OF CRIMES.
1. By the law of Scotland no private party, except the person injured, or his next of kin, can accuse criminally : But tire king's advocate, who in this question represents tire community, has a right to prosecute all crimes in yin dictam publicam, though tire party injured should refuse to concur.
2. Those crimes that are in their consequences most hurt ful to society, are punished capitally, or by death ; others escape with a less punishment, sometimes fixed by statute, and sometimes arbitrary, i. e. left to the discretion of the judge, who may exercise his jurisdiction either by fine, im prisonment, or a corporal punishment. Where the punish ment is left by law to the discretion of tire judge, he can in no case extend it to death ; for where the law intends to punish capitally, it says so in express words, and leaves no liberty to the judge to modify. But where, in any of our an cient laws, the life of the offender is put in the mercy or will of tire king,it is probable that the judge, in place of pronoun sing sentence himself, left it to the sovereign, who inflicted sometimes a capital, and sometimes a less punishment on the person guilty, according to his demerit, The single es cheat of tie criminal falls on conviction in all capital trials, though the sentence should not express it, for if the bare non-appearance in a criminal prosecution draws this forfei ture alter it, much more ought the being convicted of a ca pital crime to infer it.
3. Certain crimes ale committed more immediately against God himself others ad:ainst the state, and a third kiou against particular persons. The chiel crime in the first class, coginzaJle m temporal courts, is blasphemy, inner which May be included ath,-isui. This crime con sis,s in the deny ing or vilify mg the D ity by speech or wilting. Blasphemers were punished capitally both by the Jewish last, Lev. xxiv.16, and by the Roman. All who curse God, or any of the persons of the blessed Trinity, are by our law, 1661, c. 21, to suffer death even for a single act; and those wno deny him, if they persist in their denial. This act is ratified 41695, c. 11, which also makes the denial of a Providence, or of the authority of the Holy Scriptures, criminal ; and punishable capitally for the thirn offence.
Some crimes against the state are levelled directly against the supreme power, and strike at the coast:tn. thou itself ; others discover such a contempt of law, as tends to muffle authority, or slacken the reins of govern ment. Treason, crimen majestatis, is that crime which is aimed against the majesty of the state, and can be committed only by those who are subjects of that state, either by birth or residence. It was high treason, by the law of Scotland, to intend the king's death, to iay any restraint upon his person, or to entice any foreign power to invade his dominions, 1662, c. 2, and to rise in arms, maintain forts, or make treaties with foreign states, with out his authority, 1661, c. 5. Certain facts, though not in their nature treasonable, were declared by statute to be punishable as treason, viz. theft by landed men, 1587, c. 50, murder under trust, ibid. c. 51, wilfully setting fire to coal-heughs, 1592, c. 146, or to houses or corns, 1528, c. 8, and assassination, 1601, c. 15. Treason was punished by death, and by forfeiture to the king of the traitor's estate, both real and personal. But this forfei ture did not cut off the right of the creditors, tacksmen, superiors, vassals, heirs of entail, or widows of the forfeit ing persons, 1690, c. 33. Treason might by our law have been tried after the death of the traitor, and sentence con demnatory upon such trial carried the estate to the crown, 540, c. 69, which was indeed agreeable to the jus novum of tile Romans, hut contrary to the rules of law and the dic tates of 5. Soon after the union of the two kingdoms in 1707, the laws of treason then in force in England, were made ours by 7 An. c. 21, both with regard to the facts consti tuting that crime, to the forms of trial, the corruption of blood, and all the penalties and forfeitures consequent on it. By this act, the facts that inferred statutory treason by our former law, are declared simply capital crimes.-For what this crime consists in, for the form of trial, &c. we refer to the preceding article on the Law of England, B. iv. sect. vi.