Where none of the recognised terms of style were applicable, the injurious conduct would be libelled as ‘stellionate and real injury’. Hume states that “[w]e have… in our law, the general term of stellionate, borrowed from the Roman practice, which may be
employed in such a case, along with the full description of the injury”.206 Thus, James
Campbell was charged on 22 January 1722 with “stellionate and real injury” along with a description of the injury inflicted which involved stripping and tying down the victim when he was intoxicated and applying hot coals to his “privities”.207 There is no indication
from Hume’s treatment that such an injury had to be severe, but Alison states that a charge of stellionate and real injury was a separate offence (from assault), and one that could be charged instead of an aggravated assault in cases of mutilation,208 and Anderson states that
the term was used to denote a real injury “of a serious nature, such as severe burning, thrusting needle into the eye, or any grave injury which took effect internally, as through the operation of drugs”.209 Indeed, the limited cases noted in the literature suggest a trend
towards its use in cases of more serious injury to the person.210
What is most peculiar about this separate offence is that its origins appear rather obscure. Hume tells us that it is borrowed from Roman practice, but stellionatus was understood as ‘swindling’ in Roman times, the primary example being ‘double dealing’ where one dispones the same right twice.211 Ulpian hints that the term might be used in a
more general sense when he states that: “in the absence of a specific offence, this charge can be brought, and there is no need to list the instances”,212 but if this is indeed the
passage being relied on later by Hume it is certainly odd that he should contradict it by asserting the requirement to list the instances in the libel. Mackenzie described the need for
205 Hume, Commentaries, 5, p.328. 206 Hume, i,328.
207 Ibid at footnote 1.
208 A Alison, Principles of the Criminal Law of Scotland, Chapter V, 12, p.196. 209 Anderson, Criminal Law of Scotland, p.81.
210 Such as binding one’s limbs together and leaving them overnight, thereby causing paralysis (Ogilvie &
Ogilvie, Perth, 14 April 1830, Bell’s Notes 89); administering drugs to the injury of the person (Ferguson and Eadie, Perth, 22 April 1822, Hume, Chapter VI, 3, p.237, b.; Mitchell, Aberdeen, April 1833; and Buchan & Hossack, 22 July 1840, both Bell’s Notes 90); or administering large quantities of alcohol to children (Robert Brown and John Lawson (1842) 1 Broun 415; Bell’s Notes 90).
211 D.47.20. 212 D.47.20.3.1.
a charge of stellionatus as a necessary response to the fact that “cheats… multiply and vary themselves into so many forms that legislators were forced to invent this general name” and stressed the requirement that the person charged must have done something
fraudulently (fecerunt).213 Forbes echoes Mackenzie, stating that it is a general term
signifying “any crime committed by fraud wanting a more particular name”.214 Both point
out the etymology of stellio, which is a type of lizard with ‘starry spots’ and a subtle nature, presumably implying an emphasis on deception.215
There was therefore precedent in Scots law for this term to be used in criminal situations where a prior existing term did not suitably cover offending conduct which had a fraudulent element. Despite this fact there is only one example, dated before Hume’s
Commentaries, of the term stellionate being used in the Scottish courts in a context other
than the traditional Roman sense of double dealing,216 and that is the aforementioned
Campbell case from 1722, as noted by Hume.217 Likewise, there are only two (historical)
instances of stellionate being used in a sense other than double dealing after the publication of Hume’s Commentaries, and neither are concerned with real injury.218
Perhaps unsurprisingly, by the publication of Macdonald’s Practical Treatise on the
Criminal Law of Scotland in 1867, the term had become “nearly obsolete”.219 The term
resurfaced briefly in 1984 when the passage from Hume was cited by Lord Avonside in response to an argument that the causing of real injury by supplying glue inhalation kits to young people was not a crime “which is known to the law of Scotland”;220 and then again
much more recently in Principal Reporter v N221 where the sheriff stated that stellionate
“means deceit and was the name given to any crime involving dishonesty or real injury not covered by any recognised nominate crime... Some form of deceit is essential to the
crime.”222
213 Mackenzie, MC, Title 28, 1.
214 Forbes, Institutes, Book IV, Chapter X, Title VI. See also Bayne, p.154. 215 Mackenzie, MC, Title 28, 2; Forbes, ibid.
216 Examples of stellionate as double dealings: Alexander Arbuthnot of Knox v Straiton of Laureston (1677) 3 Bro. Sup. 209; James Gordon of Davach v William Duff of Dipple (1707) Mor. 1078; Archibald, Earl of Forfar v John Gilhagie (1712) Mor. 7820.
217 The only other reference is to be found in Alison at p.196 without citation (or even reference to Hume, but this is presumably where he acquired the case).
218 One alludes to its use in the context of theft (Richmond v Thomson (1838) 16 S. 995 at p.1001) and the other suggests that it might have been an appropriate indictment for a case of taking a false oath (John Barr (1839) 2 Swin. 282 at p.307).
219 Macdonald, Criminal Law of Scotland, p.162.
220 Khaliq v HM Advocate 1984 JC 23 at p.26; cf. Milne and Barry (1868) 1 Couper 28. 221 2014 GWD 30-592.
We can conclude that, from the time of Hume onwards, in circumstances where the conduct was not an attack in the overt sense (i.e. a direct confrontation), prosecutors felt uncomfortable using ‘assault’ or similar terms in the libel, instead opting first to use ‘stellionate and real injury’, and later just ‘real injury’.223 It is interesting that prosecutors
felt such a distinction was necessary despite Hume’s endorsement of assault as being a crime robust enough to include such conduct within its remit. The result is that the term ‘assault’ became more synonymous with a direct attack, whereas real injury was reserved for situations not quite fitting this description. Nevertheless, it is regrettable that the exact parameters of the real injury offence and its interaction with assault have never been fully debated. Indeed, when Gordon suggests that pouring poison down a sleeping man’s throat would be an assault, it might equally be charged as (stellionate and) real injury.224