is fworn, before whom 
the decree of feffion is produced indead of all other evi¬ 
dence of the crime in refpedt of which the jury find the 
pannel guilty; fo that that decree, being pronouneed by 
a competent court, is holden as full proof, or, in the (tyle 
of the bar, as probatioprobata. Can a jury thus redrifted 
in its powers dffiit a prifoner, or be coniidered in any other.- 
