24. Falsehood, in a large sense, is the fraudulent imita tion 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. 11. c. 132. The latest statute against this crime, 1609, c. 2, punishes it by confiscation of moveables.
25. That particular species of falsehood, which consists in the falsifying of writings, passes by the name of forgery, and was by the Roman law punished capitally when the atrocity of the fact required it. By our statute law, the punishment of this crime was at first the amputation of the hand ; afterwards proscription, banishment, and dismem bering- of the hand and tongue, joined with tile other pains inflicted by the common law ; and at last it is declarer!, in general terms, to he the pains due to the committers of falsehood, 1621, c. 22. Our practice has now of a long time, agreeably to the Roman law, made the crime capital, unless the forgery be of executions, or other writings of smaller moment ; in which case it is punished arbitrarily.
26. Perjury, which is the judicial affirmation of a false hood on oath, really constitutes the crinzen falsi ; for he who is guilty of it does, in the mest solemn manner, substi tute falsehood in the place of truth. To constitute this crime, the violation of truth must he deliberately intended by the swearer ; and, therefore, reasonable allowances ought to be given to forgetfulness 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 per son perjured is liable to a criminal trial ; for the effect of the reference can go no 'farther than the private right of the parties. Notwithstanding the mischievous consequen ces 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 move ables, imprisonment for a year, and infamy; which punish ment Came, in the course of time, to be transferred to per jury in general, with a small variation, 1555, c. 47.
27. The crime of stellionate, frorii stellio, Plin. Mist. Xat. 1. SO, c. 10, includes every fraud which is not distin guished by a special name, but is chiefly applied to convey ances of the same numerical right, granted by the proprie tor to different disponees. The punishment of stellionate must necessarily be arbitrary, to adapt it to the various na tures and different aggravations of the fraudulent acts. The persons guilty of that kind of it which consists in grant ing 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 session, who may inflict any punishment on the offender that appears proportioned to his guilt, death excepted, 1696, c. 5.
28. The crime of usury, before the Reformation, con sisted 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. 247. declared to be the escheat of moveables, annulling the usurious con tract, 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 concur 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 justi ciary ; 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 reproaching or affronting our neighbour. Injuries are either verbal or real. A verbal injury, when directed against a private per son, consists in the uttering contumelious words, which tend to expose our neighbour's character, by making him little or ridiculous. Where these words arc uttered in the heat of a dispute, and spoken to the person's face, the law does not presume any malicious intention in the utterer, whose resentment generally subsides with his passion ; and yet, even in that case, the truth of the injurious words sel dom absolves entirely from punishment. It does not seem that the twitting one with natural defects, without any sar castical reflections, though it be inhuman, falls under that des ription, as these imply no real reproach in the just opi nion of mankind. Where the injui ions expressions have a tendency to blacken one's moral character, or fix some par ticular guilt upon him, and are deliberately repeated in different companies, or handed about in whispers to confl d. nts, it then grott s tip to the crime of slander, agreeably to the distinction of the Roman law, I. 15. § 12. De In). And where a person's moral character is thus attacked, the animus inju•iandi is commonly 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 in formation 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 flu/ices Christiani tails, were the only judges of scandal ; but, for some time past, bare verbal injuries, or hasty words tittered intempe rately in rixa, have been tried by other criminal judges, and even by the session. It is punished either by a fine, proportioned to the condition of the persons injuring and injured, and the circumstances of time and place ; or, if the injury import scandal, by publicly acknowledging the of fence ; 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 affected ; 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 com posing and publishing defamatory libels may be reckoned of this kind. Real injuries arc tried by the judge-ordinary, and punished either by fine or imprisonment, according to the demerit of the offenders.