TRACT VIII.
HISTORY OF BRIEVES.

JURISDICTION was originally a mighty ſimple affair. The chieftain who led the hord or clan to war, was naturally appealed to in all controverſies among individuals.

JURISDICTION involved not then what it doth at preſent, viz. a privilege to de⯑clare what is law, and authority to com⯑mand obedience. It involved no more than what naturally follows when two per⯑ſons [4] differ in matter of intereſt, which is to take the opinion of a third.

THUS a judge originally was merely an umpire or arbiter, and litigation was in ef⯑fect a ſubmiſſion; upon which account litiſ⯑conteſtation is, in the Roman law, defined a judicial contract.

THE chieftain, who afterwards when ſeveral clans united for common defence got the name of King, was the ſole judge originally in matters of importance^*. Slighter controverſies were determined by fellow-ſubjects; and perſons diſtinguiſhed by rank or office, were commonly choſen umpires.

[5] BUT differences multiplying by multi⯑plied connections, and cauſes becoming more intricate by the art of ſubtilizing, the So⯑vereign made choice of a council to aſſiſt him in his awards; and this council was denominated, The King's Court; becauſe in it he always preſided. Through moſt of the European nations, at a certain period of their hiſtory, we find this court eſtabliſhed.

IN the progreſs of ſociety, matters of juriſdiction becoming ſtill more complex, and multiplying without end, the Sovereign, involved in the greater affairs of govern⯑ment, had not leiſure nor ſkill to decide differences among his ſubjects. Law be⯑came a ſcience. Courts were inſtituted; and the ſeveral branches of juriſdiction, ci⯑vil, criminal, and eccleſiaſtical, were diſtri⯑buted among theſe courts. Their powers were aſcertained, and the cauſes that could be tried by them. Theſe were likewiſe called the King's courts, not only as being put in place of the King's court properly [6] ſo called, but alſo as the King did not re⯑nounce the power of judging in perſon, but only freed himſelf from the burden of neceſſary attendance.

BUT the Sovereign, jealous of his royal authority, beſtowed upon theſe courts no other power but that of juriſdiction in its ſtricteſt ſenſe, viz. a power to declare what is law. He reſerved to himſelf all magi⯑ſterial authority, even that which is ne⯑ceſſary for explicating the juriſdiction of a court. Therefore, with relation to ſove⯑reign courts, citation and execution proceed in the King's name, and by his ſpecial au⯑thority.

AS to inferior courts, all authority is given to them that is neceſſary for expli⯑cating their juriſdiction. The truſt is not great, conſidering that an appeal lyes to the ſovereign court; and it is below the dig⯑nity of the crown, to act in an inferior court.

[7] IN the infancy of government, the dan⯑ger was not perceived, of truſting with the King, both the judicative and executive powers of the law. But it being now un⯑derſtood, that the ſafety of a free govern⯑ment depends upon balancing its ſeveral powers, it has become an eſtabliſhed maxim, That the King, with whom the executive part of the law is truſted, has no part of the judicative power. ‘"It ſeems now agreed, that our Kings having delegated their whole judicial power to the judges of their ſeveral courts, they, by the con⯑ſtant and uninterrupted uſage of many ages, have now gained a known and ſtated juriſdiction, regulated by certain eſtabliſhed rules, which our Kings them⯑ſelves cannot make any alteration in, without an act of parliament^*."’ The ſame, no doubt, is underſtood to be the law of Scotland, though ſo late as Craig's time it was otherwiſe. That author^† men⯑tions [8] a caſe, where it was declared to be law, that the King might judge even in his own cauſe.

RELIGION and law, originally ſimple, were ſtrangers to form. In proceſs of time, form took the place of ſubſtance, and law, as well as religion, were involved in ſolem⯑nities. What is ſolemn and important, pro⯑duceth naturally order and form among the vulgar, who are addicted to objects of ſenſe. For this reaſon, forms in moſt languages are named ſolemnities, being connected with things that are ſolemn. But by gradual improvements in ſociety, and by refinement of taſte, forms come inſenſibly to be ne⯑glected, or reduced to their juſt value; and law as well as religion are verging towards their original ſimplicity. Thus, oppoſite cauſes produce ſometimes the ſame effects. Law and religion were originally ſimple, becauſe man was ſo. They will again be ſimple, becauſe ſimplicity contributes to their perfection.

[9] AFTER courts were inſtituted, and the cognizance of all cauſes at that time known was diſtributed among them, ſeveral new grounds of action occurring, it behoved to be often doubtful, in what court a new ac⯑tion ſhould be tried. An expeditious me⯑thod was invented, for reſolving doubts of this ſort. The King was the fountain of juriſdiction, and to him was aſcribed the prerogative of delegating to what judge he thought proper, any cauſe of this kind that occurred. This was done by a brieve from the chancery, directed to ſome eſtabliſhed judge, ordering him to try the particular cauſe mentioned in the brieve. The King at firſt was under no reſtraint as to the choice of the judge, other than what aroſe from rational motives; provided only, the party, who was to be made defendant, was ſubjected to the juriſdiction of the judge named in the brieve. This limitation was neceſſary; becauſe the King's brieve con⯑tained not a warrant for citing the party to appear before the judge; and the judge's [10] warrant could not reach beyond his terri⯑tory. But in time, reaſon produced cuſtom, and cuſtom became law. Matters of mo⯑ment behoved to be delegated to a ſupreme judge; and, in general, the rule was, to avoid mixing civil and criminal juriſ⯑diction.

IN the moſt general ſenſe of the word, every one of the King's writs, commanding or prohibiting any thing to be done, is termed a brieve. But brieves, with reſpect to judicial proceedings, are of two kinds. One is directed to the ſheriff, or a meſſen⯑ger in place of the ſheriff, ordering him to cite the party to appear in the King's court, to anſwer the complaint made againſt him. This brieve is, in the Engliſh law, termed an original, and correſponds to our ſummons including the libel. The other kind is that above mentioned, directed to a judge, delegating to him the power of trying the particular cauſe ſet forth in the brieve.

[11] OF the firſt kind of brieve, that for breaking the King's protection, is an in⯑ſtance^*. Of the other kind, the brieve of bondage, the brieve of diſtreſs, the brieve of mortanceſtry, the brieve of nouvel diſſei⯑ſin, of perambulation, of terce, of right, &c. are inſtances.

OF the laſt mentioned brieve the follow⯑ing was a peculiar ſpecies. When in the King's court a queſtion of baſtardy occur⯑red, to which a civil court is not compe⯑tent, a brieve was directed from the chan⯑cery to the biſhop, to try the baſtardy as a prejudicial queſtion^†. If ſuch a caſe hap⯑pened in an inferior court, the court, pro⯑bably by its own authority, made the remit to the ſpiritual court. And the ſame being done at preſent in the King's courts, there is no longer any uſe for this brieve.

THE brieve of bondage might be di⯑rected either to the juſticiar or to the [12] ſheriff^*. The brieve for relief of caution⯑ry, might be directed to the juſticiar, ſhe⯑riff, or provoſt and baillies within burgh^†. The brieves of mortanceſtry, and of nouvel diſſeiſin, could only be directed to the ju⯑ſticiar^‡.

THE brieve of diſtreſs, correſponding to the Engliſh brieve, Juſticies, muſt be exa⯑mined more deliberately, becauſe it makes a figure in our law. While the practice ſub⯑ſiſted of poinding brevi mann for payment of debt, there was no neceſſity for the interpo⯑ſition of a judge to force payment^‖. When courts therefore were inſtituted, a proceſs for payment of debt was not known. The rough practice of forcing payment by pri⯑vate power being prohibited, an action be⯑came neceſſary; and the King interpoſed by a brieve, directing one or other judge to try the cauſe. ‘"The brieve of diſtreſs for debts ſhall be determined before the [13] juſticiar, ſheriff, baillies of burghs, as it ſhall pleaſe the King by his letter to com⯑mand them particularly within their ju⯑riſdiction^*."’ And it may be remarked by the way, that when a decree was reco⯑vered under the authority of this brieve, the judge directed execution by his own authority, even ſo far as to adjudge to the creditor, for his payment, the land of the debtor, if the moveables were not ſufficient. With regard to the ſheriff at leaſt, the fact is aſcertained by the act 36. p. 1469. This brieve explains a maxim of the common law of England: ‘"Quod placita de catal⯑lis, debitis, &c. quae ſummum 40ſh. at⯑tingunt vel excedunt, ſecundum legem et conſuetudinem Angliae ſine brevi regis placitari non debent^†."’ The indulging a juriſdiction to the extent of 40 ſhillings without a brieve, aroſe apparently from the hardſhip of compelling a creditor to take out a brieve for a ſum ſo ſmall. In Eng⯑land [14] the law continues the ſame to this day; for the ſheriff, without a brieve, can⯑not judge in actions of debt beyond 40 ſhillings. But in Scotland, an original ju⯑riſdiction was, by ſtatute, beſtowed upon the Lords of ſeſſion, to judge in actions of debt^*; and the ſheriff and other inferior judges, copying after this court, have, by cuſtom and preſcription, acquired an origi⯑nal juriſdiction in actions of debt, without limitation; and the brieve of diſtreſs is no longer in uſe, becauſe no longer neceſſary.

AFTER the ſame manner, moſt of theſe brieves have gone into deſuetude; for to nothing are we more prone than to an in⯑largement of power. A court, which has often tried cauſes by a delegated juriſdic⯑tion, loſes in time ſight of its warrant, and ventures to try ſuch cauſes by its own au⯑thority. Some few inſtances there are of brieves ſtill in force, ſuch as theſe which found the proceſs of diviſion of lands, of [15] terce, of lyning within burgh, and of per⯑ambulation. For this reaſon I think it wrong in the court of ſeſſion to ſuſtain a proceſs of perambulation at the firſt in⯑ſtance, which ought to be carried on before the ſheriff, upon the authority of a brieve from the chancery. And what inclines me the rather to be of this opinion, is, that all the brieves of this ſort preſerved in uſe, regard either the fixing of land marches, or the diviſion of land among parties hav⯑ing intereſt, which never can be performed to good purpoſe, except upon the ſpot.

SOON after the inſtitution of the college of juſtice, it was made a queſtion, whether that court could judge in a competition about the property of land, without being authorized by a brieve of right. But they got over the difficulty upon the following conſideration; ‘"That the brieve of right was long out of uſe; and that this being a ſovereign and ſupreme court for civil cauſes, its juriſdiction, which in its na⯑ture [16] is unlimited, muſt comprehend all civil cauſes from the loweſt to the higheſt^*."’

As the King's writs iſſuing from chan⯑cery did paſs under either the Great or the Quarter Seal, ſuch ſolemnity came to be extremely burdenſome, and behoved to be ſeverely felt in the multiplication of law proceedings. This circumſtance was, no doubt, of influence, in antiquating the brieves that conferred a delegated juriſdic⯑tion, and in bringing all cauſes under ſome one original juriſdiction. The other ſort of brieve, which is no other than the King's warrant to call the defendant into the King's court, has been very long in diſ⯑uſe; and in place of it a ſimpler form is choſen, which is a letter from the King, paſſing under the ſignet, directed to the ſheriff, or to a meſſenger in place of the ſheriff, ordering him to cite the party to [17] appear in court. This change probably happened without an expreſs regulation. A few ſingular inſtances which were ſuc⯑ceſsful, diſcovered the conveniency; and inſtances were multiplied, till the form be⯑came univerſal, and brieves from the chan⯑cery were altogether neglected. One thing is certain, that letters under the ſignet for citing parties to appear in the King's courts, can be traced pretty far back. In the chartulary of Paiſley, preſerved in the advocates library^*, there is a full copy of a libelled ſummons, in Engliſh, dated the 2d February 1468, at the inſtance of George, abbot of Paiſley, againſt the bail⯑lies of the burgh of Renfrew, with reſpect to certain tolls, cuſtoms, privileges, &c. for ſummoning them to appear before the King and his council, at Edinburgh, or where it ſhall happen them to be for the time, ending thus: ‘"Given under our ſig⯑net at Perth, the ſecond of December, and of our reign the eight year."’ And [18] there are extant letters under the ſignet^*, containing a charge to enter heir to the ſuperiority, and infeft the vaſſal within twenty days; and, if he fail, ſummoning him to appear before the Lords of council the ſeventh of July next, to hear him de⯑cerned to tyne his ſuperiority, and that the vaſſal ſhall hold of the next lawful ſuperior. ‘"Given under our ſignet at Stir⯑ling, the ſecond of June, and of our reign the firſt year."’ It is to be obſerv⯑ed, at the ſame time, that this muſt have been a recent innovation; for ſo late as the year 1457, the ordinary form of citing parties to appear before the Lords of ſeſ⯑ſion, was by a brieve iſſued from chan⯑cery^†.

IT is probable, that originally every ſort of execution, which paſſed upon the de⯑crees of the King's courts, was authorized by a brieve iſſuing from chancery; for if a brieve was neceſſary to bring the defendant [19] into court, it is not to be ſuppoſed, that leſs ſolemnity was uſed in executing the de⯑cree pronounced againſt him; and that this in particular was the caſe when land was appriſed for payment of debt, is teſtified by 2d ſtatutes Robert I. cap. 19. At what time this form was laid aſide, or upon what occaſion, we know not. For ſo far back as we have any records, we ſind every ſort of execution, perſonal and real, upon the de⯑crees of the King's courts, authorized by letters paſſing the ſignet.

OF old, a certain form of words was eſta⯑bliſhed for every ſort of action; and if a man could not bring his caſe under any eſtabliſhed form, he had no remedy. In the Roman law, theſe forms are termed formulae actionum. In Britain, copying from the Roman law, all the King's writs or brieves, theſe at leaſt which concern judi⯑cial proceedings, are in a ſet form of words, which it was not lawful to alter. But in the progreſs of law, new caſes occurring [20] without end, to which no eſtabliſhed form did correſpond, the Romans were forced to relax from their ſolemnities, by indulging actiones in factum, in which the fact was ſet forth without reference to any form. The Engliſh follow this practice, by indulging actions upon the caſe. It is probable, that in Scotland, the warrant for citation paſſing under the Signet, was at firſt conceived in a ſet form, in imitation of the brieve to which it was ſubſtituted. But if this ori⯑ginally was the caſe, the practice did not long continue. Theſe forms have been very long neglected, every man being at liberty to ſet forth his caſe in his own words; and it belongs to the court to con⯑ſider, whether the libel or declaration be relevant; or, in other words, whether the facts ſet forth be a juſt cauſe for granting what is requeſted by the purſuer.

TRACT IX.
HISTORY OF PROCESS in ABSENCE.

IN Scotland, the forms of proceſs againſt abſents, in civil and criminal actions, differ too remarkably to paſs unobſerv⯑ed. Our curioſity is excited to learn whence the difference has ariſen, and upon what principle it is founded: and for gratifying our curioſity in this particular, I can think of no means more promiſing, than a view of ſome foreign laws that have been copied by us.

[22] BUT in order to underſtand the ſpirit of theſe laws, it will be neceſſary to look back upon the origin of civil juriſdiction, of which I have had occaſion, in a former tract, to give a ſketch^*; viz. that at firſt judges were conſidered as arbiters, without any magiſterial powers; that their autho⯑rity was derived from the conſent of the litigants; that litiſconteſtation was in reali⯑ty a judicial contract; and therefore, that the decrees of judges had not a ſtronger effect than an award pronounced by an ar⯑biter properly ſo called. Upon this ſyſtem of juriſdiction, there cannot be ſuch a thing as a proceſs in abſence; for a judge, whoſe authority depends upon conſent, cannot give judgment againſt any perſon who ſubmits not to his juriſdiction. But civil juriſdic⯑tion, like other human inventions, faint and imperfect in its commencement, was improved in courſe of time, and became a more uſeful ſyſtem. After a publick was recognized, and a power in the publick to [23] give laws to the ſociety, and to direct its operations, the conſent of litigants was no longer neceſſary to found juriſdiction. A judge is held to be a public officer, hav⯑ing authority from the publick to ſettle controverſies among individuals, and to ob⯑lige them to ſubmit to his decrees. The defendant, being bound to ſubmit to the authority of the court, cannot hurt the purſuer by refuſing to appear; and hence a proceſs in abſence againſt a perſon who is legally cited.

IN the primitive ſtate of Rome, juriſdic⯑tion was altogether voluntary. A judge had no coercive power, not even that of citation. The firſt dawn of authority we diſcover in old Rome, with relation to ju⯑dicial proceedings, is a power which was given to the claimant to drag his party into court, obtorto collo, as expreſſed in the Roman law. This was a very rude form, ſuitable however to the ignorance and rough manners of thoſe times. This glimpſe of [24] authority was improved, by transferring the power of forcing a defendant into court, from the claimant to the judge; and this was a natural tranſition, after a judge was held to be a publick officer, veſted with every branch of authority that is neceſſary to explicate his juriſdiction. Litiſconteſta⯑tion ceaſed to be a judicial contract. But as our notions do not immediately accom⯑modate themſelves to the fluctuation of things, litiſconteſtation continued to be handled by lawyers as a judicial contract, long after juriſdiction was authoritative, and neither inferred nor required conſent. Litiſconteſtation, it is true, could no longer be reckoned a contract: but then, as any ſubterfuge will ſerve a lawyer, it was defin⯑ed to be a quaſi-contract; which, in plain language, is ſaying, that it hath nothing of a contract except the name. We re⯑turn to the hiſtory. The power of cita⯑tion aſſumed by the judge, was at firſt, like moſt innovations, exerciſed with remark⯑able moderation. The defendant in civil [25] cauſes behoved, for the moſt part, to be cited no fewer than four times, before he was bound to put in his anſwer. The fourth citation was peremptory, and car⯑ried the following certification: ‘"Etiam abſente diverſa parte, cogniturum ſe, et pronunciaturum^*."’ What followed is diſtinctly explained. ‘"Et poſt edictum pe⯑remptorium impetratum, cum dies ejus ſupervenerit, tunc abſens citari debet: et ſive reſponderit, ſive non reſponderit, agetur cauſa, et pronunciabitur: non uti⯑que ſecundum praeſentem, ſed interdum vel abſens, ſi bonam cauſam habuit, vincet^†."’

IN criminal actions, the form of proceed⯑ing againſt abſents, appears not, among the Romans, to have been thoroughly ſettled. Two reſcripts of the Emperor Trajan are founded on, to prove, that no criminal ought to be condemned in abſence. And becauſe a proof ex parte cannot afford more [26] than a ſuſpicion or preſumption, the reaſon given is, ‘"Quod ſatius eſt impunitum re⯑linqui facinus nocentis, quam innocentem damnare."’ On the other hand, it is urged by ſome writers, that contumacy, which is itſelf a crime, ought not to afford protection to any delinquent; and therefore that a criminal action ought to be managed like a civil action. Ulpian, to reconcile theſe two oppoſite opinions, labours at a diſtinction; admits, as to leſſer crimes, that a perſon accuſed may be condemned in ab⯑ſence; but is of opinion, that of a capital crime no man ought to be condemned in abſence^*. Marcian ſeems to be of the ſame opinion^†. And it is laid down, that the criminals whole effects, in this caſe, were inventaried and ſequeſtred; to the effect, that if within the year he did not appear to purge his contumacy, the whole ſhould be conſiſcated^‡.

[27] THIS form of proceeding, as to civil actions at leaſt, appears to have a good foundation both in juſtice and expediency. If my neighbour refuſe to do me juſtice, it is the part of the judge or magiſtrate to compel him. If my neighbour be con⯑tumacious, and refuſe to ſubmit to legal authority, this may ſubject him to puniſh⯑ment, but cannot impair my right. In criminal cauſes, where puniſhment alone is in view, there is more room for heſitat⯑ing. No individual hath an intereſt ſo ſubſtantial, as to make a proſecution neceſ⯑ſary merely upon his account; and there⯑fore writers of a mild temper, ſatisfy them⯑ſelves with puniſhing the perſon accuſed for his contumacy. Others, of more ſevere manners, are for proceeding to a trial in every caſe which is not capital.

THAT a difference ſhould be eſtabliſhed between civil and criminal actions, in the form of proceeding, is extremely rational. I cannot however help teſtifying ſome de⯑gree [28] of ſurpriſe, at an opinion, which gives peculiar indulgence to the more atrocious crimes. I ſhould rather have expected, that the horror mankind naturally have at ſuch crimes, would have diſpoſed theſe writers, to break through every impediment, in or⯑der to reach a condign puniſhment; leav⯑ing crimes which make a leſs figure, to be proſecuted in the ordinary form. Nature and plain ſenſe undoubtedly ſuggeſt this dif⯑ference. But theſe matters were at Rome ſettled by lawyers, who are led more by general principles, than by plain ſenſations. And as the form of civil actions, it may be ſuppoſed, was firſt eſtabliſhed, analogy moved them to bring pecuniary mulcts, and conſequently all the leſſer crimes, under the ſame form.

I reckon it no ſlight ſupport to the fore⯑going reflection, that as to high treaſon, the greateſt of all crimes, the Roman law⯑yers, deſerting their favourite doctrine, per⯑mitted action to proceed upon this crime, [29] not only in abſence of the perſon accuſed, but even after death^*.

So far back as we can trace the laws of this iſland, by the help of ancient writings and records, we find judges veſted with au⯑thority to explicate their juriſdiction. We find, at the ſame time, the original notion of juriſdiction ſo far prevalent, as to make it a rule, that no cauſe could be tried in abſence; which to this day continues to be the law of England. This rule is unqueſtion⯑ably a great obſtruction to the courſe of ju⯑ſtice. For inſtead of trying the cauſe, and awarding execution when the claim is found juſt, it has forced the Engliſh courts upon a wide circuit of pains and penalties. The refuſing to ſubmit to the juſtice of a court inveſted with legal authority, is a crime of the groſſeſt nature, being an act of re⯑bellion againſt the ſtate. And it is juſtly thought, that the perſon who refuſes to ſubmit to the laws of his country, ought [30] not to be under the protection of theſe laws. Therefore, this contempt and con⯑tumacy, in civil actions as well as criminal, ſubjects the party to diverſe forfeitures and penalties. He is held to be a rebel or out⯑law: he hath not perſonam ſtandi in judicio: he may be killed impune; and both his life⯑rent and ſingle eſcheat fall^*.

IN Scotland, we did not originally try even civil cauſes in abſence, more than the Engliſh do at preſent. The compulſion to force the defendant to appear, was attach⯑ment of his moveables, to the poſſeſſion of which he was reſtored upon finding bail to ſiſt himſelf in court. If he remained ob⯑ſtinate, and offered not bail, the goods at⯑tached were delivered to the claimant, who remained in poſſeſſion, till the proprietor was willing to ſubmit to a trial. This is plainly laid down in the caſe of the brieve of right, or declarator of property; where, if the defendant remain contumax, and neither [31] appear nor plead an eſſoinȝie, the land in controverſy is ſeized and ſequeſtred in the King's hands, there to remain for fifteen days: if the defendant appear within the fifteen days, he recovers the poſſeſſion, upon finding caution to anſwer as law will: other⯑wiſe the land is adjudged to the purſuer, after which the defendant has no remedy but by a brieve of right^*. Neither ap⯑pears there to be any ſort of cognition in other civil cauſes, ſuch as actions for pay⯑ment of debt, for performance of contracts, for moveable goods; where the firſt ſtep was to arreſt the defendant's moveables, till he found caution to anſwer as law will^†. And in theſe caſes, as well as in the brieve of right, the goods attached were, no doubt, delivered to the claimant, to be poſſeſſed by him while his party re⯑mained contumacious.

AFTER the Roman law prevailed in this part of the iſland, the foregoing practice [32] wore out, and, with regard to civil actions, gave place to a more mild and equitable method, which, without ſubjecting the de⯑fendant to any penalty, is more available to the purſuer. This method is to try the cauſe in abſence of the defendant, in the ſame manner as was done in Rome, of which mention is made above. The rele⯑vancy is ſettled, proof taken, and judgment given, preciſely as where the defendant is preſent. The only inconvenience of this method, upon its introduction, was the de⯑priving the purſuer of the defendant's teſti⯑mony, when he choſe to refer his libel to the defendant's oath. This was remedied by holding the defendant as confeſſed upon the libel. To explain this form, I muſt ſhortly premiſe, that by the old law of this iſland, it was reckoned a hardſhip too great, to oblige a man to give evidence againſt himſelf; and for that reaſon the purſuer, even in a civil action, was denied the be⯑nefit of the defendant's teſtimony. In Scotland, the notions of the Roman law [33] prevailing, which, in the particular now mentioned, were more equitable than our old law, it was made a rule, that the defen⯑dant in a civil action is bound to give evi⯑dence againſt himſelf; and if he refuſe to give his oath, he is held as confeſſing the fact alledged by the purſuer. This practice was at hand to be transferred into a proceſs where the defendant appears not; and from this time, the contumacy of the defendant who obeys not a citation in a civil cauſe, has been attended with no penal conſe⯑quence; for a good reaſon, that the purſuer hath a more effectual method for attaining his end, which is to inſiſt, that the defen⯑dant be held as confeſt upon the libel. Nor is this a ſtretch beyond reaſon; for the defendant's acquieſcence in the claim may juſtly be preſumed, from his refuſing to appear in court.

BUT this new form is defective in one particular caſe. We hold not a party as confeſt, unleſs he be cited perſonally. What [34] if one, to avoid a perſonal citation, keep out of the way: is there no remedy in this caſe? why not recur to the ancient practice of at⯑taching his effects, till he find caution to anſwer.

THE Engliſh regulation, that there can be no trial in abſence, holds, we may be⯑lieve, in criminal as well as in civil cauſes, not even excepting a proſecution for high treaſon. But as this crime will never be ſuffered to go unpuniſhed, a method has been invented, which, by a circuit, ſupplies the defect of the common law. If a party accuſed of treaſon or felony, contumaci⯑ouſly keep out of the way, the crime, it is true, cannot be tried: but the perſon ac⯑cuſed may be outlawed for contumacy; and the outlawry, in ſuch caſes, is made the means to gain the end propoſed by the pro⯑ſecution. For though outlawry, by the common law, hath no other effect, as above obſerved, than a denunciation upon a horn⯑ing with us; yet the horror of ſuch offences [35] hath introduced a regulation beyond the common law, viz. that outlawry in the caſe of felony, ſubjects the party to that very puniſhment which is inflicted upon a felon convict; and the like in treaſon, cor⯑ruption of blood excepted. There is no oc⯑caſion to make any circuit with relation to other crimes. For the puniſhment of out⯑lawry, by the common law, equals the pu⯑niſhment of any crime, treaſon and felony excepted.

HENCE the reaſon why death before trial is, in England, a total bar to all forfeitures and penalties, even for high treaſon. The crime cannot be tried in abſence; and after death there can be no contempt for not appearing.

LAWYERS have generally but an unhap⯑py talent at reformation; for they ſeldom aim at the root of the evil. In the caſe before us, a ſuperſtitious attachment to an⯑cient forms, hath led Engliſh lawyers into a [36] glaring abſurdity. To prevent the hazard of injuſtice, there muſt not be ſuch a thing as a trial in abſence of the perſon accuſed. Yet no difficulty is made, to preſume a man guilty in abſence without a trial, and to puniſh him in the ſame manner as if he had been fairly tried and regularly con⯑demned. This is in truth converting a pri⯑vilege into a penalty, and holding the ab⯑ſent guilty, without allowing them the be⯑nefit of a trial. The abſurdity of this me⯑thod is equally glaring in another inſtance. It is not ſufficient that the defendant appear in court: it is neceſſary that he plead, and put himſelf upon a trial by his country. The Engliſh adhere ſtrictly to the original notion, that a proceſs implies a judicial contract, and that there can be no proceſs, unleſs the defendant ſubmit to have his cauſe tried. Upon this account, it is an eſtabliſhed rule, that the perſon accuſed who ſtands mute or refuſes to plead, cannot be tried. To this caſe a peculiar puniſhment is adapted, diſtinguiſhed by the name of [37] peine fort et dure. The perſon accuſed is preſſed to death. And there are inſtances upon record, of perſons ſubmitting to this puniſhment, in order to ſave their land⯑eſtates to their heirs, which, by the law of England, are forfeited on ſome caſes of fe⯑lony, as well as on high treaſon. But here again high treaſon is an exception. Stand⯑ing mute in this caſe is attended with the ſame forfeiture, which is inflicted on a per⯑ſon attainted of high treaſon.

WE follow the Engliſh law ſo far as that no crime can be tried in abſence. Some exceptions to this rule were, it is true, for a time, indulged, which ſhall be mentioned by and by. But we at pre⯑ſent adhere ſo ſtrictly to the rule, that a decree in abſence, obtained by the pro⯑curator-fiſcal before an inferior court for a bloodwit upon full proof, was reduced: ‘"The Lords being of opinion, that a decreet in abſence could not pro⯑ceed; and that the judge could go no [38] further, than to fine the party for con⯑tumacy, and to grant warrant to appre⯑hend him, till he ſhould find caution to appear perſonally^*."’

IT is certainly a defect in our law, that voluntary abſence ſhould be a protection againſt the puniſhment of atrocious crimes. Excepting the crime of high treaſon, with regard to which the Engliſh regula⯑tion hath now place with us, the puniſh⯑ment of outlawry, whatever the crime be, never goes farther than ſingle and liferent eſcheat.

As to the trial of a crime after death, which, by the Roman law, was indulged in the caſe of treaſon, there are two reaſons againſt it. The firſt and chief is, that whether the crime be committed againſt the publick or againſt a private perſon, reſentment, the ſpring and foundation of puniſhment, ought to be buried with the [39] criminal; and, in fact, never is indulged by any perſon of humanity, after the crimi⯑nal is no more. The other is drawn from the unequal ſituation of the relations of the deceaſed, who, unacquainted with his pri⯑vate hiſtory, have not the ſame means of juſtification, which to himſelf, as it may be ſuppoſed, would have been an eaſy taſk. Upon this account, the indulging criminal proſecutions after death, would open a door to moſt grievous oppreſſion. In a country where ſuch is the law, no man can be ſe⯑cure, that his heirs ſhall inherit his fortune. With reſpect, however, to treaſon, it ſeems reaſonable, that in ſome ſingular caſes it ought to be excepted from this rule. If a man be ſlain in battle, fighting obſti⯑nately againſt an eſtabliſhed government, there is no inhumanity in forfeiting his e⯑ſtate after his death: nor can ſuch a privi⯑lege in the crown, confined to the caſe now mentioned, be made an engine of oppreſ⯑ſion, conſidering the notoriety of the fact. And indeed it carries no ſlight air of abſur⯑dity, [40] that the moſt daring acts of rebellion, viz. riſing in arms againſt a lawful ſove⯑reign, and oppoſing him in battle, ſhould, if death enſue, be out of the reach of law: for dying in battle, honourably in the man's own opinion and in that of his aſſociates, can in no light be reckoned a puniſhment. This in reality is a very great encourage⯑ment, to perſevere in rebellion. A man who takes arms againſt his country, where ſuch is the law, can have no true courage, if he lay them down, till he either conquer or die. This may be thought a reaſonable apology for the Roman law, which coun⯑tenanced a trial of treaſon after death, con⯑fined expreſly to the caſe now mentioned. ‘"Is, qui in reatu decedit, integri ſtatus decedit. Extinguitur enim crimen mor⯑talitate, niſi forte quis majeſtatis reus fuit; nam hoc crimine, niſi a ſucceſſo⯑ribus purgetur, hereditas fiſco vindicatur. Plane non quiſquis legis Juliae majeſtatis reus eſt, in eadem conditione eſt; ſed qui perduellionis reus eſt, hoſtili animo [41] adverſus rempublicam vel principem ani⯑matus: caeterum ſi quis ex alia cauſa legis Juliae majeſtatis reus ſit, morte crimine liberatur^*."’

THE Roman law was copied, indiſcreetly indeed, by our legiſlature, authorizing, with⯑out any limitation, a proceſs for treaſon after the death of the perſon ſuſpected^†. But the legiſlature, reflecting upon the danger of truſting with the crown a privilege ſo extraordinary, did, by an act in the year 1542, which was never printed, reſtrain this privilege within proper bounds. The words are: ‘"And becauſe the ſaids Lords think the ſaid act (viz. the act 1540) too general and prejudicial to all the Ba⯑rons of this realm; therefore ſtatutes and ordains, that the ſaid act ſhall have no place in time coming, but againſt the airs of them that notourly committs, or ſhall commit crimes of leſe majeſty a⯑gainſt the King's perſon, againſt the [42] realm for everting the ſame; and againſt them that ſhall happen to betray the King's army, allenarly, it being notourly known in their time: and the airs of theſe perſons to be called and purſued within five years after the deceaſe of the ſaid perſons committers of the ſaids crimes: and the ſaid time being bypaſt, the ſaids airs never to be purſued for the ſame^*."’

A proceſs of treaſon againſt an abſent perſon regularly cited, reſts upon a different footing. It is ſome preſumption of guilt, that a man accuſed of a crime, obſtinately refuſes to ſubmit himſelf to the law of his [43] country; and yet the dread of injuſtice or of falſe witneſſes, may, with an innocent perſon, be a motive to keep out of the way. This uncertainty about the motive of the perſon accuſed, ought to confine to the higheſt court every trial in abſence, that of treaſon eſpecially, where the perſon accuſed is not upon an equal footing with his proſe⯑cutors. And probably this would have been the practice in Scotland, but for one reaſon. The ſeſſions of our parliament of old, were generally too ſhort for a regular trial in a criminal cauſe. Upon this account, the trial of treaſon after death, was, from neceſſity rather than choice, permitted to the court of juſticiary. And this court which en⯑joyed the greater privilege, could entertain no doubt of the leſs, viz. that of trying treaſon in abſence. This latter power how⯑ever being called in queſtion, the legiſlature thought proper to countenance it by an ex⯑preſs ſtatute; not indeed as to every ſpecies of treaſon in general, but only in the caſe of ‘"treaſonable riſing in arms, and open [44] and manifeſt rebellion againſt his ma⯑jeſty^*."’

FROM this deduction it will be manifeſt, that the act 31. p. 1690, reſcinding certain forfeitures in abſence pronounced by the court of juſticiary before the ſaid ſtatute 1669, proceeds upon a miſtake in fact, in ſubſuming, ‘"That before the year 1669, there was no law impowering the Lords of juſticiary to forfeit in abſence for per⯑duellion."’ And yet this miſtake is made an argument, not indeed for depriving the court of juſticiary of this power in time coming, but for annulling all ſentences for treaſon pronounced in abſence by this court before the 1669. Theſe ſentences, it is true, proceeding from undue influence of miniſterial power, deſerved little counte⯑nance. But if they were iniquitous, it had been ſuitable to the dignity of the legiſlature, to annul them for that cauſe, inſtead of aſſigning a reaſon that cannot [45] bear a ſcrutiny. However this be, I cannot avoid obſerving, that the juriſdiction of the court of juſticiary to try in abſence open and manifeſt rebellion, was far from being irrational. And it is remarkable, that this was the opinion of our legiſlature, even after the revolution; for though they were will⯑ing to lay hold of any pretext to annul a number of unjuſt forfeitures, they did not however find it convenient to abrogate the ſtatute 1669, but left it in full force. Com⯑paring our law in this particular with that of England, it appears to me clear, that the form authorized by the ſaid ſtatute, which gives acceſs to a fair trial, ought to be pre⯑ferred before the Engliſh form, which an⯑nexes the higheſt penalties to an outlawry for treaſon, without any trial.

IT remains only to be obſerved, that the Engliſh treaſon laws, being ſince the union made a part of our criminal law, the fore⯑going regulations, for trying the crime of treaſon in abſence of the party accuſed or [46] after his death, are at an end; and at pre⯑ſent, that the rule holds univerſally, that no crime can be tried in abſence. In England, no crime was ever tried in abſence, far leſs after death. The parliament itſelf did not aſſume this power; for an attainder for high treaſon in abſence of the delinquent, pro⯑ceeds not upon trial of the cauſe, but is of the nature of an outlawry for contuma⯑cious abſence. Nor is this form varied by the union of the two kingdoms; for the Britiſh parliament, as to all matters of law, is governed by the forms eſtabliſhed in the Engliſh parliament before the union. At the ſame time, the humanity of our preſent manners, affords great ſecurity, that the treaſon laws will never be ſo far extended in Britain as they have been in Scotland, to forfeit an heir for the crime of his anceſtor. I am not of opinion, that ſuch a forfeiture is repugnant to the common rules of juſtice, when it is confined to the caſe above men⯑tioned; and yet it is undoubtedly more be⯑neficial for the inhabitants of this iſland, [47] that by the mildneſs of our laws ſome cri⯑minals may eſcape, than that an extraordi⯑nary power, which in perilous times may be ſtretched againſt the innocent, ſhould be lodged even in the ſafeſt hands. The national genius, ſo far from favouring rigo⯑rous puniſhments, or any latitude in crimi⯑nal proſecutions, has the direct oppoſite ten⯑dency. There cannot be a ſtronger evi⯑dence of this benign diſpoſition, than the late acts of parliament, diſcharging all for⯑feiture of lands or hereditaments, even for high treaſon, after the death of the Pre⯑tender and his two ſons^*.

TRACT X.
HISTORY OF EXECUTION againſt MOVEABLES and LAND for payment of debt.

AGAINST a debtor refractory or negligent, the proper legal remedy is to lay hold of his effects for paying his creditors. This is the method preſcribed by the Roman law^*, with the following addition, that the moveables, as of leſs importance than the land, ſhould be firſt ſold. But the Roman law is defective, [50] in one reſpect that the creditor was diſap⯑pointed, if no buyer was found. The de⯑fect was ſupplied by a reſcript of the Em⯑peror^*, appointing, that, failing a purchaſer, the goods ſhall be adjudged to the creditor by a reaſonable extent.

AMONG other remarkable innovations of the feudal law, one is, that land was with⯑drawn from commerce, and could not be attached for payment of debt. Neither could the vaſſal be attached perſonally, becauſe he was bound perſonally to the ſu⯑perior for ſervice. The moveables there⯑fore, which were always the chief ſubject of execution, came now to be the only ſub⯑ject. In England, attachment of move⯑ables for payment of debt, is warranted by the King's letter directed to the She⯑riff, commonly called a Fieri Facias; and this practice is derived from common law without a ſtatute. The ſheriff is com⯑manded, ‘"to ſell as many of the debtor's [51] moveables as will ſatisfy the debt, and to return the money with the writ into the court at Weſtminſter."’ The method is the ſame at this day, without any remedy, in the caſe where a purchaſer is not found.

LAND, when left free to commerce by diſſolution of the feudal fetters, was of courſe ſubjected to execution for payment of debt. This was early introduced with relation to the King. For from the Magna Charta ^*, it appears to have been the King's privilege, failing goods and chattels, to take poſſeſſion of the land till the debt was paid. And from the ſame chapter it ap⯑pears, that the like privilege is beſtowed upon a cautioner, in order to draw pay⯑ment of what ſums he is obliged to ad⯑vance for the principal debtor. By the ſta⯑tute of merchants^†, the ſame privilege is given to merchants; and by 13th Edward I. cap. 18. the privilege is communicated to creditors in general; but with the following [52] remarkable limitation, that they are allow⯑ed to poſſeſs the half only of the land. By this time it was ſettled, that the military vaſſal's power of aliening, reached the half only of his freehold^*. And it was thought incongruous, to take from the debtor, by force of execution, what he himſelf could not diſpoſe of even for the moſt rational conſideration. The laſt mentioned ſtatute enacts, ‘"That where debt is recovered, or knowledged in the King's court, or da⯑mages awarded, it ſhall be in the election of him that ſueth, to have a fieri facias unto the ſheriff, to levy the debt upon the lands and chattels of the debtor; or that the ſheriff ſhall deliver to him all the chattels of the debtor, (ſaving his oxen and beaſts of his plough) and the one half of his land, until the debt be levied upon a reaſonable extent: and if he be put out of the land, he ſhall recover it again by writ of nouvel diſſeiſin, and after that by writ of rediſſeiſin if need be."’ [53] The writ authorized by this ſtatute, which, from the election given to the creditor, got the name of Elegit, is the only writ in the law of England, that in any degree cor⯑reſponds to our appriſing or adjudication. The operations however of theſe two writs are far from being the ſame. The property of the land appriſed or adjudged, is trans⯑ferred to the creditor in ſatisfaction of his claim, if the debtor forbear to make pay⯑ment for ten years: but an elegit hath no other effect, but to put the creditor in poſ⯑ſeſſion till the debt be paid, by levying the rents and profits. This is an inconvenient method of drawing payment^*: but at the time of the ſtatute, it was probably thought [54] a ſtretch, to ſubject land at any rate to a creditor for his payment. And the Eng⯑liſh, tenacious of their cuſtoms, never think of making improvements, or even of ſup⯑plying legal defects; of which this ſtatute affords another inſtance, ſtill greater than that now mentioned. In England, at pre⯑ſent, land, generally ſpeaking, is abſolute⯑ly under the power of the proprietor; and yet the ancient practice ſtill ſubſiſts, confin⯑ing execution to the half, preciſely as in early times, when the debtor could diſpoſe of no more but the half. Means however are contrived, indirect indeed, to ſupply this palpable defect. Any other creditor is au⯑thorized to ſeize the half of the land left out of the firſt execution, and ſo on with⯑out end. Thus, by ſtrictly adhering to form without regarding ſubſtance, law, in⯑ſtead of a rational ſcience, becomes a heap of ſubterfuges and incongruities, which tend inſenſibly to corrupt the morals of thoſe who make law their profeſſion.

[55] AND here, to prevent miſtakes, it muſt be obſerved, that the clauſe in the ſtatute, bearing, ‘"That the ſheriff by a fieri fa⯑cias may levy the debt upon the land and chattels of the debtor,"’ authoriſes not the ſheriff to deliver the land to the creditor, but only to ſell what is found up⯑on the land, ſuch as corn or cattle, and to levy the rents which at the time of the execution are due by the tenants.

LETTERS of poinding in Scotland, cor⯑reſpond to the writ of Fieri Facias in Eng⯑land: but the defect above mentioned in the fieri facias, is ſupplied in our execution againſt moveables according to its ancient form, which is copied from the Roman law. The execution was in the following manner: ‘"The goods upon the debtor's land, whe⯑ther belonging to the maſter or tenant, are carried to the market croſs of the head burgh of the ſheriffdom, and there ſold for payment of the debt. But if a purchaſer be not found, goods are ap⯑prized [56] to the value of the debt, and de⯑livered to the creditor for his payment^*."’ And here it muſt be remarked, that bating the rigour of ſelling the tenant's goods for the landlord's debt, this method is greatly preferable to that preſently in uſe, which enjoins not a ſale of the goods, but only that they be delivered to the creditor at apprized values. This is unjuſt; becauſe in place of money, which the creditor is entitled to claim, goods are impoſed on him, to which he has no claim. But this act of injuſtice to the creditor, is a triffle compared with the wrong done to the debtor by another branch of the execution that has crept into practice. In letters of poinding, a blank being left for the name of the meſſenger, the creditor is impowered to chuſe what meſſenger he pleaſes, and of conſequence to chuſe alſo the appre⯑tiators; by which means he is in effect both judge and party. In a practice ſo irre⯑gular, what can be expected but an unfair [57] appretiation, always below the value of the goods poinded? And for graſping at this undue advantage, the creditor's pretext is but too plauſible, viz. that, contrary to the nature of his claim, he is forced, as I have ſaid, to accept goods in lieu of money. Thus our execution againſt moveables in its preſent form, is irregular and unjuſt in all views. Wonderful, that contrary to the tendency of all publick regulations towards perfection, this ſhould have gradually de⯑clined from good to bad, and from bad to worſe! And we ſhall have additional cauſe to wonder, when, in the courſe of this en⯑quiry, it appears, that the indulging to the creditor the choice of the meſſenger and appretiators, has, with reſpect to execution againſt land, produced effects ſtill more per⯑nicious than that under conſideration^*.

OUR Kings, it is probable, borrowed from England the privilege of entering upon [58] the debtor's land, for payment of debt. That they had this privilege appears from 2d ſtatutes Robert I. cap. 9. which is co⯑pied almoſt word for word from the 8th chapter of the Magna Charta. Cautioners had the ſame privilege^*, which was extend⯑ed, as in England, to merchants^†. This execution did not entitle the creditor to have the land ſold for payment of the debt, but only to take poſſeſſion of the land, and to maintain his poſſeſſion till the debt was paid; preciſely as in England. But as it has been the genius of our law, in all ages, to favour creditors, a form of execution againſt land for payment of debt, more ef⯑fectual than that now mentioned, or to this day is known in England, was early intro⯑duced into this part of the iſland, which is to ſell land for payment of the debt, in the ſame manner that moveables were ſold. The brieve of diſtreſs, failing moveables, is extended to the debtor's land, which is ap⯑pointed to be ſold by the ſheriff for payment [59] of the debt^*. Nor was this execution re⯑ſtricted to the half as in England; for our forefathers were more regardful of the cre⯑ditor than of the ſuperior. And though this originally might be a ſtretch, it hap⯑pens luckily to be perfectly well accommo⯑dated to the preſent condition of land-pro⯑perty, which, for the moſt part, is not more limited than the property of moveables.

BUT here a defect will be obſerved in Alexander's ſtatute, that no proviſion is made in caſe a purchaſer be not found; the leſs excuſable that the legiſlature had before their eyes a perfect model, in the form pre⯑ſcribed for the attachment of moveables.

THERE are words in this ſtatute to occa⯑ſion a doubt, whether attachment of land for payment of debt, was not an earlier practice in our law. The words are: ‘"The debtor not ſelling his lands within fifteen days, the ſheriff and the King's ſervants [60] ſhall ſell the lands and poſſeſſions pertain⯑ing to the debtor, conform to the conſuetude of the realm, until the creditor be ſatisfied of the principal ſum, with damage, ex⯑pence, and intereſt."’ But theſe words, Conform to the conſuetude of the realm, ſeem to refer to the form of ſelling move⯑ables. For I ſee not what other regulation was introduced by the ſtatute, if it was not ſelling of land for payment of debt. And conſidering the circumſtances of theſe times, when the feudal law was ſtill in vigour, and the commerce of land but in its infancy, we cannot rationally aſſign an earlier date to this practice.

IN England, the ſtatute of merchants was neceſſary to creditors, who at that period had not acceſs to the land of their debtors. But as in Scotland every creditor had ac⯑ceſs to the land of his debtor, it will be expected that ſome account ſhould be given, why the ſtatute of merchants was intro⯑duced here. What occurs is, that the chief [61] view of the Scotch ſtatute, was to give acceſs to the debtor's perſon, which formerly could not be attached for payment of debt. And when ſuch a novelty was introduced, as that of giving execution againſt the perſon of the debtor, againſt his moveables, and againſt his land, all at the ſame time, it was pro⯑bably thought ſufficient, to give ſecurity up⯑on the land for payment of the debt, with⯑out proceeding to a ſale.

IT appears from our records, that ſome⯑times land was ſold for payment of debt upon the above mentioned ſtatute of Alex⯑ander II. and ſometimes that ſecurity only was granted upon the land by authority of the ſtatute of merchants. Of the latter, one inſtance occurs upon record, in a ſeiſin dated 29th January 1450; and many ſuch inſtances are upon record down to the time that general appriſings crept into practice.

IT is ſaid above, that the ſtatute of Alexander II. is defective, in not providing [62] a remedy where a purchaſer is not found. But this defect was ſupplied by our judges; and land, failing a purchaſer, was adjudged to the creditor by a reaſonable extent; which, without a ſtatute, was done by ana⯑logy of the execution againſt moveables. Of this there is one preciſe inſtance in a charter, dated 22d July 1450, a copy of which is annexed^*. And thus we find, that what is properly called a decreet of ap⯑priſing, was introduced into practice before the ſtatute 1469, though that ſtatute is by all our authors aſſigned as the origin of ap⯑priſings. But it appears from the ſtatute itſelf, compared with former practice, that nothing elſe was in view, but to limit the effect of the brieve of diſtreſs with reſpect to tenants, that there ſhould not be execu⯑tion againſt their goods for the landlord's debt, farther than to the extent of a term's rent. And becauſe it was reckoned a hard⯑ſhip on a debtor conſidered as landlord, to have his land taken from him, neglecting [63] the moveable goods upon the land; there⯑fore a ſweetning privilege is beſtowed on him, of redeeming the land within ſeven years. But this regulation was attended with an unhappy conſequence, probably not foreſeen. It rendered ineffectual the moſt uſeful branch of the execution, viz. the ſelling land for payment of the debt. For no perſon will chuſe to purchaſe land un⯑der reverſion, while there is any proſpect of coming at land without an embargo. This ſtatute therefore, inſtead of giving a beginning to appriſings of land, did in reality reduce them to a form leſs perfect than they had originally.

ONE ſalutary regulation was introduced by this ſtatute. By the former practice, no bounds being ſet to the time of compleating the execution, it was left to the diſcretion of the ſheriff, to delay as long as he pleaſed for a purchaſer. To ſupply this defect, it was enacted, ‘"That if a purchaſer be not found in ſix months, the ſheriff muſt pro⯑ceed [64] to appriſe land, and to adjudge it to the creditor."’

IN no particular are the different man⯑ners of the two nations more conſpicuous, than in their laws. The Engliſh, tenacious of their cuſtoms, have, from the beginning, preſerved their forms entire with little or no variation. The Scotch, delighting in change, have been always attempting or indulging innovations. By this propenſity, many articles of our law are brought to a reaſonable degree of perfection. But by the ſame propenſity, we are too apt to in⯑dulge relaxation of diſcipline, which has bred a profuſion of ſlovenly practice in law⯑matters. The following hiſtory will juſtify the latter part of this reflection.

DURING a vacancy in the office of ſhe⯑riff, or even when the ſheriff was otherwiſe employed, it appears to have been early the practice of the King's courts, to name a ſubſtitute for executing any particular [65] affair; and this ſubſtitute was called The ſheriff in that part. Within thirty years of the ſtatute 1469, there are examples of let⯑ters of appriſing, directed to meſſengers at arms, as ſheriffs in that part. Theſe letters, we may believe, were at firſt not permitted without a ſufficient cauſe: but ſlighter and ſlighter cauſes being ſuſtained, heretable ſheriffs took the alarm, and obtained an act of parliament^*, ‘"diſcharging commiſ⯑ſions to be given in time coming for ſerv⯑ing of brieves, or appriſing of lands, but to the judge ordinary, unleſs cauſa cognita upon calling the judge ordinary to object againſt the cauſe of granting."’ But this ſtatute did not put an end to the abuſe. The practice was revived of naming meſ⯑ſengers at arms as ſheriffs in that part, for executing letters of appriſing, till at the long run it became an eſtabliſhed cuſtom, to direct all letters of appriſing to theſe officers.

[66] APPRISING of land, being an execution by the ſheriff, behoved of conſequence to be within the county. But the ſubſtitution, as aforeſaid, of meſſengers, who are not connected with any particular county, paved the way to the infringement of a regulation neceſſarily derived from the very nature of the execution. The firſt inſtance on re⯑cord, of permitting the court of appriſing to be held at Edinburgh, is in the year 1582. The reaſon given for a ſtep ſo irre⯑gular was, that the debtor's lands lay in two ſhires. And as Edinburgh by this time was become the capital of the kingdom, where the King's courts moſt commonly were held, and where every landed gentle⯑man was ſuppoſed to have a procurator to anſwer for him, it was reckoned no wide ſtretch, to hold courts of appriſing at Edin⯑burgh for the whole kingdom. From this period downward, inſtances of holding courts of appriſing at Edinburgh, multiply upon us; and this came to be conſidered as a matter of right, without neceſſity of [67] aſſigning any cauſe for demanding a diſpen⯑ſation, or at leaſt without neceſſity of ve⯑rifying the cauſe aſſigned.

THIS ſubſtitution of a meſſenger in place of the ſheriff, produced another effect, not leſs irregular than that now mentioned, and much more pernicious to debtors. In let⯑ters of poinding, as obſerved above, a blank is left for the name of the meſſenger: the ſame is the form of letters of appriſing; and by this means, in both executions equal⯑ly, the creditor has the choice of the meſ⯑ſenger, and conſequently of the appretiators. Thus, by obtaining the court of appriſing to be held at Edinburgh by a judge choſen at will, the creditor acquired the abſolute direction of the execution againſt land, and, preciſely as in the execution againſt move⯑ables, became in effect both judge and party. It will not be ſurpriſing, that the groſſeſt legal iniquity was the reſult of ſuch ſlovenly practice. Creditors taking the advantage of the indulgence given them, exerted their [68] power with ſo little reſerve, as to graſp at the debtor's whole land-eſtate, without the leaſt regard to the extent of the debt. In ſhort, without uſing ſo much as the forma⯑lity of an appretiation, it became cuſtomary, to adjudge to the creditor every ſubject be⯑longing to the debtor that could be carried by this execution; for which the expence of bringing witneſſes to Edinburgh from diſtant ſhires to value land, and the diffi⯑culty of determining the value of real bur⯑dens affecting land, were at firſt the pretext.

As there is no record of appriſings before the year 1636, we are not certain of the preciſe periods of theſe ſeveral innovations. The only knowledge we have of appriſings before that time, is from the King's char⯑ters paſſing upon appriſings; which is a very lame record, conſidering how many ap⯑priſings muſt have been led, that were not compleated by charter and ſeiſin. But im⯑perfect as this record may be, we find ſe⯑veral charters in the 1607, 1608, 1613, [69] 1614, &c. paſſing upon theſe general ap⯑priſings.

IT cannot but appear ſtrange, that ſuch groſs relaxation of eſſential forms, and ſuch robbery under colour of law, were not checked in the bud by the ſovereign court. Yet we find nothing of this kind attempted, though the remedy was at hand. There was no occaſion for any new regulation. It would have been ſufficient to reſtore the brieve of diſtreſs to its original principles. All exceſſes however promote naturally their own cure; which is the moſt remarkable in avarice when exorbitant. Theſe general appriſings, by their frequency, became a pub⯑lick nuſance paſt all enduring. The mat⯑ter was brought under conſideration of par⯑liament, and a ſtatute was made, by far too mild. For inſtead of cutting down general appriſings root and branch, as illegal and oppreſſive, the exorbitant profits were only pruned off; and it was enacted^*, ‘"That [70] the rents intromitted with by the credi⯑tor, if more than ſufficient to pay his an⯑nualrent, ſhall be applied towards extinc⯑tion of the principal ſum."’

IT muſt not eſcape obſervation, that by this new regulation, an appriſing is in effect moulded into quite a new form, much leſs perfect than it was originally; for from be⯑ing a judicial ſale, it is reduced to the na⯑ture of a judicial ſecurity, or a pignus praeto⯑rium, approaching much nearer than for⯑merly to the Engliſh elegit.

AN attempt was made by act 19. p. 1672. to reſtore ſpecial adjudications, but unſuc⯑ceſsfully. It might have been forſeen, with⯑out much penetration, that no debtor will voluntarily give off land ſufficient to pay the debt claimed, and a fifth part more, reſerving a power of redemption for five years only, when his refuſal ſubjects him to no harder alternative, than to have his whole lands impledged for ſecurity of the neat ſum [71] due, with a power of redemption for ten years. It had been an attempt more worthy of the legiſlature, to reſtore the brieve of diſtreſs, by appointing land to be ſold, up⯑on application of any ſingle creditor, for payment of his debt. But nothing of this kind was thought of, till the year 1681, when a ſtatute was made, authoriſing a ſale of the debtor's whole eſtate, in caſe of inſolvency. This regulation, which was brought to greater perfection by later ſta⯑tutes, is, after all, an imperfect remedy; be⯑cauſe it only takes place where the debtor is bankrupt. And hence it is, that by the preſent law of Scotland, there is no effectual means for obtaining payment out of the debtor's land-eſtate, unleſs he be inſolvent. Being familiarized with this regulation, it doth not diſguſt us; but it probably will ſurpriſe a ſtranger, to find a country, where the debtor's inſolvency affords the only ef⯑fectual means his creditors have to obtain payment by force of law.

[72] UPON the whole, it is a curious morſel of hiſtory that lies before us. In the firſt ſtages of our law, we had a form of execution for drawing payment of debt, perfect in its kind, or ſo nigh perfection, as ſcarce to be ſuſcep⯑tible of any improvement. It has been the operation of ages, to alter, change, innovate, and relax from this form, till it became grievous and intollerable. New moulded by various regulations, it makes at preſent a better figure. But with all the improve⯑ments of later times, the beſt that can be ſaid of it is, that, though far diſtant, it approacheth nearer to its original perfection, than at any time for a century or two paſt. And for the publick good, nothing remains for the legiſlature, but to review the brieve of diſtreſs in its original ſtate, with reſpect to moveables as well as land; admitting only ſome alterations that are made neceſ⯑ſary by change of circumſtances, ſuch as the preſent independency of tenants, and their privilege to hold property diſtinct from their landlords.

TRACT XI.
HISTORY OF PERSONAL EXECUTION for payment of debt.

THE ſubjects that ly open to execution for payment of debt, are, 1ſt, The debtor's moveables. 2dly, His land. And, 3dly, His perſon. The two former being diſcuſſed in the tract immediately foregoing, we proceed to the hiſtory of the latter. Perſonal execution for payment of debt, was introduced after execution againſt land, and long after execution againſt move⯑ables. Nor will this appear ſingular, when [74] we conſider, that the debtor's perſon, can⯑not, like his land or moveables, be convert⯑ed into money for payment of debt. And with regard to a vaſſal in particular, his perſon cannot regularly be withdrawn from the ſervice he owes his ſuperior. This would not have been tolerated while the feudal law was in vigour, and came to be indulged in the decline of that law, when land was improved, and perſonal ſervices were leſs valued than pecuniary caſualties^*. The firſt ſtatute in this iſland introducing perſonal execution is, IIth Edward I. which, as appears from the preamble, was to ſecure merchants and encourage trade. It is di⯑rected againſt the inhabitants of royal bur⯑rows, [75] and ‘"ſubjects, in the firſt place, their moveables and burgage lands to be ſold for payment of the debt due to the mer⯑chant. And failing goods, the body of the debtor is to be taken and kept in priſon till he agree with his creditor. And if he have not wherewith to ſu⯑ſtain himſelf in priſon, the creditor ſhall find him in bread and water."’ An ad⯑ditional ſecurity is introduced by 13th Ed⯑ward I. ‘"If the debtor do not pay the debt at the day, the magiſtrates, upon application of the creditors, are obliged to commit him to the town-priſon, there to remain upon his own expence until payment. If the debtor be not found within the town, a writ is directed to the ſheriff of the ſhire where he is, to impriſon him. After a quarter of a year from the time of his impriſonment, his goods and lands ſhall be delivered to the merchant by a reaſonable extent, to hold them till the debt is levied, and his body ſhall remain in priſon, and the merchant [76] ſhall find him bread and water."’ This latter ſtatute was adopted by us^*; and our ſtatute, I preſume, is the foundation of the act of warding peculiar to royal burrows: for this execution is preciſely in terms of the ſtatute.

As this was found a ſucceſsful expedient for obtaining payment of debt, it was there⯑after extended to all creditors^†. And thus in England, the creditor may, if he pleaſes, begin with attaching the perſon of his debtor, by a writ named Capias ad ſatis⯑faciendum, the ſame with an act of warding in Scotland againſt inhabitants of royal burrows. But as this act of Edward III. was not adopted by our legiſlature, there is to this day with us no authority for a capias ad ſatisfaciendum, except in the ſingle caſe above mentioned of an act of warding.

IT is a celebrated queſtion in the Roman law, touching obligations ad facta praeſtanda, [77] whether the debtor be bound ſpecifically to perform, or whether he be liable pro inter⯑eſſe only. It is at leaſt the more plauſible opinion, that a man is bound according to his engagement; and after all, why indulge to the debtor an option to pay a ſum, in place of performing that work to which he bound himſelf without an option? The perſon accordingly who becomes bound ad factum praeſtandum, is not with us in⯑dulged in an alternative. If he refuſe when he is able to perform, it is underſtood an act of contumacy and diſobedience to the law. This is a ſolid foundation for the letters of four forms, which formerly were iſſued upon obligations ad facta praeſtanda. And this execution was at the ſame time abundantly moderate: for it is worthy to be remarked, that there is not in theſe let⯑ters a ſingle injunction but what is in the obligor's power to perform. The ulti⯑mate injunction is, ‘"To perform his obli⯑gation, or to ſurrender his perſon to ward, under the penalty, that otherwiſe [76] [...] [77] [...] [78] he ſhall be denounced rebel."’ If the obligor ſurrendered his perſon to priſon, the will of the letters was fulfilled, and no fur⯑ther execution did proceed. If he was con⯑tumacious, by refuſing both alternatives, his diſobedience to the law was juſtly held an act of rebellion, to ſubject him to be denounced or declared rebel^*. And per⯑haps this execution was rather too mild; for the man who refuſeth to perform his engagement, when it is in his power, may in great juſtice be declared a rebel, without admitting any alternative, ſuch as delivering his perſon to ward.

OBLIGATIONS for payment of money, were viewed in a different light. If a man failed to pay his debt, the failure was pre⯑ſumed to proceed from inability, not ob⯑ſtinacy. Therefore, unleſs ſome criminal circumſtance was qualified, the debtor was not ſubjected to any ſort of puniſhment. [79] His land and moveables lay open to be at⯑tached by poinding, appriſing, and arreſt⯑ment, and theſe were in this caſe the only remedies provided to the creditor. The Engliſh have adopted very different max⯑ims. Impriſonment upon failure of pay⯑ment, whether conſidered as a puniſhment or a compulſion, muſt proceed upon the ſuppoſition of contumacy and unwilling⯑neſs to pay. For upon the ſuppoſition of inability, without any fault on the debtor's part, it is not only repugnant to the plaineſt principles of law, to puniſh him with loſs of liberty, but an abſurd regulation, tend⯑ing to no good end. Therefore the capias ad ſatisfaciendum in England, muſt be found⯑ed upon the preſumption of unwillingneſs to pay. This appeared to us a harſh preſump⯑tion, as it is frequently wide of the real fact; and therefore we forbore to adopt the Engliſh ſtatute. But experience taught our legiſlature, that failure in making pay⯑ment proceeds from obſtinacy or idleneſs, as often as from inability: nay, in many [80] inſtances, debtors were found ſecreting their effects, in order to diſappoint their credi⯑tors; and there was encouragement to deal in ſuch fraudulent practices, when debtors were in all events ſecure againſt perſonal execution. Theſe conſiderations produced the act of ſederunt 1582. It is ſet forth in the preamble, ‘"That the defect of per⯑ſonal execution upon liquid grounds of debt was heavily complained of; becauſe, after great charge and tedious delay in obtaining decreet, the creditors were often diſappointed of their payment, by ſimulate and fraudulent alienations made by the debtors, of their lands and goods, whereby execution upon ſuch decreets was altogether fruſtrated:"’ therefore ap⯑pointed, ‘"That letters of horning, as well as of poinding, ſhall be directed upon decreets for liquid ſums, in the ſame man⯑ner as formerly given upon decreets ad facta praeſtanda."’ And this act of ſe⯑derunt is ratified by the act 139. p. 1584.

[81] THERE is not in the law of any coun⯑try a ſtronger inſtance of harſhneſs, I may ſay of brutality, than occurs in our pre⯑ſent form of perſonal execution for pay⯑ment of debt; where the debtor, without ceremony, is declared a rebel, merely upon failure of payment. To puniſh a man as a rebel, who, by misfortunes, or be it bad oeconomy, is rendered inſolvent, beto⯑kens the moſt ſavage and barbarous man⯑ners. One would imagine love of riches to be the ruling paſſion, in a country where poverty is the object of ſo great puniſhment. It is true, the cruelty of this execution is ſoftened by practice, as it could not poſſibly ſtand its ground againſt every principle of humanity. It is a ſubject however of cu⯑rioſity, to enquire how this rigorous exe⯑cution crept in. The act 1584, juſt now mentioned, gives no countenance to it: for the letters of four forms to be iſſued by that ſtatute upon decrees for payment of debt, are by no means ſo rigorous as our hornings are at preſent. Theſe letters, as [82] above explained, impoſe no other hardſhip upon the debtor, than to oblige him to ſur⯑render his perſon in ward if he doth not pay. This indeed is a ſtretch, but a mode⯑rate one, which the uncertainty whether failure of payment proceeds from unwilling⯑neſs or inability, may juſtify. But upon ſuch an uncertainty, to declare a debtor rebel, unleſs he pays, is a brutal practice, which can admit of no excuſe. If indeed the debtor who does not pay, refuſe to put himſelf in priſon, this is a contempt of authority, for which he may be juſtly de⯑clared rebel. The queſtion then is, what it was that produced an alteration ſo rigo⯑rous in the form of this execution, that a debtor, in place of being denounced rebel upon failing to go to priſon, is denounced rebel upon failing to make payment, when it is often not in his power to make payment?

IN handling this curious ſubject, we muſt be ſatisfied to grope our way in the dark paths of antiquity, almoſt without a guide. [83] And when we travel this road, the firſt thing we diſcover is, that letters of four forms were not the only warrant for per⯑ſonal execution upon facta praeſtanda. By the act 84. p. 1572, touching the deſigna⯑tion of a manſe and glebe to the miniſter, letters of horning are ordered to be directed by the privy council, to charge the poſ⯑ſeſſor to remove within ten days, under the pain of rebellion, without any alternative, ſuch as that of ſurrendering his perſon in ward. And indeed this alternative would be abſurd, where a fact is commanded to be done that cannot conveniently admit of delay. Obligations ad facta praeſtanda ariſing ex delicto, were, I preſume, attended with the like ſummary execution. And I have ſeen one inſtance of this, viz. letters of horning, anno 1573, againſt a perſon who had been guilty of a ſpuilȝie, com⯑manding, that he ſhould be charged to re⯑deliver the ſpuilȝied goods within eight days, under the penalty or certification of being denounced rebel. Thus, though no [84] execution was awarded upon civil contracts ad facta praeſtanda other than letters of four forms, yet, I preſume, that upon ſuch obli⯑gations ariſing ex delicto, horning, properly ſo called, upon one charge^*, was common⯑ly the execution. And as to obligations introduced by ſtatute, the manner of exe⯑cution is generally directed in the ſtatute itſelf.

I have made another diſcovery, that the alternative of ſurrendering the perſon in ward, was not always the ſtile of letters of four forms. On the contrary, when letters of four forms proceeded upon a delict, as they ſometimes did, I conjecture, that the foregoing alternative was left out. My [85] authority is, the act 53. p. 1572, ‘"order⯑ing letters to be direct by the Lords of council in all the four forms, charging excommunicated perſons to ſatisfy the kirk, under the pain of rebellion,"’ with out any ſuch alternative as ſurrendering the perſon in ward.

THOUGH horning be a generic term, comprehending letters of four forms, as well as horning properly ſo called, as is clear from the above mentioned ſtatute 1584, appoint⯑ing a decree for a liquid ſum to be made effec⯑tual by letters of four forms which there paſs under the general name of horning, yet, ge⯑nerally ſpeaking, when horning is mention⯑ed in our old ſtatutes, it is underſtood to be horning upon one charge, in oppoſition to letters of four forms. And it is a rule without exception, that wherever horning is ordained to proceed upon a ſingle charge, the alternative of ſurrendering the perſon in ward, is underſtood to be excluded. For where the common number of charges is [86] remitted in order to force a ſpeedy perfor⯑mance, it would be abſurd to put it in the power of the perſon charged, to evade per⯑formance by going to priſon.

THE operations of our law were origi⯑nally ſlow and tedious. There behoved to be four citations before a man could be effectually brought into court, and there behoved to be four charges before a man could be effectually brought to give obedi⯑ence to a decree pronounced againſt him. The inconveniency was not much felt in the days of idleneſs; but when induſtry prevailed, and the value of labour was un⯑derſtood, the multiplicity of theſe legal ſteps became intolerable. The number of citations were reduced to two, authorized by the ſame warrant, and at laſt a ſingle citation was made ſufficient. It is probable, that the charges neceſſary to be given upon decrees, did originally proceed upon four diſtinct letters or warrants, which being found unneceſſary, and that one letter or [87] warrant might be a ſufficient authority for the four charges, the form was changed according to the model of the letters of four forms lateſt in uſe. At the ſame time, where diſpatch was required, as upon obli⯑gations ad facta praeſtanda ariſing ex delicto, and upon ſtatutory obligations, one charge inſtead of four was made ſufficient. But theſe different forms of execution were con⯑fined to obligations ad facta praeſtanda. And with relation to all of them, not excepting the moſt rigorous, it muſt be remarked, that they did not exceed rational bounds. The obligor was in no caſe declared a re⯑bel, unleſs where he was guilty of a real contempt of legal authority, by refuſing to do ſome act which he had power to per⯑form.

WE next proceed to unfold the origin of perſonal execution upon bonded debts, which probably will give light to the pre⯑ſent enquiry. There is no ground to ſup⯑poſe, that perſonal execution was known in [88] this iſland before the reign of Edward I. In England it was introduced by two ſta⯑tutes, which were adopted by us. This has already been mentioned; as alſo that in England, by a ſtatute of Edward III. every perſon who is debtor in a ſum of money is ſubjected to perſonal execution; which was not adopted by us. Now, though our law gave no authority for per⯑ſonal execution, except againſt inhabitants of royal burrows, yet a hint was taken to make this execution more general by con⯑ſent. While money was a ſcarce commo⯑dity, and while the demand for it was greater than could be readily ſupplied, monied men, taking advantage of that cir⯑cumſtance, introduced a practice of impoſ⯑ing upon borrowers hard conditions, which were ingroſſed in the inſtrument of debt. One of theſe was, that in caſe of failing to make payment, perſonal as well as real exe⯑cution ſhould iſſue, And letters of four forms were accordingly iſſued: though it may be a doubt, whether, in ſtrict law, a [89] private paction be a ſufficient foundation for ſuch execution, which being of the na⯑ture of a puniſhment, cannot juſtly be in⯑flicted where there is no crime. But by this time we had begun to reliſh the Eng⯑liſh notion, that the failing to make pay⯑ment proceeds generally from unwilling⯑neſs, and not from inability: and upon that ſuppoſition the execution was materially juſt, though ſcarce well founded on law. This practice however gained ground, with⯑out attention to ſtrict principles; and it came to be eſtabliſhed, that conſent is a ſufficient foundation for perſonal execution.

BUT the rigour of money-lenders did not ſtop here. They were not ſatisfied with letters of four forms, becauſe the dreadful commination of being declared rebel, might in all events be evaded by the debtor's ſur⯑rendering his perſon in ward. Nothing leſs would ſuffice, than to have the moſt rigorous execution at command, ſuch as was in practice upon an obligation ad factum [90] praeſtandum, ariſing ex delicto. And thus in bonds for borrowed money, it became cuſto⯑mary to provide, that, inſtead of letters of four forms, letters of horning ſhould proceed upon a ſingle charge, commanding the debtor to make payment, under the penalty of being declared a rebel, without admitting the al⯑ternative of going to priſon. At the ſame time, the debtor commonly was charged to make payment within ſo few days, as not even to have ſufficient time for the per⯑formance, however willing or ready he might be. The rigour of theſe pactions was in part repreſſed by the act 140. p. 1592; particularly with reſpect to the time of performance: but perſonal execu⯑tion upon obligations for debt was left un⯑touched, as was alſo the form of this exe⯑cution upon a ſingle charge, attended with the penalty of rebellion upon failing to make payment.

IN this manner crept in perſonal execu⯑tion upon bonded debts, which in practice [91] was ſo thoroughly eſtabliſhed, as to be iſſued without ceremony upon conſenting in general, ‘"that executorials might pro⯑ceed in form as effeirs."’ One inſtance of this appears in the record, viz. letters of four forms, John Lawſon contra Sir John Stewart and his ſon, dated the 7th May 1582, and recorded 16th Auguſt thereafter. But probably letters of horning, properly ſo called, upon a ſingle charge, were never iſſued unleſs in purſuance of an explicite conſent.

IT may juſtly be preſumed, that the practice of perſonal execution upon bonded debts paved the way to the above mention⯑ed act of ſederunt 1582. For after per⯑ſonal execution upon decrees of conſent for payment of money was once eſtabliſhed, it was a natural extenſion to give the ſame execution upon decrees for payment of money obtained in foro contentioſo.

IT only remains to be obſerved, with re⯑ſpect to perſonal execution upon decrees in [92] foro contentioſo, that it has always been under⯑ſtood an extraordinary remedy; and there⯑fore that it requires the ſpecial interpoſition of the ſovereign authority. This authority is obtained by an order directed to the keeper of the King's ſignet, iſſuing from any of his proper courts, ſuch as the ſeſſion, juſticiary, or privy council, when it was in being; for the King interpoſes his authority of courſe, for executing the ordinances of his own courts. But as he condeſcends not to exe⯑cute the ordinances of any other court, therefore no inferior judge or magiſtrate can give warrant for letters of horning, not even the judge of the court of admiralty, nor the commiſſaries of Edinburgh, neither of which properly are the King's courts. The method formerly in uſe for procuring perſonal execution upon the decrees of ſuch courts, was to obtain from the court of ſeſſion a decree of interpoſition, common⯑ly called a Decreet conform, which being a decree of a ſovereign court, was a proper foundation for letters of horning. But this [93] method gave place to one more expeditious, as we ſhall ſee anon.

IF this ſketch of the origin of perſo⯑nal execution with reſpect to debt, be but roughly drawn, let the deficiency of mate⯑rials plead my excuſe. Luckily there is not the ſame ground of complaint in the fol⯑lowing part of the hiſtory, every article of which is clearly vouched. The firſt ſtatute abridging letters of four forms upon decrees in foro contentioſo, is the act 181. p. 1593, ‘"authoriſing letters of horning containing a ſingle charge of ten days, to proceed upon decreets of magiſtrates withinburgh, without the neceſſity of letters conform."’ Letters of horning, properly ſo called, upon a ſingle charge being here introduced in place of letters of four forms, the known tenor of ſuch letters removed all ambiguity, and made it evident, that the legiſlature intended, the debtor ſhould be denoun⯑ced rebel upon failing to make payment, without admitting the alternative of ſur⯑rendering [94] his perſon in ward. Here is a monſter of a ſtatute, repugnant to huma⯑nity and common juſtice. But by this time, the alternative of being denounced rebel upon failing to make payment, found⯑ed on conſent, was familiar; and if ſuch execution could be founded on conſent, it was reckoned, as would appear, no wide ſtretch to give the ſame execution upon a decree in foro contentioſo. This however is no ſufficient apology for extending a harſh practice, which ought rather to have been totally aboliſhed. But the influence of cuſtom is great; and our legiſlature ſub⯑mitted to its authority without due delibe⯑ration; not only in this ſtatute, but in o⯑thers, which paſt afterwards of courſe, ex⯑tending this regulation to the decrees of other inferior courts^*. It may juſtly be a matter of ſurpriſe, how it is poſſible, that ſtatutes ſo contradictory to every principle of equity and humanity, could make their [95] way and be tamely ſubmitted to. To ac⯑count for this, I muſt obſerve, that the ſame thing happened here that conſtantly happens with relation to harſh and rigorous laws. Such laws have a natural tendency to diſſo⯑lution; and even where they are ſupported by the authority of a ſettled government, means are never wanting in practice to blunt their edge. Thus, though the law was ſubmitted to, which annexed the pe⯑nalties of rebellion to the guilt of preſum⯑ed diſobedience, when poſſibly at bottom there was no fault, yet no judge could be ſo devoid of common humanity, as willingly to give ſcope to ſuch penalties. A diſtinction was ſoon recognized betwixt treaſon or rebellion, in the proper ſenſe of the word, and the conſtructive rebellion under conſideration, termed civil rebellion; and it came to be reckoned oppreſſive and diſgraceful, to lay hold of any of the penal⯑ties attending the latter. In this manner civil rebellion loſt its ſting, firſt in prac⯑tice, and now with regard to ſingle and [96] liferent eſcheat, by a Britiſh ſtatute^*. For though the law was ſcarce ever put in exe⯑cution to make theſe penalties effectual, yet as upon ſome occaſions they were uſed as a handle for oppreſſion, it was thought proper to aboliſh them altogether.

IN the mean time, letters of four forms continued to be the only warrant for per⯑ſonal execution, upon decrees of the court of ſeſſion. But this court, eſteeming it a ſort of impeachment upon their dignity, to be worſe appointed than inferior courts are with reſpect to perſonal execution, took upon them^† to aboliſh letters of four forms, and to appoint the ſame letters of horning to paſs upon their own decrees, that by ſtatute were authorized to paſs upon de⯑crees of inferior courts. That decrees of the ſupreme court ſhould at leaſt be equally privileged with thoſe of inferior courts, is a propoſition that admits not a diſpute. I cannot however, without indignation, [97] reflect upon the preamble of the act of ſede⯑runt, aſſerting, that letters of horning, pro⯑perly ſo called, are a form of execution leſs burdenſome upon debtors than letters of four forms; which is a bold attempt to impoſe upon the common ſenſe of mankind.

To compleat this ſhort hiſtory, there only remains to be added in point of fact, that to obtain a warrant for perſonal exe⯑cution, it is ſcarce ever neceſſary, as our law now ſtands, to apply to the court of ſeſſion for a decree of interpoſition. By the regulations 1563, concerning the com⯑miſſary court, a more curt method was in⯑troduced, for obtaining letters of horning upon the precepts of the commiſſaries of Edinburgh; which is, that the court of ſeſ⯑ſion, upon an application to them by peti⯑tion, ſhould inſtantly iſſue a warrant for letters of horning. And the ſame method was preſcribed in all the ſtatutes above men⯑tioned, that authorized letters of horning upon decrees of inferior courts.

[98] WHEN we compare our form of perſonal execution with that of England, we per⯑ceive a wide difference. In England, the capias ad ſatisfaciendum is a writ directed to the ſheriff, to impriſon the perſon of the debtor, until he give ſatisfaction to his cre⯑ditor; of which the conſequence is, that payment made by the debtor intitles him of courſe to his liberty. But in Scotland, an act of warding excepted, a debtor is not committed to priſon upon account merely of his failing to make payment. He muſt be denounced rebel before a capias or cap⯑tion can be iſſued. At the ſame time, this capias is not ad ſatisfaciendum: it is built upon a different foundation. Impri⯑ſonment is one of the penalties of rebel⯑lion, and our capias is iſſued againſt the perſon, not as debtor but as rebel. The debtor accordingly, by the words of our caption, muſt remain in priſon, ‘"till he be relaxed from the proceſs of horning;"’ that is, obtain the King's pardon for his rebellion. For this reaſon it is, that ten⯑dering [99] the ſum due, is not, in ſtrict law, ſuf⯑ficient to ſave the debtor from priſon. Nor after impriſonment will he be entitled to his freedom upon tendering the ſum, till he alſo obtain letters of relaxation. The court of ſeſſion indeed diſpenſed with this formality in ſmall debts, ‘"declaring the creditor's conſent ſufficient for the debtor's liberation, when the ſum ex⯑ceeds not 200 merks^*."’

TRACT XII.
HISTORY OF EXECUTION for obtaining payment after the death of the debtor.

IN handling this ſubject, I cannot hope fully to gratify the reader's curioſity otherwiſe than by traceing the hiſtory of this branch of law from remote ages. It will be neceſſary not only to gather what light we can from the rules of common juſtice, but alſo to examine the laws of Eng⯑land and of old Rome, which have been copied by us in different periods.

[102] THE great utility of money, as a com⯑mercial ſtandard, made it from the time of its introduction a deſirable object. It came itſelf to be one of the principal ſubjects of commerce, and of contracts of loan. When money is lent, it is the duty of the debtor to pay the ſum at the term covenanted; and to procure money by a ſale of his goods, if he cannot otherwiſe ſatisfy his creditor. If the debtor be refractory or negligent, it is the duty of the judge to interpoſe, and to direct a ſale of the goods, in order that the creditor may draw his payment out of the price.

IN what manner debts are to be made effectual after the debtor's death, by the rules of common juſtice, is a ſpeculation more involved. One thing is obvious, that if no perſon claim the property of the goods as heir, or by other legal title, the creditors ought to have the ſame remedy that they had during their debtor's life. In this caſe there is required no ſtretch of [103] authority. On the contrary, when a debtor's goods after his death are ſold for payment of his debts, the law is no further exerted than to ſupply the defect of will, which, it is preſumed, the debtor would have inter⯑poſed had he been alive; whereas when a debtor's goods are ſold during his life, by publick authority, his property is wreſted from him againſt his will.

BUT now an heir makes his appearance, and the property is transferred to him by right of ſucceſſion. Juſtice will not allow him to enjoy the heritage of his anceſtor, without acknowledging his anceſtor's debts. Therefore, if he ſubmit not to pay the whole debts, one of two things muſt neceſ⯑ſarily follow, either that he account to the creditors for the value of the heritage, or that he conſent to a ſale for their behoof. Juſtice, as appears to me, cannot be fulfil⯑led but by purſuing the latter method; and my reaſons for thinking ſo are two. The firſt is, that by natural juſtice creditors [104] have acceſs to the effects only of their debtor, and have no claim againſt his iſſue or other relations; and therefore that theſe effects ought to be ſurrendered to the credi⯑tors for their payment, unleſs the heir, by making full payment, put an end to the claim which the creditors have to theſe effects. The next is, that ſale, which is the only unexceptionable method for deter⯑mining the value of a commercial ſubject, ought for that reaſon to be preferred by judges, before the more uncertain opinion of witneſſes. For the praetium affectionis of the heir, ſuppoſing the thing, ought not to weigh againſt the more ſolid intereſt of creditors, who are certantcs de damno evi⯑tando; not to mention that an heir, who hath an affection for the ſubject, may gra⯑tify his affection, by offering the ſmalleſt ſum above what another eſteems the in⯑trinſick value.

THE Romans, with reſpect to heirs, had a peculiar way of thinking, which muſt be [105] explained, becauſe it relates to the ſubject under conſideration. An heir, in the com⯑mon ſenſe of mankind, is that perſon, who, by blood or by will, is entitled to the ef⯑fects of a perſon deceaſed; and the ſuc⯑ceſſion of an heir is a method eſtabliſh⯑ed by law, for veſting in a living perſon effects which belonged to another at his death. Hence it is, that, with reſpect to different ſubjects, the ſame perſon may have different heirs; as for example, an heir of blood may ſucceed to ſome ſubjects, and an heir by will to others. The idea of an heir, in the Roman law, is not derived from the right of ſucceeding to the heri⯑tage in general, or to any particular ſub⯑ject, but reſts upon a very different founda⯑tion. The Roman people were diſtinguiſhed into tribes or gentes. A tribe was compoſed of different familiae, and a familia of different ſtirpes; and while the republick ſtood, it was one great branch of their police, to preſerve names and families diſtinct from each other. To perpetuate old families, [106] the privilege of adoption was beſtowed up⯑on thoſe who had not children. The per⯑ſon adopted, who aſſumed the name of the family, came in place of a natural ſon, and had all the privileges that by law belong to a natural ſon. This branch of the Roman police produced a ſingular conception of an heir, viz. the bearing the name of the fa⯑mily, and continuing the chain of the fa⯑mily in place of the perſon deceaſed. The ſucceſſion of an heir among the Romans had no relation to property, was not conſi⯑dered as a right of ſucceeding to ſubjects, but as a right of ſucceeding to the perſon deceaſed, of coming in his place, of repre⯑ſenting him, and of being, as termed in the Roman law, eadem perſona cum defuncto. In a word, an heir, in the Roman law, is he who repreſents the deceaſed perſonally; and the repreſenting the deceaſed with reſpect to ſubjects of property, doth not leſs or more enter into the Roman definition of an heir. Nor was it at all neceſſary that this circumſtance ſhould enter the definition: it [107] was ſufficient that every benefit of ſucceſ⯑ſion was the unavoidable conſequence of perſonal repreſentation; which obviouſly is the caſe. If an heir is eadem perſona cum defuncto, ſucceſſion, in the eye of law, makes no change of perſon, and conſequent⯑ly not even a change of property. Hence the maxim in the Roman law, that Nemo poteſt mori pro parte teſtatus et pro parte in⯑teſtatus. For if an heir was adopted or named, his perſonal repreſentation of the teſtator entitled him of courſe to every ſub⯑ject, and every privilege that belonged to the teſtator.

THIS ſingular notion of an heir, among the Romans, gave creditors a benefit which they have not by common juſtice. The death of their debtor, if he was repreſented by an heir, made no alteration in their af⯑fairs. A debtor who had a repreſentative, died not in a legal ſenſe; his exiſtence was continued in his heir, without change of perſon. The heir accordingly was ſubjected [108] to all the debts, whether he had or had not any benefit by the ſucceſſion; and if the heir proved dilatory or refractory, his whole effects might be ſold for payment, as well what belonged properly to himſelf, as what he acquired by ſucceſſion. This undoubted⯑ly was a ſtretch beyond the rules of com⯑mon juſtice; for creditors ought not to gain by the death of their debtor, and an heir ought not to ſuffer by his ſucceſſion. But to palliate this injuſtice, an heir had a year to deliberate whether he ſhould accept of the ſucceſſion; and if he made it his choice to accept, and to run all hazards, which ſometimes produced loſs inſtead of gain, this, being his own choice, was reckoned no ſuch hardſhip as to deſerve a remedy. But this notion of an heir, beneficial to the cre⯑ditors in one reſpect, was hurtful to them in another. For where the heir's proper debts exceeded his own funds, his creditors had acceſs to the funds of the anceſtor, which were now become their debtor's pro⯑perty by ſucceſſion. Here was real injuſtice [109] done to the anceſtor's creditors; which in courſe of time was remedied by the Praetor. He decreed a ſeparatio bonorum, and autho⯑rized the anceſtor's funds to be ſold for payment of his debts^*.

THE groſs injuſtice of ſubjecting an heir to the debts of the anceſtor without limi⯑tation, produced in time another remedy, viz. the benefit of inventory, by which, upon making an exact liſt of the anceſtor's effects, an exception in equity was given to the heir, to protect him from being further liable perſonally than to the value of the goods contained in the liſt. Whether this value was to be aſcertained by the opinion of witneſſes, or whether the heir was bound to ſell the goods for payment of the an⯑ceſtor's debts, is not clear. But the latter ſeems to have been the rule, as may be ga⯑thered, not only from the reaſon of the thing, but from the conſtitution of Juſti⯑nian introducing this remedy^†. And in [110] our practice, though an heir who has the benefit of inventory, is not liable perſonally beyond the value of the goods in the in⯑ventory, to be aſcertained by a proof, yet if the creditors chuſe to take themſelves to the goods for their payment, it is in their power to bring the ſame to ſale, and to lay hold of the price for their payment.

BUT however far the Roman law ſtrayed from the common rules of juſtice, where the debtor's heritage was claimed by an heir, the ſame complaint does not ly in the caſe of inſolvency, where the heir aban⯑doned the ſucceſſion; for the debtor's goods were in this caſe ſold for payment of his debts, in the ſame manner as when he was alive. It is true, that among the Romans, remarkable originally for virtue and tem⯑perance, it was ignominious for a citizen to have his effects ſold by publick authority. To prevent ſuch diſgrace, it was common to inſtitute a ſlave as heir, who, after the teſtator's death, being obliged to enter, the [111] hereditary ſubjects were ſold as his property, and the real debtor's name was not men⯑tioned^*.

WE proceed to the Engliſh law, which in all probability was antiently the ſame with our own. And to underſtand the ſpirit of that law, it muſt be premiſed, that while the feudal law was in its pu⯑rity, a vaſſal had no land-property: he had only the profits of the land for his wages; and when he died, his ſervice being at an end, there could no longer be a claim for wages. The ſubject returned to the ſuperior, and he drew the whole profits, till the heir appeared; who was en⯑titled by the original covenant, upon per⯑forming the ſame ſervice with his anceſtor, to demand poſſeſſion of the land as his wages. If his claim was found juſt, the poſſeſſion was delivered to him by a very ſimple form, viz. an order or precept from [112] the ſuperior to give him poſſeſſion; and this was called renovatio feudi. There is nothing to be laid hold of, in any branch of this proceſs, for making the heir liable to the anceſtor's debts. By performing the feudal ſervices, every heir is entitled to the full enjoyment of the land in name of wages; and his right being thus limited, he hath no power of diſpoſal, or of contract⯑ing debt to affect the ſubject farther than his own intereſt reaches. The next heir who ſucceeds is not liable to the predeceſſor's debts; becauſe the land is delivered to the next heir, not as the predeceſſor's proper⯑ty, but as the property of the ſuperior; and poſſeſſion is given to the next heir as wages, for the ſervice he hath under⯑taken to perform. From this ſhort ſketch it muſt be evident, that, while the feudal law ſubſiſted in its purity, a vaſſal's debts after his death, however effectual againſt his moveables, could not burden the land, nor the heir who ſucceeded to the land.

[113] BUT after land was reſtored to com⯑merce, and a vaſſal was underſtood to be in ſome ſort proprietor, ſo as even to have a power of alienation, it was a natural conſequence, that the land, as his property, ſhould be ſubjected for payment of his debts, not only during his life, but even after his death. And indeed if a man's moveables can, after his death, be attached for payment of his debts, why not his land; ſuppoſing him equally proprietor of both? Accordingly by the law of England, ‘"Judg⯑ments of all kinds, whether in foro con⯑tentioſo, or by conſent, may be made ef⯑fectual by an elegit, after the debtor's death, as well as during his life, without neceſſity of taking a new judgment a⯑gainſt the heir^*."’ A judgment by the law of England hath ſtill greater force. ‘"Lands are bound from the time of the judgment, ſo that execution may be of theſe, though the party aliens bona fide, [114] before execution ſued out^*."’ For if an elegit can be taken out, to attach land conveyed after the judgment to a bona fide purchaſer, it is not ſo great a ſtretch to make it attach land after the debtor's death, in the hand of the heir, or in hereditate jacente, if the heir be not entered.

THE ſame method takes place in other debts, upon which there is no judgment againſt the debtor; with this only varia⯑tion, that the creditor muſt begin with tak⯑ing a decree againſt the heir; becauſe the authority of a decree is neceſſary for exe⯑cution. The decree taken againſt the heir is, in this caſe, of the nature of a decreet of cognition with us, to be a foundation for attaching the deceaſed debtor's heri⯑tage, but not to have any perſonal effect againſt the heir, nor againſt his proper eſtate^†.

[115] NOR is it difficult to diſcover the foun⯑dation of this practice. It depends on a principle of juſtice, which is ſimple and ob⯑vious, that every man's proper effects ought to be applied for payment of his debts. His death can have no ſuch effect naturally, as to withdraw theſe effects from his credi⯑tors: nor can it have ſuch effect as to ſub⯑ject the heir, who ought not to be liable for debts not of his own contracting; un⯑leſs ſo far as he converts to his own uſe the anceſtor's effects, which are the only fund deſtined by law for payment of the anceſtor's debts.

THE natural principle which prevails in England, that an heir is not ſubjected to his anceſtor's debts, but only the anceſtor's own funds, produced another effect, which is, to veſt in the heir the property of the anceſtor's heretable eſtate, even without exerting any act of poſſeſſion. The very ſurvivance of the heir gives him, in the law-language of England, legal ſeiſin, that [116] is, gives him all the advantages of real poſſeſſion; and juſtly, becauſe his animus poſſedendi is preſumed, and muſt always be preſumed, where the apprehending poſſeſ⯑ſion is attended with no riſk. This is the ſenſe of the maxim, Quod mortuus ſaſit vivum, which obtains in France as well as in England; and of which we now ſee the foundation. This branch of the law of England, is not more beautiful by its ſim⯑plicity, than by its equity and expediency. Nothing can be more ſimple or expedient, than by mere ſurvivance, to veſt in the heir the eſtate that belonged to the an⯑ceſtor; and nothing can be more equitable than a ſeparatio bonorum, by which the funds of the anceſtor are ſet apart for pay⯑ment of his debts, without vexing the heir, who, in common juſtice, ought not to be liable but for debts of his own contracting.

WE have great reaſon to preſume as to this matter, that our law was once the ſame with that of England, though we have [117] now adopted different maxims, deviating far from natural equity, and from the ſim⯑plicity and expediency of the Engliſh law. That our law was the ſame will readily be believed, when in this country of old we find the ſame effect given to judgments, that at preſent is given in England. In the 2d ſtatute Robert I. cap. 19. § 12. it is laid down with reſpect to debts due to mer⯑chants, ‘"That in execution againſt the lands of the debtor, ſaſine ſhall be given of all the lands which belonged to the debtor at the time of entering into the recognizance, in whoſe ever hands they have ſince come, whether by infeftment or otherwiſe."’ This authority, it is true, relates to a decree of conſent; but we are not to ſuppoſe, that it was more privileged than a judgment in foro contentioſo; and if ſo, there could be no difficulty of making a judgment effectual againſt the debtor's land, in the hands of his heir, or in here⯑ditate jacente. And we find traces of this very thing in our old law. In the above [118] mentioned 2d ſtatutes Robert I. § ult. it is enacted, ‘"That if a debtor die, the mer⯑chant creditor ſhall not have his body, but ſhall have execution againſt his lands, as there above laid down;"’ that is by a brieve out of the chancery directed to the ſheriff, to deliver to the creditor all the goods and lands which belonged to the debtor, by a reaſonable extent. The like execution is authorized, Leg. Burg. cap. 94. even where the heir is entered. But this is not all: we have poſitive evi⯑dence, that ſuch was the practice in Scot⯑land even after the beginning of the ſix⯑teenth century. There is upon record a charter of appriſing, anno 1508, in favour of Richard Kine, who having been decern⯑ed to pay 20l. as cautioner for Patrick Wallance, obtained letters after Patrick's death for appriſing his land. Patrick's heirs were edictally cited, and his land was appriſed and adjudged to Richard, for pay⯑ment to him of the ſaid ſum; and this was done without any previous decree againſt [119] the heir, or charge to enter. A copy of this charter is annexed^*; and upon ſearch⯑ing the records, many more of the ſame kind may doubtleſs be found. In a matter of ſuch antiquity, theſe authorities ought to convince us, that as to execution againſt a debtor's land-eſtate after his death, our old law was the ſame with the Engliſh law, and the ſame that continues to be the Engliſh law to this day.

AND if ſuch was the law of Scotland with reſpect to execution after the debtor's death, upon decrees whether in foro or of conſent, we can have no reaſonable doubt that the ſame form of execution did obtain where there was no judgment during the debtor's life; with this variation only, that there behoved to be a decree of cognition before execution could be awarded.

A man who treads the dark paths of antiquity, ought to proceed with circum⯑ſpection, [120] and be conſtantly on the watch. We have entertained hitherto little doubt about the right road; but in proſecuting our journey, appearances are not quite ſo favourable. We ſtumble unluckily upon the act 106. p. 1540, which ſeems to pro⯑nounce, that far from proceeding in the right path, we have been wandering this while. In this ſtatute it appears to be taken for granted, that if the heir avoided entering to the land, the anceſtor's credi⯑tors had no means to recover payment. Nay, a remedy is provided, by entitling them to appriſe the land after charging the heir to enter. The act, it is true, is con⯑ceived in terms ſo ambiguous, as to make it doubtful whether the remedy concerns the creditors of the anceſtor or thoſe of the heir. But that it is calculated to re⯑lieve the former only, all our authors agree. And we have a ſtill greater authority, viz. the act 27. p. 1621, which proceeding upon the narrative, that the ſaid ſtatute regards the creditors only of the deceaſed, [121] extends the ſame remedy to creditors of the heir. This, in effect, is declaring, not only that the creditors of the heir, before the 1621, had no execution againſt the an⯑ceſtor's land unleſs the heir their debtor was pleaſed to enter; but alſo, that not even the creditors of the anceſtor had, before the act 1540, any execution againſt the land unleſs the heir, who was not their debtor, was pleaſed to enter.

THESE are weighty authorities in ſup⯑port of the ſenſe univerſally given to the ſtatute 1540. And yet that the common law of Scotland, ſhould impower every heir of a land-eſtate, by abſtaining from the ſuc⯑ceſſion, to forfeit the creditors of his anceſ⯑tor, is a propoſition too repugnant to the common principles of juſtice to gain credit. This propoſition will appear ſtill more ab⯑ſurd, by bringing the ſuperior into the queſ⯑tion. The land returned to him, if the heir did not ſubmit to be his vaſſal: but a good underſtanding betwixt them, perhaps for a [122] valuable conſideration, might entitle the heir to hold the land in defiance of all the creditors. To accompliſh a ſcheme ſo fraudulent, no more was neceſſary but a private agreement, that the land ſhould re⯑turn to the ſuperior by eſcheat, and be afterwards reſtored to the heir by a new grant. A contrivance ſo groſsly unjuſt would not have been tolerated in any coun⯑try. We had appriſings of land as early as the reign of Alexander II. I have de⯑monſtrated above, that it is no ſtretch of legal authority, to iſſue this execution after the debtor's death more than during his life, and that the heir hath no title to pre⯑vent this execution whether he be entered or not entered. Let it further be conſi⯑dered, that, by our oldeſt law, the heir was liable even for moveable debts, where the moveables were deficient^*. What then was to bar law from taking its natural courſe? It is certain there lay no bar in the way; and the neceſſity of ſuch an exe⯑cution [123] muſt have been obvious to the meaneſt capacity, in order to fulfil the rules of common juſtice; not to mention its uti⯑lity for ſupporting credit and extending commerce.

BUT it is loſing time, to argue thus at large about the conſtruction of a ſtatute. The above mentioned charter 1508 makes it clear, that the ſtatute cannot relate to the creditors of the anceſtor. By that charter it is vouched, that in the 1508, execution againſt the debtor's eſtate pro⯑ceeded after his death, with as little ce⯑remony as during his life. The practice muſt have been the ſame in the 1540, and therefore as the creditors of the deceaſed had no occaſion for a remedy, the remedy provided by the ſtatute muſt have been in⯑tended for the creditors of the heir. And to fortify this conſtruction, there is luckily diſcovered another remarkable fact. Our ſovereign court, ſo far from doubting of the privilege that creditors have to attach [124] the land-eſtate of their debtor after his death, ventured to authorize an appriſing of the predeceſſor's eſtate upon the debt even of the heir-apparent. One inſtance of this I find in a charter of appriſing, 24th May 1547, granted by Queen Mary to the Maſter of Semple. This charter ſubſumes, ‘"That the Earl of Lennox, in order to protect his family-eſtate from being attached for payment of a debt due by him perſonally to the Queen, had refuſed to enter heir to the ſaid eſtate; that he had been charged to en⯑ter heir within twenty one days, under certification, that the lands ſhould be ap⯑priſed as if he were really entered: and that he having diſobeyed the charge, the lands were accordingly appriſed, &c.^*"’ The date of the charge to enter is omitted in the charter; but that it muſt have been before the ſtatute 1540, is evident from the following circumſtances, that the ſtatute is not mentioned in the charter; and that the [125] charge is upon twenty one days, which ſhows that it proceeded not upon the au⯑thority of the ſtatute; for in that caſe the charge muſt have been on forty days. We have no reaſon to ſuppoſe this to be a ſin⯑gular inſtance; nor is it mentioned in the charter as ſingular. Here then is diſcovered an important link in the hiſtorical chain, to wit, that a charge againſt the heir to enter at the inſtance of his own creditor, was introduced by the ſovereign court, without the authority of a ſtatute. And if this hold true, the act 1540 could not be intended for any other effect, but to confirm this former practice, with the ſingle variation, that the charge to enter ſhould be upon forty days in place of twenty one. Viewing this curious fact in its true light, it affords convincing evidence, that before the 1540, the debtor's death did not bar his creditors from acceſs to his eſtate. For it is not conſiſtent with the natural progreſs of improvements, that the common law ſhould be ſtretched in favour of the cre⯑ditors [126] of the heir-apparent; while the pre⯑deceſſor's own creditors, whoſe connection with his eſtate is incomparably ſtronger, were left without a remedy. Theſe cre⯑ditors muſt have been long ſecure, before a remedy would be thought of for remoter creditors, viz. thoſe of the heir-apparent.

BUT in combating the authority of the ſaid act 1621, we muſt not reſt ſatisfied with ſuch proofs as may be reckoned ſuffi⯑cient in an ordinary caſe. I add therefore other proofs, that will probably be thought ſtill more direct. In the firſt edition of the ſtatutes of James V. bearing date 8th February 1541, the title prefixed to the ſtatute under conſideration is in the follow⯑ing words: ‘"The remeid againſt them that lye out of their lands, and will not enter in defraud of their creditors."’ This clearly ſhows what was underſtood to be the meaning of the ſtatute at the time it was enacted, viz. that it reſpects the creditors ſolely of the heir-apparent. And [127] the ſame title is alſo prefixed to the next edition, which was in the 1566. The other proof I have to mention, appears to be altogether deciſive. Upon ſearching the records, it is diſcovered, that the firſt charges given by authority of the ſtatute, were at the inſtance of creditors of heirs⯑apparent; one of them as early as the year 1542. This I take to be demonſtrative evidence of the intendment of the ſtatute; for we cannot indulge ſo wild a thought, as that our judges, the very perſons pro⯑bably who framed this ſtatute, were igno⯑rant of its meaning.

As the foregoing arguments and proofs ſeem to be invincible, we muſt acknow⯑ledge, however unwillingly, that our legiſ⯑lature, when they made the act 1621, were, in one particular, ignorant of the law of their own country. They are not however altogether without excuſe. I ſhall have occaſion immediately to ſhow, that long before the year 1621, the old form of exe⯑cution [128] againſt land after the death of the debtor, ſimple and eaſy as it was, had been abandoned, and another form ſubſtituted, not leſs tedious than intricate, which, con⯑ſidered in a ſuperficial view, might lead our legiſlature into an opinion, that the cre⯑ditors of the heir-apparent were not pro⯑vided for by the ſtatute 1540. In fact they adopted this erroneous opinion, which moved them to make the act 1621.

No ſort of ſtudy contributes more to the knowledge of law, than that which traces it through its different periods and changes. Upon this account, the forego⯑ing enquiry, though long, will, it is hoped, not be thought tedious or improper. In reality it is not practicable, with any degree of perſpicuity, to handle the preſent ſub⯑ject, without firſt aſcertaining the true pur⯑poſe of the act 1540. For according to the interpretation commonly received, how ridiculous muſt the attempt appear, of tracing from the beginning the form by [129] which debts are made effectual after the death of the debtor, where the heir re⯑nounces or avoids entering; while it re⯑mains an eſtabliſhed opinion, that creditors were left without a remedy till the ſtatute was made.

HAVING thus paved the way, by remov⯑ing a great deal of rubbiſh, I proceed to unfold the principles that govern our pre⯑ſent form of attaching land and other heretable ſubjects after the death of the debtor.

IT is a matter which cannot rationally admit of a doubt, that our notion of an heir was once the ſame with what is ſug⯑geſted by the common principles of law, viz. one who by will or by blood is en⯑titled to ſucceed to the heritage of a per⯑ſon deceaſed, wholly or partially. Nay, we have the ſame notion at preſent, with reſpect to all heirs who ſucceed in parti⯑cular ſubjects, ſuch as an heir of conqueſt, [130] an heir male an heir of entail, an heir of proviſion. Nor is there the leaſt reaſon or occaſion to view even an heir of line in a different light. For what more proper definition of an heir of line, than the per⯑ſon who ſucceeds by right of blood to every heretable ſubject belonging to the deceaſed, which is not by will provided to another heir? And yet, with reſpect to the heir of line, we have unluckily adopted the artificial principles of the Roman law, of a perſonal repreſentation, and of identity of perſon, according to the Roman fiction, that the heir is eadem perſona cum defuncto. The Roman law, illuſtrious for its equitable maxims, deſerves juſtly the greateſt regard. But the bulk of its inſtitutions, however well adapted to the civil polity of Rome, and the nature of its government, make a very motley figure when grafted upon the laws of other nations. In this country, ever famous for love of novelty, the pre⯑vailing eſteem for the Roman law, has been confined within no rational bounds. Not [131] ſatisfied with following its equitable max⯑ims, we have adopted its peculiarities, even where it deviates from the common prin⯑ciples of juſtice. The very inſtance now under conſideration, without neceſſity of making a collection, is ſufficient to juſtify this reflection. No man can heſitate a mo⯑ment, to prefer the beautiful ſimplicity and equity of our old law concerning heirs, be⯑fore the artificial ſyſtem of the Romans, by which an heir cannot demand what of right belongs to him, without hazarding all he is worth in this world. No regulation can be figured more contradictory to equity and expediency: and yet ſuch has been the in⯑fluence of the Roman law, that as far as poſſible, we have relinquiſhed the former for the latter; that is, with reſpect to general heirs; for as to heirs of conqueſt, heirs of proviſion, and all heirs who ſucceed to par⯑ticular ſubjects, their condition is ſo oppo⯑ſite to that of an heir in the Roman law, that it is impoſſible, by any ſtretch of fancy, to apply the Roman fiction to them.

[132] THIS unlucky fiction, which ſuppoſes the heir and anceſtor to be the ſame perſon, hath produced that intricate form preſent⯑ly in uſe, for recovering payment of debt after the death of the debtor. The credi⯑tors originally had no concern with the heir: their claim lay againſt their debtor's effects, which they could directly attach for their payment, whether in hereditate jacente or in the hands of the heir. But when the maxim of repreſentation and identity of perſon came to prevail, the whole order of execution was reverſed. By the heir's aſſuming the character of repre⯑ſentative, and by becoming eadem perſona cum defuncto, the anceſtor's effects are with⯑drawn from his creditors, and are veſted in the heir as formerly in the anceſtor. In a ſtrict legal ſenſe, a debtor who has a re⯑preſentative dies not; his exiſtence is con⯑tinued in his heir, and the debtor is not changed. In this view the heir comes in effect to be the original debtor; and the creditors cannot reach the effects otherwiſe [133] than upon his failure of payment, more than if he were in reality, inſtead of ficti⯑tiouſly, the original debtor.

THE foregoing caſe of an heir's taking the benefit of ſucceſſion, is ſelected from many that belong to this ſubject, in order to be handled in the firſt place; for being of all the ſimpleſt, it furniſhes an opportu⯑nity to examine with the greater perſpi⯑cuity, what it was that moved our forefa⯑thers, to give up their accuſtomed form of execution for that preſently in uſe. This new form of execution againſt the heir when entered, was probably eſtabliſhed long before the ſixteenth century. We diſcover from our oldeſt law-books, and in parti⯑cular from the Regiam Majeſtatem, that our forefathers began early to reliſh the maxims of the Roman law. And though in this book we diſcover no direct traces of the fiction that makes the heir and the anceſtor to be the ſame perſon, it is pro⯑bable however, conſidering the ſwift pro⯑greſs [134] of the Roman law in this country, that the fiction obtained a currency with us not long after the Regiam Majeſtatem. Hence it is likely, that the old form of ap⯑priſing the land for the predeceſſor's debt, without regarding the heir, muſt have been long in diſuſe, in the preſent caſe, where the property is by ſervice transferred to the heir; and who thereby is ſubjected perſo⯑nally to all the predeceſſor's debts. This caſe undoubtedly gave a commencement to the form preſently in uſe, which requires, that the eſtate be attached, not as belong⯑ing to the anceſtor the original debtor, but as belonging to the heir. In this view, a decree goes againſt the heir, making him liable for the debt; and thereafter adjudication paſſes againſt the eſtate, as his property and as for payment of his debt. But though the new form commenced ſo early, we have no reaſon to believe it was ſo early compleated. Where an heir lyes out unentered, and intermeddles not with the anceſtor's effects, he cannot, in [135] that ſituation, be held as eadem perſona cum defuncto; and an eſtate to which the heir lays no claim, is naturally conſidered as ſtill belonging to the anceſtor. For theſe rea⯑ſons, there was in this caſe nothing to ob⯑ſtruct the anceſtor's creditors from attach⯑ing the eſtate by legal execution, more than if their debtor were ſtill alive. According⯑ly, from the charter of appriſing above mentioned, granted to Richard Kine, we find, that where the heir did not enter, the old form of attaching land was in uſe ſo late as the 1508. Nor have we reaſon to ſuppoſe that this was the lateſt inſtance of the kind; for where the creditors of the anceſtor, are willing to confine their views to his eſtate without attacking the heir, there cannot be a more ready method for anſwering their purpoſe, than that of ap⯑priſing the land, which might be done with as little ceremony as when the debtor was alive. A decree, it is true, was neceſſary for this execution, as no execution can pro⯑ceed without the authority of a judge: but [136] it was a matter of no difficulty to obtain a decree, if not already obtained againſt the debtor himſelf. The form is, to call the heir in a proceſs, not concluding againſt him perſonally, but only that the debt is true and juſt. The heir has no concern here, but merely to repreſent a defendant; and therefore a decree goes of courſe, de⯑claring the debt to be juſt. This declara⯑tory decree, commonly called a decreet of cognition, was held, and to this day is held, a ſufficient foundation for execution.

CONSIDERING that in the beginning of the ſixteenth century, creditors after their debtor's death had acceſs to attach his land, in the manner now mentioned, and conſidering that a general charge was in practice before this time, as will by and by be proved, it appears to me evident, that this writ was invented, for no other pur⯑poſe but to reach the heir, and to ſubject him perſonally to the debts of his anceſtor; which may be gathered even from the writ [137] itſelf. The heir was ſubjected if he entered; and this was a contrivance to reach him, if poſſible, where he was not entered. This writ, as will be ſhown by and by, produced the preſent form of execution for recover⯑ing payment after the debtor's death, and thereby occaſioned a conſiderable revolu⯑tion in our law; which makes it of import⯑ance to trace its hiſtory with all poſſible accuracy.

To have a juſt notion of letters of ge⯑neral charge, we muſt view the condition of an heir-apparent with relation to the ſuperior. The heir-apparent has a year to deliberate, whether it will be his intereſt to enter to the land, and ſubject himſelf to all the duties incumbent on the vaſſal. And he may alſo continue to deliberate after the year runs out, until he be compelled in the following manner to declare his will. The ſuperior obtains a letter from the King, giving authority to charge or require the heir to enter within forty days, under the [138] penalty of forfeiting his right to the feudal ſubject. This furniſhed a hint to credi⯑tors who wanted to make the heir liable. A ſimilar form was invented, which had the ſanction of the ſovereign court without a ſtatute. A creditor obtains a letter from the King, giving authority to charge or require the heir to enter within forty days; and to certify him, that his diſobedience ſhall ſubject him perſonally to the creditor, in the ſame manner as if he were entered. This letter, commonly called Letters of General Charge, being ſerved on the heir, obliges him to come to a reſolution. If he obey the charge by entering, he is of courſe ſubjected to all his anceſtor's debts. If he remain in his former ſituation with⯑out entering, the charge is a medium upon which he may be decerned perſonally to make payment to the creditor in whoſe favour the letter is iſſued; and therefore to avoid being liable, he has no other method but to renounce the ſucceſſion, which is done by a formal writing under [139] his hand, put into the proceſs or into the record.

AT what time the general charge was introduced, cannot with accuracy be deter⯑mined. That it was known long before the ſtatute 1540, appears from a deciſion cited by Balfour, dated anno 1551^*, in which it is mentioned as a writ in common and general uſe; not at all as recent or newly invented. Its antiquity is further aſcer⯑tained by an argument, which, though negative, muſt have conſiderable weight. The court of ſeſſion, the ſame that is now in being, was eſtabliſhed anno 1532; and though the moſt ancient records of this court are not entire, we have however pretty great certainty of its regulations, ſuch of them at leaſt as are of importance; for theſe, where the records are loſt, may be gathered from our authors, and from other authentick evidence. But as there is not in any author, or in any writing, [140] the ſmalleſt hint that this writ was intro⯑duced by the court of ſeſſion; we have good reaſon to conclude, that it had a more early date.

THE better to underſtand what follows, we muſt take a deliberate view of this new writ. To ſupply defects in the common law, is undoubtedly the province of the ſo⯑vereign court, and is one of its moſt va⯑luable prerogatives. But then, regulations of this ſort ought not only to be founded on neceſſity, but alſo on material juſtice. Unhappily, neither of theſe grounds can be urged, to juſtify letters of general charge. For firſt, this writ, when invented, was in no view neceſſary; the common law giving ready acceſs to a debtor's effects after his death for payment of his debts, as well as during his life; and beyond this a creditor can have no juſt claim. In the next place, this writ, with reſpect to the heir-apparent, is oppreſſive and unjuſt: for while the ef⯑fects of the debtor ly open to execution, [141] what earthly concern has the creditor with an heir, who hath not claimed the ſucceſ⯑ſion, nor intermedled with the effects? and why ſhould any attempt be indulged, to ſubject a man to the payment of debt not of his own contracting? This hete⯑roclite writ, procured, in all appearance, by the undue influence of creditors, hath in its conſequences proved even to them an unhappy contrivance. It evidently pro⯑duced our preſent form of obtaining pay⯑ment after the debtor's death, which, as obſerved, being unjuſt as to the heir, has recoiled againſt the creditors, by involving them in an execution, intricate, tedious, and expenſive; oppoſite in every particu⯑lar to the ſimple and beautiful form eſta⯑bliſhed in the common law. I proceed to ſhow in what manner the general charge produced a revolution ſo important.

REFLECTING upon this ſubject, it will be found, that after the charge is given, and the forty days elapſed, the creditor [142] charging has it no longer in his power to retreat, or in quality of the anceſtor's cre⯑ditor, to attach by real execution, the eſtate as belonging to the anceſtor. Such neceſ⯑ſarily muſt be the effect of the change of circumſtances occaſioned by this charge. If the heir obey the charge by entering, he occupies the place of the anceſtor: he is, in a legal ſenſe, the anceſtor; and execution proceeds againſt him and his effects, pre⯑ciſely as if he were really, and not by a fiction, the original debtor. This caſe there⯑fore bars all acceſs to the original form of execution. The anceſtor is withdrawn as if he had never been; and upon that ſuppoſition the eſtate cannot be appriſed as his property. In the next place, if the heir remain in his former ſituation, without de⯑claring his mind, he becomes perſonally liable, preciſely as if he had entered. This ſituation, equally with the former, and for the ſame reaſon, bars the creditor from having acceſs to the eſtate by the old form of execution. So ſoon as the debt is trans⯑ferred [143] againſt the heir, he ſo far becomes eadem perſona cum defuncto. With regard to this debt, he is conſidered to be the ori⯑ginal debtor; and as the creditor no longer enjoys the character of the anceſtor's credi⯑tor, he cannot have acceſs to the eſtate as belonging to the anceſtor; neither can he have acceſs to it as creditor to the heir, who himſelf hath no right until he enter. Again, if the heir renounce, the eſtate re⯑turns to the ſuperior, who muſt have the land if he have not a vaſſal; and by this means alſo the creditor is excluded from all acceſs to the land; becauſe it is now no longer the property either of the anceſtor or of the heir. Theſe conſequences of a charge, where the heir enters not, appear to to be ſtrong obſtacles againſt the creditor wanting to attach the land. In what man⯑ner they were ſurmounted, I ſhall endeavour to ſhow.

I begin with the caſe where the heir-apparent, after he is charged, remains ſilent, [144] and neither enters nor renounces. The charge in this caſe, for the reaſon above mentioned, ſubjects him perſonally to the creditor at whoſe inſtance he is charged; and by the ſame means he may be ſubjected to all the creditors. So far good. The creditors upon this medium may proceed to perſonal execution. But as to real execu⯑tion, the difficulty is great; for, as above obſerved, the debt by the charge being laid upon the heir, there cannot be acceſs to the land otherwiſe than as belonging to him. But then, how can land be adjudged from a debtor who is not veſted in the property? The reader will advert, that he is engaged in a period long before the ſtatute 1540, affording relief to the proper creditors of the heir by means of a ſpecial charge. Admitting only the heir to be juſtly ſubjected to his anceſtor's debts, which, with reſpect to what is now under conſide⯑ration, muſt be admitted, it becomes un⯑queſtionably his duty to enter to the land, in order to give the creditors acceſs to it [145] for their payment. And if he prove re⯑fractory, it becomes the duty of the ſove⯑reign court to interpoſe and to perform for him by ſelling the land, or at leaſt by adjudging it to the creditors for their pay⯑ment. The latter was accordingly done. But before attempting an extraordinary remedy, as good order requires, the debtor's obſtinacy to be firſt aſcertained; a ſe⯑cond letter in that view is obtained from the King, giving authority to charge or require the heir, to enter to the land within forty days; and to certify him, that, after the lapſe of this term, he ſhall be held, with reſpect to the creditors, as actually entered. This method ſolves all difficul⯑ties. The creditors proceed to appriſe the land from the heir, now their debtor, in the ſame manner as if he had a compleat title to the ſame by a ſolemn entry.

IN the caſe of a renunciation, the ob⯑ſtacle is much greater than in that laſt mentioned. A renunciation to be heir, ac⯑cording [146] to the nature of feudal property, is a total bar to the anceſtor's creditors, which could not have been ſurmounted, and ought not to have been ſurmounted, while the feudal law was in vigour. In the ori⯑ginal feudal ſyſtem an heir hath no claim to the land which his anceſtor poſſeſſed, unleſs he undertake to ſerve the ſuperior in quality of a vaſſal; and therefore if he re⯑fuſe to ſubmit to this ſervice, the ſuperior enters to poſſeſs the land, which antece⯑dently was his property. But a renuncia⯑tion to be heir, though obtained at the ſuit of a creditor, being however an expreſs declaration by the heir, that he will not ſubmit to be vaſſal, muſt, in ſtrict law, have the effect to reſtore the land to the ſupe⯑rior, and to cut out all the creditors. This, as obſerved, would originally have been thought no hardſhip. But at the time we adopted the notions of the Roman law, the bulk of the land in Scotland had paſſed from hand to hand for a full price paid; and ſuch a purchaſe, contrary to the ori⯑ginal [147] conſtitution of the feudal law, trans⯑ferred the property to the purchaſer, though, according to the form of our land-rights, he is obliged to aſſume the character of a vaſſal. And therefore, whatever effect a renunciation might have while a vaſſal's right was merely uſufructuary, it was right⯑ly judged, that it ought not to have the ſame effect where the vaſſal, in reality, is pro⯑prietor. Equity pleaded ſtrongly for the creditors, that the ſuperior, certans de lucro captando, ought not to be preferred to them, certantes de damno evitando. Theſe conſide⯑rations moved the ſovereign court, to think of ſome remedy for relieving the creditors. It would have been too bold an attack up⯑on eſtabliſhed law, to declare, that, in this caſe, a renunciation ſhould not operate in favour of the ſuperior, but only of the cre⯑ditors. The court took ſofter meaſures. The law was permitted to have its courſe, in reſtoring the land to the ſuperior. But action was ſuſtained to the creditors againſt the ſuperior, to infeft them in the land for [148] ſecurity and payment of their debts; and the decree given in this proceſs obtained the name of an adjudication upon a renun⯑ciation to be heir, or an adjudication cog⯑nitionis cauſa; which being afterwards mo⯑delled into a different form, paſſes now com⯑monly under the name of an adjudication contra hereditatem jacentem. Here was in⯑vented a new ſort of execution againſt land, ſimilar in its form to no other ſort in prac⯑tice. And it may be thought ſtrange, why the court, in imitation of the eſtabliſhed form of appriſing, did not rather direct the land to be ſold for payment of the credi⯑tors. In matters of ſo great antiquity, where hiſtory affords ſcarce any light, it is diffi⯑cult to give ſatisfaction upon every point. I can form no conjecture more probable, than that, in contriving a remedy againſt the hardſhips of the common law, the court thought they had no ſufficient authority to award a compleat execution, ſuch as was given by the common law; and that it was venturing far enough to afford the [149] creditors a ſecurity, upon land which once indeed belonged to their debtor, but was now legally transferred to the ſuperior with whom they had no connection.

WITH reſpect to other heretable ſub⯑jects, allodial in their nature as not held of any ſuperior, heirſhip moveables, for ex⯑ample, bonds ſecluding executors, and diſ⯑poſitions of land without infeftment, the heirs renunciation created no difficulty. Subjects of this kind are by the renuncia⯑tion left in media without an owner; and it is an obvious as well as a natural ſtep, to adjudge them to a creditor for his pay⯑ment. By ſuch adjudication the court doth nothing but what the debtor himſelf ought to have done when alive; and which it is preſumed he would have done, had he not been prevented by death. This particular adjudication, it is probable, was the firſt that came into uſe, and paved the way to an adjudication of land, when it returned to the ſuperior by the heir's renunciation.

[150] IF the general charge be of an ancient date, we cannot have much difficulty about the aera of the ſpecial charge. For as the general charge is a very imperfect remedy without the ſpecial charge, the invention of the latter could not be at any diſtance of time from the eſtabliſhment of the for⯑mer. And a fact is mentioned above, which puts this matter beyond conjecture. Before the ſtatute 1540, we find relief by a ſpecial charge afforded even to the proper credi⯑tors of the apparent heir; which proves to conviction, that the ſame relief muſt have been afforded long before to the creditors of the anceſtor, after the heir is made liable by a general charge. For, as above ob⯑ſerved, it is not ſuppoſable, that a remedy, afforded to the proper creditors of the heir⯑apparent, would be denied to the creditors of the deceaſed proprietor, who are more connected with the eſtate. According to the natural courſe of human improvements, the creditors of the deceaſed proprietor, muſt have been long privileged with a ſpe⯑cial [151] as well as with a general charge, before it would be thought proper to extend the privilege of a ſpecial charge to the creditors of his heir-apparent.

IT appears from Craig^*, that an adju⯑dication cognitionis cauſa is the remedy which of all came lateſt. We have this author's expreſs authority for ſaying, that in his time it was a recent invention. Nor is this at all wonderful. For a renunciation to be heir, muſt, to the anceſtor's creditors, be a puzzling circumſtance, when its legal effect is to reſtore the land to the ſupe⯑rior, who is liable for none of the vaſſal's debts.

TAKING under review the foregoing in⯑novations, to which we were inſenſibly led by the prevailing influence of the Roman law, it is probable, that the fiction of iden⯑tity of perſon was firſt applied by our law⯑yers to the caſe where an heir regularly [152] enters to the eſtate of his anceſtor. Being in this caſe beneficial to creditors, who have the heir bound as well as the eſtate, it gained credit, and obtained a currency. Nor was it attended with any inconve⯑nience, to creditors at leaſt, while they had acceſs to appriſe, as formerly, the eſtate of their debtor, where the heir abſtained from entering. This, one ſhould think, was affording to creditors every privilege they could juſtly demand for obtaining payment. But this did not ſatisfy them. To have the heir bound perſonally, in place of his anceſtor, was an enticing proſpect; and the general charge was invented, in or⯑der to make him liable before his entry, and where he has not taken the benefit of the ſucceſſion. This legal ſtep, it muſt be acknowledged, is pretty well contrived to anſwer its purpoſe. The heir, urged by a general charge, hath no way to evade the certification of being perſonally liable, other than the hard alternative of renouncing altogether the ſucceſſion. This new form, [153] for that reaſon was much reliſhed. Cre⯑ditors did not chuſe to confine them⯑ſelves to the eſtate of the anceſtor their debtor, while any hope remained of ſub⯑jecting the heir perſonally, by means of a general charge. And accordingly for a century and a half, or perhaps more, it has been the conſtant method to ſet out with a general charge, where the heir is not entered. If this method to ſubject the heir perſonally prove ſucceſsful, the credi⯑tors, as made out above, muſt bid adieu to the eſtate conſidered as in hereditate jacente of their original debtor. Having choſen the heir for their debtor, they cannot now attach the eſtate otherwiſe than in quality of his creditors. Thus it has happened, that during ſo long time as that now men⯑tioned, there is no inſtance of following out the old form by appriſing or adjudging the land after the debtor's death, without re⯑garding the heir. Whether it may be thought too late now to return to this old form, governed by the principles of [154] juſtice as well as of expediency, I take not upon me to determine.

THE difference betwixt the law of Scot⯑land and of England as to the preſent ſub⯑ject, will be clearly apprehended, by ſetting the matter in the following light. A pure donation, which doth not ſubject the donee to any obligation, transfers property with⯑out the neceſſity of acceptance; and upon that account, infants and abſents are be⯑nefited by ſuch deeds, without knowing any thing of the matter. But a deed laying the donee under any burden, beſtows no right without actual acceptance: if it did, any man might be ſubjected to the ſeve⯑reſt burdens without his conſent. Thus, in England, the rule obtains, Quod mortuus ſaſit vivum; becauſe an heir, though veſted in his anceſtor's heritage, is not ſubjected perſonally to his anceſtor's debts. In Scot⯑land again, the effects of the anceſtor are not tranſmitted to the heir, but by means of ſome voluntary act, which imports the [155] conſent of the heir to ſubject himſelf to his anceſtor's debts. For, by our law, a ſtrict connection is formed, betwixt the right that the heir has to the anceſtor's eſtate, and the obligation he is under to pay the anceſtor's debts, ſo far at leaſt as that the latter is a neceſſary conſequence of the for⯑mer. It may indeed happen, that the heir is made liable to pay the anceſtor's debts, without being veſted in the eſtate; but this is to be conſidered as a penalty for refuſing to enter heir when he is charged, or for intermeddling irregularly with the anceſtor's effects, which are ſingular caſes.

THE matter of the foregoing hiſtory is ſo ſingular, as not perhaps to have a pa⯑rallel in the law of any country. Here, from the dead law of an ancient people, we find a metaphyſical fiction adopted, without any foundation in the common rules of juſtice, and repugnant in a pe⯑culiar manner to the common law of this iſland; and yet ſo fervently impraced, as [156] to have made havock of every part of our law that ſtood in oppoſition. I have pointed out ſome of the many inconve⯑niencies that its reception produced, with regard to creditors, and conſequently to credit. I have ſhown what ſubterfuges and fictitious contrivances were neceſſary, in order to give it a currency. I have ſhown how tedious, how intricate, and how expenſive a form it hath occaſioned, for re⯑covering payment of debt: but I have not yet ſhown it in its worſt light. The evils I have mentioned, are mere triffles com⯑pared with thoſe that follow. No per⯑ſon who hath given any attention to the hiſtory of our law, can be ignorant of the numberleſs artifices invented by heirs in poſſeſſion of the family-eſtates, to ſcreen themſelves from paying the family-debts. The numberleſs regulations made in vain, age after age, to prevent ſuch artifices, will ſatisfy every one, that there muſt be an error in the firſt concoction, by which a remedy is rendered extremely difficult. [157] How comes it that we never hear of ſuch frauds in England? The reaſon is obvious. The juſt and natural rule of a ſeparatio bonoruni, which obtains there, makes it impracticable for the heir to defraud his anceſtor's creditors. They have no con⯑cern with the heir, but take themſelves to the anceſtor's eſtate for their pay⯑ment. In Scotland, the anceſtor's eſtate cannot be reached, even by his own credi⯑tors, otherwiſe than by attacking the heir, unleſs he be pleaſed to abandon it to the creditors. But this ſeldom was the caſe of old. The heir had a more profitable game to play, even where the eſtate was overbur⯑dened with debts. His method generally was to renounce to be heir, in order to evade a perſonal decerniture: but he did not how⯑ever abandon the eſtate. It was ſeldom difficult to procure ſome artificial or ſicti⯑tious title to the eſtate, under cover of which poſſeſſion was apprehended; and this was a great point gained. If ſuch title, after a dependance perhaps for years, was [158] found inſufficient to bar the creditors, ano⯑ther title of the ſame kind was provided; and ſo on without end. It is true, the heir's renunciation entitles the creditors to attach the eſtate by adjudications cognitionis cauſa: but then the heir, as has been ob⯑ſerved, was always provided with ſome col⯑lateral title, not only to colour his poſſeſ⯑ſion, but alſo to compete with the credi⯑tors. In the mean time, the rents were a fund in his hands to take off any of the preferable creditors that were like to prove too hard for him. And ſuch purchaſe was a new protection to the unconſcientious heir, againſt the other creditors. In fact, the moſt conſiderable eſtates in Scotland, are poſſeſt at this day by ſuch diſhoneſt titles; the legiſlature, however willing, ne⯑ver having been able to invent any com⯑pleat remedy to prevent ſuch pernicious frauds. The foregoing obſervations will enable us to trace theſe artifices to their true ſource. They muſt be aſcribed to the fiction of identity of perron; becauſe by [159] means of this fiction chiefly, opportunity was furniſhed for committing theſe frauds. Had this matter been ſeen by our legiſla⯑ture in its proper light, a very ſimple and very effectual remedy muſt have occurred to them. If the heir refuſed to ſubject him⯑ſelf to the debts of his anceſtor, nothing elſe was neceſſary, but to reſtore the ancient law, authoriſing the anceſtor's heritage to be ſold for payment of his debts. But this regulation had been long in diſuſe, and we were not leſs ignorant of it, than if it never had exiſted.

AND, as an evidence of the weakneſs of human foreſight, I muſt obſerve, that a ſtatute made without any view to the frauds of heirs, proved more ſucceſsful againſt theſe frauds, than all the regulations purpoſely made; and that is the ſtatute for ſelling the eſtates of bankrupts. An heir has now very little opportunity to play the accuſtomed game, when it is in the power of creditors to wreſt the eſtate out of his hands, by a pub⯑lick [160] auction. And the experience now of [...]ifty years, has vouched this to be a com⯑pleat remedy. For we hear not at preſent of any frauds of this kind, nor are we under any apprehenſion of them. So far from it, that we are receding more and more, every day, from the rigid principle of an univerſal repreſentation, and ap⯑proaching to the maxim of equity, which ſubjects not the heir beyond the value of the ſucceſſion. For what other reaſon is it, that the act 1695, introducing ſome new rigid paſſive titles, is totally neglected, though it is undoubtedly an additional ſafe-guard to creditors againſt the frauds of heirs? We are not now afraid of theſe frauds: they are prevented by the equi⯑table remedy of ſelling the anceſtor's eſtate; and judges, if they have humanity, will be loath to apply a ſevere remedy, when a mild one is at hand, which is alſo more effectual. It is remarkable, that though the act for ſelling the eſtates of bankrupts proved an effectual remedy, yet this virtue [161] in the ſtatute was not an early diſcovery. It was not diſcovered at the time of the act 1695, and if any perſon, of more than ordinary penetration, had been looking on when that ſtatute was made, it muſt have provoked a ſmile, to find our legiſlature, with their eyes open contriving an imper⯑fect remedy, when they had already, with their eyes ſhut, ſtumbled on one that was perfect.

TRACT XIII.
HISTORY OF The LIMITED and UNIVERSAL Repreſentation of Heirs.

BY the law of nature, an heir, beyond what he takes by the ſucceſſion, is not ſubjected to the debts of his an⯑ceſtor. In the Roman law a ſingular no⯑tion was adopted, that the heir is the ſame perſon with the anceſtor. Hence an heir, in the Roman law, ſucceeds to all the effects of the anceſtor, and is ſubjected to all his debts. This was carried ſo far with regard [164] to children, that they were heirs ex neceſſi⯑tate juris; and upon that account were di⯑ſtinguiſhed by the name of ſui et neceſſarii heredes. Natural principles afterwards pre⯑vailed, and children, in common with other heirs, were privileged to abſtain from the ſucceſſion. This was done by a ſeparatio bonorum, and by abandoning the goods of the anceſtor to his creditors. But ſtill if the heir took poſſeſſion of the an⯑ceſtor's effects, or in any manner behaved as heir, he, from that moment, was under⯑ſtood to be eadem perſona cum defuncto, and conſequently was ſubjected univerſally to all the anceſtor's debts. At laſt the benefit of inventory was afforded, which protected the heir from being liable farther than in va⯑lorem. This privilege, tempered the ſeverity of the foregoing artificial principle, and, in a manner, reſtored the law of nature, which had been overlooked for many ages.

IN England, the artificial principle of identity of perſon never took place. An [165] heir, by the Engliſh law, is not bound to pay his anceſtor's debts, even when he takes by ſucceſſion. The creditors have the pri⯑vilege of attaching their debtor's effects poſ⯑ſeſſed by the heir, in the ſame manner as when theſe effects were in the debtor's own poſſeſſion, during his life. The heir is per⯑ſonally liable to the extent only of what he intermeddles with. The Engliſh law in⯑deed deviates from natural juſtice, in mak⯑ing a diſtinction betwixt the heritable and moveable debts, ſubjecting the heir to the former only, and the executor to the latter. This is evidently unjuſt as to creditors; for they may be forfeited by their debtor's death, though he die in opulent circum⯑ſtances, which as to perſonal creditors muſt always happen, when his moveable funds are narrow and his moveable debts exten⯑ſive. Such a regulation is the leſs to be juſtified, that it furniſheth an opportunity for fraud. For what if a man, with a view to diſappoint his perſonal creditors after his death, ſhall lay out all his money upon land? [166] I know of no remedy to this evil, unleſs the court of chancery, moved by a principle of equity, venture to interpoſe.

BY the feudal law, when in purity, there could not be ſuch a thing as repreſentation; becauſe the heir took the land, not as com⯑ing in place of his anceſtor, but by a new grant from the ſuperior. But when land was reſtored to commerce, and was pur⯑chaſed for a full price, it was juſtly reckoned the property of the purchaſer, though held in the feudal form. Land by this means is ſubjected to the payment of debt, even after it deſcends to the heir. And in Scot⯑land, probably, the privilege at firſt was car⯑ried no farther than in England, to permit creditors, after the death of their debtor, to attach his funds in poſſeſſion of the heir.

BUT as Scotland always has been ad⯑dicted to innovations, the Roman law pre⯑vailed here, contrary to the genius of our own law; and the fiction was adopted of the [167] heir and anceſtor being the ſame perſon. This fiction crept firſt into the reaſonings of our lawyers, figuratively, in order to ex⯑plain certain effects in our own law; and gained by degrees ſuch an aſcendant, as, in our apprehenſion, to form the very charac⯑ter of an heir. Yet, conſidering the heirs of different kinds that are acknowledged with us, an heir of line, an heir-male, an heir of proviſion, &c. one ſhould not imagine that our law lay open to have this fiction grafted upon it. In the Roman law there was but one heir who ſucceeded in univerſum jus defuncti, and who, by a very natural figure, might be ſtiled eadem perſona cum defuncto. But can we apply this figure, with any propriety, to an heir who ſucceeds not in univerſum jus, but is limited to a particu⯑lar ſubject? This opens a ſcene which I ſhall endeavour to ſet in a juſt light, by exa⯑mining how far the figure has been carried with us, and what bounds ought to be ſet to it.

[168] OUR law in all probability was once the ſame with that of England, viz. that the heir who ſucceeds to the real eſtate, is liable to real debts only; the moveable debts be⯑ing laid upon the executor. But this did not long continue to be our law. It muſt ſometimes have happened, notwithſtanding the frugality of ancient times, that the perſonal eſtate was not ſufficient for ſatis⯑fying the perſonal debts. It was in this caſe juſtly thought hard, that the heir ſhould enjoy the family-eſtate, while the perſonal creditors of his father, or other anceſtor, were left without remedy. Equity dictates, that after the moveables are ex⯑hauſted, the perſonal creditors ſhall have acceſs to the land for what remains due to them. This practice is with us of an early date. We find it eſtabliſhed in the reign of David II. as appears from the Regiam Majeſtatem^*. And it was improved to the benefit of creditors by ſtatute^†, enact⯑ing, ‘"That if the perſonal creditors are [169] not paid out of the moveables within the year, they ſhall, without further de⯑lay, have acceſs to the heir."’ Upon the ſame foundation, and by analogy of the ſtatute, the executor is made liable for the heretable debts. This came in late; for Sir Thomas Hope^* obſerves, ‘"That the Lords of old were not in uſe to ſu⯑ſtain proceſs againſt the executor for payment of an heretable debt."’ And he is ſo little touched with the equity of the innovation, as to cenſure and condemn it; for a very inſufficient reaſon indeed; ‘"be⯑cauſe (ſays he) there is no law to give the executor relief againſt the heir, as the heir has againſt the executor when he pays a moveable debt;"’ as if this relief did not follow from the nature of the thing. Reviewing this hiſtorical deduction, I cannot perceive in it the ſlighteſt ſymptom of identity of perſon. This fiction ad⯑mits not of a diſtinction betwixt here⯑table and moveable ſubjects. Identity of [170] perſon beſtows neceſſarily upon the heir every ſubject that belonged to the anceſtor. Neither admits it of any diſtinction among debts; for if the deceaſed was liable to all debts without diſtinction, ſo muſt the heir. In place of which we find the heir of line ſubjected, by the common law, to he⯑retable debts only; and not to moveable debts, otherwiſe than upon a principle of equity, which, if the moveables be not ſuffi⯑cient, ſubjects the land-eſtate, rather than that the creditors ſhould ſuffer.

IT is then evident, that in our practice there is no place for this fiction, even with regard to the heir of line; and that this heir is ſubjected univerſally to his anceſtor's debts, without any foundation in the com⯑mon law; and even without any foundation in the fiction itſelf. For as an heir of line is clearly not eadem perſona cum defuncto, except as to the heretable eſtate, it is equally clear, that, by authority of this fiction, he ought not to be ſubjected uni⯑verſally [171] to any debts but what are here⯑table. As to moveable debts, equity dic⯑tates that creditors be preferred to every repreſentative of their deceaſed debtor; and therefore that the land-eſtate ſhould be ſub⯑jected to the perſonal creditors, when the moveables are not ſufficient. But this maxim of equity can never be extended farther againſt the heir, than to make him liable for moveable debts, ſo far as he is be⯑nefited by the ſucceſſion; becauſe equity, which relieves from oppreſſion, can never be made the inſtrument of oppreſſion.

IN the next place, as to a limited heir, ſucceeding to one ſubject only, why ought he to be liable univerſally to the anceſtor's debts? If he repreſent the anceſtor, it is not univerſally, but only as heir in a parti⯑cular ſubject. And therefore, according to the nature of his repreſentation, he ought to be liable for debts only which affect that ſubject, or for debts of the ſame kind with the ſubject, or at fartheſt for debts of [172] every kind to the extent of the ſubject. I know not that it has been held by any able writer, far leſs decided, that an heir provided to a particular ſubject is liable uni⯑verſally to the anceſtor's debts. Dirleton gives his opinion to the contrary in a moſt ſatisfying manner^*. His words are: ‘"Heirs of proviſion and tailȝie who are to ſuc⯑ceed only in rem ſingularem albeit titulo univerſali; Quaeritur if they will be liable to the defuncts whole debts, though far exceeding the value of the ſucceſſion; or if they ſhould be conſidered as here⯑des cum beneficio inventarii, and ſhould be liable only ſecundum vires, there being no neceſſity of an inventory, the ſubject of their ſucceſſion being only, as ſaid is, res ſingularis? Anſwer. It is thought that if one be ſerved general heir-male with⯑out relation to a ſingular ſubject (as to certain lands) he would be liable in ſoli⯑dum; but if he be ſerved only ſpecial heir in certain lands, he ſhould be liable only ſecundum vires."’

[173] THE heir of line, or heir general, is then the only perſon to whom the character of identity of perſon can with any ſhadow of propriety be applied. Nor to him can it be applied in the unlimited ſenſe of the Roman law; but only as to the heretable eſtate and heretable debts. To all that is carried by a general ſervice he has right, without limitation; and it is plauſible if not ſolid, that he ought to be liable without limitation, to all heretable debts, ſuch as come under a general ſervice. We follow the ſame rule betwixt huſband and wife, when we ſubject him to her move⯑able debts in general, and give him right to all her moveable effects in general. And this at the ſame time appears to be the true foundation of the privilege of diſcuſ⯑ſion, competent to heirs whoſe right of ſucceſſion is limited to particular ſubjects. The general heir, or heir of line, who is not thus limited, but ſucceeds in general to all ſubjects of a certain ſpecies, is the only heir to whom the identity of perſon [174] can with any colour be applied; and con⯑ſequently is the only heir who ought to bear the burden of the debts.

IT may be thought more difficult to ex⯑plain, why an heir of line, making up titles by a ſervice to a land-eſtate which was the property of his anceſtor, ſhould be ſubjected univerſally to his anceſtor's debts; when this very title, viz. his retour and ſeiſin, contains an inventory in gremio; not being in its nature a general title, but only a title to one particular ſubject.

To explain this matter diſtinctly, it will be neceſſary to carry our view pretty far back in the hiſtory of our law. Among all nations it is held as a principle, that property is transferred from the dead to the living, without any ſolemnity. Children, and other heirs, are entitled to continue the poſſeſſion of their anceſtor; and where the heir is not bound for his anceſtor's debts, ſuch poſſeſſion is underſtood to be [175] continued by will alone, without any ouvert act. In Scotland, the heir originally was not liable for the debts of his anceſtor, nor at preſent is he liable in England. Hence it is, that as to rent-charges, bonds ſeclud⯑ing executors, and other heretable ſubjects, which may be termed allodial, becauſe not held of any ſuperior, theſe were transferred to the heir of blood directly upon his ſur⯑vivance; and, with regard to theſe, the ſame rule obtained here, that obtains uni⯑verſally in England and France, Quod mor⯑tuus ſaſit vivum. Land and other ſubjects held of a ſuperior, are with us in a very different condition. The vaſſal, by the principles of the feudal law, is not pro⯑prietor; and, ſtrictly ſpeaking, tranſmits no right to his heir. The ſubject muſt be claimed from the ſuperior; and the heir's title is a new grant from him. Thus then ſtood originally the law of Scotland. He⯑retable ſubjects veſted in the heir merely by ſurvivance. The ſingle exception was a feudal holding, which required, and ſtill [176] requires a new grant from the ſuperior. If the heir of line had this new grant, he needed no other title to claim any here⯑table ſubject which belonged to his anceſ⯑tor. But heirs were put in a very different ſituation, by the fiction of identity of per⯑ſon adopted from the Roman law. The heir by claiming the ſucceſſion, being ſub⯑jected perſonally to his anceſtor's debts, muſt have an election to claim or to aban⯑don as it ſuits his intereſt. This of ne⯑ceſſity introduced an aditio hereditatis, as among the Romans, without which the heir can have no title to the effects of his anceſtor. If he uſe this form, he becomes eadem perſona cum defuncto with regard to be⯑nefits as well as burdens. If he abſtain from uſing it, he is underſtood to abandon the ſucceſſion, and to have no concern either with benefits or burdens. The only point to be conſidered was, what ſhould be the form of the Aditio. By this time the pro⯑perty being transferred from the ſuperior to his vaſſal, it was juſtly thought, that the [177] vaſſal's heir who enjoyed the land-eſtate of his anceſtor, could not evade payment of his debts. For this reaſon, an infeftment being the form eſtabliſhed for tranſmitting the property to the heir, the ſame form was now held as a proper aditio hereditatis to have the double effect, not only of veſt⯑ing the heir with the property as formerly, but alſo of ſubjecting him to the anceſtor's debts. This title, it is true, being in its nature limited, ought not to ſubject him beyond the value of the ſubject. But then the identity of the anceſtor and his heir being once eſtabliſhed, it was thought, as in the Roman law, to have an univerſal effect, and to be an active title to every ſubject that could deſcend to the heir of line. And our former practice tended mainly to ſupport this inference; for it was ſtill re⯑membered, that formerly all allodial here⯑table ſubjects were veſted in the heir of line, upon his ſurvivance merely. The infeft⯑ment being thus held an aditio hereditatis, not only with reſpect to the land-eſtate, but [178] with reſpect to all other heretable ſubjects, it followed of courſe, that the infeftment behoved alſo to be an univerſal paſſive title; for if the heir ſucceeded to all heretable ſubjects without limitation, it ſeemed not unreaſonable that he ſhould be ſubjected to all debts without limitation. Theſe con⯑cluſions, it muſt be owned, were far from being juſt or accurate. It appears extreme⯑ly plain, that if a man die poſſeſt of a ſub⯑ject held of a ſuperior, and of other he⯑retable ſubjects that are allodial, the heir ought to be privileged to make a title to one or other at his pleaſure, and to be ſub⯑jected accordingly to the debts; that if he uſe a general ſervice, he muſt lay his ac⯑count to be liable univerſally, but that if he confine himſelf to a ſpecial ſervice, he is not to be liable beyond the value of the ſubject. But our ancient lawyers were not ſo clear ſighted. They blindly followed the Roman law, by attributing to the iden⯑tity of perſon the moſt extenſive effects poſſible. An infeftment in the land-eſtate [179] eſtabliſhed this identity, which, it was thought, did on the one hand entitle the heir of line to all the heretable ſubjects, and on the other did ſubject him to all the debts. And this affords a clear ſolution of the difficulty above mentioned. If the identity of perſon take at all place, it ap⯑plies to none more properly than to an heir of blood, who enters by infeftment; eſpe⯑cially as he generally is of the ſame name and family with his anceſtor, lives in the ſame houſe, poſſeſſes the ſame eſtate, and carries on the line of the ſame family.

BUT now ſuppoſing the foregoing de⯑duction to be juſt, is there not great rea⯑ſon to alter our preſent practice, and to hold a ſpecial ſervice to be, as it truly is in its nature and form, a limited title? Let us ſuppoſe that the heir of line, unwilling to repreſent his anceſtor univerſally, chuſes to abandon all the heretable ſubjects, except a ſmall land-eſtate, to which he makes up titles by a ſpecial ſervice; why ſhould [180] he be liable univerſally in this caſe? The natural conſtruction of ſuch a ſervice is, that the heir intends to confine himſelf to the ſubject therein mentioned, and to aban⯑don the anceſtor's other eſtate, ſince he for⯑bears to take out a general ſervice. Such conſtruction will better the condition of heirs, by removing ſome part of the riſk they run, and will not hurt creditors ſo far as their claim is founded on natural equity, viz. to have their debtor's effects applied for payment of his debts.

AND I muſt obſerve with ſome ſatisfac⯑tion, that we have given this very con⯑ſtruction to an infeftment upon a precept of Clare Conſtat; it being an eſtabliſhed rule, that ſuch infeftment is not a title to any other ſubject but that contained in the precept. And for this very reaſon, neither doth it make the heir liable for the debts of his anceſtor farther than in valorem. Lord Stair^*, it is true, conſiders a precept [181] of Clare as an univerſal paſſive title. But the court of ſeſſion entertained a juſter no⯑tion of this matter. A remarkable caſe is obſerved by Lord Harcus^*, to the fol⯑lowing purpoſe. ‘"A man infeft upon a precept of Clare Conſtat as heir to his fa⯑ther, being purſued for payment of a debt that was due by his father; pleaded an abſolvitor upon the following medium, that he had no benefit by the ſucceſſion, the ſubject to which he had connected by a precept of Clare being evicted from him."’ It was anſwered, ‘"That his en⯑tering heir by the precept of Clare Con⯑ſtat, made him eadem perſona cum de⯑functo; that it was a behaviour as heir, which ſubjected him to all his prede⯑ceſſor's debts, without regard to the eſtate, whether it was ſwallowed up by an earthquake, or evicted by a proceſs."’ The Lords ‘"judged the defender not liable as heir, in reſpect the land was evicted from him."’ It was ſaid, that had there [182] been a general ſervice, or a ſpecial ſervice which includes a general, the matter would have been more doubtful; eſpecially if there were other ſubjects to which a general ſer⯑vice gives right. The plain inference from this judgment is, that if eviction of the land-eſtate relieve the heir from being liable to pay the family-debts, the eſtate muſt be the meaſure of his repreſentation, and conſequently that he is not liable beyond the value.

THIS ſubject will perhaps be thought unneceſſary, now that the benefit of in⯑ventory is introduced into our law. It is indeed leſs neceſſary than formerly, but not however altogether uſeleſs. In many inſtances heirs neglect to lay hold of this benefit; and frequently the forms required by the ſtatute are unſkilfully or careleſsly proſecuted, ſo as to leave the heir open to the rigour of law, in all which caſes it comes to be an important enquiry, how far an heir is liable for the [183] debts of his anceſtor. I cannot at the ſame time help remarking, that it ſhows no true taſte for ſcience, to relinquiſh a ſub⯑ject, however beautiful, merely becauſe it appears not to be immediately uſeful. The hiſtory of law, which unfolds a ſubject in its natural as well as political progreſs, can never be uſeleſs. And, taking it upon the loweſt footing, it enables us to compare our preſent with our former practice, which always tends to inſtruction.

TRACT XIV.
OLD and NEW EXTENT.

THE extents old and new make a part of our law, which is involved in the dark clouds of antiquity. Theſe extents are not mentioned by our firſt writers, and later writers ſatisfy them⯑ſelves with looſe conjectures, which are the product of fancy without evidence. The deſign of the preſent eſſay is to draw this ſubject from its obſcurity, into ſome degree of light. It is a matter of curioſity, and poſſibly may be not altogether unprofi⯑table, with relation eſpecially to our re⯑tours, of which theſe extents make an eſ⯑ſential part.

As the Engliſh brieve of diem clauſit extremum approaches the neareſt of any to [186] our brieve of inqueſt, it may be of uſe to examine the Engliſh brieve, and the valent clauſe therein contained. Fitz-herbert, in his new nature of brieves^*, explains this brieve in the following words. ‘"The writ of Diem clauſit extremum properly lieth, where the King's tenant, who holdeth of him in capite, as of his crown, by knights ſervice, or in ſoccage, dieth ſeiſed, his heir within age, or of full age, then that writ ought to iſſue forth, and the ſame ought to be at the ſuit of the heir, &c. for upon that, when the heir cometh of full age, he ought to ſue for livery of his lands out of the King's hands."’ And the writ is ſuch. ‘"Rex dilect. ſibi W. de K. eſcheatori ſuo in Com. Deven. Salut. Quia W. de S. qui de nobis tenuit in capite, diem clauſit extremum, ut accipimus; tibi praecipi⯑mus, quod omnia terras et tenementa de quibus idem W. ſuit ſeiſitus in do⯑minico ſuo ut de feodo in Balliva tua die quo obiit ſine dilatione cap. in ma⯑num [187] noſtram, et ea ſalvo cuſtodiri fac, donec aliud inde praeceperimus, et per ſacramentum proborum et legal. homi⯑num de Balliva tua, per quos rei veritas melius ſcire poterit; diligent. inquiras, quantum terrae et tenementorum idem W. tenuit de nobis in capite, tam in dominico quam in ſervitiis, in Balliva tua die quo obiit, et quantum de aliis, et per quod ſervic. et quant. terrae et tenementa illa valent per annum in om⯑nibus exitibus; et quo die idem W. obiit, et quis propinquior ejus heres ſit: et cu⯑jus aetatis, et inquiſic. inde diſtincte et aperte fact. nobis in cancell. noſtra ſub ſigillo tuo, et ſigillis eorum per quos fact. fuerit, ſine dilatione mittas, et hoc Breve. Teſte, &c."’

At what time the queſtion about the yearly rent of the land was ingroſſed in this brieve, is uncertain; probably after the days of William the Conqueror: for as all the lands in England were accurately valued in [188] that King's reign, and the whole valuations collected into a record, commonly called Domes-day book, this authentick evidence, of the rent of every barony, was a rule for levying the King's caſualties as ſuperior, without neceſſity of demanding other evi⯑dence. But domes-day book could not long anſwer this purpoſe; for when great baronies were diſmembered, each part to be held of the crown, this book afforded no rule for the extent of the caſualties to to be levied out of the lands of the new vaſſals. An inquiſition therefore was ne⯑ceſſary, to aſcertain the yearly rents of the disjoined parcels; and there could not be a more proper time for ſuch enquiry than when the heir of a crown vaſſal was ſuing out his livery. This ſeems to be a reaſonable mo⯑tive for ingroſſing the foregoing queſtion in the brieve. And in England, this enquiry was neceſſary upon a ſpecial account. It was not the cuſtom there to give gifts of the caſualties of ſuperiority. Officers were appointed in every ſhire to take poſſeſſion [189] in name of the King of the lands of his de⯑ceaſed vaſſals, and to keep poſſeſſion till the heirs were entered. Theſe officers, called eſcheators, were accountable to the crown for the rents and iſſues, and for the other caſualties; and the rent of the land aſcertained by the retour was the rule to the treaſurer for counting with eſcheators.

WE find not different values or extents in the Engliſh brieve, like what we find in the Scotch brieve. I ſhall endeavour to trace the occaſion of the difference, after premiſing a ſhort hiſtory of our taxes; car⯑rying the matter as far back as we have evidence.

TAXES were no part of the conſtitution of any feudal government. The King was ſupported by the rents of his property-lands, and by the occaſional profits of ſuperiority, paſſing under the name of caſualties. Theſe caſualties, ſuch as ward, nonentry, mar⯑riage, eſcheat, &c. aroſe from the very na⯑ture [190] of the holding; and beyond theſe the vaſſal was not liable to be taxed; ſome ſingular caſes excepted eſtabliſhed by cu⯑ſtom, ſuch as, for redeeming the King from captivity, for a portion to his eldeſt daugh⯑ter, and a ſum to defray the expence of making his eldeſt ſon a knight. For this reaſon, it is natural to conjecture, that the firſt univerſal tax was impoſed upon ſome ſuch ſingular occaſion. The firſt event we can diſcover in the hiſtory of Scotland to make ſuch a tax neceſſary, happened in the reign of William the Lyon. This King was taken priſoner by the Engliſh at Alnwick, 12th July 1174; and in Decem⯑ber that year, he obtained his liberty from Henry II. upon a treaty, by which he and his nobles ſubjected this Kingdom to the crown of England^*. Hector Boece, our fabulous hiſtorian, ſays, That upon this occaſion, William paid to Henry a hundred thouſand merks. But this ſeems to be aſ⯑ſerted without any authority. The depen⯑dency [191] of Scotland on the crown of Eng⯑land, was a price ſufficient for William's liberty, without the addition of a ſum of money; and the ſilence of all other hiſto⯑rians as to this fact, joined with the great improbability that a ſum ſo immenſe could be paid, leave this author without excuſe.

RICHARD I. who ſucceeded Henry, bent upon a voyage to the holy land, ſtood in need of great ſums for the expedition. William laid hold of this favourable con⯑juncture, met Richard at York, and, upon paying down ten thouſand merks Sterling, obtained from him a diſcharge of the treaty made with his father Henry; which was done by a ſolemn deed, dated the 25th December 1190, ſtill extant^*.

THE ſum paid to King Richard upon this occaſion was too great to be raiſed by the King of Scotland out of his own domains. It muſt have been levied by a [192] tax or contribution; and there was good reaſon for the demand, as the money was to be applied for reſtoring the kingdom to its former independency. But of this fact we have better evidence than conjecture. The monks of the Ciſtertian order having contributed a ſhare, obtained from King William a deed, declaring, That this con⯑tribution ſhould not be made a precedent in time coming^*. ‘"Ne quod in tali eventu ſemel factum eſt, qui nec prius evenit, nec in poſterum Deo miſerante futurus eſt, ullo modo in conſuetu⯑dinem vel ſervitutem convertatur; ut videlicit per quod ipſi, pro redimenda regni libertate gratis fecerunt, ſervitus iis imponatur."’ This, in all probability was the firſt tax of any importance that was levied in Scotland; and though our hiſtorians are altogether ſilent as to the manner, the deed now mentioned proves it to have been levied by voluntary con⯑tribution, [193] and not by authority of parlia⯑ment, which in thoſe days probably had not aſſumed the power of impoſing taxes.

THE next tax we meet with, is in the days of Alexander II. ſon to the above men⯑tioned William. This King made a journey the length of Dover, and his ready money being exhauſted, he procured a ſum by pledg⯑ing ſome lands, to redeem which he levied a tax. This appears from a deed, anno regni 15^o. in which he declares, that the mo⯑naſtry of Aberbrothick, having aided him on this occaſion, it ſhould not turn to their prejudice^*.

ALEXANDER III. married Margaret, daughter to Henry III. of England, and was in perfect good underſtanding with that kingdom during his whole reign. He was but once obliged to take up arms, and the occaſion was, to reſiſt an invaſion by Acho king of Norway, who landed at Ayr, [194] Auguſt 1263; nor was this war of any con⯑tinuance. Acho was defeated on land, and his fleet ſuffered by a ſtorm, which obliged him to retire not many months after his landing. Alexander, ſome years thereafter, viz. 25th July 1281^*, contracted his daugh⯑ter Margaret to Eric the young king of Norway, and bound himſelf for a tocher of 14000 merks Sterling; a fourth part to be inſtantly advanced; a fourth part to be paid 1ſt Auguſt 1282, a fourth part 1ſt Au⯑guſt 1283, and the remaining fourth 1ſt Au⯑guſt 1284; but providing an option to give land for the two latter ſhares, at the rate of 100 merks of rent for 1000 merks of money.

THIS ſum, which Alexander contracted in name of portion with his daughter, amounted to about 28000l. Sterling of our preſent money^†; too great a ſum to be raiſed out of his own funds: and as by law he was [195] intitled to demand aid from his vaſſals upon this occaſion, there can be little doubt that the ſum was levied by ſome ſort of tax or contribution. He had recent authority for laying this burden upon his ſubjects, viz. that of his father-in-law Henry III.^*; and if his ſubjects were to be burdened equally, it was neceſſary to aſcertain the value of the whole lands in the kingdom. Poſſibly he might take a hint of this valuation from the ſtatute 4th Edward I. anno 1276, di⯑recting a valuation to be made of the lands, caſtles, woods, fiſhings, &c. of the whole kingdom of England. And the rent aſcer⯑tained by ſuch valuation got the name of extent; becauſe the lands were eſtimated at their utmoſt value or extent^†. One thing is certain, that there was a valuation of all the lands of Scotland in the reign of Alexander III. the proof of which ſhall be immediately produced, and there is not upon record any event to be a motive for [196] an undertaking ſo laborious other than levy⯑ing the ſaid ſum.

ALEXANDER III. left no deſcendants but a grand-daughter, commonly called the Maid of Norway; and ſhe having died unmarried and under age, Scotland was miſerably harraſſed by Edward I. of Eng⯑land, who laid hold of the opportunity of a diſputed ſucceſſion to enſlave this king⯑dom. Robert Bruce, by unwearied oppo⯑ſition, got peaceable poſſeſſion of the crown, anno 1306, and though he ſeized upon the lands belonging to Baliol and the Cum⯑mins, and made conſiderable profit by leſ⯑ſening the weight of money in the re-coin⯑age, yet, by a long train of war and inte⯑ſtine commotions, the crown-lands were ſo waſted, that, towards the end of his reign, it became neceſſary for him to petition the parliament for a ſupply. Upon the 15th July 1326, the parliament being conveened at Cambuſkenneth, the laity agreed to give him during his life the tenth penny of all [197] their rents, tam infra burgos et regalitates quam extra, ‘"according to the old extent of the lands and rents in the time of Alexander III."’ This curious deed, a copy of which is annexed^*, contains an exception in theſe words; ‘"Excepta tan⯑tummodo deſtructione guerrae, in quo caſu fiet decidentia de decimo denario praeconceſſo, ſecundum quantitatem fir⯑mae, quae occaſione praedicta de terris et redditibus praedictis levari non poterit, prout per inquiſitionem per vicecomitem loci fideliter faciendam poterit reperiri."’

HERE is compleat proof of a valuation in the reign of Alexander III. named in the indenture, the Old Extent. And as the neceſſity of the caſe affords real evidence that the tax was levied, we have no rea⯑ſon to doubt, that every man whoſe rents had fallen by the diſtreſſes of war, took the benefit of the foregoing clauſe, to get his lands revalued by the ſheriff, that he [198] might pay no more than a juſt proportion of the tax.

WE have now materials ſufficient for an explanation of the valent clauſe in our re⯑tours. At what time it came into practice, is altogether uncertain. If this clauſe was not made a part of the brieve of inqueſt before the days of Alexander III. there was little occaſion for it, after the extent made in that reign, till the great baronies were ſplit into parts, and the King's vaſſals were multiplied. One thing we may rely on as certain, that before the 1326, when the ſaid indenture paſſed between King Ro⯑bert and his parliament, one extent only was mentioned in retours, viz. that of Alexander III. Nor before that period was there any occaſion for a double ex⯑tent here more than in England. Of this I reckon we may be convinced by what follows. In levying the caſualties of ſu⯑periority, ſuch as ward, nonentry, &c. it was not the genius of this country, to [199] ſtretch ſuch claims to the utmoſt, by ſtat⯑ing the juſt and true rent of the land upon every occaſion. Such a fluctuating eſtima⯑tion, ſevere upon vaſſals, would at the ſame time have been troubleſome to ſuperiors. The King, and, in imitation of him, other ſuperiors were ſatisfied with a conſtant fixed rent to be a general rule for aſcer⯑taining the caſualties, without regarding any occaſional increaſe or diminution of rent. The extent in the reign of Alex⯑ander III. was probably the full rent, and muſt have continued a pretty juſt valua⯑tion for many years. This extent then be⯑came the univerſal meaſure of the caſualties of ſuperiority. If a barony remained en⯑tire as in the days of Alexander III. there was no occaſion for witneſſes to prove the rent: it was found in the rolls containing the old extent. If a barony was ſplit into parts, the rent of the ſeveral par⯑cels was found in the retours, being a pro⯑portion of the old extent of the whole. Hence this quaere in the brieve, Quantum [200] valent dictae terrae per annum, came to have a fixed and determined meaning; not what theſe lands are worth of yearly rent at pre⯑ſent, but what they were worth at the laſt general valuation; or, in other words, what they are computed to in the rolls contain⯑ing the old extent.

THUS the matter ſtood, and behoved to ſtand, at the date of the indenture 1326, which laid a foundation for a re-valuation, not of the whole lands in Scotland, but only of what were waſted by war. Suppoſing now ſuch a re-valuation, of which we can entertain no reaſonable doubt when it was in favour of vaſſals, it behoved to be the rule, not only for levying the tax then impoſed, but alſo for aſcertaining the ca⯑ſualties of ſuperiority. If ſo, it was neceſ⯑ſary to take notice of this new valuation in the retours of theſe lands, and conſe⯑quently in the brieve, which was the war⯑rant of the retour. The clauſe, quantum valent, contained in the brieve, could not [201] anſwer this purpoſe, becauſe that clauſe re⯑garded only the old extent, and was a que⯑ſtion to which the old valuation of the land was the proper anſwer. A new clauſe there⯑fore was neceſſary, and the clauſe that was added, points out ſo preciſely the re-va⯑luation authorized by this indenture, as to afford real evidence, that the clauſe muſt have been contrived ſoon after it. The clauſe as altered runs thus: Et quantum nunc valent dictae terrae, et quantum valuerunt tempore pacis. It was extremely natural to characterize the old extent by the phraſe tempore pacis, not only as made in a peace⯑able reign, but alſo in oppoſition to the new extent occaſioned by the devaſtation of war. I need only further remark, that this new clauſe behoved to be ingroſſed in every brieve; becauſe, with reſpect to any particular land-eſtate, it could not be⯑forehand be known, whether it had been waſted by war or not.

[202] BUT, beſides conjecture, there are facts which will put this matter beyond contro⯑verſy. I have not hitherto diſcovered a retour of land held of the King, ſo ancient as the 1326; but of that period there are preſerved authentick copies of many retours of lands held of biſhops, monaſteries, &c. who had the privilege of a chancery. And we have no reaſon to doubt, that the great barons who had this privilege, were ambi⯑tious of copying after the King's chancery in every article. The firſt retour I ſhall mention, happens to be a very lucky au⯑thority; for it verifies a fact which I have mentioned above upon the faith of conjec⯑ture, that at the date of the indenture 1326, there was but one extent mentioned in the brieve and retour. The retour I ap⯑peal to, is that of the land of Orroc in the county of Fife, held of the abbay of Dun⯑fermline, dated the 20th May 1328, the valent clauſe of which runs thus: Item dicunt quod praedictae terrae de Orroc valent per annum 12l. This retour at the ſame [203] time ſhows, that the alteration in the va⯑lent clauſe was not then introduced, which is not wonderful, when the retour is but a year and ten months after the inden⯑ture^*. The moſt ancient retour I have ſeen after that now mentioned, bears date in the 1359, being of land held of the ſame abbay. Before this time, probably ſeveral years, the alteration of the valent clauſe was made; for in this retour it runs thus: Et dictae terrae valebant tempore bonae pacis L. 13: 6: 8. et nunc valent L. 10: 13: 7. There are in that period many other re⯑tours mentioning two extents, diſtinguiſh⯑ing them in the ſame manner. And uni⯑formly the valuerunt tempore pacis is greater than the nunc valent; which puts it paſt doubt, that the nunc valent refers to the [204] new extent authorized by the ſaid inden⯑ture. Some retours indeed there are of that period, where the valuerunt tempore pacis and the nunc valent are the ſame. But it is eaſy to account for that circum⯑ſtance: becauſe from the indenture it ap⯑pears, that but a part of our lands were waſted by war; and the retours now men⯑tioned muſt be of lands which were not ſo waſted.

DOWN to the days of our James I. I take it to be certain, that the two extents men⯑tioned in retours, were theſe of Alexan⯑der III. and Robert Bruce. In James's reign we obſerve an alteration, which can⯑not be explained without going on with the hiſtory of the publick taxes. The next tax that deſerves to be taken notice of, was in the reign of David II. This King was taken priſoner by the Engliſh at the battle of Durham anno 1346, and was releaſed anno 1365; after agreeing to pay for his ranſom 100,000l. Sterling within [205] the ſpace of twenty five years. And there is good evidence that the whole was paid before the year 1383^*. This immenſe debt, contracted for redeeming the King from captivity, came to be a burden upon his vaſſals, by the very conſtitution of the feudal law, abſtracting from the authority of parliament. It muſt therefore have been levied as a publick tax, which appears to be the caſe from the rolls of that King ſtill extant in exchequer. And as there is no veſtige of any new valuation at this time, the old extent, viz. that of Alexander III. muſt have been the rule; except ſo far as it was altered by the partial valuation in the reign of Robert I. And what puts this paſt doubt is, that the new extent conti⯑nued to be lower than the old extent, or extent tempore pacis, during this King's reign, and until the reign of James I.

JAMES I. having been many years de⯑tained in England, obtained his liberty [206] upon giving hoſtages for payment of 40,000l. Sterling, demanded under the ſpecious title of alimony. Of this ſum 10,000l. was remitted by Henry VI. at that time King of England, upon James's marrying a daughter of the duke of So⯑merſet. In the parliament 1424, proviſion was made for redeeming the hoſtages by a ſubſidy granted of the twentieth part of lands, moveables, &c.^* In order to levy this tax, a valuation was directed of lands as well as of moveables. And this new va⯑luation of lands became proper, if not ne⯑ceſſary, upon the following account, that the reaſon for making the new extent in the 1326 no longer ſubſiſted. The lands which at that time had been waſted by war, were now reſtored to their wonted value; and yet without a new valuation, theſe lands could only be taxed according to the extent 1326. And with this ſpecial reaſon concurred one more general, which is, than an extent, if the commerce of [207] land be free, cannot long be a rule for levying publick taxes. For by ſucceſſion, purchaſe, and other means of acquiring property, parcels of land are united into a a whole, or a whole ſplit into parcels, which acquire new names, till, by courſe of time, it comes to be a matter of uncertainty, what lands are meant by the original name preſerved upon record. This reaſon ſhows the neceſſity of new extents from time to time; for after the connection betwixt land and the name it bears in the extent rolls is loſt, theſe rolls can no longer be of uſe for proportioning a tax upon ſuch land.

IT was appointed by the act impoſing the ſubſidy, that this extent ſhould be made and put in books, betwixt and the 13th July then next; and that it was made, and alſo that the ſubſidy was levied, appears from the continuator of Fordon^*. He reports, that it amounted the firſt year [208] to 14000 merks, that the ſecond year it was much leſs, and the people beginning to murmur, that the tax was no longer continued. But we have ſtill a better au⯑thority than the continuator of Fordon, to prove that the extent was made, viz. ſe⯑veral retours recently after the 1424, where the new extent is uniformly greater than the old extent, or extent tempore pacis. Theſe muſt refer to ſome late extent, and not to the extent 1326, which behoved to be leſs than the old extent. Of theſe re⯑tours the moſt ancient I have met with is dated 1431, being of the lands of Blair⯑mukis, held of the Baron of Bothvill, in which James de Dundas is retoured heir to James de Dundas his father, ‘"Qui ju⯑rati dicunt quod dictae terrae nunc valent per annum 20 mercas, et valuerunt tem⯑pore pacis 100 ſolidos^*."’

SINCE there was a new extent of the whole lands of Scotland, which muſt have [209] been the rule for levying the caſualties of ſuperiority, as well as the tax then im⯑poſed, one is naturally led to enquire, what was the uſe of continuing in the brieve of inqueſt the quoere about the two different extents? why not return to the ancient form ſpecifying one extent only, viz. the preſent extent? In anſwer to this, it muſt be yielded, that there could ly no objection to this innovation had it been intended. But by this time the rule had prevailed of pre⯑ſerving inviolably the ſtile of judicial writs; and as to queſtions ſo eaſy to be anſwered, the innovation probably was reckoned a matter of no ſuch importance, as to occa⯑ſion an alteration in the ſtile of the brieve of inqueſt. One thing is certain, that the ſtile remains the ſame without any altera⯑tion ſince the days of King Robert I. The brieve and retour obtained however a dif⯑ferent meaning; ſo far as that the nunc valent, by which formerly was meant the extent 1326, came afterwards to mean the extent 1424. For inſtance, the retour [210] of the lands of Tullach, held of the abbey of Aberbrothick, bearing date 1438, has the valent clauſe thus: Valent per annum L. 33: 6: 8, et tempore pacis valuerunt L. 10. Another inſtance is a retour of the lands of Forglen, held of the ſame abbey, dated 1457, Valent nunc per annum 20 merks, et valuerunt tempore pacis L. 10. That by the nunc valent in theſe two retours muſt be meant the late extent of James I. is evident from the following circumſtance, that in⯑ſtead of being leſs than the extent tempore pacis, which the extent 1326 conſtantly was, it is conſiderably greater.

As the extent 1424 was uniformly in⯑groſſed in every retour, in anſwer to the quantum nunc valent in the brieve, this prac⯑tice came to be exceeding favourable to vaſſals in counting for the caſualties due by them; becauſe in every ſuch account this extent was taken for the true rent of the land. By the gradual ſinking of the value of money and the improvement of [211] land, the benefit which vaſſals had by this form of ſtating accounts, came to be too conſiderable to be overlooked. The value of the King's caſualties by this means gra⯑dually diminiſhing, the matter was taken under conſideration by the legiſlature, and produced the act 55. p. 1474, ordaining, ‘"That it be anſwered in the retour, of what avail the land was of old, and the very avail that it is worth and gives, the day of ſerving the brieve."’

I formerly inclined to think, that it was not the meaning of this ſtatute, to require a new proof of the rent of land every time it was retoured upon a brieve of inqueſt. I ſuſpected that there had been ſome new general valuation of the lands in Scotland recently before the ſtatute, and that the ſtatute referred to this valuation. And I was encouraged to embrace this opinion, by finding in the records of parliament^*, a tax impoſed of L. 3000, for defraying [212] the expence of an embaſſy to Denmark, and a general valuation appointed in order to levy that tax. Commiſſioners are named to take the proof, and certain perſons ap⯑pointed, one out of each eſtate, to receive the ſums that ſhould be levied. And that this muſt have been the caſe, appeared pro⯑bable, upon finding, that the new extent, even after this period, was not leſs uniform than formerly, and therefore that it could not correſpond to the true rent of land, which all the world know is in a continual fluctuation. But if after all there enſued no new valuation of the land-rent of this kingdom, of which there is not the ſlighteſt veſtige, the ſtatute muſt be taken in its literal meaning, becauſe it can admit of none other. I have ſtill better authority for adhering to the literal meaning of this ſtatute, viz. the proceedings of the ſove⯑reign court, while the ſtatute was freſh in memory. The Earl of Bothwell, donator to the relief and nonentry of the barony of Balinbreich, brought a reduction againſt [213] the Earl of Rothes proprietor, of his re⯑tour of that barony upon this medium, that they were retoured to 200 merks only for the new extent, though the rent really amounted to a much greater ſum. It was proved before the court, that the barony paid 500 merks of rent; and up⯑on this medium the retour was reduced^*. And the like was done with reſpect to the retour of the lands of Shield and Drongan, which were retoured to L. 42 of new ex⯑tent, and yet were proved by witneſſes to be 100 merks of yearly rent^†.

IN the retours accordingly, that bear date recently after the ſtatute, we find a ſudden ſtart of the new extent, and a much greater diſproportion than formerly betwixt it and the old extent. In the chartulary of the abbey of Aberbrothick, there is a copy of a retour of certain lands, dated anno 1491, the particulars of which are, Terrae de Pittarrow [214] valent nunc L. 22. tempore pacis L. 8. Terrae de Cardinbegy valent nunc L. 13, et tempore pacis L. 5. Terrae de Auchingarth valent nunc 5 merks, tempore pacis 2 merks. In the chartulary of the abbey of Dunfermline there is a copy of a retour of the lands of Clunys, held of that abbey, bearing date anno 1506, Valent nunc 50 merks et tempore pacis L. 4. I have had occaſion to mention a retour of the lands of Forglen, held of the abbey of Aberbrothick, dated anno 1457, of which the new extent is 20 merks, and the old extent is L. 10. In the ſame chartu⯑lary, there is luckily another retour of the ſame lands, bearing date anno 1494, of which the valent clauſe is in the following words, Valent nunc L. 20. et valuerunt tem⯑pore pacis 20 merks. The difference in ſo ſhort a time as 37 years betwixt 20 merks and L. 20 of new extent, is real evidence, that the act of parliament was duly obſerv⯑ed in making out the retour laſt-mentioned. But from the compariſon of theſe two re⯑tours, a more curious obſervation occurs, [215] viz. that retours of lands held of ſubject-ſuperiors, are not much to be relied on as evidence of the old extent. In the firſt of theſe retours the old extent is ſtated at L. 10, in the other at 20 merks; occaſion⯑ed by a blunder of the inqueſt, who in⯑groſſed as the old extent in the retour they were forming, the new extent contained in the former retour. Many ſuch blunders would probably be diſcovered, had we a full record of old retours. And it need not be ſurpriſing, that in ſuch retours little at⯑tention was given to the valent clauſe, which was reckoned a matter merely of form. For though the publick taxes were levied from the King's vaſſals according to the old extent, yet in proportioning the relief which a Baron had againſt his own vaſſals, there is little doubt that the true rent was made the rule. The new extent was of more conſequence, becauſe it was the rule for the nonentry duties, before a declarator of nonentry was raiſed by a Baron againſt the heir of his vaſſal.

[216] IT may be remarked here by the by, that the act 1474 is real evidence of a flou⯑riſhing ſtate of affairs after our James I. got poſſeſſion of his throne. From the valuation 1424 to the ſaid act, there paſſed but fifty years; and the land rent of Scot⯑land muſt have increaſed remarkably du⯑ring that period, to make the act 1474 ne⯑ceſſary. But that Monarch in his younger years was diſciplined in the ſchool of ad⯑verſity. During a tedious confinement of eighteen years, he had ſufficient leiſure to ſtudy the arts of government; and proba⯑bly he made the beſt uſe of his time. It is certain, that before his reign we had no ex⯑perience and ſcarce any notion of a regu⯑lar government, where the law bears ſway, and the people peaceably ſubmit to the au⯑thority of law. But to return to our ſub⯑ject.

AS by the ſtatute now mentioned, the ſuperior's caſualties were raiſed to their higheſt pitch, it was impracticable to ſup⯑port [217] them long at that height, in oppoſi⯑tion to the general bias of the nation in favour of Vaſſals. The notion had been long ago broatched, and was now firmly e⯑ſtabliſhed, that the vaſſal was proprietor, and conſequently that ward, relief, and nonentry were rigorous and ſevere caſual⯑ties. We have Spotſwood's authority, in his hiſtory of the church of Scotland, that loud complaints were made againſt theſe caſualties early in the reign of James IV. But why at this period in particular, for we do not find the ſame complaints after⯑wards; at leaſt they make no figure in the annals of more recent times? The act we have been diſcourſing about affords a ſatisfactory anſwer. Theſe caſualties, in conſequence of the ſtatute, were more ri⯑gorouſly exacted than formerly. And we ſhall now proceed to ſhow, that they were very ſoon brought down to a moderate pitch, notwithſtanding the ſtatute. In ſerving a brieve of inqueſt, it is certain the practice did not long continue, of taking a [218] proof by witneſſes of the true rent of the land. The old method was revived, of making a former extent the rule. If the land was once retoured as preſcribed by the ſtatute, the old and new extent in⯑groſſed in that retour were continued in the following retours. If there was no re⯑tour, a proportion of the old and new ex⯑tent of the whole barony was taken. And where that was not to be had, it was the method, to ingroſs a new extent bearing a certain proportion to the old extent. For the laſt we have Skene's authority (voce Extent). His words are: ‘"The Lords of ſeſſion eſteem a merk-land of old ex⯑tent to four merk-land of new extent."’ And he cites a deciſion, viz. 21ſt March 1541, Kennedy contra Mackinnald, which ſeems to import ſo much; though but obſcurely, becauſe the caſe is not diſtinctly ſtated. The proceſs being for the non⯑entry duties of a five merk-land, it is ſaid to have been proved, that the land payed of rent four merks for every one of the [219] ſaid five merks; and I muſt acknowledge, that the manner of expreſſion ſeems to point at ſome general rule, rather than at a proof by witneſſes. If this be the mean⯑ing of the deciſion, it is the firſt caſe I have obſerved, where this deviation from the ſtatute was authorized by the ſove⯑reign court; and a notable deviation it was, to take up with ſuch an imaginary rule for aſcertaining the rent of the land, when the ſtatute directed a proof by wit⯑neſſes of the true rent. But when the act came once to be neglected, the court was more explicit in their judgments on this point. In a caſe obſerved by Balfour, (Title of Brieves and Retours) 17th July 1562, Queen's Advocate and Lord Drum⯑mond contra George Muſhet, a general rule is eſtabliſhed directly in face of the ſtatute; which is, that when lands pay farm-victual, poultry, &c. the inqueſt are not bound to take inquiſition of the year⯑ly rent, nor to convert ſuch caſualties in⯑to money. And the reaſon given is re⯑markable, [220] viz. that the price of ſuch ca⯑ſualties is ſo changeable that no certain or fixed ſum can be aſcertained. This is a very bad reaſon upon the plan of the ſta⯑tute, though it ſerves to ſhow the ſenſe of the nation, which the ſtatute had not era⯑dicated, that the new extent ought to be fixed and uniform as well as the old. At the ſame time, as the land-rent in Scotland was generally paid in victual, this deciſion was in effect a repeal of the ſtatute; of which we need not doubt, that the pro⯑prietors, whoſe rents were paid in money, would take advantage. And the act 1474 came in this manner to be ſo univerſal⯑ly neglected, that it was eſtabliſhed as a matter of right, that the new extent ſhould always be lower than the true rent; and for this we have the beſt authority. The act 6. p. 1584 impowering the King to feu out his annexed property, has the follow⯑ing clauſe. ‘"Providing always that the ſaidis infeftments of feuferme be not maid within the juſt avail, to the pre⯑judice [221] and hurt of our ſovereign Lord and his ſucceſſoures: That is to ſay, within the dewtie to the quilkis the ſaidis landis are retoured, or may be juſt⯑ly retoured, for the new extent. Quhilk new extent his hieris, with advice for⯑ſaid, declaires to be the juſt avail of the ſaidis lands, for the quhilk the ſamen may be ſet in feu-farm."’ Here it is clearly ſuppoſed, that the new extent is a favourable eſtimation of the rent, and low⯑er than what is truly paid for the land.

N. B. For the materials employed in this tract, the author is indebted to Mr. John Davidſon clerk to the ſignet, whoſe extenſive knowledge reflects honour upon the ſociety to which he belongs.