Punishment. The punishment of this offence varies from a short imprisonment to a long period of transportation, according to the degree of violence, resistance, &c. By statute, persons guilty of pulling down any church, dwelling-house, outhouse, manufactory, or machinery, are liable to the punishment of death.2

Dispersing. Where rioters proceed to violence, magistrates and (it is said) private persons may interfere, and will not be responsible for the consequences of measures apparently suited to the protection of the public. By the riot act, if a mob of twelve persons or more, charged to disperse by the proclamation of a magistrate, remained assembled for an hour, or interrupted the proclamation, they were liable to the punishment of death. The punishment is now transportation, as in the case of persons assembling to resist the officers of the revenue. (See above, Sect. 4.) The form of proclamation is as follows:-"Our sovereign lord the king [or lady the queen] chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably depart to their habitations, or to their lawful business, upon the pains contained in an act made in the first year of King George the First, and in an act made in the first year of Queen Victoria, for preventing tumults and riotous. assemblies. God save the king [or queen]."6

SECT. 23.-Miscellaneous Offences.

Violating Sepulchres.-Violating the sepulchres of the dead, a crime now of rare occurrence, is generally punished with imprisonment, or, in aggravated cases, with transportation. When a body is surreptitiously abstracted from the custody of the relations before it is committed to the earth, the offence is an ordinary theft.7

Mischief-Mischief, or the destruction of property, either from malice or recklessness, is an offence generally punished with a period of imprisonment, according to the magnitude of the injury. Occasioning damage by reckless driving, or careless management of a steam-boat, comes under this class of offences.

Concealment of Pregnancy.-Concealment of pregnancy is a statutory crime, chargeable when a child born is found

'A. Pri. 525, et seq.-21 Geo. I. c. 5, § 4. 52 Geo. III. c. 130, § 2.3 A. Pri. 533.- 1 Geo. I. c. 5, §§ 2, 3, 5.-57 Wm. IV. & 1 Vict. c. 91.1 Geo. I. c. 5, § 1.-7 H. C. i. 85.- Ibid. 124. Bell's Sup. 47.

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dead or is amissing, and there is no proof of its having been murdered. Pregnancy up to a period when a child might be born alive must be proved. If the accused can bring forward a witness to whom she communicated her pregnancy, or called for assistance at the birth, or (it is believed) can prove that the child was born dead, she is entitled to an acquittal. The punishment is imprisonment not exceeding two years.1

Clandestine Marriages.-Being concerned in the celebration of clandestine marriages, or going through the ecclesiastical ceremony of marriage without proclamation of banns, &c., subjects the parties married to fine, according to their rank, and three months' imprisonment, the person officiating to banishment from Scotland for life, and the witnesses to a fine of £100 scots (£8, 6s. 8d.) each. Magistrates or others attesting a declaration of a marriage as a mere civil contract are not amenable to these laws. The religion of the officiating clergyman does not now, as formerly, make a marriage clandestine, if the banns have been duly proclaimed.2

Prison Breaking.-Prison breaking is committed where one, either by force or fraud, or taking advantage of a moment of confusion, escapes from a legal public prison, to which he has been committed by a proper and formal warrant. The punishment is generally imprisonment, if no other crime, such as assault or fire-raising, have been committed in connexion with the attempt.3

Returning from Transportation.-Returning from transportation before the legal period has expired, subjects the convict to the punishment of death, but the libel is generally restricted. The offence is tried, in the usual manner, before a jury. If the prosecutor, however, demand nothing more than the completion of the original sentence, the Court of Justiciary will grant a warrant accordingly, on proof of the identity of the convict, without the intervention of a jury." A person who is banished from Scotland, or from a particular jurisdiction, not to return for a definite period under a penalty, becomes liable to be summarily subjected to the penalty without regular trial on being discovered within the bounds before expiry of the period, if the judgment of banishment contain a warrant to that effect.6

149 Geo. III. c. 14.-2 1661, c. 34; 1698, c. 6. 4 & 5 Wm. IV. c. 28.—3 H. C. i. 401. et seq. Hutton, 13th April 1837, 1 Sw. 497.- 5 Geo. IV. c. 84, §2. A. Pri. 559.—5 M‘Neil, 12th March 1836, 1 Sw. 88.-H. C. ii. 147.

Challenging. Offering, or accepting a challenge to fight a duel, subjects all the parties concerned to an arbitrary punishment.1

Administering drugs to procure abortion renders all parties concerned, the pregnant female included, liable to transportation.2

By the older practice of Scotland, and according to the opinions of the writers on criminal law, the Court of Justici-' ary is competent to the consideration of any offence, whether previously recognised or not, and may visit the offender with any punishment from fine or imprisonment, to transportation. The following offences have been, at different times, so recognised and punished according to the degree of guilt:Inducing children to leave their proper guardians; attempting to extort confession of offences by threats or violence; oppression by persons in authority; wilful neglect of duty by official persons; trading in public offices when not sanctioned by statute or usage; forcibly carrying off voters, and otherwise violently interfering in elections, &c.3

CHAPTER V.

EVIDENCE.

SECT. 1.-Citation of Witnesses.

THE prisoner receives a list of witnesses, with their designations, in the copy of citation served on him,* and though the practice was different formerly, he can now take no objection to a witness in the list, on the ground of his being improperly cited. The court, on the application of either party, will grant diligence to cite a witness, who, if he do not appear, is liable to a fine of 100 merks (£5, 11s. 13d.) If on his not appearing, the trial is adjourned to another day, or if either party state on oath a belief that the witness intends to abscond, he may be detained till the trial, or till he find

H. C. i. 442. Bell's Sup. 111.- H. C. i. 187. A. Pri. 628.—3 H. C. ii. 1. et seq. A. Pri. 625 et seq.-* See Chap. III. Sect. 4.- 9 Geo. IV. c. 29, § 10.

security to appear. Warrants of local magistrates to cite witnesses are effectual through all parts of Scotland.2 Letters of diligence against witnesses residing in England or Ireland, become effectual on being indorsed by the supreme criminal judges of those countries.3

Any variation between the list of witnesses served on the accused, and that in the original record, must be stated before the jury is sworn.4 An objection to a witness, on the ground or error in designation, must likewise be stated before the jury is sworn, and will only be sustained if the accused prove, by his agent or otherwise, that the designation has not enabled him to find the witness, or has deceived him as to the person meant.5

SECT. 2.-Admissibility of Witnesses.

An oath is administered to the witness, or, if he be a quaker, moravian, or separatist, a solemn declaration, before he is examined.6 Children under twelve years of age are not put on oath, but may be questioned at the discretion of the judge. Confirmed idiots and madmen, and those who labour under any physical incapacity, cannot be examined. Minor disqualifications merely subject the evidence of the witness to such doubts as the jury may feel on a consideration of all circumstances. The rule as to deaf and dumb persons seems to be, that they are not to be relied on unless they have been scientifically taught to converse by signs.8

Character.-Persons under sentence for a crime punishable with death (though a smaller penalty has been adjudged), or for a crime involving fraud, such as theft, fraudulent bankruptcy, &c., by the verdict of a jury, are disqualified from bearing testimony. Formerly such witnesses were disqualified for life, but the tendency of later practice has been not to exclude evidence from the jury, but to leave them to attribute to it what weight they think fit, and by an act of 1830, in these cases the fulfilment of the penalty restores the admissibility of the witness; those, however, convicted of perjury or subornation are disqualified for life. Offences which do not disqualify a witness, may be adduced as affecting his credibility; to this end convictions for petty

1 H. C. ii. 373, et seq. A. Prac. 397.-2 11 Geo. IV. & 1 Wm. IV. c. 37, § 8.-3 54 Geo. III. c. 186, § 3.-4 Act of Adjournal, 9th July 1821. -59 Geo. IV. c. 29, § 11.-6 Ibid. § 13. 1 & 2 Vict. c. 77.-7 A. Prac. 432.- H. C. ii. 340, et seq.-9 H. C. ii. 352, et seq.. 10 11 Geo. IV. & 1 Wm. IV. c. 37, § 9.

offences not tried by jury may be adduced, and, of course, convictions of those higher offences which disqualify during the currency of the punishment, may be brought forward after its termination. General bad character, according to the practice hitherto, cannot be proved against a witness, but any questions may be put to him tending to elicit his character, such as whether he was ever in jail? whether he ever committed theft? These, however, he is not obliged to answer.1

Accomplice. The testimony of an accomplice in the crime. is evidence in as far as the jury may choose to trust to it. Such a person, after being examined for the prosecutor, cannot be put on trial for the offence.2

Relations.-Husband and wife are held incompetent witnesses for or against each other, except where one is under trial for a personal injury inflicted on the other. Children under fourteen years of age are not examined either for or against their parents, except in a similar question of personal injury to themselves.3 It was formerly law that children could not be compelled to give testimony against their parents, except in such cases of injury, but all disabilities of witnesses on the ground of consanguinity, have been removed by statute.5

Agents. The law practitioners employed by the prisoner to conduct his defence, cannot be examined on matters coming to their knowledge in that capacity either for or against him."

Malice.-Proof that a witness entertains deadly malice against the accused, and has shown that he will not hesitate to vent it in any illegal act, is held to render him objectionable, but the tendency of late practice is, not to admit disqualification on the ground of malice, unless it really appear that the witness is prompted to appear and give evidence for the purpose of putting his malicious intentions in effect; thus, if it has been found that he has endeavoured to corrupt the other witnesses, or otherwise affect the fairness of the trial, this will render him objectionable. Mere malicious expressions, or undue zeal in urging the prosecution, will subject his testimony to such doubt as the jury may in the circumstances attach to it.7

Interest.-A witness who has a personal or pecuniary interest in the conviction, is placed in a similar situation."

H. C. ii. 352, et seq. Bell's Sup. 255. Case of Burke, 24th December 1828.2 Hare, 2d February 1829, Syme, 373.-3 H. C. ii. 347, et seq. A. Prac. 461, et seq.— Ibid.—3 3 & 4 Vict. c. 59, § 1.—o H. C. ii. 350, —— 7 Ibid. 358, et seq.- H. C. ii. 365.

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