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are two points for consideration: first, Whether the words libelled amount to a convicium-and secondly, Admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a convicium at all, it consists in the comparatio, or comparison of the Scarabæus or Beetle, with the Egyptian Pediculus or Louse. My first doubt regards this point, but it is not at all founded on what the defender alleges, that there is no such animal as an Egyptian Pediculus or Louse in rerum natura; for although it does not actually exist, it may possibly exist, and whether its existence be in esse vel posse, is the same thing to this question, provided there be habiles for ascertaining what it would be if it did exist. But my doubt is here. How am I to discover what are the essentia of any louse, whether Egyptian or not? It is very easy to describe its accidents as a naturalist would doto say that it belongs to the tribe of assteræ, or that it is a yellow, little, greedy, filthy, despicable reptile; but we do not learn from this what the proprium of the animal is in a logical sense, and still less what its differentia are. Notwithstanding these, it is impossible to judge whether there is a convicium or not; for in a case of this kind, which sequitur naturam delicti, we must take them meliore sensu, and presume the comparatio to be in the melioribus tantum. And here I beg that parties, and the bar in generalInterrupted by Lord Hd-" Your Lordship should address yourself to the Chair.")→
I say I beg it may be understood, that I do not rest my opinion, on the ground that veritas convicii excusat. I am clear that, although this Beetle actually were an Egyptian Pediculus, it would afford no relevant defence, provided the calling it so were a convicium-and there my doubt lies.
With regard to the second point, I am satisfied that the Scarabæus, or Beetle itself, has no persona standi in judicio, and therefore the pursuer cannot insist in the name of the Scarabæus, or for his behoof. If the action lie at all, it must be at the instance of the pursuer himself, as the verus dominus of the Scarabæus, for being calumniated through the convicium, directed primarily against the animal standing in that relation to him. Now, abstracting from the qualification of an actual dominium, which is not alleged, I have great doubts whether a mere convicium is necessarily transmitted from one object to another, through the relation of a dominium subsisting between them; and if not necessarily transmissible, we must see the principle of its actual transmission here, and that has not yet been pointed
Lord H-D.-We heard a little ago, my Lord, that there is a difficulty in this case; but I have not been fortunate enough, for my part, to find out where the difficulty lies. Will any man presume to tell me, that a Beetle is not a Beetle, and that a
Louse is not a Louse. I never saw the petitioner's Beetle, and what's more, I don't care whether I ever
see it or not, but I suppose it's like other Beetles, and that's enough for me. But, my Lord, I know the other reptile well. I have seen them, my Lord, ever since I was a child in my mother's arms, and my mind tells me, that nothing but the deepest and blackest malice, rankling in the human breast, could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lord, there's more here than all that, a great deal more; one could have thought the defender would have gratified his spite to the full, by comparing the Beetle to a common Louse, an animal sufficiently vile and abominable for the purpose of defamation [shut that door there];-but he adds the epithet Egyptian, and I know well what he means by that epithet. He means, my Lord, a Louse that has been fattened in the head of a gipsey or tinker, undisturbed by the comb, and unmolested in the enjoyment of its native filth. He means a Louse ten times larger, and ten times more abominable, than those with which your Lordships and I are familiar. The petitioner asks redress for the injury so attrocious and so aggravated, and as far as my voice goes, he shall not ask it in vain.
- Lord CR-G.-I am of the opinion last delivered. It appears to me to be slanderous and calumnious to compare a Diamond Beetle to the filthy and mischievous animal libelled. By an Egyptian Louse, I understand one which has been formed in the head of a native Egyptian, a race of men who, after de
generating for many centuries, have sunk, at last, into the abyss of depravity, in consequence of having been subjugated for a time, by the French, I do not find that Turgot, or Condorcet, or the rest of the economists, ever reckon the combing of the head a species of productive labour, and I conclude, therefore, that wherever French principles have been propagated, Lice grow to an immoderate size, est pecially in a warm climate, like that of Egypt.
I shall only add, that we ought to be sensible of the blessings we enjoy under a free and happy constitution, where Lice and men live under the restraint of equal laws, the only equality that can exist in a well regulated state.
Lord P-K-T.-It should be observed, my Lord, that what is called a Beetle, is a reptile well known in this country. I have seen mony ane o' them in Drumshorlin Muir. It is a little black beastie, about the size o' my thoom nail. The country people ca' them clocks, and I believe they ca' them also Maggy-wi'-the-mony-feet; but this is not a beast like Louse that ever I any saw, so that in my opinion, though the defender may have made a blunder, through ignorance, in comparing them, there does not seem to have been any animus injuriandi, therefore am for refusing the petition, my Lords.
Lord B-T-o.-Am for refusing the petition. There's more Lice than Beetles in Fife. They ca' them Beetle-clocks there; what they ca' a Beetle, is
a thing as lang as my arm, thick at the one end, and small at the other. I thought when I read the petition, that the Beetle, or Bittle, had been the thing that the women have when they are washing towels or nappery with-things for dadding them with, and I see the petitioner is a jeweller till his trade, and I thought he had ane o' thae Beetles, and set it all round with diamonds, and I thought it a foolish and extravagant idea, and I saw no resemblance it could have to a Louse; but I find I was mistaken, my Lord, and I find it only a Beetle+ clock the petitioner has; but my opinion's the same it was before. I say, my Lords, am for refusing the petition, I say
Lord W-L-EE.-There is a case abridged in the third volume of the Dictionary of Decisions, Chalmers against Douglas, in which it is found that veritas convicii excusat, which may be rendered, not literally, but in a free and spirited manner, according to the most approved principles of translation, "the truth of calumny affords a relevant defence." If, therefore, it be the law of Scotland, which I am clearly of opinion it is, that the truth of the calumny affords a relevant defence, and if it be likewise true that the Diamond Beetle is really an Egyptian Louse, I am inclined to conclude, though certainly the case is attended with difficulty, that the defender ought to be assoilzied. Refuse.
Lord JC, RE-I am very well acquainted with the defender in this action, and have