THE crimes hitherto considered are those which, from their frequency and serious consequences, have acquired separate names or nomina juris, by which they are known and distinguished, both in legal language and ordinary life. But besides this, there are a great variety of offences constantly emerging in the progress of society, which were altogether unknown in former times, but have arisen from the altered manners, more extended opulence, or increasing commerce of the present age. How, then, are such crimes to be dealt with? Must they remain unpunished until their frequency and enormity have introduced separate statutes applicable to each, or is there. an inherent principle in the common law which renders legislative enactments for each particular case unnecessary, and embraces every successive delinquency, as the changes of time brings it into existence?

1. By the common law every new crime, as it successively arises, becomes the object of punishment, provided it be in itself wrong, and hurtful to the persons or proper'ty of others.

In the particulars above stated, the great and ruling distinction between the Scotch and English law is to be found, and from it the superior mildness and humanity of our practice has arisen. In England the powers of the common law do not extend in the general case beyond a misdemeanour, and all the serious crimes, and almost all the modern offences, are the subject of legislative enactments. The consequence is, that their statutes, made on the spur of the moment, and frequently at the suggestion of interested or suffering parties, are, in

general, characterized by excessive severity; and the judges, having no power to modify the penalties, find themselves constrained to pronounce the pain of death on numerous offenders wholly unworthy of so extreme a punishment, and who, as a matter of course, are afterwards pardoned. In Scotland, on the other hand, where the powers of the common law are more extensive, and we have been less afflicted, till recent times, with the fever of legislation, new delinquencies, as they have successively arisen, have fallen under the coercion of the common law, and thence they have been not only visited at first with a milder punishment than those ordained in the sister kingdom by the supreme authority of the legislature, but the criminal practice has been softened by the increasing humanity of successive times, and accommodated itself to the ideas and necessities of more civilized ages. Hence, while the capital crimes of England are still, notwithstanding the enlightened efforts of recent legislation, nearly 300, these of Scotland are not yet 50, of which more than a half have originated with the British Parliament.

Illustrations of this legal principle may be drawn from most of the multifarious crimes which have been already considered, which are almost all treated with more or less severity by the common law. But in the following instances the common law has interposed in regard to delinquencies which have not yet become so frequent as to have acquired a distinct legal designation.

2. Furious or improper driving along the high road is in itself a police offence; and if it leads to injury to the persons or property of others, becomes the fit object of higher criminal punishment.

It has been already noticed, in treating of Culpable Homicide, that where furious or improper driving leads to the death of any person, it becomes punishable under that name, and as such, is the subject of daily trial in the criminal courts. But, besides this, furious driving is itself an indictable offence if it lead to the overturning or injury of carriages, the maiming or hurting of individuals, or the fracture or injury of property.1

1 Hume, i. 193.

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This was first settled in the case of James Bartholomew, William Sommerville, and James Watson, 21st November 1825. The major proposition sustained in that case, was “ The culpable and furious driving of carts along the King's highway, to the terror and danger of the lieges, and where the carts of the lieges driving peaceably along the said highway are thereby overturned, and the persons in the said carts seriously injured, and the effects which the said carts contain broken or destroyed," and the species facti was, that the pannels had driven three horses and carts, containing empty barrels, at a furious rate along the high road from Edinburgh to Mid-Calder, and when so driving, they passed two carts loaded with furniture, which were going on the proper side of the road, one of which, from the shock received in passing, was overturned, a considerable quantity of the furniture damaged, and a servant on the cart had her leg broke. They were convicted and sentenced to twelve months' imprisonment each.1 This precedent was since followed in the case of Peter Johnston and Alexander Lawson, July 16. 1829. It there appeared that the pannels had recklessly driven their carts along the Dalkeith Road at a gallop, and in passing another carter knocked him down, and broke several of his ribs. Johnston was found guilty, and sentenced to six months' imprisonment, and Lawson acquitted, as his cart was not the one which struck the man; but the Court were of opinion that both were guilty, as the one knocked down the man, and the other, by coming up at the same instant at the gallop, prevented his getting away, and was thus art and part in the consequences which followed. So also in the case of Benjamin Davidson and William Train, Jedburgh, September 1829, the pannels were convicted of furious driving, whereby a woman on the road was knocked down, and the wheels passed over her body and legs. Thomas Bolton, Jedburgh, April 1828, was convicted of reckless riding in the High Street of Kelso, at a time when a cattle-market was held there, and knocking down and wounding a man in the streets, and sentenced to four months' imprisonment. Lastly, in the case of James Grant, May 14. 1830, besides à charge of culpable homicide, the charge was sustained of "Riding along the highroad on any horse or mare at a furious and dangerous rate, so

3:

1 Hume, i. 193.-2 Unreported.- Unreported.

as to ride over and wound any of the lieges, to the effusion of their blood, and danger of their lives." He had galloped along the road from Stockbridge to Comely Bank, and near Moray Place rode over two old women on the footpath, on the north side of the road; one of whom was killed and the other was severely wounded. He escaped with a verdict of not proven, in consequence of some evidence which rendered it probable that the horse had taken fright at the noise made by some boys on the road-side, and that it was running with him against his will when the accident occurred.1

3. Culpable and negligent steering of any steam-boat or sailing-vessel, so as to bring it into collision with, and run down, break, or injure, any other vessel, and damage the property it contains, is an indictable offence though no life be lost in consequence.

On the same grounds, and for much stronger reasons, which have led to the establishment of furious driving at land as an indictable offence, a similar offence, committed at sea, either in a steam or sailing vessel, may be made the subject of trial and punishment. In the case of Ezekiel Machaffie, November 26. 1827, besides culpable homicide, the charge was sustained of "Culpably, negligently, and recklessly managing or directing any vessel or steam-packet, so as to bring it in collision with, and cause it to run down, sink, or destroy any other boat or vessel, and thereby seriously wound and injure the persons, and endanger the lives, of any of the lieges sailing in such other boat or vessel." The facts appeared to have been, that the prisoner, who was the master of the Dunbarton Castle Steam-boat, had neglected to station any person on the lookout, but had intrusted that important duty to all the crew indiscriminately who happened to be on deck at the time; the consequence of which was, that on passing the quay of Gourock, the boat ran down a fishing-boat in the Frith of Clyde, whereby one person was drowned and the boat destroyed. The pannel was convicted in the Court of Admiralty, and sentenced to six months' imprisonment; and the case having come by suspension before the Supreme Court, the indictment was

1 Unreported.

sustained as relevant in all its parts: a decision which establishes this as a relevant point of dittay in our practice.›.

By the recent statute 9th Geo. IV. c. 29, offences of this sort can be competently tried before the Justiciary Court, which, indeed, since the abolition of the Admiralty, is the only place where such offences can be made the subject of investigation.

4. Administering drugs to procure abortion, is an offence at common law, punishable with an arbitrary pain, and that equally whether the desired effects be produced

or not.

In the case of Catherine Robertson and George Bachelor, 28th June 1806, it was sustained as a relevant point of dittay, "the wilfully causing or procuring a pregnant woman to abort, or part in an untimely manner with the fœtus or child in her womb." In that case the nefarious object was accomplished by the application of an instrument to the womb, and it brought on premature labour in the fifth or sixth month of pregnancy. They were convicted, and sentenced to seven years' transportation; a punishment certainly not too severe when it is recollected that the life of one human being is by such practices seriously endangered, and an incipient existence stifled in another.

This crime is equally committed by the woman who submits to the operation, or the taking the noxious medicines, as the man who administers; though her offence is of an inferior degree, and she is often the object rather of commiseration than punishment; and the surgeon or apothecary who should lend himself to such a transaction, or furnish medicines for the purpose, knowing the end to which they were to be applied, or give advice as to the mode of its commission, would unquestionably render himself liable as art and part.3 The "wilfully causing or procuring a pregnant woman to abort or part in an untimely manner with the fœtus or child in her womb," was again sustained as relevant at Perth, September 1823, in the case of Alexander Aitken, surgeon. He was charged with having, for the sum of twenty-five shillings, agreed to induce abortion on a pregnant young woman, and actually performed

1 Syme, Appen. No. 3.- Hume, i. 187.3 Ibid. i. 279.