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HISTORICAL LAW-TRACTS.

VOLUME I.

EDINBURGH: Printed for A. MILLAR, at BUCHANAN's Head in the STRAND, LONDON; and A. KINCAID, and J. BELL, EDINBURGH. MDCCLVIII.

PREFACE.

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THE hiſtory of mankind is a delightful ſubject. A rational inquirer is not leſs entertained than inſtructed, when he traces the gradual progreſs of manners, of laws, of arts, from their birth to their preſent maturity. Events and ſubordinate incidents are, in each of theſe, linked together, and connected in a regular chain of cauſes and effects. Law in particular becomes then only a rational ſtudy, when it is traced hiſtorically, from its firſt rudiments among ſavages, through ſucceſſive changes, to its higheſt improvements in a civilized ſociety. And yet the ſtudy is ſeldom conducted in this manner. Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full, rarely the judgment. [vi] This method, if it were not rendered familiar by cuſtom, would appear ſtrange and unaccountable. With reſpect to the political conſtitution of Britain, how imperfect muſt the knowledge be of that man who confines his reading to the preſent times? If he follow the ſame method in ſtudying its laws, have we reaſon to hope that his knowledge of them will be more perfect?

SUCH neglect of the hiſtory of law is the more unaccountable, that in place of a dry, intricate and crabbed ſcience, law treated hiſtorically becomes an entertaining ſtudy; entertaining not only to thoſe whoſe profeſſion it is, but to every perſon who hath any thirſt for knowledge. With the bulk of men, it is true, the hiſtory of law makes not ſo great a figure, as the hiſtory of wars and conqueſts. Singular events, which, by the prevalence of chance and fortune, excite wonder, are greatly reliſhed by the vulgar. But readers of ſolid judgment find more entertainment, in ſtudying the conſtitution [vii] of a ſtate, its government, its laws, the manners of its people: where reaſon is exerciſed in diſcovering cauſes and tracing effects through a long train of dependencies.

THE hiſtory of law, in common with other hiſtories, enjoys the privilege of gratifying curioſity. It enjoys beſides ſeveral peculiar privileges. The feudal cuſtoms ought to be the ſtudy of every man who propoſes to reap inſtruction from the hiſtory of the modern European nations: becauſe among theſe nations, publick tranſactions, not leſs than private property, were ſome centuries ago, regulated by the feudal ſyſtem. Sovereigns formerly were many of them connected by the relation of ſuperior and vaſſal. The King of England, for example, by the feudal tenure, held of the French King many fair provinces. The King of Scotland, in the ſame manner, held many lands of the Engliſh King. The controverſies among theſe princes were generally feudal; and without a thorough [viii] knowledge of the feudal ſyſtem, one muſt be ever at a loſs, in forming any accurate notion of ſuch controverſies, or in applying to them the ſtandard of right and wrong.

THE feudal ſyſtem is connected with the municipal law of this iſland, ſtill more than with the law of nations. It formerly made the chief part of our municipal law, and in Scotland to this day makes ſome part. In England indeed, it is reduced to a ſhadow. Yet, without excepting even England, much of our preſent practice is evidently derived from it. This conſideration muſt recommend the feudal ſyſtem, as a ſtudy to every man of taſte who is deſirous to acquire the true ſpirit of law.

BUT the hiſtory of law is not conſined to the feudal ſyſtem. It comprehends particulars without end, of which one additional inſtance ſhall at preſent ſuffice. A ſtatute, or any regulation, if we confine ourourſelves [ix] to the words, is ſeldom ſo perſpicuous as to prevent errors, perhaps groſs ones. In order to form a ſolid judgment about any ſtatute, and to diſcover its ſpirit and intendment, we ought to be well informed how the law ſtood at the time, what defect was meant to be ſupplied, or what improvement made. Theſe particulars require hiſtorical knowledge; and therefore, with reſpect to ſtatute law at leaſt, ſuch knowledge appears indiſpenſible.

IN the foregoing reſpects I have often amuſed myſelf with a fanciful reſemblance of law to the river Nile. When we enter upon the municipal law of any country in its preſent ſtate, we reſemble a traveller, who croſſing the Delta, loſes his way among the numberleſs branches of the Egyptian river. But when we begin at the ſource and follow the current of law, it is in that courſe not leſs eaſy than agreeable; and all its relations and dependencies are traced with no greater difficulty, than are the many [x] ſtreams into which that magnificent river is divided before it is loſt in the ſea.

AN author, in whoſe voluminous writings not many things deſerve to be copied, has however handled the preſent ſubject with ſuch ſuperiority of thought and expreſſion, that in order to recommend the hiſtory of law, I may be allowed to cite the paſſage at large. ‘"I might inſtance (ſays he) in other profeſſions the obligation men lie under of applying themſelves to certain parts of hiſtory, and I can hardly forbear doing it in that of the law, in its nature the nobleſt and moſt beneficial to mankind, in its abuſe and debaſement the moſt ſordid and the moſt pernicious. A lawyer now is nothing more, I ſpeak of ninety nine in a hundred at leaſt, to uſe ſome of Tully's words, niſi leguleius quidem cautus, et acutus praeco actionum, cantor formularum, auceps ſyllabarum. But there have been lawyers that were orators, philoſophers, hiſtorians: there have been [xi] Bacons and Clarendons. There will be none ſuch any more, till in ſome better age, true ambition or the love of fame prevails over avarice; and till men find leiſure and encouragement to prepare themſelves for the exerciſe of this profeſſion, by climbing up to the vantage ground, ſo my Lord Bacon calls it, of ſcience, inſtead of groveling all their lives below, in a mean, but gainful, application to all the little arts of chicane. Till this happen, the profeſſion of the law will ſcarce deſerve to be ranked among the learned profeſſions: and whenever it happens, one of the vantage grounds to which men muſt climb, is metaphyſical, and the other, hiſtorical knowledge. They muſt pry into the ſecret receſſes of the human heart, and become well acquainted with the whole moral world, that they may diſcover the abſtract reaſon of all laws: and they muſt trace the laws of particular ſtates, eſpecially of their own, from the firſt rough ſketches to the [xii] more perfect draughts; from the firſt cauſes or occaſions that produced them, through all the effects, good and bad, that they produced*."’

THE following diſcourſes are ſelected from a greater number, as a ſpecimen of that manner of treating law which is here ſo warmly recommended. The author flatters himſelf, that they may tend to excite an hiſtorical ſpirit, if he may uſe the expreſſion, in thoſe who apply themſelves to law, whether for profit or amuſement; and for that end ſolely has he ſurrendered them to the publick.

AN additional motive concurred to the ſelection here made. The diſcourſes relate, each of them, to ſubjects common to the law of England and of Scotland; and, in tracing the hiſtory of both, tend to introduce both into the reader's acquaintance. [xiii] I have often reflected upon it as an unhappy circumſtance, that different parts of the ſame kingdom ſhould be governed by different laws. This imperfection could not be remedied in the union betwixt England and Scotland; for what nation will tamely ſurrender its laws more than its liberties? But if the thing was unavoidable, its bad conſequences were not altogether ſo. Theſe might have been prevented, and may yet be prevented, by eſtabliſhing publick profeſſors of both laws, and giving ſuitable encouragement for carrying on together the ſtudy of both. To unite both, in ſome ſuch plan of education, will be leſs difficult than at firſt view may be apprehended; for the whole iſland originally was governed by the ſame law; and even at preſent the difference conſiſts more in terms of art than in ſubſtance. Difficulties at the ſame time may be overbalanced by advantages; and the propoſed plan has great advantages, not only by removing or leſſening the foreſaid inconvenience, but by introducing the [xiv] beſt method of ſtudying law; for I know none more rational, than a careful and judicious compariſon of the laws of different countries. Materials for ſuch compariſon are richly furniſhed by the laws of England and of Scotland. They have ſuch reſemblance, as to bear a compariſon almoſt in every branch; and they ſo far differ, as to illuſtrate each other by their oppoſition. Our law will admit of many improvements from that of England; and if the author be not in a miſtake, through partiality to his native country, we are rich enough to repay with intereſt, all we have occaſion to borrow. A regular inſtitute of the common law of this iſland, deducing hiſtorically the changes which that law hath undergone in the two nations, would be a valuable preſent to the publick; becauſe it would make the ſtudy of both laws a taſk eaſy and agreeable. Such inſtitute, it is true, is an undertaking too great for any one hand. But if men of knowledge and genius would undertake particular branches, [xv] a general ſyſtem might in time be compleated from their works. This ſubject, which has frequently occupied the author's thoughts, muſt touch every Briton who wiſhes a compleat union; and a North-Briton in a peculiar manner. Let us reflect but a moment upon the condition of property in Scotland, ſubjected in the laſt reſort to judges, who have little inclination, becauſe they have ſcarce any means, to acquire knowledge in our law. With reſpect to theſe judges, providence, it is true, all along favourable, hath of late years been ſingularly kind to us. But in a matter ſo precarious, we ought to dread a reverſe of fortune, which would be ſeverely felt. A proſpect ſo gloomy demands our whole activity to prevent, if poſſible, the impending evil. There are men of genius in this country, and good writers. Were our law treated as a rational ſcience, it would find its way into England, and be ſtudied there for curioſity as well as for profit. The author, excited by this thought, has ventured [xvi] to make an eſſay, which, for the good of his country, more than for his own reputation, he wiſhes to ſucceed. If his eſſay be reliſhed, he muſt hope, that writers of greater abilities will be moved to undertake other branches ſucceſſively, till the work be brought to perfection.

TRACT I.
HISTORY OF THE CRIMINAL LAW.

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OF the human Syſtem no part, external or internal, is more remarkable than a claſs of principles intended obviouſly to promote Society, by reſtraining men from harming each other. Theſe principles, as the Source of the criminal Law, muſt be attentively examined; and, to form a juſt notion of them, we need but reflect upon what we feel when we commit a Crime, or witneſs it. The firſt reflection will unfold Divine juſtice carried into [2] execution with the moſt penetrating wiſdom. Upon certain Actions, hurtful to others, the Stamp of impropriety and wrong is impreſſed in legible characters, viſible to all, not excepting even the Delinquent. Paſſing from the action to its Author, we feel that he is guilty; and we alſo feel that he ought to be puniſhed for his guilt. He himſelf, having the ſame feeling, is filled with remorſe; and, which is extremely remarkable, his remorſe is accompanied with an anxious dread that the puniſhment will be inflicted, unleſs it be prevented by his making reparation or atonement. Thus in the breaſt of man a tribunal is erected for Conſcience; ſentence paſſeth againſt him for every Delinquency; and he is delivered over to the hand of Providence to be puniſhed in proportion to his guilt. With relation to a final cauſe, the wiſdom of this contrivance is conſpicuous. A Senſe of wrong is of itſelf not ſufficient to reſtrain the exceſſes of Paſſion: but the dread of Puniſhment, which is felt even where there [3] is no viſible hand to puniſh, is a natural reſtraint ſo efficacious, that none more perfect can be imagined*. This dread, when the reſult of atrocious or unnatural Crimes, is itſelf a tremenduous puniſhment, far exceeding all that have been invented by Man. Happy it is for Society, that inſtances are rare of crimes ſo groſs as to produce this natural dread in its higher Degrees: it is however ſtill more rare to find any perſon ſo ſingularly virtuous, as never to have been conſcious of it in any degree. When we peruſe the hiſtory of Mankind, even in their moſt ſavage State, we diſcover it to be univerſal. One inſtance I muſt mention, becauſe it relates to the Hottentotes, of all men the moſt brutiſh. They adore a certain Inſect as their Deity. The arrival of this Inſect in a Kraal, is ſuppoſed to bring grace and proſperity to the Inhabitants; and it is an article in their Creed, that all the offences of [4] which they had been guilty to that moment, are buried in oblivion, and all their iniquities pardoned*. The dread which accompanies guilt, till puniſhment be inflicted or forgiven, muſt undoubtedly be univerſal, when it makes a figure even among the Hottentotes.

UPON every wrong, reaſon and experience make us apprehend the reſentment of the perſon injured: but the horror of mind which accompanies every groſs Crime, produceth in the Criminal an impreſſion that all nature is in arms againſt him. Conſcious of meriting the higheſt puniſhment, he dreads it from the hand of GOD and from the hand of Man. ‘"And Cain ſaid unto the Lord, My puniſhment is greater than I can bear. Behold, thou haſt driven me out this day from the face of the earth: and from thy face ſhall I be hid, and I ſhall be a fugitive [5] and a vagabond in the Earth, and it ſhall come to paſs, that every one that findeth me, ſhall ſlay me*."’ Hence the efficacy of human puniſhments in particular, to which man is adapted with wonderful foreſight, through the conſciouſneſs of their being juſtly inflicted, not only by the perſon injured, but by the Magiſtrate, or by any one. Abſtracting from this conſciouſneſs, the moſt frequent inſtances of chaſtiſing Criminals, would readily be miſapprehended for ſo many acts of violence and oppreſſion, the effects of Malice even in Judges; and much more ſo in the party offended, where the puniſhment is inflicted by him.

THE purpoſes of Nature are not any where left imperfect. Correſponding to the dread of puniſhment, is firſt the indignation we have at groſs crimes, even when we ſuffer not by them; and next Reſentment in the perſon injured, even for the [6] ſlighteſt Crime; by which ſufficient proviſion is made for inflicting the puniſhment that is dreaded. No paſſion is more keen or fierce than Reſentment; which, at the ſame time, when confined within due bounds, is authoriſed by Conſcience. The delinquent is ſenſible that he may be juſtly puniſhed; and if any perſon, preferably to others, be entitled to inflict the puniſhment, it muſt be the perſon injured.

—BUT at the Tyrant's name,
My rage rekindles, and my Soul's on flame;
'Tis juſt Reſentment, and becomes the Brave;
Diſgrac'd, diſhonour'd, like the vileſt ſlave.
ILIAD 9. 759.

REVENGE therefore, when provoked by Injury or voluntary wrong, is a privilege that belongs to every perſon by the Law of Nature; for we have no Criterion of right or wrong more illuſtrious than the approbation or diſapprobation of Conſcience. And thus the firſt Law of Nature, regarding [7] Society, that of abſtaining from injuring others, is enforced by the moſt efficacious Sanctions.

AN Author of the firſt rank for Genius, as well as blood, expreſſes himſelf with great propriety upon this Subject. ‘"There is another paſſion very different from that of fear, and which, in a certain degree, is equally preſervative to us, and conducing to our ſafety. As that is ſerviceable in prompting us to ſhun Danger, ſo is this in fortifying us againſt it, and enabling us to repel Injury and reſiſt violence when offered. 'Tis by this Paſſion that one Creature offering violence to another, is deterred from the execution; whilſt he obſerves how the attempt affects his fellow, and knows by the very ſigns which accompany this riſing motion, that if the injury be carried further, it will not paſs eaſily, or with impunity. 'Tis this paſſion withal, which, after violence and hoſtility [8] executed, rouſes a Creature in oppoſition, and aſſiſts him in returning like hoſtility and harm on the Invader. For thus as rage and deſpair encreaſe, a Creature grows ſtill more terrible, and, being urged to the greateſt extremity, finds a degree of ſtrength and boldneſs unexperienced till then, and which had never riſen except through the height of provocation*."’

BUT a curſory view of this remarkable paſſion is not ſufficient. It will be ſeen by and by, that the criminal Law in all Nations, is entirely founded upon it; and for that reaſon it ought to be examined with the utmoſt accuracy. Reſentment is raiſed in different degrees, according to the ſenſe one hath of the Injury. An Injury done to a man himſelf, provokes Reſentment in its higheſt degree. An Injury of the ſame kind done to a friend or relation, raiſes reſentment in a lower degree; [9] and the paſſion becomes gradually fainter, in proportion to the ſlightneſs of the connection. This difference is not the reſult of any peculiarity in the nature of the paſſion. It is occaſioned by a principle inherent in all ſenſible Beings, that every one has the ſtrongeſt Senſe of what touches itſelf. Thus a man hath a more lively Senſe of a kindneſs done to himſelf, than to his friend; and the paſſion of Gratitude correſponds in degree to the Senſation. In the ſame manner an injury done to myſelf, to my child, or to my friend, makes a greater figure in my mind, than when done to others in whom I am leſs intereſted.

EVERY heinous tranſgreſſion of the Law of Nature, raiſeth Indignation in all, and a keen deſire to have the Criminal brought to condign puniſhment. Slighter delinquencies are leſs regarded. A ſlight Injury done to a ſtranger, with whom we have no connection, raiſeth our indignation, [10] it is true, but ſo faintly as not to prompt any degree of revenge. The paſſion in this caſe, being quieſcent, vaniſheth in a moment. But a man's reſentment for an injury done to himſelf, or to one with whom he is connected, is an active paſſion, which is gratified by puniſhing the Delinquent in a meaſure correſponding to the injury. And it muſt be remarked, that many circumſtances muſt concur before this Paſſion be fully gratified. It is not ſatisfied with the ſuffering merely of the Criminal. The Perſon injured muſt inflict the puniſhment, or at leaſt direct it; and the Criminal muſt be made ſenſible, not only that he is puniſhed for his Crime, but that the puniſhment proceeds from the perſon injured. When all theſe circumſtances concur, and not otherwiſe, the paſſion is fully gratified; and commonly vaniſheth as if it had never been. Racine underſtood the nature of this paſſion, and paints it with great accuracy in the following Scene.

[11]
CLEONE.
VOUS-vous perdez, Madame. Et vous devez ſonger.—
HERMIONE.
QUE je me perde, ou non, je ſonge à me venger.
Je ne ſai même encor, quoi qu'il m'ait pu promettre,
Sur d'autres que ſur moi, ſi je dois m'en remettre.
Pyrrhus n'eſt pas coupable à ſes yeux comme aux miens,
Et je tiendrois mes coups bien plus ſurs que les ſiens.
Quel plaiſir, de venger moi-même-mon injure;
De retirer mon bras teint du ſang du Parjure;
Et pour rendre ſa peine & mes plaiſirs plus grands,
De cacher ma rivale à ſes regards mourans!
Ah! ſi du-moins Oreſte, en puniſſant ſon crime,
Lui laiſſoit le regret de mourir ma victime!
Va le trouver. Dis-lui qu'il aprenne à l'Ingrat,
Qu'on l'immole à ma haine, & non pas à l'Etat.
Chére Cléone, cours. Ma vengeance eſt perdue,
S'il ignore, en mourant, que c'eſt moi qui le tue.
ANDROMAQUE, Act IV. Sc. 4.

THOUGH Injury, or voluntary wrong, is generally the cauſe of reſentment, we find by experience, that ſudden pain is ſufficient ſometimes to raiſe this paſſion, [12] even where injury is not intended. If a man wound me by accident in a tender part, the ſudden anguiſh, giving no time for reflection, provokes reſentment, which is as ſuddenly exerted upon the involuntary cauſe. Treading upon a gouty Toe, or breaking a favourite vaſe, may upon a warm temper produce this effect. The mind engroſſed by bodily pain, or any pain which raiſes bad humour, demands an object for its reſentment; and what object ſo ready as the perſon who was the occaſion of the pain, though without deſign? In the ſame manner, even a Stock or a Stone becomes ſometimes the object of reſentment. If accidentally ſtriking my foot againſt a Stone, a ſmart pain enſues, Reſentment diſcovers itſelf at once, which prompts me to bray the Stone to pieces. The Paſſion is ſtill more irregular in a loſing Gameſter, when he vents it on the Cards and Dice. All that can be ſaid, as an apology for ſuch abſurd fits of paſſion, is, that they are but momentary, and vaniſh upon [13] the firſt reflection. And yet ſuch indulgence was by the Athenians given to this irrational Emotion, that if a man was killed by the fall of a Stone, or other accident, the inſtrument of death was dedeſtroyed*. Reſentment raiſed by voluntary [14] wrong, which is a rational and uſeful paſſion, is in a very different condition. It ſubſiſts till the ſenſe of the injury be done away, by puniſhment, atonement, or length of time.

BUT all the irregularities of this paſſion are not yet exhauſted. It is ſtill more ſavage and irrational, when, without diſtinguiſhing the innocent from the guilty, it is exerted againſt the Relations of the Criminal, and even againſt the Brute Creatures [15] that belong to him. Such barbarity will ſcarce find credit with thoſe who have no knowledge of man but what is diſcovered by experience in a civilized Society; and yet, in the Hiſtory and Laws of ancient Nations, we find this Savage practice not only indulged without redreſs, but what is ſtill more aſtoniſhing, we find it authoriſed by poſitive Laws. Thus, by an Athenian Law, a man commiting Sacrilege, or betraying his Country, was baniſhed, with all his Children*. And when a Tyrant was killed, his Children were alſo put to death. By the Law of Macedon, the puniſhment of Treaſon was extended againſt the relations of the [16] Criminal*. By a Scythian Law, when a Criminal was puniſhed with death, all his Sons were put to death with him: his Daughters only were ſaved from deſtruction. In the Laws of the Bavarians, the uſe of women was forbid to Clergymne, ‘"leſt (as in the text) the People be deſtroyed for the Crime of their Paſtor."’ A very groſs notion of divine Puniſhment. And yet the Grecians entertained the ſame notion, as appears from the Iliad in the beginning.

LATONA'S Son a dire contagion ſpread,
And heap'd the Camp with Mountains of the dead,
The King of men his rev'rend Prieſt defy'd,
And for the King's offence the people dy'd.

LUCAN for a Crime committed by the King, thought it not unjuſt to deſtroy all Egypt. But it may appear ſtill more ſurpriſing, that this Savage and abſurd practice continued very long in ſome parts [17] of the Roman Empire, though governed by Laws remarkable for their Equity. Of this the following Statute of the Emperors Arcadius and Honorius* is clear evidence. ‘"Sancimus, ibi eſſe poenam, ubi et noxia eſt. Propinquos, Notos, familiares, procul a calumnia ſubmovemus, quos reos ſceleris Societas non facit. Nec enim adfinitas vel amicitia nefarium Crimen admittunt. Peccata igitur ſuos teneant Auctores: nec ulterius progrediatur metus quam reperiatur delictum. Hoc ſingulis quibuſque Judicibus intimetur."’ At the ſame time theſe very Emperors, however mild and rational with regard to others, talk a very different Language upon a Crime which affected themſelves: after obſerving that will and purpoſe alone, without any ouvert act, was treaſon, ſubjecting the guilty perſon to a capital puniſhment and forfeiture of goods, they go on in the following words. ‘"Filii vero ejus, quibus vitam Imperatoria ſpecialiter lenitate concedimus, [18] (paterno enim deberent perire ſupplicio, in quibus paterni, hoc eſt, hereditarii criminis exempla metuuntur) a materna, vel avita, omnium etiam proximorum hereditate ac ſucceſſione, habeantur alieni: teſtamentis extraneorum nihil capiant: ſint perpetuo egentes, & pauperes, infamia eos paterna ſemper comitetur, ad nullos prorſus honores, ad nulla ſacramenta perveniant: ſint poſtremo tales, ut his, perpetua egeſtate ſordentibus, ſit et mors ſolatium, & vita ſupplicium*."’ Every one knows that Murder committed by a Man who belonged to a particular Tribe or Clan, was reſented not only againſt the Criminal and his Relations, but againſt the whole Clan; a ſpecies of reſentment ſo common as to be diſtinguiſhed by a peculiar name, that of deadly feud. So late as the days of King Edmond, a Law was made in England, forbidding deadly feud, except betwixt the relations of the deceas'd [19] and the Murderer himſelf; and declaring, that theſe relations ſhall forfeit all their goods, if they proſecute with deadly feud the relations of the Murderer. And in Japan, to this day, it is the practice to involve Children and Relations in the puniſhment of capital Crimes*.

A tendency to exceſs, ſo deſtructive in the paſſion of reſentment, is a quality, which in other paſſions is often the occaſion of good. Joy when exceſſive as well as Gratitude, are not confined to their proper Objects, but expand themſelves upon every thing that is connected with theſe Objects. In general, all our active paſſions are, in their naſcent State, and when moderate, accompanied with a Senſe of fitneſs and rectitude; but when exceſſive, they inflame the mind, which is violently hurried to action, without due diſtinction of Objects.

[20] AND this leads me to a reflection upon the irregular tendency of Reſentment here diſplayed. If it be the nature of all active paſſions, when immoderate, to expand themſelves beyond their proper objects, which is remarkable in friendſhip, Love, Gratitude, and all the ſocial paſſions, it ought not to be ſurpriſing that Reſentment, Hatred, Envy, and other diſſocial paſſions, ſhould not be more regular. Among Savages this, perhaps, may have a bad tendency, by adding force to the malevolent paſſions: but in a civilized State, where all encouragement is given to kindly affections, and diſſocial paſſions are ſoftned, if not ſubdued, by habitual Submiſſion to legal Authority, this tendency to exceſs is, upon the whole, extremely beneficial.

IT is obſerved above, that revenge is a privilege beſtowed by the Law of Nature upon thoſe who ſuffer by a voluntary injury; and the Correſpondence hath alſo [21] been obſerved betwixt this privilege and the ſenſe of merited puniſhment; by which means the Criminal ſubmits naturally to the puniſhment he deſerves. Thus by the Law of Nature, the perſon injured acquires a right over the delinquent, to chaſtiſe and puniſh him in proportion to the Injury; and the Delinquent, ſenſible of this right; knows he ought to ſubmit to it. Upon this account, Puniſhment has generally been conſidered as a ſort of debt, which the Criminal is bound to pay to the perſon he hath injured; * and this way of ſpeaking may ſafely be indulged as an analogical illuſtration, provided no conſequence be drawn which the analogy will not juſtify. This caution is not unneceſſary; for many writers, influenced by the foregoing reſemblance, reaſon about puniſhment unwarily, as if it were a debt in the ſtricteſt ſenſe. By means of the ſame reſemblance, a notion prevailed in the darker ages of the [22] world, of a ſubſtitute in puniſhment, who undertakes the debt, and ſuffers the puniſhment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other heathen nations. Among them the conceptions of a Deity were groſs, and of morality not leſs ſo. We muſt not therefore be ſurpriſed at their notion of a transference of puniſhment, as of debt, from one perſon to another. They were impoſed upon by the ſlight analogy above mentioned; which reaſoning taught them not to correct, becauſe reaſoning at that time was not ſo far advanced as to overbalance the weight of natural prejudices. Even in later times, when a Roman army was in hazard of a defeat, it was not uncommon for the General to devote himſelf to death, in order to obtain the Victory*. Is not this practice founded upon the ſame Notion? Let Lucan anſwer the queſtion.

[23]
O utinam, coelique Deis, Erebique liberet
Hoc caput in cunctas damnatum exponere poenas!
Devotum hoſtiles Decium preſſere catervae:
Me geminae figant acies, me barbara telis
Rheni turba petat: cunctis ego pervius haſtis
Excipiam medius totius vulnera Belli.
Hic redimat ſanguis populos: hac caede luatur
Quicquid Romani meruerunt pendere Mores.
L. 2. l. 306.

AND the following paſſage of Horace, ſeems to be founded on the ſame notion.

AT tu, Nauta, vagae ne parce malignus arenae
Oſſibus et capiti inhumato
Particulam dare. Sic, quodcunque minabitur Eurus
Fluctibus Heſperiis, Venuſinae
Plectantur Sylvae, te Soſpite.
CARM. L. 1. Ode 28.

THAT one ſhould undertake a debt for another, is a matter of conſent, not repugnant to the rules of Juſtice. But with reſpect to the adminiſtration of Juſtice among [24] men, no maxim has a more ſolid foundation or is more univerſal, than that puniſhment cannot be transferred from the guilty to the innocent. Puniſhment, conſidered as a gratification of the party offended, is purely perſonal; and, being inſeparably connected with guilt, cannot admit of ſubſtitution. A man may conſent, it is true, to ſuffer that pain which his friend the offender merits as a puniſhment. But the injured perſon is not gratified by ſuch tranſmutation of ſuffering. Such is the nature of reſentment, that it is not to be gratified otherways than by retaliating upon that very perſon who did the injury. Yet even in a matter obvious to enlightened reaſon, ſo liable are men to error, when led aſtray by any wrong bias, that to the foregoing notion concerning puniſhment, we may impute the moſt barbarous practice ever prevailed among ſavages, that of ſubſtituting human creatures in puniſhment, and making them, by force, undergo the moſt grievous [25] torments, even death itſelf. I ſpeak of human ſacrifices, which are deſervedly a laſting reproach upon mankind, being of all human Inſtitutions the moſt irrational, and the moſt ſubverſive of humanity. To ſacrifice a priſoner of war to an incenſed Deity, barbarous and inhuman as it is, may admit ſome excuſe. But that a man ſhould offer up the lives of his own Children as an atonement for his own Crimes, cannot be thought of without deteſtation and horror*. Yet this ſavage impiety can reſt upon no other foundation, than the ſlight reſemblance that Puniſhment hath to a debt; which is a ſtrong evidence of the influence of Imagination upon our Conduct. [26] The vitious have ever been ſolicitous to transfer upon others the puniſhment they themſelves deſerve; for nothing is ſo dear to a man as himſelf. ‘"Wherewith ſhall I come before the Lord, and bow myſelf before the high GOD? ſhall I come before him with burnt-offerings, with calves of a year old? Will the Lord be pleaſed with thouſands of rams, or with ten thouſands of rivers of Oil? ſhall I give my firſt-born for my tranſgreſſion, the fruit of my body for the ſin of my ſoul?"’ But this is not an atonement in the ſight of the Almighty. ‘"He hath ſhewed thee, O man, what is good; and what doth the Lord require of thee, but to do juſtly, and to love mercy, and to walk humbly with thy GOD*?"’

I muſt be indulged a reflection, which ariſes naturally out of this branch of the ſubject, that the permitting vicarious puniſhment in human ſociety, is ſubverſive [27] of humanity, and not leſs ſo of moral duty. Men we ſee have been miſled ſo far, as fondly to flatter themſelves, that, without repentance or reformation of manners, they could atone for their ſins; and by this pernicious notion have been encouraged to indulge in them without end. Happy it is for mankind, that a compoſition for ſin is now generally exploded from our hearts, as well as actions: but, from the ſelfiſhneſs of human nature, ſuch propenſity is there to this doctrine, that it continues to have an influence upon our conduct, much greater than is willingly acknowledged, or even ſuſpected. Many men give punctual attendance at publick worſhip, to compound for hidden vices. Many men are openly charitable, to compound for private oppreſſion; and many men are willing to do GOD good ſervice, in ſupporting his eſtabliſhed Church, to compound for aiming at power by a factious diſturbance of the peace of the State. Such pernicious notions, proceeding from a wrong bias in our nature, [28] cannot be eradicated after they have once got poſſeſſion of the mind; nor be prevented, except by early culture, and by frequently inculcating the moſt important of all truths, That the Almighty admits of no Compoſition for Sin; and that pardon is not to be obtained from him, without ſincere repentance, and thorough reformation of manners.

HAVING diſcourſed in general of the Nature of puniſhment, and of ſome irregular notions that have been entertained about it, I am now ready to attend its progreſs through the different Stages of the ſocial life. Society, originally, did not make ſo ſtrict an union among Individuals as at preſent. Mutual Defence againſt a more powerful Neighbour, being, in early times, the chief or ſole Motive for joining in Society, Individuals never thought of ſurrendering to the publick, any of their natural rights that could be retained conſiſtently with their great aim of [29] mutual Defence. In particular, the privileges of maintaining their own property, and of avenging their own wrongs, were reſerved to Individuals full and entire. In the dawn of Society, accordingly, we find no traces of a Judge, properly ſo called, who hath power to interpoſe in differences, and to force perſons at variance to ſubmit to his opinion. If a diſpute about property, or about any civil right, could not be adjuſted by the parties themſelves, there was no other method, but to appeal to ſome indifferent perſon, whoſe opinion ſhould be the rule. This method of determining civil differences was imperfect; for what if the parties did not agree upon an Arbiter? Or what if one of them proved refractory, after the choſen Arbiter had given his opinion? To remedy theſe inconveniences, it was found expedient to eſtabliſh Judges, who, at firſt, differed in one circumſtance only from Arbiters, that they could not be declined. They had no magiſterial authority, not even that of compelling [30] parties to appear before them. This is evident from the Roman Law, which ſubſiſted many centuries before the notion obtained of a power in a Judge to force a party into Court. To bring a diſputable matter to an iſſue, no other means occurred, but the making it lawful for the Complainer to drag his party before the Judge, obtorto collo, as expreſſed by the writers on that Law: and the ſame regulation appears in the Laws of the Viſigoths*. But Juriſdiction, at firſt merely voluntary, came gradually to be improved to its preſent ſtate of being compulſory, involving ſo much of the magiſterial Authority as is neceſſary for explicating Juriſdiction, viz. Power of calling a party into Court, and power of making a Sentence effectual. And in this manner, civil Juriſdiction, in progreſs of time, was brought to perfection.

CRIMINAL Juriſdiction is in all Countries of a much later date. Revenge, the [31] darling privilege of human nature, is never tamely given up; for the reaſon chiefly, that it is not gratified unleſs the puniſhment be inflicted by the perſon injured. The privilege of reſenting Injuries, was therefore that private right which was the lateſt of being ſurrendered, or rather wreſted from Individuals in Society. This Revolution was of great importance with reſpect to Government, which can never fully attain its end, where puniſhment in any meaſure is truſted in private hands. A Revolution ſo contradictory to the ſtrongeſt propenſity of human nature, could not by any power, or by any artifice, be inſtantaneous. It behoved to be gradual, and, in fact, the progreſſive Steps tending to its completion, were ſlow, and, taken ſingly, almoſt imperceptible; as will appear from the following hiſtory. And to be convinced of the difficulty of wreſting this privilege from Individuals, we need but reflect upon the practice of Duelling, ſo cuſtomary in times paſt; and which [32] the ſtricteſt attention in the Magiſtrate, joined with the ſevereſt puniſhment, have not altogether been able to repreſs.

NO production of art or nature is more imperfect than is Government in its infancy, comprehending no ſort of Juriſdiction either civil or criminal. What can more tend to break the peace of Society, and to promote univerſal diſcord, than that every man ſhould be the ſole Judge in his own cauſe, and inflict puniſhment according to his own Judgment? But inſtead of wondering at the original weakneſs of Government, our wonder would be better directed upon its preſent ſtate of perfection, and upon the means by which it hath arrived to the utmoſt degree of Authority, in contradiction to the ſtrongeſt and moſt active principles of human nature. This ſubject makes a great figure in the hiſtory of Mankind, and that it partly comes under the preſent undertaking, I eſteem a lucky circumſtance.

[33] A partiality that is rooted in the nature of Man, makes private revenge the moſt dangerous privilege that ever was left with Individuals. The man who is injured, having a ſtrong Senſe of the wrong done him, never dreams that his reſentment can be puſhed too far. The Offender, on the other hand, under-rating the Injury, judges a ſlight atonement to be ſufficient. Further, the man who ſuffers is apt to judge raſhly, and to blame perſons without cauſe, where it doth not clearly appear who is the Criminal. To reſtrain the unjuſt effects of natural partiality, was not an eaſy taſk, and probably was not ſoon attempted. But early meaſures were taken to prevent the bad effects of raſh judgment, by which the innocent were often oppreſſed. We have one early inſtance among the Jews. Their cities of refuge were appointed as an interim ſanctuary to the man-ſlayer, till the elders of the city had an opportunity to judge whether the deed was voluntary or caſual. If the latter appeared to be the [34] caſe, the man was protected from the relations of the deceaſed, called in the text the avenger of blood: but he was to remain in that city until the death of the high prieſt, to give time for the reſentment of the offended party to ſubſide. If the man taking benefit of the ſanctuary was found guilty, he was delivered to the avenger of blood that he might die*. In the laws of the Athenians, and alſo of the barbarous nations who diſmembred the Roman Empire, we find regulations which correſpond to this among the Jews, and which, in a different form, prevented erroneous judgment, rather more effectually than was done by the cities of refuge. If a crime was manifeſt, the party injured might avenge himſelf without any ceremony. Therefore it was lawful for a man to kill his wife and the adulterer found together. It was lawful for a man to kill his daughter taken in the act [35] of fornication. The ſame was lawful to the brothers and uncles after the father's death*. And it was lawful to kill a thief apprehended under night with ſtolen goods. But if the crime was not manifeſt, there behoved to be a previous trial, in order to determine whether the ſuſpected perſon was guilty or innocent. Thus a married woman, ſuſpected of adultery, muſt be accuſed before the judge, and, if found guilty, ſhe and the adulterer are delivered over to the huſband to be puniſhed at his will. If a free woman live in adultery with a married man, ſhe is delivered by the judges to the man's wife to be puniſhed at her will. He that ſteals a child, ſhall be delivered to the child's relations to be put to death, or ſold, at their pleaſurea. A ſlave who commits fornication with a free woman, muſt be delivered to her parents to be put to deathb.

[36] IN tracing the hiſtory of law through dark ages unprovided with records, or ſo ſlenderly provided, as not to afford any regular hiſtorical chain, we muſt endeavour, the beſt way we can, to ſupply the broken links, by hints from poets and hiſtorians, by collateral facts, and by cautious conjectures drawn from the nature of the government, of the people, and of the times. If we uſe all the light that is afforded, and if the conjectural facts correſpond with the few facts that are diſtinctly vouched, and join all in one regular chain, nothing further can be expected from human endeavours. The evidence is compleat, ſo far at leaſt as to afford conviction, if it be the beſt of the kind. This apology is neceſſary with regard to the ſubject under conſideration. In tracing the hiſtory of the criminal law, we muſt not hope that all its ſteps and changes can be drawn from the archives of any one nation. In fact, many ſteps were taken, and many changes made, before archives were kept, and even before writing was a [37] common art. We muſt be ſatisfied with collecting the facts and circumſtances as they may be gathered from the Laws of different countries: and if theſe put together make a regular ſyſtem of cauſes and effects, we may rationally conclude, that the progreſs has been the ſame among all nations, in the capital circumſtances at leaſt; for accidents, or the ſingular nature of a people, or of a government, will always produce ſome peculiarities.

EMBOLDENED by this apology, I proceed chearfully with the taſk I have undertaken. The neceſſity of applying to a judge, where any doubt aroſe about the author of the crime, was probably, in all countries, the firſt inſtance of the legiſlature's interpoſing in matters of puniſhment. It was no doubt a novelty; but it was ſuch as could not readily alarm individuals, being calculated not to reſtrain the privilege of revenge, but only to direct revenge to its proper object. The application to a [38] judge was made neceſſary among the Jews, by the privilege conferred upon the cities of refuge; and, among other nations, by a poſitive law without any circuit. That this was the law of the Viſigoths and Bavarians, hath already been ſaid; and that it was alſo the law of Abyſſinia and Athens, will appear below. The ſtep next in order, was an improvement upon the regulation above mentioned. The neceſſity of applying to a judge, removed all ambiguity about the Criminal, but it did not remove an evil, repugnant to humanity and juſtice, that of putting the offender under the power of the party injured, to be puniſhed at his pleaſure. With relation to this matter, I diſcover a wiſe regulation in Abyſſinia. In that empire, the degree, or extent of puniſhment, is not left to the diſcretion of the perſon injured. The governor of the province names a judge, who determines what puniſhment the crime deſerves. If death, the criminal is delivered to the accuſer, who has thereby an opportunity to gratify his [39] reſentment to the full*. This regulation muſt be approved, becauſe it reſtrains, in a conſiderable degree, that natural partiality which magnifies every injury done to a man himſelf, and which therefore leads to exceſs in revenge. But a great latitude ſtill remaining in the manner of executing the puniſhment, this alſo was rectified by a law among the Athenians. A perſon ſuſpected of murder, was firſt carried before the judge, and, if found guilty, was delivered to the relations of the deceaſed, to be put to death, if they thought proper. But it was unlawful for them to put him to any torture, or to force money from him. Whether the regulations now mentioned, were peculiar to Athens and Abyſſinia, I cannot ſay, for I have not diſcovered any traces of them in the cuſtoms of other nations. They were remedies ſo proper for the diſeaſe, that one ſhould imagine they muſt have obtained every where, ſome time or other. Perhaps [40] they have been prevented, and rendered unneceſſary, by a cuſtom I am now to enter upon, which made a great figure in Europe for many ages, that of pecuniary Compoſitions for crimes.

OF theſe pecuniary compoſitions, I diſcover traces among many different nations. It is natural to offer ſatisfaction to the party injured; and no ſatisfaction is for either party more commodious than a ſum of money. Avarice, it is true, is not ſo fierce a paſſion as reſentment; but it is more ſtable, and by its perſeverance often prevails over the keeneſt paſſions. With regard to man-ſlaughter in particular, which doth not always prejudice the neareſt relations, it may appear prudent to relinquiſh the momentary pleaſure of gratifying a paſſion for a permanent good. At the ſame time, the notion that puniſhment is a kind of debt, did certainly facilitate the introduction of this cuſtom; and there was opportunity for its becoming univerſal, during [41] the period that the right of puniſhment was in private hands. We find traces of this cuſtom among the ancient Greeks. The huſband had a choice to put the adulterer to death, or to exact a ſum from him*. And Homer plainly alludes to this law, in his ſtory of Mars and Venus entangled by the huſband Vulcan in a net, and expoſed to publick view.

LOUD laugh the reſt, ev'n Neptune laughs aloud
Yet ſues importunate to looſe the God:
And free, he cries, oh Vulcan! free from ſhame
Thy captives; I enſure the penal Claim.
Will Neptune (Vulcan then) the faithleſs truſt?
He ſuffers who gives ſurety for th' unjuſt:
But ſay, if that leud ſcandal of the ſky
To liberty reſtor'd, perfidious, fly,
Say wilt thou bear the mulct? He inſtant cries,
The mulct I bear, if Mars perfidious flies.
ODYSS. L. 8. l. 381.

THE Greeks alſo admitted a compoſition for murder, as appears from the following paſſage.

[42]
STERN and unpitying! if a brother bleed,
On juſt atonement, we remit the deed;
A ſire the ſlaughter of his ſon forgives,
The price of blood diſcharg'd, the murd'rer lives;
The haughtieſt hearts at length their rage reſign,
And gifts can conquer ev'ry ſoul but thine.
The Gods that unrelenting breaſt have ſteel'd,
And curs'd thee with a mind that cannot yield.
ILIAD 9. l. 743.

Again,

THERE, in the forum, ſwarm a num'rous train;
The ſubject of debate, a town's-man ſlain:
One pleads the fine diſcharg'd, which one deny'd,
And bade the publick and the laws decide.
ILIAD 18. l. 577.

ONE of the laws of the Twelve Tables was, Si membrum rupit, ni cum eo pacit, talio eſto*. And Tacitus is very expreſs upon this cuſtom among the Germans. ‘"Suſcipere tam inimicitias ſeu patris ſeu propinqui quam amicitias neceſſe eſt: nee implacabiles durant; luitur enim etiam [43] homicidium certo armentorum ac pecorum numero, recipitque ſatisfactionem univerſa domus."’ We find traces of the ſame thing in Abyſſinia*, among the Negroes on the coaſt of Guinea, and among the Blacks of Madagaſcar. The laws of the barbarous nations, cited above, inſiſt longer upon theſe compoſitions than upon any other ſubject; and that the practice was eſtabliſhed among our Saxon anceſtors, under the name of Vergelt, is known to all the world.

THIS practice at firſt, as may reaſonably be conjectured, reſted altogether upon private conſent. It was ſo in Greece, if we can truſt Euſtathius in his notes upon the forgoing paſſage in the Iliad, firſt cited. He reports, that the murderer was obliged to go into baniſhment one year, unleſs he could purchaſe liberty to remain at home, by paying a certain fine to the relations of [44] the deceaſed. While compoſitions for crimes reſted upon this foundation, there was nothing new or ſingular in them. The perſon injured might puniſh or forgive at his pleaſure; and if he choſe to remit the puniſhment upon terms or conditions, he was no doubt bound by his conſent. But this practice, if not remarkable in its naſcent ſtate, made a great figure in its after progreſs. It was not only countenanced, but greatly encouraged among all nations, as the likelyeſt means to reſtrain the impetuoſity of revenge, till becoming frequent and cuſtomary, it was eſtabliſhed into a law; and what at firſt was voluntary, was, in proceſs of time, made neceſſary. But this change was ſlow and gradual. The firſt ſtep probably was to interpoſe in behalf of the delinquent, if he offered a reaſonable ſatisfaction in cattle or money; and to afford him protection, if the ſatisfaction was refuſed by the perſon injured. The next ſtep was to make it unlawful to proſecute reſentment, without firſt demanding [45] ſatisfaction from the delinquent. And in the Laws of king Ina* we read, that he who takes revenge without firſt demanding ſatisfaction, muſt reſtore what he has taken, and further be liable in a compenſation. The third ſtep compleated the ſyſtem, which was to compel the delinquent to pay, and the perſon injured to accept of a proper ſatisfaction. By the laws of the Longobards, if the perſon injured refuſed to accept of a compoſition, he was ſent to the king to be impriſoned, in order to reſtrain him from revenge. And if the criminal refuſed to pay a compoſition, he alſo was ſent to the king to be impriſoned, in order to reſtrain him from doing more miſchief. After compoſition is made for man-ſlaughter, the perſon injured muſt give his oath not further to proſecute his feud; and if he, notwithſtanding, follow out his revenge, he is ſubjected to a double compoſition.

[46] ALTARS, among moſt nations, were places of ſanctuary. The perſon who fled to an altar, was held to be under the immediate protection of the Deity, and therefore inviolable. This practice prevailed among the Jews, as appears by the frequent mention of laying hold of the horns of the altar. Among the Grecians*.

PHEMIUS alone the hand of vengeance ſpar'd,
Phemius the ſweet, the heav'n-inſtructed bard.
Beſide the gate the rev'rend minſtrel ſtands;
The lyre, now ſilent, trembling in his hands;
Dubious to ſupplicate the chief, or fly
To Joves inviolable altar nigh.
ODYSSEY 22. 1. 367.

AEDIBUS in mediis, nudoque ſub aetheris axe,
Ingens ara fuit; juxtaque veterrima laurus,
Incumbens arae, atque umbra complexa penates.
Hic Hecuba, & natae nequicquam altaria circum
Praecipites atra ſeu tempeſtate columbae
Condenſae, & Divum amplexae ſimulacra tenebant.
Ipſum autem ſumptis Priamum juvenilibus armis
Ut vidit: quae mens tam dira, miſerrima conjux,
[47] Impulit his cingi telis? aut quo ruis? inquit.
Non tali auxilio, nec defenſoribus iſtis
Tempus eget: non, ſi ipſe meus nunc afforet Hector.
Huc tandem concede: haec ara tuebitur omnes,
Aut moriere ſimul. Sic ore effata, recepit
Ad ſeſe, & ſacra longaevum in ſede locavit.
AENEID, L. 2. I. 512.

THE ſame notion prevailed among Chriſtians, and altars ſerved the purpoſe of the cities of refuge among the Jews. Thus, by the Law of the Viſigoths*, if a murderer fly to the altar, the prieſt ſhall deliver him to the relations of the deceaſed, upon giving oath that, in proſecuting their revenge, they will not put him to death. Had the proſecuter, at this period, been bound to accept of a compoſition, the privilege of ſanctuary would have been unneceſſary. By this time however, it would appear, the practice of compounding for crimes had gained ſuch authority, that it was thought hard, even for a murderer, to loſe his life, by the obſtinacy of the dead [48] man's relations. But this practice gaining ſtill more authority, it was enacted in England*, That if any guilty of a capital crime, fly to the church, his life ſhall be ſafe, but he muſt pay a compoſition. Thus it appears, that the privilege of ſanctuary, tho' the child of ſuperſtition, was extremely uſeful, while the power of puniſhment was a private right: but now that this right is transferred to the publick, and that there is no longer any hazard of exceſs in puniſhment, a ſanctuary for crimes, which hath no other effect but to reſtrain the free courſe of the criminal law, and to give unjuſt hopes of impunity, ought not to be tolerated in any ſociety.

WHEN compoſitions firſt came in uſe, it is probable that they were authorized in ſlight delinquencies only. We read in the laws of the Viſigoths, That if a free man ſtrike another free man on the head, he [49] ſhall pay for diſcolouring the ſkin, five ſhillings; for breaking the ſkin, ten ſhillings; for a cut which reaches the bone, twenty ſhillings; and for a broken bone, one hundred ſhillings; but that greater crimes ſhall be more ſeverely puniſhed: maiming, diſmembring, or depriving one of his natural liberty by impriſonment or fetters, to be puniſhed by the lex talionis *. But compoſitions growing more and more reputable, were extended to the groſſeſt delinquencies. The laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Friſians, of the Longobards, and of the Anglo Saxons, are full of theſe compoſitions, extending from the moſt triffling injury, to the moſt atrocious crimes, not excepting high treaſon, by imagining and compaſsing the death of the King. In peruſing the tables of theſe compoſitions, which enter into a minute detail of the moſt trivial offences, a queſtion naturally occurs, why all this [50] ſcrupulous nicety of adjuſting ſums to delinquencies? Such a thing is not heard of in later times. But the following anſwer will give ſatisfaction, That reſentment, allowed ſcope among Barbarians, was apt to take flame by the ſlighteſt ſpark*. Therefore, to provide for its gratification, it became neceſſary to enact compoſitions for every triffling wrong, ſuch as at preſent would be the ſubject of mirth rather than of ſerious puniſhment. For example, where the clothes of a woman, bathing in a river, are taken away to expoſe her nakedneſs; and where dirty water is thrown upon a woman in the way of contumely. But, as the criminal law is now modeled, private [51] reſentment being in a good meaſure ſunk in publick puniſhment, nothing is reckoned criminal, but what encroaches upon the ſafety or peace of ſociety; and ſuch a puniſhment is choſen, as may have the effect of repreſſing the crime in time coming, without much regarding the gratification of the party offended.

As theſe compoſitions were favoured by the reſemblance that private puniſhment has to a debt, they were apt, in a groſs way of thinking, to be conſidered as reparation to the party injured for his loſs or damage. Therefore, in adjuſting theſe compoſitions, no ſteady or regular diſtinction is made betwixt voluntary and involuntary wrongs. He who wounded or killed a man by chance, was liable to a compoſition*; and even where a man was killed in ſelf-defence, a full compoſition was due. Voluntary and involuntary crimes were generally [52] put upon the ſame footing. But this was altered by a law among the Longobards, enacting, That the latter ſhould bear a leſs compoſition than the former*. And the ſame rule did no doubt obtain among other nations, when they came to think more accurately about the nature of puniſhment. But ſuch was the prevalency of Reſentment, that though at firſt no alleviation or excuſe was ſuſtained to mitigate the compoſition, aggravating circumſtances were often laid hold of to inflame the compoſition. Thus he who took the opportunity [53] of fire or ſhipwreck, to ſteal goods, was obliged to reſtore four fold*. Theſe compoſitions were alſo proportioned to the dignity of the perſons injured; and from this ſource is derived our knowledge of the different ranks and titles of honour among the barbarous nations above mentioned. And it is a ſtrong indication of the approach of theſe nations towards humanity and politeneſs, that their compoſitions for injuries done to women are generally double.

AS to the perſons who were entitled to the compoſition, it muſt be obvious in the firſt place, that he only had right to the compoſition who was injured: but if a man was killed, every one of his relations was entitled to a ſhare, becauſe they were all ſufferers by his death. Thus, in the Salic laws, where a man is killed, the half of the compoſition belongs to his children; the other half to his other relations, upon the ſide of the father and mother. If there [54] be no relations on the father's ſide, the part that would belong to them, accrues to the ſiſk. The like if there be no relations on the mother's ſide. The Longobards had a ſingular way of thinking in this matter. Female relations got no part of the compoſition; and the reaſon given is, that they cannot aſſiſt in proſecuting revenge, non poſſunt ipſam faydam levare *. But women are capable of receiving ſatisfaction or atonement for a crime committed againſt their relation, and therefore are entitled in juſtice to ſome ſhare of the compoſition.

BEFORE entering upon a new branch, I muſt lay hold of the preſent opportunity, to beſtow a reflection upon this ſingular practice of compounding for crimes. However ſtrange it may appear to us, it was certainly a happy invention. By the temptation of money, men were gradually accuſtomed to ſtiffle their reſentments. This was a fine preparation for transferring the [55] power of puniſhment to the magiſtrate, which would have been impracticable without ſome ſuch intermediate ſtep: for while individuals retain their privilege of avenging injuries, the paſſion of reſentment, fortified by univerſal practice, is too violent to be ſubdued by the force of any government.

WE are now arrived at the laſt and moſt ſhining period of the Criminal Law. And our preſent taſk is to unfold the means by which criminal juriſdiction, or the right of puniſhment, was transferred from private hands to the magiſtrate. There, perhaps, never was in government a revolution of greater importance than this. While criminal juriſdiction is ingroſſed by every individual for his own behoof, there muſt be an overbalance of power in the people, inconſiſtent with any ſtable adminiſtration of publick affairs. The daily practice of blood, makes a nation fierce and untameable, ſo as not to be awed by the power of any government. A government, at the ſame [56] time, deſtitute of the power of the ſword, except in crimes againſt the publick, which are rare, muſt be ſo weak, as ſcarce to be a match for the tameſt people: for it cannot eſcape obſervation, that nothing tends more to ſupport the authority of the magiſtrate, than his power of criminal juriſdiction; becauſe every exerciſe of that power, being publick, ſtrikes every eye. In a country already civilized, the power of making laws may be conſidered as a greater truſt: but in order to eſtabliſh the authority of government, and to create awe and ſubmiſſion in the people, the power of making laws is a mere ſhadow, without the power of the ſword.

IN the original formation of ſocieties, to which mutual defence againſt ſome more powerful enemy was the chief or ſole motive, the idea of a common intereſt, otherwiſe than for defence, of a publick, of a community, was ſcarce underſtood. War, indeed, requiring the ſtricteſt union among [57] individuals, introduced the notion of a number of men becoming an army, governed like a ſingle perſon, by one mind, and one council. But in peaceable times, every man relied upon his own proweſs, or that of his clan, without having any notion of a common intereſt, of which no ſigns appeared. There behoved indeed, from the beginning, to be ſome ſort of government; but it was ſo limited, that the magiſtrate did not pretend to interpoſe in private differences, whether civil or criminal. In the infancy of ſociety, the idea of a publick is ſo faint and obſcure, that publick crimes, where no individual is hurt, paſs unregarded. But when government, in its natural growth, hath advanced to ſome degree of maturity, the publick intereſt is then recognized, and the nature of a crime againſt the publick underſtood. This notion muſt gain ſtrength, and become univerſal, in the courſe of a regular adminiſtration, ſpreading itſelf upon all affairs which have any connection with the common intereſt. It naturally [58] comes to be conſidered, that by all atrocious crimes the publick is injured, and by open rapine and violence the peace of the ſociety broke. This introduced a new regulation, that in compounding for groſs crimes, a fine, or fredum, ſhould be paid to the fiſk, over and above what the perſon injured was entitled to claim.

IT cannot be doubted, that the compoſitions for crimes eſtabliſhed by law, paved the way to theſe improved notions of government. Compoſitions were firſt ſolicited, and afterwards enforced by the legiſlative authority. It was now no longer a novelty for the chief magiſtrate to interpoſe in private quarrels. Reſentment was now no longer allowed to rage, but was brought under ſome diſcipline: and this reformation, at the ſame time, however burdenſome to an individual during a fit of paſſion, was agreeable to all in their ordinary ſtate of mind. The magiſtrate, having thus acquired ſuch influence even in private [59] puniſhment, proceeded naturally to aſſume the privilege of avenging wrongs done to the publick merely, where no individual is hurt. And in this manner was the power of puniſhing crimes againſt the ſtate, eſtabliſhed in the chief magiſtrate.

TO publick crimes, in the ſtricteſt ſenſe, where no individual is hurt, was at firſt this new-aſſumed privilege undoubtedly confined. And accordingly, in the laws of the Bavarians*, we find that the goods of thoſe who contract marriage within the prohibited degrees, are confiſcated. In the laws of King Ina, he who fights in the King's houſe, forfeits all his ſubſtance, and his life is to be in the King's power. The judge, who knowingly doth injuſtice, ſhall loſe his liberty, unleſs the King admit him to redeem the ſame.

IT being once eſtabliſhed, that there is a publick, that this publick is a politic body, [60] which, like a real perſon, may ſue and defend, and in particular is entitled to reſent injuries; it was an eaſy ſtep, as hinted above, to intereſt the publick even in private crimes, by imagining every atrocious crime to be a publick as well as a private injury; and in particular, that by every open act of violence, the peace of the publick or country is broke. In the oldeſt compoſitions for crimes that are recorded, there is not a word of the publick; the whole is given to the private party. In the Salic laws, there is a very long liſt of crimes, and of their converſion in money, without any fine to the publick. The ſame in the laws of the Allamanni. But in the tables of compoſitions for crimes among the Burgundians and Longobards, ſuppoſed to be more recent, there is conſtantly ſuperadded a fine, or fredum, to the King. And in the laws of King Canute*, ‘"If murder be committed in a church, a full compenſation ſhall be paid to JESUS CHRIST, another full compenſation to [61] the King, and a third to the relations of the deceaſed."’ The two firſt compoſitions, are evidently founded upon the foregoing ſuppoſition, that the peace of the church, and the King's peace, are broke by the murder.

AFTER eſtabliſhing compoſitions for crimes, which proved a very lucky exertion of legal authority, the publick had not hitherto claimed any privilege but what belonged to every private perſon, viz. that of proſecuting its own reſentment. But this practice of converting puniſhment into money, a wiſe inſtitution indeed to prevent a greater evil, was yet, in itſelf, too abſurd to be for ever ſupported againſt enlightned reaſon. Certain crimes came to be reckoned too flagrant and atrocious to admit of a pecuniary converſion: and, perhaps, the lowneſs of the converſion contributed to this thought; for compoſitions eſtabliſhed in days of poverty, bore no proportion to crimes after nations became rich and powerful. [62] That this was the caſe of the old Roman compoſitions, every one knows who has dip'd into their hiſtory. This evil required a remedy, and it was not difficult to find one. It had long been eſtabliſhed, that the perſon injured has no claim but for the compoſition, however diſproportioned to the crime. Here then was a fair opportunity for the King, or chief magiſtrate, to interpoſe, and to decree an adequate puniſhment. The firſt inſtances of this kind had probably the conſent of the perſon injured; and it is not difficult to perſuade any man of ſpirit, that it is more for his honour, to ſee his enemy condignly puniſhed, than to put up with a triffling compenſation in money. However this be, the new method of puniſhing atrocious crimes gained credit, became cuſtomary, and paſt into a law. If a puniſhment was inflicted adequate to the crime, there could be no claim for a compoſition, which would be the ſame as paying a debt twice. And thus, though indirectly, an end was put to the right of [63] private puniſhment in all matters of importance.

THEFT is a crime, which, more than any other private crime, affected the publick, after the ſecurity of property came to be a capital object; and therefore theft afforded probably the firſt inſtances of this new kind of puniſhment. It was enacted in England, That a thief, after repeated acts, ſhall have his hand or foot cut off*. Among the Longobards, the third act of theft was puniſhed with death. By the Salic laws, theft was puniſhed with death, if proved by ſeven or five credible witneſſes. And that the firſt inſtances of this new puniſhment had the conſent of the perſon injured, is made probable from the ſame Salic laws, in which murder was puniſhed with death, and no compoſition admitted, without conſent of the friends of the deceaſed.

[64] A power to puniſh all atrocious crimes, though of a private nature, was a valuable acquiſition to the publick. This acquiſition was ſupported by the common ſenſe of mankind, which, as obſerved in the beginning of this diſcourſe, entitles even thoſe to inflict puniſhment who are not injured by the crime; and if ſuch privilege belong to private perſons, there could be no doubt that the magiſtrate was peculiarly privileged. Here, by the way, may be remarked, a ſtriking inſtance of the aptitude of man for ſociety. By engroſſing the right of puniſhing, Government has reached a high degree towards perfection. But did nature dictate that none have right to puniſh but thoſe who are injured, government muſt for ever have remained in its infantine ſtate: for, upon that ſuppoſition, I can diſcover no means ſufficient to ſubdue human nature, and to contradict it ſo far, as to confine to the magiſtrate the power of diſpenſing puniſhments.

[65] THE magiſtrates power of criminal juriſdiction being thus far advanced, was carried its full length without meeting any longer with the ſlighteſt obſtruction. Compoſitions for crimes were prohibited, or wore out of practice; and the people were taught a ſalutary doctrine, that it is inconſiſtent with good government to ſuffer individuals to exert their reſentment, otherwiſe than by applying to the criminal judge, who, after trying the crime, directs an adequate puniſhment to be inflicted by an officer appointed for that purpoſe; admitting no other gratification to the perſon injured, but to ſee the ſentence put in execution, if he be pleaſed to indulge his reſentment ſo far.

BUT as this ſignal revolution in the criminal law behoved to be galling to individuals, unaccuſtomed to reſtrain their paſſions*, all meaſures were taken to make [66] the yoke eaſy, by directing ſuch a puniſhment as tended the moſt to gratify the perſon injured. Whether this was done in a political view, or through the ſtill ſubſiſting influence of the right of private revenge, is not material. But the fact is curious, and merits attention; becauſe it unfolds [67] the reaſon of that variation of puniſhment for the ſame crime, which is remarkable in different ages. With reſpect to theft, the [68] puniſhment among the Bavarians was increaſed to a nine-fold reſtitution, calculated entirely to ſatisfy the perſon injured, before they thought of a corporal puniſhment*. The next ſtep was demembration, by cutting off the hand or foot; but this only after repeated acts. Among the Longobards, it required a third act of theft, before a capital puniſhment could be inflicted. And at laſt theft was to be puniſhed with death in all caſes, if clearly proved. By this time, it would appear, the intereſt of the publick, with reſpect to puniſhment, had prevailed over private intereſt; or at leaſt had become weighty enough to direct a puniſhment that ſhould anſwer the purpoſe of terror, as well as of private reſentment. There is one curious fact relating to the puniſhment of theft, which I muſt not overlook. By the laws of the Twelve Tables, borrowed from Greece, theft was puniſhed with death in a [69] ſlave, and with ſlavery in a free man. But this law, being not agreeable either to the manners or notions of the Roman people, was afterwards mitigated, by converting the puniſhment into a pecuniary compoſition; ſubjecting the furtum manifeſtum to a four-fold reſtitution, and the furtum nec manifeſtum, to the reſtitution of double. The puniſhment of theft, eſtabliſhed by the law of the Twelve Tables, might ſuit ſome of the civilized ſtates in Greece, who had acquired the notion of a publick, and of the intereſt which a publick has to puniſh crimes in terrorem. But the law was unſuitable to the notions of a rude people, ſuch as the Romans were in thoſe days, who of puniſhment underſtood no other end but the gratification of private reſentment. Nor do I find in any period of the Roman hiſtory, that theft was conſidered as a crime againſt the publick, to admit of a puniſhment in terrorem. Towards ſuch improvement there never was a ſtep taken but one, which was not only late, but extremely ſlight, viz. that [70] a thief might be condemned to an arbitrary puniſhment, if the party injured choſe to inſiſt for it*. I make another remark, that ſo long as the gratification of the proſecutor was the principal aim in puniſhing theft, the value of the ſtolen goods was conſtantly conſidered as a preferable claim. for unleſs the proſecutor obtain reſtitution of his goods or their value, there can be no ſufficient gratification. But after the intereſt of the publick came chiefly to be conſidered in puniſhing theft, the proſecutor's claim of reſtitution was little regarded, of which our act 26. p. 1661. is clear evidence; witneſs alſo the law of Saxony, by which if a thief ſuffer death, his heir is not bound to reſtore the ſtolen goods.

FOR the ſame reaſon, a falſe witneſs is now puniſhed capitally in Scotland, though not ſo of old. By the Roman Law, and [71] alſo by our common law*, the puniſhment of falſhood is not capital, which is alſo clear from act 80. p. 1540. and act 22. p. 1551. Yet our ſupreme criminal court has, for more than a century, aſſumed the power of puniſhing this crime capitally, as well as that of bearing falſe witneſs, though warranted by no ſtatute. The notions of a publick, and of a publick intereſt, are brought to perfection; and the intereſt of the publick to be ſevere upon a crime which is ſo prejudicial to ſociety, hath, we ſee, in theſe inſtances, prevailed over even the ſtrict rules of the criminal law.

[72] UPON this head, a remark occurs which will be found to hold univerſally. It regards a material point, that of adjuſting puniſhments to crimes, when criminal juriſdiction is totally ingroſſed by the publick. After this revolution in government, we find the firſt puniſhments extremely moderate; not only for the reaſon above given, that they are directed chiefly to gratify the perſons injured, but for a ſeparate reaſon. Though the power of the ſword adds great authority to a government, yet this effect is far from being inſtantaneous; and till authority be ſufficiently eſtabliſhed, great ſeverities are beyond the ſtrength of a legiſlature. But after publick authority is firmly rooted in the minds of the people, puniſhments more rigorous may be ventured upon, which are rendered neceſſary by the yet indiſciplined temper of the people. At laſt, when a people have become altogether tame and ſubmiſſive, under a long and ſteady adminiſtration, puniſhments being [73] leſs and leſs neceſſary, are generally mild, and ought always to be ſo*.

ANOTHER remark occurs, connected with the former, that to preſerve a ſtrict proportion betwixt a crime and its puniſhment, is not the only or chief view of a wiſe legiſlature. The purpoſes of human puniſhments are, firſt, to add weight to thoſe which nature has [74] provided, and next to enforce municipal regulations intended for the good of ſociety. In this view, a crime, however heinous, ought to be little regarded, if it have no bad effect in ſociety. On the other hand, a crime, however ſlight, ought to be ſeverely puniſhed, if it tend greatly to diſturb the peace of ſociety. A diſpute about the ſucceſſion to a crown, ſeldom ends without a civil war, in which the party vanquiſhed, however zealous for right, and for the good of their country, muſt be conſidered as guilty of treaſon againſt their lawful ſovereign; and to prevent the ruine of civil war, it becomes neceſſary that ſuch treaſon be attended with the ſevereſt puniſhment, without regarding, that the guilt of thoſe who ſuffer aroſe from bad ſucceſs merely. Hence, in regulating the puniſhment of crimes, two circumſtances ought to weigh, viz. the immorality of the action, and its bad tendency, of which the latter appears to be the capital circumſtance; for this evident reaſon, that the peace of ſociety is an [75] object of much greater importance, than the peace, or even life, of many individuals.

ONE great advantage, among many, of transferring to the magiſtrate the power of puniſhment, is, that revenge thereby is kept within the ſtricteſt bounds, and confined to its proper objects. The criminal law appears to have been brought to perfection among the antient Egyptians. It was a regulation among them, that a woman with child could not be put to death till ſhe was delivered. And our author Diodorus Siculus* obſerves, That this law was received by many of the Grecian ſtates, deeming it unjuſt, that the innocent ſhould ſuffer with the guilty; and that a child, common to father and mother, ſhould loſe its life for the crime of the mother. The power of puniſhment muſt have long been the privivilege of the magiſtrate, before a law ſo moderate and ſo impartial could take place. We find no ſimilar inſtances while puniſhment [76] was in the hands of individuals; for a good reaſon, that ſuch regulations are incompatible with the partiality of man, and the inflamable nature of reſentment. But this is not the only inſtance of the wiſdom and moderation of the criminal law now mentioned. Capital puniſhments are avoided as much as poſſible; and in their place puniſhments are choſen, which, equally with death, reſtrain the delinquent from committing the like crime a ſecond time. In a word, the antient Egyptian puniſhments have the following peculiar character, that they effectually anſwer their end, with leſs harſhneſs and ſeverity, than is found in the laws of any other nation antient or modern. Thus thoſe who revealed the ſecrets of the army to the enemy, had their tongues cut out. Thoſe who coined falſe money, or contrived falſe weights, or forged deeds, or razed publick records, were condemned to loſe both hands. In like manner, he that committed a rape upon a free woman, was deprived of his privy members; and a woman [77] committing adultery, was puniſhed with the loſs of her noſe, that ſhe might not again allure men to wantonneſs*.

[78] I have one thing further to add upon publick puniſhment. Though all civilized nations have agreed to forbid private revenge, and to truſt puniſhment, whether of publick [79] or private crimes, in the hands of diſintereſted judges; yet they differ as to the perſons who are allowed to proſecute before theſe judges. In Rome, where they had [80] no calumniator publicus, no advocate or attorney general, every one was allowed to proſecute crimes which have a publick bad tendency, and for that reaſon are termed [81] Publick Crimes. This was a very faulty inſtitution; becauſe ſuch a privilege given to individuals, could not fail to be frequently made the inſtrument of venting private ill-will and revenge. The oath of calumny, which was the firſt check thought of, was far from reſtraining this evil. It grew to ſuch a height, that the Romans were obliged to impoſe another check upon criminal proſecutors, indeed of the ſevereſt kind, which ſhall be given in Voet's words*. ‘"Ne autem temere quis per accuſationem in alieni capitis diſcrimen irruerit, neve impunita eſſet in criminalibus mentiendi atque calumniandi licentia, loco jurisjurandi calumniae adinventa fuit in crimen ſubſcriptio, cujus vinculo cavet quiſque quod crimen objecturus ſit, et in ejus accuſatione uſque ad ſententiam perſeveraturus, dato eum in finem fidejuſſore; ſimulque ad talionem ſeu ſimilitudinem ſupplicii ſeſe obſtringit, ſi in probatione defeciſſe & calumniatus eſſe deprehenſus [82] fuerit."’ Had the Roman law continued to flouriſh any conſiderable time after this regulation, we may be pretty certain it muſt have been altered. It was indeed a compleat bar to falſe accuſations; being, in effect, a prohibition of proſecutions at the inſtance of private perſons: for what men will venture his life and fortune, in bringing to puniſhment a criminal who hath done him no injury, however beneficial it may be to the ſtate, to have the criminal deſtroyed? This would be an exertion of publick ſpirit, ſcarce to be expected among the moſt virtuous people, not to talk of times of univerſal corruption and depravity.

IN modern governments, a better method is invented. The privilege of proſecuting publick crimes belongs to the chief magiſtrate. The King's Advocate in Scotland is, by his office, calumniator publicus; and there is delegated to him from the [83] crown, the privilege of proſecuting publick crimes, when he judges ſuch proſecution to be for the intereſt of the publick. In England, perſonal liberty has, from the beginning, been more ſacred than in Scotland; and to prevent the oppreſſion of criminal proſecutions, there is in England a regulation much more effectual than that now mentioned. No criminal trial, in name of the crown, can proceed, till firſt the matter be examined by the grand jury of the county, and their authority be interpoſed for the proſecution.

WITH reſpect to private crimes, where individuals are hurt in their perſons, goods, or character, the publick, and perſon injured, have each of them ſeparately an intereſt. The King's Advocate may proſecute ſuch crimes alone, ſo far as the publick is concerned in the puniſhment. The private party again is intereſted to obtain reparation for the wrong done him. Even where this is the end of the proſecution, [84] our forms require the concurrence of the King's Advocate, as a check upon the proſecutor, whoſe reſentment otherwiſe may carry him beyond proper bounds. But this concurrence muſt be granted, unleſs the Advocate will take upon him to ſhow, that there is no foundation for the proſecution; for the Advocate, by with-holding his conſent, cannot bar the private party from the reparation due him by law, more than the private party, by with-holding his conſent, can bar the Advocate from exacting that reparation or puniſhment which is a debt due to the publick.

THE interpoſition of the ſovereign authority, to puniſh crimes more ſeverely than by a compoſition, was at firſt, we may believe, not common; nor to be obtained at any rate, unleſs where the atrocity of the crime called aloud for an extraordinary puniſhment. But it happened in this, as in all ſimilar caſes, where novelty wears off by reiteration of acts, that what at firſt is an [85] extraordinary remedy, comes in time as a common practice, to be reckoned a branch of the common law. During the infancy, however, of this practice, there being no rule eſtabliſhed for the King's interpoſition, it was underſtood to be a branch of his prerogative, to interpoſe or not at his pleaſure; and to direct an extraordinary puniſhment, or to leave the crime to the compoſition of the common law. It muſt be evident, that this prerogative could not regularly ſubſiſt after criminal juriſdiction was totally engroſſed by the publick, and a criminal was regularly condemned by the ſolemn ſentence of a judge. But our fore-fathers were not ſo clear-ſighted. The prerogative now mentioned, was miſapprehended for a power of pardoning even after ſentence; and the reſemblance of the caſes made way for the miſtake. It appears to me, that the King's prerogative of pardoning arbitrarily, which is aſſerted by all lawyers, can have no foundation other than this now aſſigned. Were it limited in criminal as in civil caſes, not [86] to give relief but where ſtrict law is over-balanced by equity, the prerogative would have a more rational foundation. But we muſt proſecute the thread of our hiſtory. Though the option of inflicting an adequate puniſhment, or leaving the crime to the common law, was imperceptibly converted into an arbitrary power of pardoning even after ſentence; yet the foundation of this new prerogative was not forgot. The King's pardon is held as leaving the crime to the common law, by which the perſon injured is entitled to a compoſition, And the evident injuſtice of a pardon upon any other condition, tends no doubt to ſupport this conſtruction: for it would be groſs injuſtice, that the law ſhould ſuffer a man to be injured, without affording him any ſatisfaction, either by a publick puniſhment, or by a private compoſition. This, however, it would appear, has been attempted. But the matter was ſettled by a law of Edward the Confeſſor*, declaring, That the [87] King, by his prerogative, may pardon a capital crime; but that the criminal muſt, in this caſe, ſatisfy the perſon injured, by a juſt compoſition.

IT appears then that the Vergelt, or compoſition for crimes, which obtained in all caſes by our old law, is ſtill in force where the criminal obtains a pardon; and the claim which the relations of the deceaſed have againſt the murderer who obtains the pardon, known in the law of Scotland by the name of Aſſythment, has no other foundation. The practice is carried farther, and may be diſcovered even in civil actions. When a proceſs of defamation is brought before a civil court, or a proceſs for any violent inverſion of poſſeſſion, a ſum is generally decreed in name of damages, proportioned to the wrong done; even where the purſuer is not able to ſpecify any hurt or real damage. Such a ſentence can have no other view, but to gratify the reſentment of the perſon injured, who has not [88] the gratification of any other puniſhment. It is given, as lawyers ſay, in ſolatium; and therefore is obviouſly of the nature of a Vergelt, or compoſition for a crime. Damages awarded to a huſband, againſt the man who corrupts his wife, or againſt the man who commits a rape upon her, are preciſely of the ſame nature.

IN taking a review of the whole, the manners and temper of ſavages afford no agreeable proſpect. But man excells other animals chiefly by being ſuſceptible of high improvements in a well regulated ſociety. In his original ſolitary ſtate, he is ſcarce a rational creature. Reſentment is a paſſion, that, in an undiſciplined breaſt, appears to exceed all rational bounds. But ſavages, unreſtrained by law, indulge their appetites without control; and in this ſtate, reſentment, were it more moderate, would, perhaps, ſcarce be ſufficient to keep men in awe, and to reſtrain them, in any conſiderable degree, from mutual injuries. Happy [89] it is for civilized ſocieties, that the authority of law hath, in a good meaſure, rendered unneceſſary this ſavage and impetuous paſſion; and happy it is for individuals, that early diſcipline, under the reſtraint of law, by calming the temper, and ſweetening manners, hath rendered it a leſs troubleſome gueſt than it is by nature.

TRACT II.
HISTORY OF PROMISES and COVENANTS.

[]

MORAL duties, originally weak and feeble, acquire great ſtrength by refinement of manners in poliſhed ſocieties*. This is peculiarly the caſe of the duties that are founded on conſent. Promiſes and covenants have full authority among nations tamed and diſciplined in a long courſe of regular government: but among Barbarians it is rare to [92] find a promiſe or covenant of ſuch authority as to counterbalance, in any conſiderable degree, the weight of appetite or paſſion. This circumſtance, joined with the imperfection of a language in its infancy, are the cauſes why engagements are little regarded in original laws.

IT is lucky, that among a rude people, in the firſt ſtages of government, the neceſſity of engagements is not greater than their authority. Originally every family ſubſiſted by hunting, and by the natural fruits of the earth. The taming wild animals, and rendering them domeſtick, multiplied greatly the means of ſubſiſtence. The invention of agriculture produced to the induſtrious a ſuperfluity, with which foreign neceſſaries were purchaſed. Commerce, originally, was carried on by barter or permutation, to which a previous covenant is not neceſſary. And after the uſe of money was known, we have reaſon to believe, that buying and ſelling alſo was at firſt [93] carried on in the ſame manner, viz. by exchange of goods and money, without any previous covenant. But in the progreſs of the ſocial life, the wants and appetites of individuals multiply faſter than to be readily ſupplied by a ſpecies of commerce ſo narrow and confined. The uſe of an interpoſed perſon was diſcovered, who takes care to be informed of what is redundant in one corner, and of what is wanted in another. This occupation was improved into that of a merchant, who provides himſelf from a diſtance with what is demanded at home. Then it is, and no ſooner, that the uſe of a covenant comes to be recognized; for the buſineſs of a merchant cannot be carried on to any extent, or with any ſucceſs, without previous agreements.

So far back as we can trace the Roman law, we find its authority interpoſed in behalf of ſale, location, and other contracts deemed eſſential to commerce. And that commerce was advanced in Rome before [94] action was ſuſtained upon ſuch contracts, is evident from the contract of ſociety put in that claſs. Other covenants were not regarded, but left upon the obligation of the natural law. One general exception there was. A promiſe or paction, of whatever nature, executed in a ſolemn form of words, termed ſtipulatio, was countenanced with an action. This ſolemn manner of agreement, teſtified the deliberate purpoſe of the parties; and, at the ſame time, removed all ambiguity as to their meaning, which, in the infancy of a language, words at random are much ſubjected to*.

[95] COURTS were a noble invention in the ſocial ſtate; for by them individuals are compelled to do their duty. This invention, as generally happens, was originally [96] confined within narrow bounds. To take under the protection of a court, natural obligations of every ſort, would, in a new experiment, have been reckoned too bold. It was deemed ſufficient to enforce, by legal authority, thoſe particular duties that contribute the moſt to the well-being of ſociety. A regulation ſo important gave full ſatisfaction, and, while recent, left no deſire or thought of any farther improvement. This fairly accounts for what is obſerved above, that in the infancy of law, promiſes and agreements which make a figure, are countenanced with an action, while others of leſs utility are left upon conſcience. But here it muſt be remarked, that this diſtinction is not made where the effect of a promiſe or agreement is not to create an obligation, but to diſſolve it. Pacta liberatoria have, in all ages, been enforced by courts of law. The reaſon commonly aſſigned, that liberty is more favourable than obligation, is not ſatisfactory; for no pactions merit [97] more favour than thoſe which promote the good of ſociety, by obliging individuals to ſerve and aid each other. The following reaſon will perhaps be reckoned more ſolid. There is a wide difference betwixt refuſing action, even where the claim is juſt, and ſuſtaining action upon an unjuſt claim. With reſpect to the former, all that can be objected is, that the court is leſs uſeful than it might be. The latter would be directly countenancing, or rather enforcing, iniquity. It is not ſurpriſing to find courts confined, originally, within too narrow bounds in point of utility: but it would be ſtrange indeed if it were made their duty to enforce wrong of any ſort. Thus where a court refuſes to make effectual a gratuitous promiſe, there is no harm done: matters are left where they were before courts were inſtituted. But it is undoubtedly unjuſt to demand payment of a debt after it is diſcharged, though by a gratuitous promiſe only. And therefore, when in this caſe an action for payment is brought, the [98] court has no choice. It cannot otherwiſe avoid ſupporting this unjuſt claim, but by ſuſtaining the gratuitous promiſe as a good defence againſt the action*.

ONE caſe excepted, ſimilar to the Roman ſtipulatio, of which afterwards, it appears to me that no naked promiſe or covenant was, by our forefathers, countenanced with an action. A contract of buying and ſelling was certainly not binding by the municipal law of this iſland, unleſs the price were paid, or the thing ſold delivered. There was locus penitentiae even after arles were given; and change of mind was attended with no other penalty, but loſs of [99] the arles, or value of them*. Our antient writers are not ſo expreſs upon other covenants; but as permutation, or in place of of it buying and ſelling, are of all the moſt uſeful covenants in common life, we may reaſonably conclude, that if an agreement of this kind was not made effectual by law, other agreements would not be more privileged.

THE caſe hinted above as an exception, is where an agreement is made or acknowledged in the face of court, taken down in writing, and recorded in the books of the court. For though this was done chiefly to make evidence, I judge the ſolemn manner of making the agreement behoved to have an effect, the ſame with that of ſtipulatio in the Roman law, which tied both parties, and abſolutely barred repentance. And indeed the recording a tranſaction would be an idle ſolemnity, if the parties were not bound by it.

[100] THE occaſion of introducing this form, I conjecture to be what follows. In difficult or intricate caſes, it was an early practice for judges to interpoſe, by preſſing a tranſaction betwixt the parties; of which we have ſome inſtances in the court of ſeſſion, not far back. This practice brought about many agreements betwixt litigants, which were always recorded in the court where the proceſs depended. The record was compleat evidence of the fact; and if either party broke the concord or agreement, a decree went againſt him without other proof*. The ſingular advantages of a concord or tranſaction, thus finiſhed in face of court, moved individuals to make all their agreements, of any importance, in that form. And indeed, while writing continued a rare art, ſkilful artiſts, except in courts of juſtice, were not eaſily found, who could readily take down a covenant in writing.

[101] SO much upon the firſt head, how far naked covenants and promiſes were effectual by our old law. What proof of a bargain was required by a court of juſtice, comes next to be examined. Evidence may juſtly be diſtinguiſhed into natural and artificial. To the former belong proof by witneſſes, by confeſſion of the party, and by writing. To the latter belong thoſe extraordinary methods invented in days of groſs ſuperſtition, for bringing out the truth in doubtful caſes, ſuch as the trial by fire, the trial by water, and ſingular battle.

BEFORE writing was invented, or rather while, like painting, it was in the hands of a few artiſts, witneſſes behoved to be relyed on for evidence in all caſes. Witneſſes, in particular, were admitted for proving a debt to whatever extent, as well as for proving payment of it. But experience diſcovered both the danger and uncertainty of ſuch evidence; which, therefore, was confined within narrower bounds gradually as [102] the art of writing became more common. It was firſt eſtabliſhed that two witneſſes were not ſufficient to prove a debt above forty ſhillings; and that the number of witneſſes behoved to be in proportion to the extent of the debt. Afterwards, when the art of writing was more diffuſed, the King's courts took upon them to confine the proof of debt to writing, and the confeſſion of the party, leaving the inferior judges to follow the common law, by admitting debt to be proved by witneſſes. This ſeems to be the import of Quon. Attach. Cap. 81. and the only proper ſenſe that it can bear. The burghs adhered the longeſt to the common law, by admitting two witneſſes to prove debt to any extent*.

[103] THE King's courts aſſumed the like privilege in other actions. Though they admitted witneſſes to prove that a contract of ſale, for example, or location, was performed in part, in order to be a foundation for decreeing full performance; yet they allowed nothing to be proved by witneſſes, but what is cuſtomary in every covenant of the ſort. If any ſingular paction was inſiſted on, ſuch as an irritancy ob non ſolutum canonem, witneſſes were not admitted to prove ſuch pactions, more than to prove a claim of debt. The proof was confined to writ, or confeſſion of the party*.

THE ſecond ſpecies of natural evidence is, confeſſion of the party; which, in the ſtricteſt ſenſe, behoved to be a confeſſion; that is, it behoved to be voluntary. For, by the original law of this iſland, no man was bound to bear teſtimony againſt himſelf, whether in civil or criminal cauſes. So ſtands the common law of England to [104] this day; though courts of equity take greater liberty. Our law was the ſame, till it came to be eſtabliſhed, through the influence of the Roman law, that in civil actions, the facts ſet forth in the libel, or declaration, may be referred to the defendant's teſtimony, and he be held as confeſt, if he refuſe to give his oath. The tranſition was eaſy from civil matters, to the ſlighter delinquencies which are puniſhed with pecuniary penalties; and in theſe alſo, by our preſent practice, the perſon accuſed is, in a civil court, obliged to give evidence againſt himſelf.

THE diſcovery of truth, by oath of party, denied in civil courts, was, in the eccleſiaſtical court, obtained by a circuit. An action for payment could not be brought before the eccleſiaſtical court; but, in a religious view, a complaint could be brought for breach of faith and promiſe. The party, as in the preſence of GOD, was bound to declare, whether he had not made [105] the promiſe. By this oath, the truth being drawn from him, he was of courſe enjoined, not only to do penance, but alſo to ſatisfy the complainer. This was, in effect, a decree which was followed with the moſt rigorous execution for obtaining payment of the debt. And this, by the by, is the foundation of the privilege which our commiſſary courts have of judging in actions of debt, when the debt is referred to oath.

THE third ſpecies of natural evidence is writ, which is of two kinds, viz. record of court, and writ executed privately betwixt parties. The firſt kind, which has already been mentioned, is, in England, termed Recognizance, becauſe debt is there acknowledged. And here it muſt be carefully remarked, that this writ is of itſelf compleat evidence, ſo as to admit of no contrary averment, as expreſſed in the Engliſh law. With reſpect again to a private writ, it is laid down, that if the defendant deny the [106] ſeal, the purſuer muſt verify the ſame by witneſſes, or by compariſon of ſeals; but that if he acknowledge it to be his ſeal, he is not admitted to deny the writ*. The preſumption lies, that it was he himſelf who ſealed the writ; unleſs he can bring evidence, that the ſeal was ſtole from him, and put to the writ by another.

A deed hath ſprung from the Recognizance, which requires peculiar attention. In England it is termed a Bond in Judgment, and with us a Bond regiſtrable. When, by peace and regular government, this iſland came to be better peopled than formerly, it was extremely cumberſome to go before the judge upon every private bargain, in order to munute and record the ſame. After the art of writing was ſpread every where, a method was contrived to render this matter more eaſy. The agreement is taken down in writing; and, with the ſame breath, a mandate is granted to a procurator to appear [107] in court, and to obtain the writing to be recorded as the agreement of ſuch and ſuch perſons. If the parties happen to differ in executing the agreement, the writing is put upon record by virtue of the mandate, and faith is given to it by the court, not leſs than if the agreement had been recorded originally. The authority of the mandate is not called in queſtion, being joined with the averment of the procurator. And, from the nature of the thing, if faith be at all given to writ, the mind muſt reſt upon ſome fact which is taken for granted without witneſſes. A bond, for example, is vouched by the ſubſcription of the granter, and the granter's ſubſcription by that of one or more witneſſes. But the ſubſcription of a witneſs muſt be held as true; for otherwiſe there behoved to be a chain of proof without end, and a writing could never be legal evidence. The ſame ſolemnity is not neceſſary to the mandate, which being a relative deed, is ſupported by the bond or agreement to which it relates; [108] and therefore, of ſuch a mandate, we do not require any evidence beſides the ſubſcription of the party. The ſtile of this mandate was afterwards improved, and made to ſerve a double purpoſe; not only to be an authority for recording the writ, but alſo to impower the procurator to confeſs judgment againſt his employer; upon which a decree paſſes of courſe, in order for execution. The mandate was originally contained in a ſeparate writing, which is the practice in England to this day. In Scotland, the practice firſt crept in of indorſing it upon the bond, and afterwards of ingroſſing it in the bond at the cloſe, which is our preſent form.

COMPARING the law of England and of Scotland, upon the evidence of writ, I can diſcover no diſcrepance betwixt them. For, firſt, as to regiſtrable writs, or bonds in judgment, theſe do and muſt bear full faith; becauſe, without other evidence, they are a ſufficient foundation for execution. Such [109] a writ, when put upon record, produces a decree, which cannot be challenged but in a proceſs of reduction or ſuſpenſion; and in England it is a rule, that matters of record prove themſelves, and admit of no averment againſt the truth of them*. In the next place, as to a private writ, uſed as evidence in a proceſs, it appears from the Regiam Majeſtatem, compared with Glanvil in the paſſages above cited, that the law was alſo the ſame in both countries. In England, to this day, a party may deny the verity of the writ, by pleading quod non eſt factum. But then it is not enough barely to deny, without undertaking a proof. What I am to ſuggeſt, will make it evident, that non eſt factum is a proper exception, which, like all other exceptions, muſt be verified by evidence. One needs but reflect, that a bond ſigned ſealed and delivered, makes an effectual obligation by the law of England, and is therefore a good foundation for an action. This is in other words [110] ſaying, that ſuch bond is probative, and requires not the ſupport of extraneous evidence: and if ſo, it cannot be ſufficient for the defendant to reſt upon a denial, without attempting, by contrary evidence, to diſprove the evidence of the bond. To this end he has an opportunity to produce the inſtrumentary witneſſes. But if theſe be dead, it is a rule in England, as well as in Scotland, that they prove the verity of the writing; which, in plain ſenſe, comes to this, that every thing ſaid in the bond, is preſumed to be true, until the contrary be proved. This is, in every point, agreeable to the law of Scotland; for which, in place of all other authority, I appeal to Lord Stair*, who lays down in expreſs terms, ‘"That againſt regiſtrable writs, improbation ought not to be ſuſtained by exception, but only by action; but that againſt other writs, improbation may be proponed by way of exception."’

[111] I cannot, upon this occaſion, overlook a remarkable impropriety in our old ſtatutes, requiring witneſſes to the ſubſcription of an obligor, without enjoining the witneſſes to ſubſcribe, in token that they did witneſs the obligor's ſubſcription. To appoint any act to be done, without requiring any evidence of its having been done, is undoubtedly an idle regulation. The teſting clauſe, it is true, bears, that the obligor ſubſcribed before ſuch and ſuch witneſſes. But the teſting clauſe, which, in point of time, goes before the ſubſcription of the obligor, cannot otherwiſe than prophetically be evidence, that the witneſſes named ſaw the obligor ſubſcribe. This blunder is not found in the Engliſh law: for tho' witneſſes are generally called, and do often ſubſcribe; yet, according to my information, witneſſes are not eſſential by the law of England. It is ſufficient to ſpecify in the declaration, that the bond was ſigned ſealed and delivered. Of the ſigning and ſealing, the bond itſelf is evidence; [112] and it is legal evidence of the delivery, that the bond is produced by the obligee.

THIS blunder, in our law, is corrected by the ſtatute 1681, enacting, ‘"That none but ſubſcribing witneſſes ſhall be probative, and not witneſſes inſert not ſubſcribing."’ By this regulation, the evidence of writ is now, with us, more compleat than it is in England. The ſubſcriptions of the witneſſes are juſtly held legal evidence of their having witneſſed the ſubſcription of the granter of the deed; and the ſubſcriptions muſt be held their ſubſcriptions; otherwiſe, as above obſerved, no writ could in any caſe afford legal evidence. And thus the evidence required in Scotland, to give faith to a bond, or other deed, is by this ſtatute made proper and rational. It is required that the granter ſubſcribe before witneſſes: but we no longer hold the teſting clauſe to be evidence of this fact. [113] The ſubſcription of the witneſſes is the evidence, as it properly ought to be.

OF the artificial means uſed in a proceſs to diſcover truth, thoſe by fire and water* were diſcharged by Alexander the ſecond. And it is wonderful that even the groſſeſt ſuperſtition could ſupport them ſo long. But the trial by ſingular battle, introduced by Dagobert King of Burgundy, being more agreeable to the genius of a warlike people, was retained longer in practice. And being conſidered as an appeal to the Almighty, who would infallibly give the cauſe for the innocent, it continued long a ſucceſsful method [114] of detecting guilt: for it was rare to find one ſo hardened in wickedneſs, as to behave with any degree of reſolution, under the weight of this conviction. But inſtances of ſuch bold impiety, rare indeed at firſt, became more frequent. Men of ſenſe began to entertain doubts about this method of trying cauſes; and it was reckoned too preſumptuous to expect a miraculous interpoſition of providence upon every ſlight diſpute betwixt private perſons, which might be decided by the ordinary forms of law. Cuſtom, however, and the ſuperſtitious notions of the vulgar, preſerved it long in force; and even after it became a publick nuſance, it was not directly aboliſhed. All that could be done, was to ſap its foundations*, by ſubſtituting gradually in its place another method of trial.

[115] THIS was the oath of purgation; the form of which is as follows. The defendant brings along with him into court, certain perſons called Compurgators; and after ſwearing to his own innocence, and that he brings the compurgators along with him to make and ſwear a leil and true oath, they all of them ſhall ſwear that this oath is true, and not falſe. Conſidering this form in itſelf, and that it was admitted where the proof was defective on the purſuer's part, nothing appears more repugnant to juſtice. For why ſhould a defendant be ſo loaded, when there is no proof againſt him? But conſidering it with relation to the trial by ſingular battle, to which it was ſubſtituted, it appears to me a rational meaſure. For, in effect, it was giving an advantage to the defendant which originally he had not, viz. that of chuſing whether he would enter the liſts in [116] a warlike manner, or undergo the oath of purgation. That the oath of purgation came in place of ſingular battle, is not obſcurely inſinuated, Leges Burgor. Cap. 24. and is more directly ſaid, Quon. Attach. Cap. 61. ‘"If a man is challenged for theft in the King's court, or in any court, it is in his will, whether he will defend himſelf by battle, or by the cleanſing of twelve leil men*."’ It bears in England the law term of Wager at Law . That is, it is waging law inſtead of waging battle; joining iſſue upon the oaths of the defendant and compurgators, in place of joining iſſue upon a duel. But the oath of purgation, invented to ſoften this barbarous cuſtom of duels, being reckoned not ſufficient to repreſs the evil, duels were afterwards limited to accuſations for capital crimes, where there are probable ſuſpicions and preſumptions, without direct evidence. And conſequently, if the foregoing conjecture be well founded, the oath [117] of purgation came alſo to be confined to the ſame caſe. By degrees both wore out of uſe; and, in this country, there are no remaining traces of the oath of purgation, if it be not in Eccleſiaſtical courts.

IT is probable, that as ſingular battle gave place to the oath of purgation, ſo this oath gave place to juries. The tranſition was eaſy, there being no variation other than that the twelve compurgators, formerly named by the defendant, were now named by the judge. The variation proved notably advantageous to the defendant, though in appearance againſt him. Singular battle wearing out of repute, the unjuſtice of burdening with a proof of innocence, every perſon who is accuſed, was clearly perceived; and witneſſes being now more frequently employed on the part of the proſecutor to prove guilt, than on the part of the defendant to prove innocence, it was thought proper that they ſhould be choſen by the judge, not by the defendant. [118] If it be demanded, why not by the proſecutor as at preſent? It is anſwered, That at that time the innovation would have been reckoned too violent. However this be, one thing appears from Glanvil*, That in all diſputes concerning the property of land, founded on the brieve of right, a privilege was about that time beſtowed on the defendant, to have the cauſe tried by a jury, in place of ſingular battle. As this was an innovation authorized by reaſon, and not by ſtatute, it was probably at firſt attempted in queſtions upon the brieve of right only; matters of leſs importance being left upon the oath of purgation. That a jury trial, and the oath of purgation, were in uſe both of them at the ſame time, we have evidence from the Regiam Majeſtatem, compared with the foregoing citations. But theſe two methods could not long ſubſiſt together. The new method of trial by a jury, was ſo evidently preferable [119] to the other, that it would ſoon become univerſal, and be extended to all caſes civil and criminal; and in fact, we find it ſo extended ſo far back as we have any diſtinct records.

FROM this deduction it appears, that a jury was originally a number of witneſſes choſen by the judge, in order to declare the truth*. And hence the proceſs againſt a jury for perjury and wilful error. This explains alſo why the verdict of a jury is final, even where they are convicted of perjury. Singular battle, from the nature of the thing, was ſo: the oath of purgation, in place of ſingular battle, was ſo; and a verdict, in place of an oath of purgation, is ſo. It likewiſe explains the practice of England, that the jury muſt be unanimous in their verdict; for it was required, that the compurgators ſhould be ſo in their oath of purgation. The ſame rule probably obtained in Scotland: but at preſent, and ſo [120] far back as our records carry us, the verdict is fixed by the votes of the majority.

IN later times, the nature and office of a jury were altered. Through the difficulty of procuring twelve proper witneſſes acquainted with the facts, twelve men of ſkill and integrity were choſen, to judge of the evidence produced by the litigants. The cauſe of this alteration may be gueſſed, admitting only that the preſent ſtrict forms of a jury trial were at firſt not in uſe. If jury-men, conſidered as witneſſes, differed, or were uncertain about the facts, they would naturally demand extraneous evidence; of which, when brought, it belonged to them to judge. It is likely that, for centuries, jury-men acted thus both as witneſſes and as judges. They may, it is certain, do ſo at this day; though, for the reaſon above given, they are commonly choſen by rotation, without being regarded in the character of witneſſes. Hence it is, that a jury is now conſidered chiefly as [121] judges of the fact, and ſcarce at all as a body of witneſſes. And this explains why the proceſs for perjury againſt them is laid aſide. This proceſs cannot take place againſt judges, but only againſt witneſſes.

TRACT III.
HISTORY OF PROPERTY.

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THAT peculiar relation betwixt perſons and things, ſignified by the term Property, is one of the great objects of law. The privileges founded on this relation, are at preſent extenſive, but were not always ſo. Property, originally, beſtowed no other privilege but merely that of uſing or enjoying the ſubject. A privilege eſſential to commerce was afterwards acknowledged, viz. to alien for a valuable conſideration: and at preſent [124] the relation of property is ſo intimate, as to involve a power or privilege of making donations to take effect after death, as well as during life. Laws have been made, and deciſions pronounced, in every age, conformable to the different ideas that have been entertained of this relation. Theſe laws and deciſions are rendered obſcure, and perhaps ſcarce intelligible, to thoſe who are unacquainted with the hiſtory of property; and therefore we have reaſon to hope, that this hiſtory will prove equally curious and inſtructive*.

MAN, by his nature, is fitted for ſociety, and ſociety is fitted for man by its manifold conveniencies. The perfection of human ſociety, conſiſts in that juſt degree of union [125] among individuals, which to each reſerves freedom and independency, ſo far as is conſiſtent with peace and good order. The bonds of ſociety may be too lax; but they may alſo be overſtretched. A ſociety, where every man ſhould be bound to dedicate the whole of his induſtry to the common intereſt, would be of the ſtricteſt kind. But it would be unnatural and incomfortable, becauſe deſtructive of liberty and independency. The enjoyment of the goods of fortune in common, would, for the ſame reaſon, be not leſs unnatural and incomfortable. Another reaſon may be added. There ſubſiſts in man a remarkable propenſity for appropriation, which makes us averſe to a communion of goods, ſome ſingular caſes excepted. And happy it is for man to be thus conſtituted. Induſtry, in a great meaſure, depends on property; and a much greater bleſſing depends on it, which is the gratification of the moſt dignified natural affections. What place would there. be for generoſity, benevolence, or charity, [126] if the goods of fortune were common to all? Theſe noble principles, being deſtitute of objects and exerciſe, would for ever lie dormant; and what would man be without them? Truly a very groveling creature; diſtinguiſhable indeed from the brutes, but ſcarce elevated above them. Gratitude and compaſſion might have ſome ſlight exerciſe; but how much greater is the figure they make in the preſent ſtate of things? The ſprings and principles of man are adjuſted with admirable wiſdom to his external circumſtances; and theſe in conjunction form one regular conſtitution, harmonious in all its parts.

HUNTING and fiſhing were originally the occupations of man, upon which chiefly he depended for food. The beaſt caught in a gin, or the fiſh with a hook, being the purchaſe of art and induſtry, were undoubtedly, from the beginning, conſidered by all as belonging to the occupant. The ſtrong appetite which man has for appropriation, [127] vouches this to be true: but what were the preciſe boundaries of the relation thus created betwixt the hunter or fiſher, and his prey, and what powers were acquired by the former over the latter, in common eſtimation, is a queſtion of more intricacy. That this relation implies a power to uſe for ſuſtenance the creature thus taken, and towards that end to defend the poſſeſſion againſt every invader, is extremely clear. But ſuppoſing the creature to have been loſt, and without violence to have come into the hands of another, I do not clearly ſee that, in ſuch circumſtances, the original occupant would have had any claim, or that reſtitution would have been reckoned the duty of the poſſeſſor. This may be thought Sceptical; for to one who has imbibed the refined principles of law, the conception is familiar of a relation betwixt a man and a ſubject, ſo intimate, as not to be diſſolvable without his conſent: but, in the inveſtigation of original laws, nothing is more apt to lead into error, than [128] prepoſſeſſion derived from modern improvements. It appears to me extremely probable, that among ſavages involved in objects of ſenſe, and ſtrangers to abſtract ſpeculation, property and the rights or moral powers ariſing from it, never are with acaccuracy diſtinguiſhed from the natural powers, which muſt be exerted upon the ſubject to make it profitable to the poſſeſsor. The man who kills and eats, who ſows and reaps, at his own pleaſure, independent of another's will, is naturally deemed proprietor. The groſſeſt ſavages can apprehend power without right, of which they are made ſenſible by daily acts of violence: but it requires a habit of abſtraction, to conceive right or moral power independent of natural power; becauſe in this condition, right, being attended with no viſible effect, is a mental conception merely. That a man may be deprived of a ſubject, and yet retain the property, is a leſſon too intricate for a ſavage. For how can this be, it will be obſerved, when he has not [129] the uſe of the ſubject, and has no power over it? Hence as a ſubject, in order for enjoyment, muſt be under the power of the proprietor, and conſequently in his poſſeſſion, I infer, that, in the original conception of property, poſſeſſion was an eſſential circumſtance, and that when the latter was loſt, the former could no longer ſubſiſt. I confirm this inference by the following obſervation. To this day the vulgar can form no diſtinct conception of property, otherwiſe than by figuring the man in poſſeſſion, uſing the ſubject without control, and according to his own will. If ſuch be at preſent the vulgar way of thinking, we may reaſonably ſuſpect a ſtill greater obſcurity in the conceptions of a ſavage.

BUT though originally property was loſt with the poſſeſſion, it follows not that it was always acquired with the poſſeſſion. That property cannot be acquired by theft, or other immoral act, is a ſentiment dictated by nature; and which therefore influences [130] even the groſſeſt ſavages. Hence it behoyed to be a rule, that though property is loſt by theft, it is not acquired by theft. Here is a clear foundation laid for obliging the thief to reſtore. He has no title to retain a ſubject which, though in his poſſeſſion, is not his property; and he is beſides bound in conſcience to repair the damage done by him to the perſon formerly proprietor, by reſtoring the poſſeſſion, which of courſe reſtores the property. But this claim of reſtitution, evidently reaches not any perſon who has acquired the ſubject by honeſt means, and who having done no wrong, cannot be liable to make any reparation.

To illuſtrate this ſubject, I figure the caſe of a horſe carried off by theft, which, after paſſing through ſeveral hands, is fairly purchaſed in open market. Let us ſee what arguments are ſuggeſted by reaſon on either ſide; and after weighing theſe arguments, let natural juſtice pronounce ſentence. The [131] claimant urges, ‘"That he was deprived of his horſe by theft."’ The Purchaſer anſwers, ‘"That he had no acceſſion to the theft, and that the thief alone is liable."’ The claimant again urges, ‘"That a man may lay hold of his own goods whereever they are found."’ Anſwered, ‘"The horſe was the property of the claimant, while in his poſſeſſion; but the property was loſt with the poſſeſſion. And ſuppoſing the connection of property to ſubſiſt independent of poſſeſſion, this can only hold where there is no ſeparate connection formed. In the preſent caſe, the connection of property ariſing from an honeſt bargain, and a full price paid, is of the ſtrongeſt kind."’ Betwixt pretenſions ſo equally balanced, how can a judge otherwiſe interpoſe than by pronouncing, quod potior eſt conditio poſſidentis? And that antiently this was the rule, may be gathered from traces of it, which, to this day, remain in ſeveral countries. By the old law of Germany, the proprietor could demand [132] his goods from the perſon to whom he delivered them, in order to be reſtored; becauſe this claim is founded on a contract. But he had no claim againſt any other poſſeſſor; and hence the maxim, ‘"That a man muſt demand his ſubject from the perſon to whom he delivered it."’ And Heineccius* obſerves, That this continues to be the Law of Lubec, of Hamburg, of Culm in Pruſſia, of Sweden, and even of Holland. Upon the ſame principle, ſtolen goods were confiſcated. And this continued to be the law till it was abrogated by the Emperor Charles V.. Upon the ſame principle the Saxon law is founded, That if a thief ſuffer death, by which the ſtolen goods are confiſcated, his heir is not bound to pay the value. a

[133] WERE we altogether deſtitute of evidence, it would remain probable however, [134] that in this iſland the original notions about property did not widely differ from [135] what prevailed in other countries. But luckily we have very ſtrong evidence that [136] they were the ſame; not even excepting the caſe of ſtolen goods. Our act 26, p. 1661, vouches it to have been the law of Scotland, that when a thief was condemned, his effects, including the ſtolen goods, were confiſcated. Nor is this law abrogated totally by the ſtatute. The proprietor cannot demand his goods, except upon condition that he proſecute the thief uſque ad ſententiam. Such being the law with regard to ſtolen goods, we cannot doubt, that a man purchaſing bona fide from a vender, who is not proprietor, was ſecure againſt this claim of property. That ſuch was the practice, may be gathered from many paſſages in our ancient law-books. In point of evidence, I ſhall confine myſelf to one fact. A regulation appears to have been early introduced, prohibiting buying and ſelling except in open market. The purpoſe undoubtedly was to repreſs theft, and to prevent the transference of property by private bargains. It is not ſafe to venture ſtolen goods in open market; and if they be diſpoſed of [137] privately, the buyer cannot be ſecure who purchaſes prohibente lege *. I have another fact to urge, which is no ſlight confirmation of what is here ſuggeſted. By the oldeſt law of the Romans, a ſingle year compleated the preſcription of moveables; which teſtifies, that property independent of poſſeſſion was conſidered to be a right of the ſlendereſt kind. In later times, when the relation [138] of property was ſo ſtrengthned as to be clearly diſtinguiſhed from poſſeſſion, this preſcription was, among the Romans, extended to ten years; and with us a man, by preſcription, is not deprived of the moſt trifling moveable in a ſhorter time than forty years.

BUT if ſuch originally was the law of property, by what over-ruling principle has property acquired ſtrength and energy to affect the ſubject wherever found, and to exclude even an honeſt purchaſer, where the title of his author is diſcovered to be lame? This queſtion enters deep into the hiſtory of law, and the anſwer to it muſt be drawn, partly from natural, partly from political principles. It will appear, in the courſe of this hiſtory, that both have concurred to beſtow upon property that degree of firmneſs and ſtability which at preſent it enjoys among all civilized nations. Proceeding regularly, according to the courſe of time, the firſt cauſe which offers itſelf to view is a natural principle.

[139] MAN, by the frame of his body, is unqualified to be an animal of prey. His ſtomach requires more regular ſupplies of food than can be obtained in a ſtate where the means of nouriſhment are ſo precarious*. His neceſſities taught him the art of taming ſuch of the wild creatures as are peaceable and docile. Large herds were propagated of cattle, ſheep and goats, which [140] afforded plenty of food ready at hand for daily uſe. By this invention, the conveniencies of living were greatly promoted: and in this ſtate, which makes the ſecond ſtage of the ſocial life, the relation of property, though not entirely disjoined from poſſeſſion, was conſiderably enlivened. The care and attention beſtowed upon a domeſtic animal from the time of its birth, form in the mind of every one a ſtrong connection betwixt the man and his beaſt, which, upon any caſual interruption of poſſeſſion, does not ſo readily vaniſh, as in the caſe of a wild beaſt ſeized by a hunter.

THUS, by a natural principle, the relation of property was in ſome meaſure fortified, and was conſidered, as forming a ſtricter connection betwixt man and other animals than it did originally. In this condition, a political principle contributed to make the relation appear ſtill more intimate. Experience demonſtrated, that it is impracticable to repreſs theft and robbery, [141] if purchaſers be ſecure upon the pretext of bona fides. For every purchaſe muſt be preſumed honeſt, till the contrary be proved; and nothing is more eaſy than to contrive a diſhoneſt purchaſe that ſhall be ſecure from detection. To remedy an evil which gave ſo great ſcope to ſtealth and violence, the regulation above mentioned was, in this iſland, introduced among our Saxon anceſtors, prohibiting all buying and ſelling except in open market. After this regulation, a private purchaſe afforded no ſecurity, nor was the property transferred. The nexus, or lien of property, was greatly ſtrengthned, when it was now become law, that no man could be deprived of his property without his own conſent; except ſingly in the caſe of a purchaſe bona fide in open market. I add, upon this head, that the notion of right independent of natural power, once evolved, acquired the greateſt firmneſs and ſtability, by the regular eſtabliſhment of courts of juſtice, the great purpoſe of which is to afford natural power, whenever it is [142] of uſe to make right or moral power effectual.

AND, by the way, the influence of property, in its different ſtages of improvement, is extremely remarkable. The nexus, or lien of property, being originally ſlight, it was not thought unjuſt to deprive a man of his property by means of a bona fide purchaſe, even where the ſubject was ſold by a robber. The law, which reſtrained purchaſes except in open market, beſtowed a firmneſs upon the relation of property, which made it, in ſome meaſure, prevail over the right ariſing from a bona fide purchaſe. This produced the ſtatute above mentioned, 31ſt of Eliſabeth, enacting, That even a bona fide purchaſe, in open market, ſhall not transfer the property, provided the proprietor claim within ſix months, and offer to the purchaſer the price he paid. So ſtands the law of England to this day; and yet to ſuch ſtability has the relation of property arrived by the courſe of time, and by the [143] favour of all men, that it is doubtful, whether, at preſent, the claim of property would not be ſuſtained, even without offering the price. In Scotland there is a regulation, of a very old date, for the ſecurity of property. Beſides buying in open market, the purchaſer is bound to take from the vender ſecurity for his honeſty, termed, Borgh of haim-hald. By this precaution the purchaſer was ſecure againſt all the world. But if the goods came to be claimed by the true owner, the cautioner was bound to produce the vender, otherwiſe to be liable for damages*. But though this continues to be our ſtatute law, ſuch however is the influence of property, that I doubt whether our judges would not be in hazard of ſuſtaining a rei vindicatio againſt the purchaſer in open market, even after uſing the forgoing precaution. Property, it is certain, is a great favourite of human nature, and is frequently the object of a very ſtrong affection. In the fluctuating ſtate of human [144] affairs, before regular governments were formed, property was ſeldom ſo permanent as to afford great ſcope for this affection. But in peaceable times, under a ſteady adminiſtration of law, the affection for property becomes exceeding ſtrong, which, of conſequence, fortifies greatly the relation of property. Thus there is diſcovered a natural connection betwixt government and property. From the weak and infantine ſtate in which both are found originally, both of them, by equal degrees of improvement, have arrived at that ſtability and perfection which they enjoy at preſent.

HAVING advanced ſo far in the hiſtory of moveable property, it is full time to turn our view to the property of land. In the two firſt ſtages of the ſocial life, while men were hunters or ſhepherds, there ſcarce could be any notion of land-property. Men being ſtrangers to agriculture, and alſo to the art of building, if it was not of huts, which could be raiſed or demoliſhed in a moment, [145] had no fixed habitations, but wandred about in hords or clans, in order to find paſture for their cattle*. In this vagrant life men had ſcarce any connection with land more than with air or water. A field of graſs might be conſidered as belonging to a hord or clan, while they were in poſſeſſion; and ſo might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer ſubſiſted any connection betwixt them and the field that was deſerted. It lay open to new-comers, who had the ſame right as if it had not been formerly occupied. Hence I conclude, that while men led the life of ſhepherds, there was no relation formed betwixt them and land, in any manner ſo diſtinct as to obtain the name of Property.

[146] AGRICULTURE, which makes the third ſtage of the ſocial life, produced the relation of land-property. A man who has beſtowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it. He contracts, by degrees, a ſingular affection for a ſpot, which, in a manner, is the workmanſhip of his own hands. He chuſes to live there, and there to depoſit his bones. It is an object which fills his mind, and is never out of thought at home or abroad. After a ſummer's expedition, or perhaps years of a foreign war, he returns with avidity to his own houſe, and to his own field, there to paſs his time in eaſe and plenty. By ſuch trials the relation of property being gradually evolved, is disjoined from poſſeſſion; and to this disjunction, the lively perception of property with reſpect to an object ſo conſiderable, mainly contributes. If a proprietor happen to be diſpoſſeſſed in his abſence, the injuſtice done, in depriving him [147] of the exerciſe of his property, is perceived and acknowledged. In the common ſenſe of mankind he continues proprietor, and a rei vindicatio will be ſuſtained to him againſt the poſſeſſor, to whom the property cannot be transferred by an immoral act. But what if the ſubject, after a long interval, be purchaſed bona fide, and peaceable poſſeſſion attained? I have given my reaſons above, for conjecturing, that in ancient times, ſuch a purchaſe transferred property, and extinguiſhed the right of the former proprietor. Such undoubtedly was once the condition of moveable property, gradually altered, as obſerved above, by ſucceſſive regulations. Land-property continued a much ſhorter time in this unſtable condition. Of all ſubjects of property, land is that which engages our affection the moſt; and for this reaſon the relation of property, reſpecting land, grew up much ſooner to its preſent firmneſs and ſtability, than the relation of property reſpecting moveables. For many centuries paſt, it is believed, that in no civilized [148] nation, has bona fides alone been held to ſecure the purchaſer of land. Where the vender is not proprietor, it is requiſite that the purchaſe be followed with a long and peaceable poſſeſſion.

IT is extreme probable, that the ſtrong nexus of land-property, which cannot be looſed otherwiſe than by conſent, had an influence upon moveable property, to make it equally ſtable. But if land-property led the way in this particular, moveable property undoubtedly led the way in what we are now to enter upon, viz. the power of aliening. The connection of perſons with moveables is more immediate than with land. A moveable may be locked up in a repoſitory. Cattle are killed every day for the ſuſtenance of the proprietor and his family. From this power, the tranſition is eaſy to that of alienation; for what doubt can there be of my power to alien what I can deſtroy? The right or power of alienation muſt therefore have been early recognized [149] as a quality of moveable property. The power of diſpoſing moveables by will, to take effect after death, is a greater ſtretch; and we ſhall have occaſion to ſee, that this power was not early acknowledged as one of the qualities even of moveable-property. We have reaſon, before-hand, to conjecture, that a power of aliening land, whether to take effect inſtantly, or after death, was not early introduced; becauſe land admits not, like moveables, a ready delivery from hand to hand. And this conjecture will be verified in the following part of our hiſtory. Land, at the ſame time, is a deſireable object; and a power to alien, after it came to be eſtabliſhed in moveable property, could not long be ſeparated from the property of land.

BUT before we proceed farther in this hiſtory, we muſt take a view of the forms and ſolemnities which, in the common apprehenſion of mankind, are requiſite, firſt to acquire, and then to transfer land-property. [150] For theſe, if I miſtake not, will ſupport the foregoing obſervations. It is taught by all writers, that occupation is an eſſential ſolemnity in the original eſtabliſhment of land-property. The reaſon will be evident from what is ſaid above, that property originally was not ſeparated from poſſeſſion. And the ſame ſolemnity is requiſite at this day with reſpect to every uninhabited country: for where there is no proprietor to alien, there can be no means other than occupation to form the connection of property, whether with land or with moveables. Occupation was equally neceſſary in old times to compleat the transference of land-property. For if property was not underſtood to have an exiſtence without poſſeſſion, occupation behoved to be neceſſary for transferring the property of land, as well as for eſtabliſhing it originally. But ſo ſoon as property came to be conſidered as a right independent of poſſeſſion, it was natural to relax from the ſolemnities formerly requiſite to transfer land-property. It is often difficult, and always [151] troubleſome, to introduce a purchaſer with his family and goods into the natural poſſeſſion; and this ſolemnity therefore was diſpenſed with, becauſe not eſſential upon the later ſyſtem of property. But then, in oppoſition to a practice ſo long eſtabliſhed, the innovation would have been too violent, to aſcribe to the bare will of the former proprietor, the efficacy of transferring the property to a purchaſer, without any ſort of ſolemnity in place of poſſeſſion. Such is our attachment to ſenſible objects, that it would have appeared like magic, or the tricks of a juggler, to make the property of land jump from one perſon to another, merely upon pronouncing certain words expreſſing will or conſent. Words are often ambiguous, and always too tranſitory to take faſt hold of the mind, without concomitant circumſtances. In place therefore of actual poſſeſſion, ſome ouvert act was held neceſſary in order to compleat the tranſmiſſion. This act, of whatever nature it be, is conceived as repreſenting poſſeſſion, or as a [152] ſymbol of it: and hence it has acquired the name of ſymbolical poſſeſſion. When this form firſt crept in, ſome act was choſen to repreſent poſſeſſion as diſtinctly as poſſible; witneſs the caſe mentioned by Selden*, where a grant of land made to the church, anno 687, was perfected, by laying a turf of the land upon the altar. This innovation was attempted with the greateſt caution; but after the form became cuſtomary, there was leſs nicety in the choice. The delivery of a ſpear, of a helmet, or of a bunch of arrows, compleated the tranſmiſſion. In ſhort, any ſymbol was taken, however little connected with the land: it was ſufficient that it was connected with the will of the granter. In the cathedral of York there is, to this day, preſerved, a horn, delivered by Ulphus king of Deira to the monaſtry of York, as a ſymbol for compleating a grant of land in their favours.

[153] A ſingle obſervation, with which I ſhall conclude this branch of our ſubject, may ſerve to give us a more enlarged view of it. It appears to me, that there is a ſtricter analogy betwixt creating perſonal obligations and transferring land-property, than is commonly imagined. Words merely, make no great impreſſion upon the rude and illiterate. In ancient times therefore, ſome external ſolemnity was always uſed to fortify covenants and engagements, without which they were reckoned not binding*. Writing at preſent being common, and the meaning of words aſcertained, we require no other ſolemnity but writing, to compleat the moſt important tranſactions. Writing hitherto among us, with regard to land-rights, has not ſuperceded the neceſſity of ſymbolical delivery: but when our notions [154] come to be more refined, and ſubſtance regarded more than form, it is probable, that external ſymbols, which have long been laid aſide in perſonal rights, will alſo be laid aſide in rights affecting land. We return to our hiſtory.

PROPERTY, as originally limited, beſtowing no power of alienation, carries the mind naturally to the children of the poſſeſſor, who continue the poſſeſſion after his death, and who muſt ſucceed if he cannot alien*. Their right, being independent of his will, was conceived a ſort of property. They make part of the family, live upon the land; and, in common with their parents, enjoy the product of the land. When the father dies, they continue in poſſeſſion without any alteration, but that the family is leſs by one than formerly. Such a right in children, of which the father could not deprive them, which commenced, in ſome [155] meaſure, at their birth, and which was perfected by the father's death, was not readily to be diſtinguiſhed from property. It is, in effect, the ſame with the ſtricteſt entail that can be contrived.

To thoſe who are ignorant of the hiſtory of law, and in their notions are riveted to the preſent ſyſtem of things, the right here attributed to children may appear chimerical. But it will have a very different appearance, after mentioning a few of the many ancient cuſtoms and regulations founded upon it. And, to pave the way, I ſhall firſt ſhow, that the notions of the ancients about this matter were preciſely as here ſtated; for which I appeal to a learned Roman lawyer, Paulus*. ‘"In ſuis heredibus evidentius apparet, continuationem dominii eo rem perducere ut nulla videatur hereditas fuiſſe, quaſi olim hi domini eſſent, qui etiam vivo patre quodam modo domini exiſtimantur. Unde etiam filiusfamilias [156] appellatur, ſicut pater-familias: ſola nota hac adjecta, per quam diſtinguitur genitor ab eo qui genitus ſit. Itaque poſt mortem patris non hereditatem percipere videntur, ſed magis liberam bonorum adminiſtrationem conſequuntur."’ Here we ſee, even in an author far removed from the infancy of law, the intereſt which children once had in the eſtate of their father, termed a ſort of property. The only thing ſurpriſing in this paſſage is, that a notion ſo diſtinct ſhould remain of the property of children in their father's effects, for ſuch a length of time after the right was at an end. But to proceed, it plainly aroſe from this right, that, among the Romans, children got the appellation of ſui et neceſſarii heredes. The ſtrict connection betwixt parents and children produced the firſt term; and the other aroſe from the ſingularity of their condition, that the heritage becoming theirs ipſo facto by the father's death, they were heirs neceſſarily, without liberty of choice. Nor did this ſubject them to any riſk, becauſe, [157] deriving no right from their father, they were not bound to fulfil his deeds. In general, while property ſubſiſted without power of aliening, no deed done by the father, whether civil or criminal, could affect the children. And as to crimes, ſome good authorities are ſtill extant. It was a law of Edward the Confeſſor, That children born or begot before commiſſion of a crime, which infers forfeiture of goods, ſhall not loſe their inheritance*. And it was a law of the Longobards, That goods are not confiſcated where the criminal has near relations. Other regulations, acknowledging this right in children, and authoriſing particular exceptions from it, will come in more properly, after proceeding a little farther in our hiſtory.

IT is remarked above, that the enlarged notion of property, by annexing to it a power of alienation, obtained firſt in moveables; [158] and indeed ſociety could ſcarce ſubſiſt without ſuch a power; at leaſt ſo far as is neceſſary for exchanging commodities, and carrying on commerce. But the ſame power was not early annexed to the property of land, unleſs perhaps to ſupport the alienation of ſome ſmall part for value. This we certainly know, that a proprietor of land, which had deſcended to him from his anceſtors, could not diſpoſe upon it totally, even for a valuable conſideration, unleſs he was reduced to want of bread; and even in that caſe, he was obliged to make the firſt offer to his heir. This regulation, known among lawyers by the name of jus retractus, is very ancient, and we have reaſon to believe it was univerſal. It obtained among the Jews*. It was the law of Scotland, of which we have traces remaining not above three centuries ago. And it appears alſo to have been the law among other European nations. But this regulation gave [159] place gradually to commerce; and, now for ages, bargains about land have been not leſs free than bargains about moveables. The power of aliening for a valuable conſideration, is now univerſally held to be inherent in the property of land as well as of moveables.

DONATIONS, or gratuitous alienations, were of a ſlower growth. Theſe were at firſt ſmall, and upon plauſible pretexts. By degrees they gained ground, and in courſe of time came to be indulged almoſt without limitation. By the laws of the Viſigoths*, it was lawful to make donations to the church. The Burgundians ſuſtained a gift by a man though he had children. And among the Bavarians, it was lawful for a free man, after dividing his means with his ſons, to make a donation to the church out of his own portion. With reſpect to our Saxon anceſtors, the learned antiquary Sir Henry Spelman is an excellent guide. He [160] obſerves*, ‘"That heretable land began by little and little to be aliened by proprietors, firſt to churches and religious houſes, by conſent of the next heir; next to lay perſons; ſo that it grew at laſt a matter of courſe for children, as heredes proximi, for kinſmen, as heredes remotiores, and for the lord, as heres ultimus, to confirm the ſame. Such conſent being underſtood a matter of courſe, it grew to be law, That the father, without conſent of his heirs, might give part of his land, either to religious uſes, or in marriage with his daughter, or in recompence of ſervice."’ That ſuch was the practice of England in the days of Henry II, Glanvil teſtifieth. And that ſuch alſo was the law of Scotland in the days of David II, is teſtified by Reg. Maj.. But here a limitation mentioned by both authors muſt be attended to, That ſuch a donation was not effectual unleſs compleated by delivery. The reaſon aſſigned is ſlight [161] and unſatisfactory; but the true reaſon is, that if the ſubject was not delivered, the heir, whether we conſider the feudal or allodial law, was entitled to take poſſeſſion after his anceſtor's death, without being ſubjected to pay any of the debts, or perform any of the engagements of his anceſtor. And upon this account there was no ſecurity againſt the heir, but by delivery. This alſo appears to have been the Roman law*.

DONATIONS inter vivos, paved the way to donations mortis cauſa. But this was a wide ſtep, which behoved to require the authority of a law; for it was hard to conceive that the will of any man ſhould, after his death and after his own right was at an end, have ſo ſtrong an effect, as to prefer any perſon to the lawful heir. The power of teſting was introduced among the Athenians by a law of Solon, giving power to every proprietor who had no children, to regulate his ſucceſſion by teſtament. Plutarch, [162] in the life of that law-giver, has the following paſſage. ‘"Magnam quoque ſibi exiſtimationem peperit lege de teſtamentis lata. Antea enim non licebat teſtamentum condere, nam defuncti opes domumque, penes genere proximos manere oportebat. Hic liberum fecit, ſi liberi non eſſent, res ſuas, cui vellet dare: praetulitque amicitiam generi, et gratiam neceſſitati: et effecit, ut pecuniae poſſeſſorum propriae eſſent."’ The concluding ſentence is remarkable. Alienations inter vivos had been long in practice; and it was but one ſtep farther to annex to property a power of alienating mortis cauſa. Athens was ripe for this law; and hence it was natural for Plutarch to obſerve, that the power of teſting made every man proprietor of his own goods. The Decemviri at Rome, transferred this law into their Twelve Tables in the following words. Pater-familias uti legaſſit ſuper familiae, pecuniae, tutelaeve ſuae rei, ita jus eſto. This law, though conceived in words unlimited, was certainly not intended, more than [163] Solon's law, to deprive children of their birth-right, which, in that early period, was too firmly eſtabliſhed, to be ſubjected to the arbitrary will of the father; and if their intereſt in the ſucceſſion had not been greater than that of other heirs, they would not have been diſtinguiſhed by the appellation of ſui et neceſſarii heredes. Further, that among the Romans, the power of teſting did not originally affect the heirs who are the iſſue of the teſtator's own body, muſt be evident from the following circumſtance, that even after the law of the Twelve Tables, no man had a power to exheredate his own iſſue, unleſs in the teſtament he could ſpecify a juſt cauſe, ingratitude for example, rendering them unworthy of the ſucceſſion. And the querela inofficioſi teſtamenti was an action introduced in favour of children, for reſcinding teſtaments made in their prejudice, in which no cauſe of exheredation was aſſigned, or an unjuſt cauſe aſſigned. It is true, that a man was afterwards indulged to diſinherit his children without a cauſe, provided [164] he bequeathed to them the fourth part of what they would have inherited ab inteſtato *. But Juſtinian reſtored the old law, declaring, That without a juſt cauſe of exheredation, ſpecified in the teſtament, the querela ſhall be competent, notwithſtanding his leaving the ſaid fourth part to his ſon and heir. And this regulation was adopted by the Longobards.

BUT though the ſui et neceſſarii heredes could not be directly exheredated, it was in the father's power, not only by alienations inter vivos, but even by contracting debt, to render the ſucceſſion unprofitable. So ſoon as the power of aliening becomes a branch of property, every ſubject belonging to a debtor, land or moveables, muſt lie open to be attached by his creditors. It is his duty to convert into money, the readieſt of his ſubjects for their payment, and if he prove refractory, by refuſing to do what in [165] conſcience is incumbent upon him, the law will interpoſe. Juſtice beſtows this privilege upon creditors during their debtor's life; and conſequently alſo after his death; it being inconſiſtent with juſtice that the heir ſhould profit by their loſs. This new circumſtance introduced neceſſarily an alteration of the law as to the ſui et neceſſarii heredes: for now they could no longer be held as neceſſary heirs, when their being heirs was no longer attended with ſafety, but might prove ruinous inſtead of beneficial. The ſame rule of juſtice which prevailed in the former caſe, prevailed alſo in this, and conferred upon them the privilege of abandoning the ſucceſſion, in which caſe their father's debts did not reach them*.

IT may appear ſingular, that while children were thus gradually loſing ground, collateral heirs, who originally had no privilege, were in many countries gaining ground. I ſhall firſt ſtate the facts, and afterwards endeavour [166] to aſſign the cauſe. Several nations followed the Grecian plan, indulging an unlimited power of teſting, where the teſtator had not iſſue of his own body. Thus, by the Ripuarian law, a man who had no children might diſpoſe of his effects as he thought proper*; and among the Viſigoths, the man who had no deſcendants might do the ſame. But this privilege was more limited among other nations. The power of making a teſtament, beſtowed at large by the Roman law, failing children, was afterwards confined within narrower bounds. The privilege which children and other deſcendants had, to reſcind a teſtament exheredating them without juſt cauſe, ſpread itſelf upon other near relations; and theſe therefore might inſiſt in a querela inofficioſi, which originally was competent to deſcendants only. By the laws of the German Saxons, it was not lawful to diſinherit the heir. And by the laws of king [167] Alfred, ‘"He who inherits lands derived from his anceſtors by writ, ſhall not have power to alien the ſame from his heirs, eſpecially if it be proved by writing or witneſſes, that the perſon who made the grant diſcharged ſuch alienation*."’ Thus we ſee in ſeveral inſtances, the prerogative of a child who is heir, extended in part to other heirs, which, as hinted above, may appear ſurpriſing, when the powers of the proprietor in poſſeſſion over his ſubject were by this time enlarged, and the right of his children abriged in proportion.

To ſet this matter in its proper light, I muſt premiſe, that originally there was not ſuch a thing as a right of ſucceſſion, in the ſenſe we now give to that term. Children came in place of their parents: but this was not properly a ſucceſſion; it was a continuation of poſſeſſion, founded upon their own title of property. And while the relation of property continued ſo ſlight as it [168] was originally, it was perhaps thought ſufficient, that children in familia only, ſhould enjoy this privilege. Hence when a man died without children, the land he poſſeſſed fell back to the common, ready for the firſt occupant. But the connection betwixt a man and the land upon which he dwells, having, in courſe of time, acquired great ſtability, is now imagined to ſubſiſt even after death. This conception preſerves the ſubject as in a ſtate of appropriation, and conſequently bars every perſon except thoſe who derive right from the deceaſed. By this means, the right of inheriting the family-eſtate was probably communicated firſt to children foris familiate, eſpecially if all the children were in that ſituation; thereafter, failing children, to brothers, and ſo gradually to more diſtant relations. We have to this day traces remaining of the gradual progreſs. In the laws of the Longobards, collaterals ſucceeded to the ſeventh degree*. Our countryman Craig relateth [169] it as the opinion of ſome, That if there be no heirs within the ſeventh degree, the King hath right as ultimus heres. He indeed ſignifies his own opinion to the contrary; and now it is eſtabliſhed, That relations ſucceed, however diſtant, provided only they give evidence of their propinquity.

THE ſucceſſion of collaterals, failing deſcendants, produced a new legal idea; for as they had no pretext of right, independent of the former proprietor, their privilege of ſucceeding could ſtand upon no other ground than the preſumed will of the deceaſed, which made them heirs, in the proper ſenſe of the word, ſucceding to the right of the deceaſed, and enjoying his land by his will. This makes a ſolid difference betwixt the ſucceſſion of collaterals, depending on the will of the anceſtor, and the ſucceſſion of deſcendants, which originally did not depend on his will. But the privilege of deſcendants, being gradually reſtrained [170] within narrower and narrower bounds, was confounded with the hope of ſucceſſion in collaterals. They were put upon the ſame footing, and conſidered equally as repreſentatives of the perſon in whoſe place they came. This deduction appears natural; and what I have farther to obſerve appears not leſs ſo, That deſcendants and collaterals being thus blended into one claſs, the privileges of the former were communicated to the latter.

BUT the privileges thus acquired by collaterals were not of long continuance. The powers annexed to property being carried to their utmoſt bounds, it came, in moſt countries which did not adhere to the Roman law, to be conſidered as an inherent power in proprietors, to ſettle their eſtates at their pleaſure, without regard to their natural heirs, deſcendants or collaterals. In this iſland the power of diſpoſal became unlimited, even to take effect after death, provided the deed were in the form of an alienation inter [171] vivos. The property which children once had in the family-eſtate was no longer in force, except as to one particular, that of baring deeds on death-bed*. And this, with other privileges of deſcendants, was communicated to collateral heirs. In England the powers of proprietors were ſo far extended by a law of Henry VIII.. as to entitle them, without the formality of a deed of alienation, to ſettle or diſpoſe of [172] their lands by teſtament; after which, deeds on death-bed could no longer be reſtrained. In Scotland the law of death-bed ſubſiſts entire, as well as the limitation upon proprietors, that they cannot diſpoſe of their heretable ſubjects by teſtament. The former is no longer conſidered as a limitation of the powers of property, but as a perſonal privilege belonging to heirs; for which reaſon a deed on death-bed is not void for want of power: it is an effectual grant till it be voided by the heir upon his privilege. But the latter is plainly a limitation of the powers of property; which ſhews, that in this country property is not ſo compleat as elſewhere. By the old law, a donation had no effect without delivery. For ſuppoſing the deed to have contained warrandice, yet this warrandice was not effectual againſt the heir, who was not bound to pay his father's debts, or fulfil his engagements. Heirs, it is true, are now liable; but then a teſtament contains no warrandice: and therefore an heretable ſubject legated by teſtament is conſidered, [173] as of old, an incompleat donation, which the heir is not bound to make effectual. But though we admit not of the alienation of an heretable ſubject by teſtament, alienation is ſuſtained in a form very little different. A diſpoſition of land, though a mere donation, implies warrandice; and therefore, ſuch a deed found in the granter's repoſitory after his death, ſuppoſing it to contain neither procuratory nor precept, will be effectual againſt his heir. And the difference betwixt this deed and a teſtament, in point of form, is ſo ſlight, that it is not to be comprehended, except by thoſe who are daily converſant in the forms and ſolemnities of law.

CHILDREN, by the law of Scotland, enjoy another privilege, which is a certain portion of the father's moveable eſtate. Of this he cannot deprive them by will, or by any deed which takes effect after his death only. This privilege, like that of deathbed, is obviouſly a branch of the original [174] law, being founded upon the nature of property as originally limited. The power over land is in Scotland not ſo far extended, as that an incompleat donation will be effectual againſt the heir, when executed in the form of a teſtament. The power over moveables is ſo far extended, as that they can be gifted by teſtament; but yet not ſo as to affect the intereſt which the children have in the moveables. And there is the following analogy betwixt the right of the heir concerning heritage, and that of children concerning moveables, that both have been converted from rights of property to perſonal privileges; with this difference only, that the privilege of a child, heir in the land-eſtate, to bar the father's death-bed deed, is communicated to other heirs; whereas the privilege of children, reſpecting the moveable eſtate, is communicated to deſcendants only, and not to collaterals.

TOUCHING the foregoing privilege of children over the moveable eſtate of their father, [175] one thing muſt appear whimſical, that the power of aliening moveables ſhould be more limited than that of aliening land. For as a moveable ſubject is more under the natural power of man than land, ſo the legal powers of moveable property were brought to perfection more early than of land-property. Were I to indulge a conjecture, in order to account for this whimſical branch of our law, it would be what follows: The privilege of children reſpecting the moveable eſtate was preſerved entire, becauſe it was all along confined to children; but their privilege reſpecting the real eſtate having been communicated to collaterals, which put all heirs upon the ſame level, the character of child was loſt in that of heir, and their common privileges ſunk together. Thus, though collaterals have profited by being blended in one claſs with deſcendants, the latter have been loſers by the union.

AFTER ſo much diſcourſe upon a ſubject that is ſubtile, and perhaps dry, it will, I [176] preſume, be agreeable to the reader, before entering upon the ſecond part of the work, to unbend his mind, for a few moments, upon ſome ſlight epiſodical matters, that tend to illuſtrate the forgoing doctrine. The firſt ſhall be upon the equal diviſion of land-property effectuated in Sparta by Lycurgus. One whoſe notions are derived from the preſent condition of land-property muſt be extremely puzzled about this memorable event: for where is the man to be found, who will peaceably ſurrender his land to the publick without a valuable conſideration? And if ſuch a man could be found for a wonder, it would be downright madneſs to expect the ſame from a whole people. And yet in ſettling this branch of publick police, ſo ſingular in its nature, we read not even of the ſlighteſt tumult or commotion. The ſtory always appeared to me incredible, till I ſtumbled upon the train of thinking above mentioned. In ancient times, property of land was certainly not ſo valuable a right as at preſent. It was no better than a right [177] of uſufruct, a power of uſing the fruits for the ſupport of the poſſeſſor and his family. It is alſo true, That in ancient times the manner of living was more ſimple than at preſent: men were ſatisfied with the product of the land they poſſeſſed for their food and raiment. When the foregoing revolution was brought about in Sparta, it is probable, that permutation of commodities, and buying and ſelling were not far advanced. If ſo, it was not refining much to think, that a family is not entitled to the poſſeſſion of more land than is ſufficient for the conveniency of living, eſpecially if any other family of the ſame tribe be in want. In this view of the matter, an equal diſtribution of land-property, and an agrarian law, might not be ſo difficult an undertaking as a perſon accuſtomed to the preſent ſcene of affairs will be apt to imagine.

THE next epiſode relates to the feudal law. Though, by the feudal ſyſtem, the property remains with the ſuperior, the right [178] given to the vaſſal being only an uſufruct; yet, it appears, that both in England and Scotland the vaſſal was early underſtood to be proprietor. He could alien his land to be held of himſelf, and the alienation was effectual to bar the ſuperior even from his caſualties of ward, marriage, eſcheat, &c. This was not ſolely a vulgar way of thinking; it was deemed to be law by the legiſlature itſelf; witneſs the Engliſh ſtatute, commonly called, Quia emptores terrarum, 18. Edw. I. cap. 1. and 2. Statutes Rob. I. cap. 25. It may appear not eaſy to be explained, how a notion ſhould have gained ground that is ſo repugnant to the moſt obvious principles of law. For it might occur, even at firſt view, that, the property remaining with the ſuperior, he muſt be entitled to poſſeſs the land, and levy the rents upon all occaſions, except where he is excluded by his own deed. And as in every military feu, the ſuperior is entitled to the poſſeſſion, both while there is no vaſſal, and while the vaſſal is young and unable to go to war, how [179] could it be overlooked, that the caſualties of non-entry and ward, which are effectual againſt the vaſſal, muſt be equally effectual againſt every one who comes in his place? I cannot account for this otherwiſe, than by obſerving, that property originally differed nothing from a right of poſſeſſion, which gave the enjoyment of the fruits; and therefore, that every man who was in poſſeſſion, and who had the enjoyment of the fruits, was readily conceived to be proprietor. This was the caſe of the vaſſal; and accordingly, when the power of alienation came to be conſidered as an inherent branch of property, it was thought, That a grant made by the vaſſal of part of the land, or even of the whole, to be held of himſelf, muſt be effectual.

ONE epiſode more before we return to the principal ſubject. So great anxiety in the Roman legiſlature, to reſtrain proprietors from doing injuſtice to their own children, has a very odd appearance. ‘"Children [180] are not to be exheredated without a juſt cauſe, chiefly that of ingratitude. The cauſe muſt be ſet forth in the teſtament. It muſt be tried before the judge, and verified by witneſſes, if denied."’ Among other nations, natural affection, without the aid of law, is a ſufficient motive with parents to do full juſtice to their children. Shall we admit, that natural affection was at a lower ebb among the Romans than among other people? It ſeems ſo; and the forgoing regulations are real evidence of the fact. The Romans however, in the more early periods of their hiſtory, were a brave and gallant people, fond of their country, and conſequently, one ſhould think, of their children; whence then ſhould proceed this want of parental affection? I do not ſuppoſe they were left unprovided by nature: but laws and cuſtoms have a ſtrong influence to produce manners contrary to nature. Let us examine the patria poteſtas, as eſtabliſhed by the Roman law; for it may poſſibly furniſh a hint. By the law of nature, the [181] patria poteſtas is beſtowed upon the father for the ſake of the child, and when ſteadily exerciſed for that end, it muſt neceſſarily produce in time a reciprocal affection, the ſtrongeſt our nature is capable of. Nature lays the foundation: continual attention on the one hand, to promote the good of a beloved object; and on the other, continual returns of gratitude augment daily mutual affection, till the mind be incapable of any addition. If in any inſtance the event be different, it muſt be occaſioned by a wrong application of the patria poteſtas, or by an extreme perverſe diſpoſition in the child. But was the patria poteſtas among the Romans eſtabliſhed upon the plan of nature? Quite the contrary. It was the power of a tyrant over ſlaves. A man could put his children to death. He could ſell them for a price; and if they obtained their liberty by good luck, or good behaviour, he could ſell them a ſecond, and a third time. Theſe unnatural powers were perhaps not often put in exerciſe; but it is enough that [182] they were lawful. This very circumſtance is ſufficient to produce ſeverity in parents, and fear and diffidence in children. There is not like to be, in this caſe, much more harmony than in pure deſpotiſm betwixt the awful monarch and his trembling ſlaves. In ſhort, the Roman patriae poteſtas, and the legal reſtraint proprietors were laid under, not to hurt their own children, ſerve to illuſtrate each other. There could be no univerſal cordiality where ſuch reſtraints were neceſſary. We have reaſon beforehand to conjecture, that the patria poteſtas behoved to have ſome ſuch effect; and we have reaſon to be pleaſed with our conjecture, when we find it juſtified by ſubſtantial facts.

PUTTING now an end to epiſodical amuſements, we proceed with new vigour in our hiſtorical courſe. It was interrupted at that part, where, with a very few exceptions, the powers of a proprietor were extended, one ſhould think, their utmoſt [183] length. Every man had the full enjoyment of his own ſubject while it remained with him. He might diſpoſe of it for a valuable conſideration, without any reſtraint. He might do the ſame for love and favour; and his power reached even ſo far, as to direct what perſon or perſons ſhould have the enjoyment of it after his death. Would any moderate man covet more power over ſuch of the goods of fortune as fall to his ſhare? No moderate man, it is certain, will covet more. But the number is not ſmall of thoſe whoſe thirſt after power is never to be quenched. They wiſh to combine their name, family, and eſtate in the ſtricteſt union, and, leaving nothing to the diſpoſal of providence, they wiſh to prolong this union, if poſſible, to the end of time. Such ambitious views, ill ſuiting the frail condition of humanity, have produced entails in this iſland; and would have done ſo in old Rome, had ſuch ſettlements been found conſiſtent with the nature of property.

[184] BEING arrived at entails in our hiſtorical courſe, it will be neceſſary to diſcuſs a preliminary queſtion, Whether and how far they are conſiſtent with the nature of property? In order to anſwer this queſtion, ſome principles of law muſt be premiſed. The firſt reſpects every ſubject capable of property, that the whole powers of property, whether united in one perſon, or diſtributed among a plurality, muſt ſubſiſt entire ſomewhere; and that none of them can be ſunk or annihilated ſo as to be beneficial to no perſon. The reaſon will be obvious when we conſider, that the goods of fortune are intended for the uſe of man; and that it is contrary to their nature to be withdrawn from uſe in whole or in part. A man, if he pleaſe, may abandon his ſubject; but then no will nor purpoſe of his can bar others, or prevent the right of the firſt occupant. No law, natural or municipal, gives ſuch effect to the will of any man. Therefore if I ſhall diveſt myſelf of any moveable ſubject, beſtowing it upon my friend, but declaring, [185] that though he himſelf may enjoy the ſubject, he ſhall have no power of diſpoſal, ſuch a deed will not be effectual in law. If I am totally diveſted, he muſt be totally inveſted; and conſequently muſt have the power of alienation. The ſame muſt hold in a diſpoſition of land. If the granter reſerve no right to himſelf, the entire property muſt be tranſferred to the diſponee, however expreſs the granter's will may be to confine the diſponee's property within narrower bounds.

SECONDLY, Though none of the powers of property can be annihilated by will or conſent, a proprietor however may, by will or conſent, limit himſelf in the exerciſe of his property, for the benefit of others. Such limitations are effectual in law, and are at the ſame time perfectly conſiſtent with abſolute property. If a man be put in chains, or ſhut up in a dungeon, his property, in a legal ſenſe, is as entire as ever; though at preſent he is deprived of the uſe or enjoyment of the [186] ſubjects which belong to him. In like manner, a civil obligation may reſtrain a proprietor from the free uſe of his own ſubject: but ſuch reſtraint limits not his right to the ſubject, more than reſtraint by walls or chains.

A THIRD principle will bring the preſent ſubject fully within view. A practice was derived from Greece to Rome, of adopting a ſon, when a man had not iſſue of his own body. This was done in a ſolemn manner before the Calata Comitia, who in Rome poſſeſſed the legiſlative authority. The adopted ſon had all the privileges of one born in lawful wedlock: he had the ſame intereſt in the family-eſtate, the ſame right to continue the father's poſſeſſion, and to have the full enjoyment of the ſubject. A teſtament, when authoriſed by the law of the Twelve Tables, received its form from this practice. A teſtament was underſtood to be only a different form of adopting a ſon, which beſtowed the ſame privilege of ſucceeding to the family-eſtate, [187] after the teſtator's death, that belonged to the heir who was adopted in the more ſolemn manner in the Calata Comitia. A teſtament is in Britain a donatio mortis cauſa; an alienation to take effect after death; and the legatee does not ſucceed as heir, but takes as purchaſer, in the ſame manner as if a formal donation were made in his favour, to have a preſent effect. In Rome, as juſt now hinted, a teſtament was of a different nature. It was not a conveyance of land or goods from one perſon to another; it entirely conſiſted in the nomination of an heir, who, in this character, enjoyed the teſtator's effects. The perſon named took the heritage as heir, not as purchaſer. This explains a maxim in the Roman law, widely differing from our notions, That a man cannot die pro parte teſtatus et pro parte inteſtatus; and that if in a teſtament one be named heir, and limited to a particular ſubject, he notwithſtanding is of neceſſity heir to the whole.

[188] THE privilege of adoption was never known in Britain; nor have we any form of a writ ſimilar to a Roman teſtament, which a man could uſe, if he were diſpoſed to exclude his natural heir, and to name another in his place. Teſtaments we had early; but not in the form of a nomination of heirs. This writ is a ſpecies of alienation, whether we conſider moveables, which is its ſole province in Scotland, or land, to which in England it was extended by the above mentioned ſtatute of Henry VIII. Therefore, by the common law of this land, there is no method for ſetting aſide the natural heirs, otherways than by an alienation of the eſtate inter vivos or mortis cauſa. Nor in this caſe does the diſponee take as heir; he takes as purchaſer, and the natural heirs are not otherwiſe excluded, than by making the ſucceſſion unprofitable to them. This may ſerve to explain a maxim in our old law, which, to thoſe educated in the Roman notions, muſt appear obſcure, if not unintelligible. The maxim is, That [189] GOD only can make an heir, not man*. The Roman teſtament laid a foundation for a diſtinction among heirs. They were either heredes nati or heredes facti. Our common law acknowledges no ſuch diſtinction: no man can have the character of an heir but an heir of blood.

WE are now, I preſume, ſufficiently prepared to enter upon the intricate ſubject of entails. And to prevent the embaraſſment of too much matter on hand together, we ſhall firſt examine the power of ſubſtituting a ſeries of heirs to each other, who are to take the heritage in their order, excluſive of the natural heirs; and then proceed to the limitations impoſed upon heirs, which prevent alienation, whether direct, by diſponing land, or indirect, by contracting debt. A maxim, which makes a figure in the Roman law, muſt not be forgot, in explaining the firſt point concerning the power of ſubſtitution. A Roman teſtator could name [190] any perſon to be his heir, but he had not the power to name ſubſtitutes: for thus ſays the maxim, NO MAN CAN NAME AN HEIR TO SUCCEED TO HIS HEIR. The reaſon will appear when we reflect upon ſome particulars already explained. The heir, whether natus or factus, became unlimited proprietor ſo ſoon as the predeceſſor was dead. The inheritance was now his, and entirely at his diſpoſal. If he choſe to make a teſtament, the heir named by him took place of the heir named by his predeceſſor; and if he died inteſtate, the ſucceſſion opened to his own natural heirs. For it is the will of the proprietor which muſt regulate his own ſucceſſion; and not the will of any other, not even of a predeceſſor. This maxim then is not founded upon any peculiarity in the Roman law, but upon the very nature of property. While a ſubject is mine, it is entirely at my diſpoſal; but after beſtowing it upon another, without any reſervation, my power is at end; and my will, though expreſſed while I was proprietor, [191] cannot now have the effect to limit the power of the preſent proprietor*. An heir named in a Roman teſtament, might, it is true, be ſubjected perſonally to whatever burdens or obligations the teſtator thought proper to impoſe upon him: but we ought not, in this matter, to loſe ſight of the difference betwixt a real burden or limitation and a perſonal obligation. A man, by his own conſent, may reſtrain himſelf from the uſe of his property; but the full property nevertheleſs remains with him.

ONE exception to this rule was introduced from utility, viz. the pupillar ſubſtitution. A proprietor who had a ſon [192] under age to ſucceed him as his heir, was impowered to name a ſubſtitute, who took the eſtate as heir to the ſon, in caſe the ſon died ſo early as to be himſelf incapable of making a teſtament. In all other caſes, if a teſtator, after naming his heir, inclined to make a ſubſtitution, he had no other method, but to take the heir bound perſonally to make over the eſtate to the ſubſtitute. This form of a ſettlement is known by the name of Fidei Commiſſum. And after the ſubſtitute ſucceeded, by virtue of the fidei commiſſary clauſe, there was an end of the entail.

THE forgoing maxim, That no man can regulate the ſucceſſion of his heir, holds in property only, not in inferior rights. If a proprietor grant a right burdening or limiting his property, and call to the ſucceſſion a certain ſeries of heirs, it is clear, that neither the grantee, nor any of the heirs named, who accept the right in theſe terms, have power, without conſent of the granter, [193] or his heirs, to alter the order of ſucceſſion. In the practice even of the Roman law, where the foreſaid maxim was inviolable, it was never doubted, that, in a perpetual leaſe, termed Emphetenſis, or in any leaſe of long endurance, it is in the power of the granter to regulate the ſucceſſion of the leſſee. For the ſame reaſon, in our feudal rights, a perpetual ſucceſſion of heirs eſtabliſhed in the original grant, is conſiſtent with the ſtricteſt principles of property. The order of ſucceſſion cannot be altered without conſent of the ſuperior; for it would be a breach of agreement, to force upon him as vaſſal any perſon who is not called to the ſucceſſion by the original grant. And thus in Britain it came to be an eſtabliſhed practice, by means of the feudal ſyſtem, not that a man ſingly can name an heir to his heir, but that, with conſent of the ſuperior, he can ſubſtitute heirs without end, to take the feudal ſubject ſucceſſively one after another*.

[194] THE perſons thus called to the ſucceſſion of the feudal ſubject, are in Scotland underſtood to be heirs, all of them, to the original grantee, whether they be of his blood or not. This way of thinking is borrowed from the Roman law, in which every perſon is eſteemed an heir who is called by will to the ſucceſſion. He is at leaſt heres factus, according to their language, if not heres natus. In this we have deviated from our own common law, which acknowledges none to be an heir who is not of the predeceſſor's blood.

IN England different notions have obtained. The maxim, That GOD only can make [195] an heir, not man, is not ſo ſtrictly taken, as to exclude every perſon from the character of an heir, ſave the heir at law only. From the beginning nothing was more common in feudal grants, than to chuſe a certain ſpecies of heirs, ſuch as the male deſcendants of the original vaſſal, or the heirs of a marriage. Theſe are heirs in the ſenſe of the Engliſh law, though they may happen not to be the heirs who would ſucceed by law. Hence every perſon who is called to the ſucceſſion under a general deſcription, ſuch as heirs of the granter's body, or male iſſue, or heirs of a marriage, or male iſſue of a marriage, is conſidered as an heir, in oppoſition to a ſtranger, notwithſtanding ſuch perſon may not be the heir at law. The true ſenſe of the maxim appears then to be as follows, viz. That no perſon can have the character of an heir who is not of the blood of the original vaſſal: alſo that it is not ſufficient to be of the blood, unleſs he be alſo called under ſome general deſcription. Therefore, in England, when, in a deed of ſettlement [196] of a land-eſtate, a ſtranger or any man is by name called to the ſucceſſion, he is underſtood to be called as a conditional inſtitute; preciſely as if one grant were made to Sempronius and the heirs of his body, and another grant of the ſame ſubject to Titius and the heirs of his body, to take effect whenever the heirs of Sempronius ſhould fail. Titius, in this caſe, is not called in the quality of an heir to Sempronius: he is, as well as Sempronius, an inſtitute, or a diſponee, with this only difference, that the right of Sempronius is pure, and that of Titius conditional. This conditional right is, in England, termed a Remainder; and as a remainder-man is not conſidered to be an heir, he is not liable to fulfil any of the debts or deeds of the firſt inſtitute, or of his heirs; and when theſe heirs are exhauſted, he takes, not by a ſervice upon a brieve quod diem clauſit ſupremum, but as purchaſer, by authority of the original grant.

[197] THUS it is, that the feudal law, by furniſhing means for a perpetual ſucceſſion of heirs, as in Scotland, or of heirs and remainder-men, as in England, hath foſtered the ambitious views of men to preſerve their names, families and poſſeſſions, in perpetual exiſtence. The feudal ſyſtem, as originally conſtituted, was qualified to fulfil ſuch views in every particular. It not only paved the way for a perpetual ſucceſſion, but ſecured the heirs by preventing dilapidation. And this leads naturally to the ſecond point propoſed to be handled with reſpect to entails, viz. The limitations impoſed upon heirs to prevent aliening or contracting debt. This followed from the very nature of the feudal ſyſtem; for the vaſſal's right, being a liferent or uſufruct only, gave him no power of alienating the property which remained with the ſuperior. The only unlucky circumſtance for entails is, that during the vigour of the feudal law, conſtant wars and commotions, a perpetual hurry in attacking or defending, afforded very little time for indulging [198] the foregoing ambitious views. In times only of peace, ſecurity and plenty, do men dream of diſtant futurity, and of perpetuating their eſtates in their families. The feudal law loſt ground univerſally in times of peace. It was a violent and unnatural ſyſtem, which could not be long ſupported in contradiction to love of independency and property, the moſt ſteady and induſtrious of all the human appetites. After a regular government was introduced in Britain, which made the arts of peace prevail, all men equally conſpired to overthrow the feudal ſyſtem. The vaſſal was willing to purchaſe independency with his money; and the ſuperior, who had no longer occaſion for military tenants, diſpoſed of his land to better advantage. In this manner, land, which is the chief object of avarice, came again to be the chief ſubject of commerce: and that this was early the caſe in Britain, we have undoubted evidence from the famous ſtatute, Quia emptores terrarum, above mentioned. By this time the ſtrict principles [199] of the feudal law were vaniſhed, and ſcarce any thing left but the figure only. Land, now reſtored to commerce, was, generally ſpeaking, in the hands of purchaſers who had paid a valuable conſideration; and conſequently, inſtead of being beneficiary as formerly, was now become patrimonial. The property being thus transferred from the ſuperior to the vaſſal, the vaſſal's power of alienation was a neceſſary conſequence.

BUT men who had acquired great poſſeſſions, and who, in quiet times, found leiſure to think of perpetuating their families, begun now to regret the never-ceaſing flux of land-property from hand to hand; and, revolving the hiſtory of former times, to wiſh for that ſtability of land-property which the feudal law introduced, if it could be obtained without ſubjecting themſelves to the ſlaviſh dependence of that law. In particular, when a grant of land was made to a family, conditioned to return to the granter and his heirs when the family was at an end, [200] it was thought hard, that the vaſſal, contrary to the condition of his right, could ſell the land, or diſpoſe of it at his pleaſure, as if he had been a purchaſer for a full price. To fulfil the intention of thoſe, who after this manner ſhould make voluntary ſettlements of land, the Engliſh, after the fetters of the feudal law were gone, found that a ſtatute was neceſſary; and to this end the ſtatute de donis conditionalibus was made*. It proceeds upon the recital, 1ſt, Of land given to a man and his wife, and their iſſue, conditionally, that if they die without iſſue, the land ſhall revert to the giver and his heirs. 2dly, Of land given in free marriage, which implies a condition, though not expreſſed, that if the huſband and wife die without iſſue, the land ſhall revert to the giver or his heirs. And, 3dly, Of land given to a man and the heirs of his body, conditionally, that it ſhall, in like manner, revert, failing iſſue. It ſubſumes that, contrary to the conditions expreſſed or implied in ſuch [201] grants, the feofees had power to alien the land, to the diſappointment not only of the heirs, as to their right of ſucceſſion, but alſo of the donor, as to his right of reverſion. Therefore it is enacted, ‘"That the will of the donor ſhall be from henceforth obſerved, ſo that the donees ſhall have no power to alien the land, but that it ſhall remain to the iſſue choſen in the deed, and when they fail, ſhall revert to the donor or his heirs."’ And thus in England, a privilege was, by ſtatute, beſtowed upon proprietors of land, to eſtabliſh perpetuities, by depriving the heirs of the power of aliening, which could not be done by the common law.

IN Scotland we had no ſtatute authoriſing entails till the 1685, though before that time we had entails in plenty, many of which are ſtill ſubſiſting. It was the opinion of our lawyers; as it would appear, that by private authority an entail can be made ſo as to bar alienation. To this end, clauſes prohibitory, [202] irritant, and reſolutive, were contrived, which were reckoned effectual to preſerve an entailed ſubject to the heirs in their order, and to void every deed prejudicial to theſe heirs. Whether this be a juſt way of thinking I proceed to examine.

To preſerve the ſubject-matter full in view, I take the liberty ſhortly to recapitulate what is ſaid above on this point. While the feudal law was in vigour there was no occaſion for prohibitory clauſes: the vaſſal's right being uſufructuary only, involved not the power of alienation, nor of contracting debt ſo as to be effectual againſt the heir of the inveſtiture. But the feudal law is in England quite extirpated; nor doth it ſubſiſt in Scotland except merely as to the form of our title-deeds. Land with us has for ſeveral ages been conſidered as patrimonial. A vaſſal has long enjoyed the power of contracting debt, and even of aliening mortis cauſa. To reſtrain him therefore in any degree from the exerciſe of [203] his property, can only be effectuated one of two ways; it muſt be either by ſtatute or by conſent. The former requires no diſcuſſion. It is evident, that the reſtraints impoſed by ſtatute, of whatever nature, muſt be effectual; becauſe every deed done in contempt of the law, is voidable, if not null and void. The latter requires a more particular examination, before we can form an accurate judgment of its effects. For the ſake of perſpicuity, we ſhall adapt our reaſoning to an entail made in the common form, with a long ſeries of heirs, guarded only with a prohibitory clauſe, directed againſt every one of the heirs of entail, in order to reſtrain them from aliening and from contracting debt. It is plain, that every ſingle heir, who accepts the ſucceſſion, is bound by this prohibition, ſo far as he can be bound by his own conſent. His very acceptance of the deed, vouched by his ſerving heir and taking poſſeſſion, ſubjects him, in common juſtice, to the prohibition; for no man is permitted to take benefit of a [204] deed without fulfilling the proviſions and burdens impoſed on him in the deed. Admitting then, that the heir is bound by his acceptance, let us enquire, whether this conſent be effectual to fulfil the purpoſes of the entail. He ſells the eſtate notwithſtanding the prohibition; will not the purchaſer be ſecure, leaving to the heirs of entail an action againſt the vender for damages? This has been doubted, for the following reaſon, That a purchaſer who buys from an heir of entail, in whom it is a breach of duty to ſell, concurs thereby with his author in doing what is unjuſt. But this argument applies not againſt a bona fide purchaſer ignorant of the reſtraint; and therefore he muſt be ſecure. Or, to put yet a ſimpler caſe, let us ſuppoſe the eſtate is adjudged for payment of debt. It is neceſſity and not choice that makes a creditor proceed to legal execution; and even ſuppoſing him to be in the knowledge of the reſtraint, there can be no injuſtice in his taking the benefit of the law to make his claim effectual. Hence it [205] is plain, that a prohibition cannot alone have the effect to ſecure the eſtate againſt the debts and deeds of the tenant in tail.

To ſupply this defect, lawyers have invented a reſolutive or irritant clauſe, which is calculated to void the right of a tenant in tail, who, contrary to a prohibition, aliens or contracts debt. That a reſolutive or forfeiting clauſe cannot have the ſame effect with a legal forfeiture, is even at firſt view evident. A forfeiture is one of the puniſhments introduced for repreſſing certain heinous crimes; and it is inconſiſtent with the nature of the thing, that a perſon ſhould be puniſhed who is not a criminal. An alienation by a tenant in tail, in oppoſition to the will of the entailer, is no doubt a wrong: but then it is only a civil wrong inferring damages, and not a delinquency to infer any ſort of puniſhment; far leſs a puniſhment of the ſevereſt kind, which at any rate cannot be inflicted but by authority of a ſtatute. If now a reſolutive clauſe cannot have any [206] effect as a puniſhment, its effect, if any, muſt depend upon the conſent of the tenant in tail, who accepts the deed of entail under the conditions and proviſions contained in it. Such implied conſent, taken in its utmoſt latitude, cannot be more binding than an expreſs conſent ſignified by the heir in writing, binding himſelf to abandon his right to the land, upon the firſt act of tranſgreſſion, or of contravention, as we call it, whether by aliening or contracting debt. This device to ſecure an entailed ſubject, though it hath exhauſted the whole invention of our lawyers, is however ſingularly unlucky, ſeeing it cannot be clothed in ſuch words, as to hide, or even obſcure, a palpable defect. The conſent here is obviouſly conditional, ‘"I ſhall abandon if I tranſgreſs or contraveen any of the prohibitions."’ Therefore, from the very nature of the thing, there can be no abandon till there firſt be an act of contravention. This is not leſs clear than that the crime muſt precede the puniſhment. Where then is the ſecurity [207] that ariſes from a reſolutive clauſe? A tenant in tail agrees to ſell by the lump: a diſpoſition is made out—nothing wanting but the ſubſcription: the diſponer takes a pen in his hand, and begins to write his name. During this act there is no abandon nor forfeiture, becauſe as yet there is no alienation. Let it be ſo, that the forfeiture takes place upon the laſt ſtroke of the pen; but then the alienation is alſo compleated by the ſame ſtroke; and the land is gone paſt redemption. The defect is ſtill more palpable, if poſſible, in the caſe of contracting debt. No man can ſubſiſt without contracting debt more or leſs; and no lawyer has been found ſo chimerical as to aſſert, that the contracting debt ſingly will produce a forfeiture. All agree, that the debtor's right is forfeited no ſooner than when the debt is ſecured upon the land by an adjudication. But what avails the forfeiture after the debt is made real and ſecured upon the land? In a word, before the adjudication be compleated there can be no forfeiture, and after [208] it is compleated, the forfeiture comes too late.

BUT this imperfection of a reſolutive clauſe, though clear and certain, needed ſcarce to have been mentioned, becauſe it will make no figure in compariſon with another, which I now proceed to unfold. Let us ſuppoſe, contrary to the nature of things, that the forfeiture could precede the crime; or let us ſuppoſe the very ſimpleſt caſe, that a tenant in tail conſents to abandon his right without any condition; what will follow? It is a rule in law, which never has been called in queſtion, That conſent alone without delivery cannot transfer property. Nay, it is univerſally admitted, that conſent alone cannot even have the effect to diveſt the conſenter of his property till another be inveſted; or, which comes to the ſame, that one infeftment cannot be taken away but by another. If ſo, what avails a reſolutive clauſe more than one that is ſimply prohibitory? Suppoſe the conſent to abandon, [209] which at firſt was conditional, is now purified by an act of contravention; the tenant in tail is indeed laid open to have his right voided, and the land taken from him: but ſtill he remains proprietor, and his infeftment ſtands good till the next heir be infeft; or at leaſt till the next heir obtain a decree declaring the forfeiture. Before ſuch proceſs be commenced, every debt contracted by the tenant in tail, and every diſpoſition granted by him, muſt be effectual, being deeds of a man, who, at the time of executing, was proprietor. In fine, a conſent to abandon, ſuppoſing it purified, can in no view have a ſtronger effect, than a contract of ſale executed by a proprietor who is under no limitation. All the world knows, that this will not bar him from ſelling the land a ſecond time to a different perſon, who getting the firſt infeftment will be ſecure; leaving no remedy to the firſt purchaſer, but an action of damages againſt the vender. In like manner, a tenant in tail, after tranſgreſſing every prohibition contained [210] in the entail, and after all the irritancies have taken place, continues ſtill proprietor, until a decree declaring the irritancy be obtained; and ſuch being the caſe, it follows of neceſſary conſequence, that every debt contracted by him, and every deed done by him, while there is yet no declarator, muſt be effectual againſt the entailed eſtate.

I am aware, that in the deciſion, 26th February 1662, Viſcount of Stormant contra heirs of line and creditors of the Earl of Annandale, prohibitory and reſolutive clauſes ingroſſed in the infeftment were ſuſtained, as being equivalent to an interdiction; every man being preſumed to know the condition of the perſon with whom he deals. But it appears probable, that this judgment was obtained by a prevailing attachment to entails, which, at that time, had the grace of novelty, and were not ſeen in their proper light. There is certainly no ground for beſtowing the force of [211] an interdiction upon prohibitory and reſolutive clauſes in an entail. An interdiction is a writ of the common law, prohibiting the proprietor to ſell without conſent of his interdictors, and prohibiting every perſon to deal with him without ſuch conſent. It is notified to all and ſundry by a ſolemn act of publication, which puts every perſon in mala fide to deal with a proprietor who is interdicted; and it is a contempt of legal authority to tranſgreſs the prohibition. Prohibitory and reſolutive clauſes in an entail, being proviſions in a private deed, have no authority except againſt the heir who conſents to them; becauſe none except the heir are ſuppoſed to know, or bound to know them: and therefore, ſuch clauſes notwithſtanding, every perſon is in optima fide to deal with the tenant in tail. In order to ſupply the want of publication, if it be urged, that every man is preſumed to be acquainted with the circumſtances of thoſe with whom he contracts, I deny there is any ſuch legal preſumption. In fact, nothing [212] is more common than to execute a contract of ſale, without ſeeing any of the title-deeds of the ſubject purchaſed; and a diſcovery afterwards of the entail will not oblige the purchaſer to relinquiſh a profitable bargain. At any rate the contract of ſale muſt operate to him, if not a performance of the bargain, at leaſt a claim of damages againſt the vender, either of which deſtroys the entail. What if the creditors of the tenant in tail, or perhaps of the entailer, have arreſted the price in the hands of the purchaſer? He cannot thereafter hurt the arreſters by paſſing from the contract of ſale. Let us put another caſe, That entailed lands, after being ſold, and the purchaſer infeft, have again been purchaſed from him; and we may ſuppoſe a chain of ſuch purchaſers deriving right each from the one that goes before him. It ſurely will not be affirmed, that the laſt purchaſer, in poſſeſſion of the land, muſt be preſumed to know that the land was derived from a tenant in tail. This would be ſtretching a preſumption very [213] far. But I need not go farther than the contracting of debt, to ſhow the weakneſs of the argument from preſumed knowledge. Perſons without their conſent become creditors every day, who furniſh goods or work for ready money, and yet obtain not payment; ſometimes againſt their will, as when a claim of damages is founded upon a wrong done. When one becomes cautioner for his friend, it is not uſual to conſult title-deeds. In ſhort, ſo little foundation is there for this preſumption of knowledge, that the act 24. p. 1695, made for the relief of thoſe who contract with heirs apparent, is founded upon the direct oppoſite preſumption.

SOME eminent lawyers, aware of the foregoing difficulties, have endeavoured to ſupport entails, by conceiving a tenant in tail to be, in effect, but a liferenter, preciſely as of old when the feudal law was in vigour. What it is that operates this limitation of right, they do not ſay. Nor do they ſay upon what authority their opinion is founded: not ſurely [214] upon any entail that ever was made. If the full property be in the entailer, it muſt be equally ſo in every heir of entail who repreſents him; becauſe, ſuch as he has it, it is conveyed to the heirs of entail whole and undivided, without reſerving any ſhare to himſelf or a ſeparate ſet of heirs. But the very form of an entail is ſufficient to confute this opinion: for why ſo many anxious prohibitory and irritant clauſes, if a tenant in tail were reſtrained from aliening by the limited nature of his right. Fetters are very proper where one can do miſchief; but they make a moſt ridiculous figure upon the weak and timorous, incapable of doing the leaſt harm.

WHAT is ſaid upon this head may be contracted within narrower bounds. It reſolves into a propoſition, vouched by our lawyers, and admitted by our judges in all their reaſonings upon the ſubject of entails, viz. That a reſolutive clauſe when incurred, doth not ipſo facto forfeit the tenant in tail, [215] but only makes his right voidable, by ſubjecting him to a declarator of forfeiture; and that there is no forfeiture till a decree of declarator be obtained. Such being the eſtabliſhed doctrine with reſpect to irritant clauſes, I never can ceaſe wondering, to find it a general opinion, that an entail with ſuch clauſes is effectual by the common law. For what propoſition can be more clear than the following, That ſo long as a man remains proprietor, his debts muſt be effectual againſt his land as well as againſt himſelf? What compariſon can be more accurate, than betwixt a tenant in tail who has incurred an irritancy, and a feuar who has neglected to pay his feuduties for two years? Both of them are ſubjected to a declarator of irritancy, and both of them will be forfeited by a decree of declarator. But an adjudication upon the feuar's debt, before commencing the declarator, will be effectual upon the land. This was never doubted; and there is as little reaſon to doubt, that an adjudication [216] upon the debt of a tenant in tail, muſt, in the ſame circumſtances, be equally effectual. If there be a difference, it favours the latter, who cannot be ſtript of his right till it be acquired by another; whereas a bare extinction of the feuar's right is ſufficient to the ſuperior. I cannot account for an opinion void of all foundation, otherwiſe than from the weight of authority. Finding entails current in England, we were, by the force of imitation, led to think, they might be equally effectual here; being ignorant, or not adverting, that in England, their whole efficacy was derived from ſtatute.

I ſhall conclude this tract with a brief reflection upon the whole. While the world was rude and illiterate, the relation of property was faint and obſcure. This relation was gradually evolved, and, in its growth towards maturity, accompanied the growing ſagacity of mankind, till it became vigorous and authoritative, as we find it at preſent. [217] Men are fond of power, eſpecially over what they call their own; and all men conſpired to make the powers of property as extenſive as poſſible. Many centuries have paſſed ſince property was carried its utmoſt length. No moderate man can deſire more than to have the free diſpoſal of his goods during his liſe, and to name the perſons who ſhall enjoy them after his death. Old Rome as well as Greece acknowledged theſe powers to be inherent in property; and theſe powers are ſufficient for all the purpoſes to which the goods of fortune can be ſubſervient. They fully anſwer the purpoſes of commerce; and they fully anſwer the purpoſes of benevolence. But the paſſions of men are not to be confined within the bounds of reaſon: we thirſt after opulence, and are not ſatisfied with the full enjoyment of the goods of fortune, unleſs it be alſo in our power to give them a perpetual exiſtence, and to preſerve them for ever to ourſelves, and our families. This purpoſe, we are conſcious, cannot be fully accompliſhed; but we [218] approach to it as near as we can, by the aid of imagination. The man who has amaſſed great wealth, cannot think of quiting his hold, and yet, alas! he muſt die and leave the enjoyment to others. To colour a diſmal proſpect, he makes a deed arreſting fleeting property, ſecuring his eſtate to himſelf, and to thoſe who repreſent him, in an endleſs train of ſucceſſion. His eſtate and his heirs muſt for ever bear his name; every thing to perpetuate his memory and his wealth. How unfit for the frail condition of mortals, are ſuch ſwoln conceptions? The feudal ſyſtem unluckily ſuggeſted a hint for gratifying this irrational appetite. Entails in England, authoriſed by ſtatute, ſpread every where with great rapidity, till becoming a publick nuſance, they were checked and defeated by the authority of judges without a ſtatute. It was a wonderful blindneſs in our legiſlature, to encourage entails by a ſtatute, at a time when the publick intereſt required a ſtatute againſt thoſe which had already been impoſed upon us. A great proportion [219] of our land is already, by authority of the ſtatute 1685, exempted from commerce. To this dead ſtock portions of land are daily added by new entails; and if the Britiſh legiſlature interpoſe not, the time in which the whole will be locked up is not far diſtant. How pernicious this event muſt prove, need not be explained. Land-property, naturally one of the great bleſſings of life, is thus converted into a curſe. That entails are ſubverſive of induſtry and commerce, is not the worſt that juſtly can be ſaid of them; they appear in a ſtill more diſagreeable light, when viewed with relation to thoſe more immediately affected. A ſnare they are to the thoughtleſs proprietor, who, even by a ſingle act, may be entangled paſt hope of relief; to the cautious again they are a perpetual ſource of diſcontent, by ſubverting that liberty and independency, to which all men aſpire, with reſpect to their poſſeſſions as well as their perſons.

TRACT IV.
HISTORY OF SECURITIES upon LAND for payment of debt.

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THE multiplied connections among individuals in ſociety, and their various tranſactions, have beſtowed a privilege upon land-property, not only of being transferred from hand to hand whole and entire, but of being ſplit into parts, and being diſtributed among many. Land is the great object of commerce, and it is uſeful not only by its product, but by affording the [222] higheſt ſecurity that can be given for payment of debt. Thus the property of land is ſplit, betwixt the ſuperior and vaſſal, betwixt the debtor and creditor, and betwixt one having a perpetual and one a temporary right.

IN Scotland we diſtinguiſh, and not without reaſon, rights affecting land into two kinds, viz. Property, and a right burdening or limiting property. Property, in its nature unbounded, cannot otherwiſe be bounded, but by rights burdening or narrowing it; and it is reſtored to its original unbounded ſtate ſo ſoon as the burdening right is extinguiſhed: but a burdening right, being in its nature bounded, becomes not more extenſive by the extinction of other rights affecting the ſame ſubject. The Engliſh, without diſtinguiſhing betwixt property and other rights, conceive every right affecting land, the moſt extenſive and the moſt limited, to be an eſtate in the land. A fee-ſimple, a fee-tail, a life-rent, a rent-charge, [223] a leaſe for life, paſs all equally under the denomination of an eſtate. And in this ſenſe it is very conſiſtent, that different perſons may, at the ſame time, poſſeſs eſtates in the ſame land.

THE ſpliting land-property into ſo many parts, favourable indeed to commerce, makes law intricate, and purchaſes unſecure: but theſe inconveniencies are unavoidable in a commercial country. Land is not diviſible indefinitely; for the poſſeſſion of a ſmaller quantity than what occupies a plow, or a ſpade, is of no uſe: and he who poſſeſſes the ſmalleſt profitable ſhare, may be engaged in tranſactions and connections, not fewer nor leſs various than he is who poſſeſſes a large territory. It may be his will to make a ſettlement, containing remainders, reverſions, rent-charges, &c.; and it is the province of municipal law, to make effectual, as far as utility will admit, private deeds and conventions of every ſort. This is ſo evident, that wherever we read of great ſimplicity [224] in the manner of tranſmitting land-property, we may aſſuredly pronounce, that the people are not far advanced in the arts of life.

THE foregoing curſory view of land-rights, and of their diviſibility, if I may be indulged the expreſſion, lead to the ſubject propoſed to be handled in this eſſay. The Romans had two forms of a right upon land for ſecurity of money. The one, diſtinguiſhed by the name of Antichreſis, reſembles the Engliſh mortgage, and our wadſet; the creditor being introduced into poſſeſſion to levy the rents for extinguiſhing the ſum that is due him. The other, termed a Hypothec, is barely a ſecurity for money, without power to levy the rents for payment. As to the former, whether any ſolemnity was requiſite to compleat the right, I cannot ſay, becauſe this ſort of ſecurity is but ſlightly mentioned in Juſtinian's compilations: neither is it told us whether any form was requiſite to compleat the latter. One thing ſeems evident [225] with reſpect to a right which entitles not the creditor to poſſeſs, that an act of poſſeſſion, whether real or ſymbolical, cannot be required as a ſolemnity. But as it is difficult to conceive, that a right can be eſtabliſhed upon land by conſent alone, without ſome ouvert act, therefore in Holland there is required to the conſtitution of a hypothec upon land or houſes, the preſence of a judge*. And in Frieſland, to compleat a general hypothec, ſo as to give it preference, regiſtration is neceſſary.

BY the Roman law, to make a hypothec effectual, when payment could not be obtained from the debtor, the creditor was impowered to expoſe the land to ſale after repeated denounciations. He needed not the authority of a judge; and as he himſelf was the vender, he ſor that reaſon could not be alſo the purchaſer. But Voet obſerves, that in Holland the authority of a [226] judge being neceſſary, and the judge being the vender, the creditor may be the purchaſer.

IT appears to have been of old, both in England and Scotland, a lawful practice, to force payment of debt, by taking, at ſhort hand from the debtor, a pledge, which was detained by the creditor, till the debtor repledged the ſame, by paying the debt, or finding ſecurity for the payment. This rough practice was in England prohibited by the ſtatute 52d Henry III. cap. 1. enacting, ‘"That no man take a diſtreſs of his neighbour without award of court."’ In Scotland it was reſtrained by ſeveral ſtatutes. In the firſt ſtatutes Robert I. cap. 7. it is enacted, ‘"That in time coming no man take a poynd for debt within another man's land, unleſs the King's baillie, or the baillie of the ground be preſent."’ And in the ſtatutes of David II. cap. 6. '‘"That if a man dwelling in one ſhire deſire to take a poynd in another ſhire, it [227] muſt be done in preſence of the ſheriff or his depute."’ Again, in the ſtatutes of Robert III. cap. 12. it is enacted in general, ‘"That no man ſhall take a poynd without the King's officers, or the Lord's officers of the land, unleſs within his own land, for his farms or proper debts."’ See to the ſame purpoſe, Reg. Maj. L. 4. cap. 22.

BUT theſe regulations did not extend to poinding within a royal borough. For though a burgeſs might not poind a brother burgeſs without licence from the provoſt*, yet from a ſtranger found within the borough he might take a poind or pledge at ſhort hand; and the ſtranger behoved to repledge in common form, by finding a ſurety for the debt. This, by the way, is plainly the foundation of the privilege which burgeſſes enjoy at this day, viz. arreſting ſtrangers for debts contracted within the borough.

[228] NEITHER did theſe regulations extend to rents or feu-duties, for which, in England, the landlord may to this day diſtrain at ſhort hand. And in this part of the iſland, as a proprietor might poind at ſhort hand for his houſe-mail*, and for his rents in the country, ſo this privilege is expreſly reſerved to him in the above mentioned ſtatute of Robert III. This privilege of the landlord may be traced down to the preſent time; with ſome reſtrictions, it is true, introduced by change of manners. Craig obſerves, That the landlord for three terms rent can poind by his private authority; and that for the price of the ſeiſin ox, which the vaſſal pays for his entry, the ſuperior may diſtrain without proceſs. Nor at preſent is the landlord or ſuperior ſubjected to the ordinary ſolemnities. It is required indeed, that the arrears be conſtituted by a decree in his own court, which has been introduced in imitation of poinding [229] other debts; but after conſtituting the arrears by a decree, he may proceed directly to poind without giving a charge*.

NOR is it difficult to diſcover the foundation of this privilege. It will appear in a clear light by tracing the hiſtory of leaſes in this iſland. Lands originally were occupied by bond-men, who themſelves were the property of the landlord, and conſequently were not capable to hold any property of their own: but ſuch perſons, who had no intereſt to be induſtrious, and who were under no compulſion, when not under the eye of their maſter, were generally lazy, and always careleſs. This made it eligible to have a free man to manage the farm; who probably at firſt got ſome acres ſet apart to him for his maintenance and wages. But this not being a ſufficient ſpur to induſtry, it was found a ſalutary meaſure to aſſume this man as a partner, by communicating to him a proportion of the product [230] in place of wages; by which he came to manage for his own intereſt as well as that of his maſter. The next ſtep had ſtill a better effect, entitling the maſter to a yearly quantity certain, and the overplus to remain with the ſervant*. By this contract, the benefit of the ſervant's induſtry accrued wholly to himſelf; and his indolence or ignorance hurt himſelf alone. One farther ſtep was neceſſary, to bring this contract to its due perfection, which is, to give the ſervant a leaſe for years, without which he is not ſecure that his induſtry will turn to his own profit. By a contract in theſe terms he acquired the name of Tenant; becauſe he was entitled to hold the poſſeſſion for years certain. According to this deduction, which is ſupported by the nature of the thing, the tenant had only a claim by virtue of the contract, for that part of the product [231] he was entitled to. He had no real lien to found upon in oppoſition to his landlord's property. The whole fruits as pars ſoli belonged to the landlord, while growing upon the ground; and the act of ſeparating them from the ground, could not transfer the property from him to his tenant: neither could payment of the rent transfer the property of the remaining fruits, without actual delivery. It is true, the tenant, impowered by the contract, could lawfully apply this remainder to his own uſe: but ſtill while upon the ground, it was the landlord's property; and for that reaſon, as we ſhall ſee afterwards, lay open to be attached for payment of the landlord's debts.

MATTERS, it is true, were greatly altered by the act 18. p. 1449, making the tenant ſecure againſt a purchaſer of the land. This ſtatute was underſtood to give the leſſee a real lien upon the land, or to make a leaſe, when compleated by poſſeſſion, a real right, as we term it in Scotland; for a [232] leaſe, conſidered as a covenant merely, can only be effectual betwixt the contracters. The real right thus eſtabliſhed in the tenant, behoved to regulate the property of the fruits. The maxim, Quod ſatum cedit ſolo, which formerly gave the property to the landlord, was thought to apply now in favour of the tenant; and thus, after the rent was paid, the remaining fruits came to be conſidered as the tenant's property. The landlord's property however, continued inviolable, ſo far as his rent extended. To this limited effect he was held proprietor, juſt as much as before the ſtatute was made: and therefore there was nothing ſingular in allowing him to levy his rents by his own authority, whether from his tenants or from his feuars, who differ not from tenants but in the perpetuity of their leaſes. It was no more than what follows from the very nature of property; for no man needs the authority of a judge to lay hold of his own goods. There could not be a ſcruple about this privilege, while rents were paid in kind; [233] and landlords, authoriſed by cuſtom, proceeded in the ſame train when money-rent was introduced, without adverting to the difference: but after the landlord's rent was paid, it ſoon came to be reckoned an intolerable grievance, and indeed groſs injuſtice, that the landlord's creditor ſhould be admitted to poind the remainder, which was in reality the tenant's property; and the ſtatute had ſo quick an operation, that a remedy was provided, at leaſt as to perſonal debt, by the act 36. p. 1469, reſtricting poindings for ſuch debts, to the extent of the arrears due by the tenant, and to the current term. With regard to debts ſecured upon the land, the legiſlature did not interpoſe; for it was judged, that the creditor who had a real lien upon the land, had the ſame title to the fruits for payment of his intereſt, that the landlord had for payment of his rent. It was not adverted to, that a creditor is not bound to take poſſeſſion of the land for his payment; that the landlord is entitled to levy the rent if the [234] creditor forbear; and that it is unjuſt to oblige the tenant to pay the ſame rent twice. But what was neglected or avoided by the legiſlature, was provided for by cuſtom; juſtice, in this matter, prevailing over ancient uſage. And now, tenants are by practice ſecure againſt poinding for real debts, as well as they are by ſtatute againſt poinding for perſonal debts. In England it appears, that, to this day, the creditor in a rent-charge may levy a diſtreſs to the extent of what is due to him, without confining the diſtreſs to the rent due by the tenant*. And indeed this is neceſſary in England where it is not the practice to take the land itſelf in execution. But of this afterwards.

IT was neceſſary to explain at large the privilege which landlords have at common law to force payment of their rents; becauſe it is a fundamental doctrine with relation to the preſent ſubject. I ſhall now proceed to conſider the caſe of a creditor who hath [235] obtained a ſecurity upon land for debt due to him. Lord Stair* obſerves, that the Engliſh diſtinguiſh rent, in rent-ſervice, rent-charge, and rent-ſeck. Rent-ſervice is that which is due by the reddendo of a charter of land, ſuch as a feu or blench-duty. Rent-charge is that which is conſtituted by the landlord in favour of a creditor, containing a clauſe of diſtreſs, impowering the creditor to diſtrain the land at ſhort hand for payment of the debt. A deed of the ſame nature without a clauſe of diſtreſs is termed rent-ſeck.

A rent-charge muſt be compleated by the writing alone without poſſeſſion; becauſe the creditor, until he have a claim for intereſt, cannot lawfully take poſſeſſion, or levy rent. And it is evident, that poſſeſſion cannot be neceſſary to eſtabliſh a right upon land, when ſuch right admits not of poſſeſſion. A rent-ſeck is in a different caſe, [236] as may appear from the following conſiderations. The tenants are not perſonally liable to the creditor; and the deed, which contains no clauſe of diſtreſs, affords no title to take a pledge from them. If therefore they be unwilling to pay their rents to the creditor, he has no remedy but a perſonal action againſt the granter of the deed. A tenant, it is true, acknowledging a rent-ſeck, by delivering but a ſingle penny in part payment, puts the creditor in poſſeſſion of levying rent; after which, if the tenant refuſe to pay, it is conſtrued a diſſeiſin, to entitle the creditor to an aſſize of nouvel diſſeiſin*. But before ſeiſin or poſſeſſion ſo had by the creditor, I ſee not that in any ſenſe the rent-ſeck can be conſtrued a real right. A hypothec is a real right, becauſe the creditor can ſell the land if the debtor fail to make payment. A rent-charge is a real right, becauſe the creditor can levy rent when his term of payment comes. But no right can be conceived to be real, or a [237] branch of property, which gives the creditor no power whatever over the land. And upon this account, if the land be ſold before a creditor in a rent-ſeck is acknowledged by the tenants, the purchaſer, I preſume, will be preferred.

I have juſt now hinted at the means for recovering payment, afforded by law to the creditor in a rent-ſeck. The creditor in a rent-charge, ſtanding on the ſame footing with the landlord, hath a much eaſier method. Where the rent payable to the landlord is a certain quantity of the fruits of the ground, the creditor lays hold of the rent at ſhort hand, which concludes the proceſs with reſpect to the tenant. The operation is not altogether ſo ſimple in the caſe of money-rent. The creditor, in this caſe, lays hold of any goods upon the land, corn or cattle, conſidered as the landlord's property: but then, as the goods diſtrained belong in reality to the tenant, free of all embargo ſo ſoon as the rent is paid, [238] the tenant, for that reaſon, is entitled to repledge the ſame, or to demand reſtitution, upon making payment of the rent, or giving ſecurity for it. The creditor in diſtraining thus, for obtaining payment, has not occaſion for a decree, nor is it even neceſſary that he diſtrain in preſence of an officer of the law. But this form, though eaſy in one reſpect, with regard to the creditor as well as the landlord, is not however effectual to draw payment, unleſs the tenant concur by repledging and ſubſtituting ſecurity in place of the goods. If the tenant be unable to find a ſurety, or perverſe enough to neglect his intereſt, there was no remedy till the 2d of William and Mary, cap. 5. by which it is enacted, ‘"That in caſe the tenant or owner of the goods, do not within five days replevy the ſame, with ſufficient ſecurity for the rent, the creditor ſhall have liberty to ſell for payment of the rent."’ Thus the form of diſtraining upon a rent-charge was made compleat: but a rent-ſeck remained a very precarious [239] ſecurity, for the reaſons above mentioned, till the 4th Geo. II. cap. 28. by which it is enacted, ‘"That the like remedy by diſtreſs, and by impoinding and ſelling the goods, ſhall be in the caſe of rent-ſeck, that is provided in the caſe of rent reſerved upon leaſe."’

THAT a power to ſell the goods diſtrained, ſo neceſſary to make rent effectual, ſhould not have been introduced more early, muſt appear ſurpriſing. But it is remarkable, that the Engliſh are greatly addicted to old uſages. Another thing is not leſs ſurpriſing in this form of execution, for which no remedy is provided, that it is indulged to be followed out by private authority, when in all other civilized countries, execution is not truſted to any but the officers of the law.

I have another obſervation to make upon this ſubject, That in the infancy of government, ſhorter methods are indulged to come at right, than afterwards when under a government [240] long ſettled, the obſtinacy and ferocity of man are ſubdued, and ready obedience is paid to eſtabliſhed laws and cuſtoms. By the Roman law, a creditor could ſell his pledge at ſhort hand. With us of old a creditor could even take a pledge at ſhort hand; and which was worſe than either, it was lawful for a man to take revenge at his own hand for injuries done him*. None of theſe things, it is preſumed, are permitted at preſent in any civilized country, England excepted, where the ancient privilege of forcing payment at ſhorthand, competent to the landlord and to the creditor by a rent-charge, is ſtill in force.

AND now to come to our own ſecurities upon land for payment of debt, we find, in the firſt place, That originally our law was the ſame with that of England, as to the form of making rent-ſervices effectual, viz. taking a diſtreſs at ſhort hand, to be repledged by the tenant upon finding ſecurity [241] for the arrears. We have regulations laid down as to the method of taking a diſtreſs, viz. that the goods muſt remain in the ſame barony till they be repledged, or at leaſt in the next adjacent barony, and within the ſame ſheriffdom, but not in caſtles or fortalices*; regulations which obviouſly are borrowed from 52d Henry III. cap. 4. In the next place, when we conſider that the ſyſtem of our laws and government is fundamentally the ſame with that of England, and that nothing is more natural than to adopt the manners and cuſtoms of a more potent nation in cloſs neighbourhood, it is a ſuppoſition extremely probable, That a rent-charge was in practice with us as well as with the Engliſh. Luckily we have direct evidence of the fact. Several of theſe ſecurities are preſerved to this day; though they are long out of uſe, having given place to what is called an infeftment of annualrent, which is a land-ſecurity eſtabliſhed in the feudal form. Copies of two rent-charges [242] are annexed*; one by Simon Lockhart of Lee, by which, for a certain ſum delivered to him, ‘"he grants and ſells to William de Lindſay rector of the church of Ayr, ten pound Sterling yearly rent, to be taken out of the lands of Caitland and Lee; binding himſelf and his heirs to pay the ſaid annuity at two terms in the year, Pentecoſt and Martinmas; and binding the above lands of Caitland and Lee, with all the goods and chattels upon the ſame to a diſtreſs, at the inſtance of the ſaid William Lindſay, his heirs and aſſignees, in caſe he (the granter) and his heirs ſhall fail in payment."’ This bond is dated in the year 1323. The other is a bond of borrowed money for L. 40, dated anno 1418, by James Douglas Lord Baveny, to Sir Robert Erſkine Lord of that Ilk, in which the debtor becomes bound, ‘"That all the lands and barony of Sawlyn ſhall remain with the creditor, with all freedoms, eaſes, and commodities, courts, [243] plaints, and eſcheats, till he the creditor, his heirs, executors, and aſſignees, be fully paid of the ſaid ſum. And failing payment out of the ſaid lands of Sawlyn, the debtor obliges and binds all his lands of the lordſhip of Dunſyre, to be diſtrained as well as the lands of Sawlyn, at the will of the creditor, his heirs or aſſignees, till they be paid of the fore-mentioned ſum; in the ſame manner that he or they might diſtrain their proper lands for their own rents, without the authority of any judge, civil or eccleſiaſtical."’

THE bond laſt mentioned is an inſtance the more happy, as it affords irrefragable evidence, that a rent-charge in this country, was, in all reſpects, the ſame as in England; and particularly, that the creditor enjoyed that ſingular privilege of the landlord, to diſtrain at ſhort hand without the authority of a judge. It ſerves at the ſame time to explain the regulations of Robert I. and of Robert III. about poinding, which, from [244] analogy of the law of England, and from the poſitive evidence of this deed, muſt appear now to relate to perſonal debts only, and by no means to rent-charges more than to rent-ſervices*.

WHETHER our law be improved by ſubſtituting an infeftment of annualrent in place of a rent-charge may be doubted. I propoſe to handle this ſubject at leiſure, becauſe it is curious. While land was held as a proper benefice for ſervices performed to a ſuperior, the whole forms relating to ſuch a grant, and the whole caſualties due to the ſuperior, were agreeable to the nature of the tenure: but when land returned to be a ſubject of commerce, and, like moveables, to be exchanged for money, forms and caſualties, which were the reſult of the feudal connection [245] betwixt the ſuperior and vaſſal, could regularly have no place in theſe new tranſactions, with which they were inconſiſtent in every reſpect. When a man makes a purchaſe of land and pays a ſull price, the purpoſe of the bargain is, That he ſhall have the unlimited property, without being ſubjected in any manner to the vender: and yet ſuch is the force of cuſtom, that titles behoved to be made up in the feudal form, becauſe no other titles to land were in uſe. And thus the purchaſer, contrary to the nature of the tranſaction, was metamorphoſed into a vaſſal, and of conſequence ſubjected to homage, fealty, non-entry, liferent eſcheat, &c. upon account of that very land which he purchaſed with his own money. Such an inconſiſtency, it is true, could not long ſubſiſt; and form by degrees yielded to ſubſtance. When land came univerſally to be patrimonial, and no longer beneficiary, the forms of the feudal law indeed remained, but the ſubſtance wore out gradually. This change produced blench duties, an eluſory [246] ſum for non-entry in place of the full rents, collateral ſucceſſion without limitation; and failing heirs, the King, and not the ſuperior, as laſt heir: which regulations, with many others upon the ſame plan, are wide deviations from any tenure, that, in a proper ſenſe, can be termed beneficiary. When the ſubſtantial part of the feudal law has thus vaniſhed, it is to be regreted that we ſhould ſtill lie under the oppreſſion of its forms, which occaſion great trouble and expence in the tranſmiſſion of land-property.

OUR forefathers, however, in adhering to the feudal forms after the ſubſtance was gone, merit leſs cenſure than at firſt ſight may appear juſt from the foregoing deduction. So many different perſons were connected with the ſame portion of land, ſtages of ſuperiors being commonly interjected betwixt the vaſſal in poſſeſſion and the crown, that, in moſt inſtances, it would have been difficult to throw off the feudal holding, and to make the right purely allodial. This [247] affords a ſufficient excuſe for not attempting early to withdraw land from under feudal titles. And when time diſcovered that the feudal forms could be ſqueezed and moulded into a new ſhape, ſo as to correſpond in ſome meaſure with a patrimonial eſtate, it is not wonderful that our forefathers acquieſced in the forms that were in uſe, improper as they were.

BUT it will be a harder taſk to juſtify our forefathers for deſerting the eſtabliſhed form of a rent-charge, and for ſubſtituting in place of it an infeftment of annualrent, than which nothing in my apprehenſion can be more abſurd. For here a man, who hath no other intention but to obtain a real ſecurity for his money, is transformed, by a ſort of hocus-pocus trick, into a ſervant or vaſſal, either of his debtor or of his debtor's ſuperior. And to prevent a miſtake, as if this were for the ſake of form only, I muſt obſerve, that the creditor is even held to be a military vaſſal, bound to ſerve his ſuperior [248] in war; if the contrary be not ſpecified in the bond*. The ſuperior again, after the creditor's death, was entitled to the nonentry duties, and it required an act of parliament to correct this glaring abſurdity. It muſt be confeſt to be ſomewhat ludicrous, that the heir of a creditor, acting, for form's ſake only, the part of a vaſſal, and, by the nature of his right, bound neither for ſervice nor duty to his imaginary ſuperior, ſhould yet be puniſhed with the loſs of the intereſt of his money for neglecting to enter heir, which might be hurtful to himſelf, but could not in any meaſure hurt his debtor acting the part of a ſuperior. In a word, it is impoſſible to conceive any form leſs conſiſtent with the nature and ſubſtance of the deed to which it relates, than an infeftment of annualrent is. The wonder is, how it ever came to be introduced, in oppoſition to the more perfect form of a rent-charge. I can diſcover no other cauſe but one, which hath an arbitrary ſway in [249] law, as well as in more trivial matters, and that is the prevalency of faſhion and opinion. We had long been accuſtomed to the feudal law, and to conſider a feudal tenure as the only compleat title to land. No man thought himſelf ſecure with a title of any other ſort. Juriſdictions and offices behoved to be brought under a feudal tenure; and even creditors, influenced by the authority of faſhion, were not ſatisfied till they got their ſecurities in the ſame form.

AND this leads me to another abſurdity in the conſtitution of an annualrent-right, leſs conſpicuous indeed than that above mentioned; and that is the order or precept to introduce the creditor directly into poſſeſſion: though, by the nature of his right, and by expreſs paction, he is not entitled to take poſſeſſion, or to levy rent, till the firſt term's intereſt become due. Seiſin, it is true, is but a ſymbolical poſſeſſion; but then, as ſymbolical poſſeſſion was invented to ſave the trouble of apprehending poſſeſſion [250] really, it is improper, nay, it is abſurd, to give ſymbolical poſſeſſion before the perſon be entitled to poſſeſs. A ſeiſin indeed will be proper after intereſt becomes due: but a ſeiſin at that time is unneceſſary; becauſe the creditor can enter really into poſſeſſion by levying rent; and ſurely real poſſeſſion can never be leſs compleat than ſymbolical poſſeſſion.

IT tends not to reconcile us to an infeftment of annualrent, that, conſidered as a commercial ſubject, it is not leſs brittle than unwieldy. In its tranſmiſſion as well as eſtabliſhment, it is attended with all the expence and trouble of land-property, without being poſſeſſed of any advantage of land-property. It is extinguiſhed by levying rent, by receiving payment from the debtor, and even by a voluntary diſcharge. In ſhort, a perſonal bond is not extinguiſhed with leſs ceremony. This circumſtance unqualifies it for commerce; for there is no ſafety in laying out money to purchaſe it. Nor does the ſymbolical [251] poſſeſſion by a ſeiſin give it any advantage over a rent-charge. The ſeiſin does not publiſh the ſecurity: regiſtration is neceſſary; and a rent-charge, which requires not infeftment, is as eaſily recorded as a ſecurity eſtabliſhed by infeftment.

TO compleat this ſubject, it is neceſſary to take a view of the execution that proceeds upon an infeftment of annualrent; and comparing it with the ancient form of execution upon a rent-charge, to remark where they agree, and where they differ. In the firſt place, The creditor in a rentcharge could not bring an action of debt againſt the tenants for their rents. His claim properly lay to the goods upon the land, which he was entitled to carry off, and to detain till the rent was paid to him. The law ſtands the ſame to this day as to the perſonal action. An infeftment of annualrent binds not the tenants to pay to the creditor: he has no claim againſt them perſonally for their rents, unleſs there be in [252] the deed an aſſignment to the mails and duties*.

BUT in the following particulars, execution upon an infeftment of annualrent, or other debitum fundi, differs from execution upon a rent-charge. Firſt, An infeftment of annualrent has not been long in uſe, and at the time when this ſecurity was introduced, more regularity and ſolemnity were required in all matters of law than formerly. Poinding could not now proceed upon a perſonal debt, till firſt a decree was obtained againſt the debtor. But an infeftment of annualrent, if it did not contain an aſſignment to mails and duties, afforded not an action againſt the tenants. Some other form therefore behoved to be contrived, more ſolemn than that of poinding by private authority. The form invented was to obtain the King's authority for poinding the ground, which was granted [253] in a letter under the ſignet, directed to meſſengers, &c. I diſcover this to have been the practice in the time of our James V. or VI. it is uncertain which; for the letter is dated the 30th year of the reign of James, and no other king of that name reigned ſo long*. But with reſpect to the landlord's privilege of diſtraining the ground, it being afterwards judged neceſſary, that a decree, in his own court at leaſt, ſhould be interpoſed, the form was extended to an infeftment of annualrent. There was indeed ſome difficulty in what manner to frame a libel or declaration, conſidering that the creditor has not a perſonal action againſt the tenants, and can conclude nothing againſt them to make the appearance of a proceſs. This difficulty is removed, or rather diſguiſed the beſt way poſſible. The landlord and his tenants are called; for there can be no proceſs without a defendant. There is alſo a ſort of concluſion againſt them, very ſingular indeed, viz. ‘"The ſaids [254] defenders to hear and ſee letters of poynding and appriſing, directed by decreet of the ſaids Lords, for poynding the readyeſt goods and gear upon the ground of the ſaid lands, &c."’ A decree proceeding upon ſuch a libel or declaration, if it can be called a decree, is in effect a judicial notification merely, to the landlord and his tenants, that the creditor is to proceed to execution. In a word, the ſingular nature of this decree proves it to be an apiſh imitation of a decree for payment of debt, without which, as obſerved above, poinding for perſonal debt cannot proceed.

IN the ſecond place, The property of the goods diſtrained was not by the old form transferred to the creditor. The tenant might repledge at any time, upon paying his rent to the creditor, or finding ſurety for the payment. I have no occaſion here to take notice of the Engliſh ſtatute, giving power to the creditor to ſell the goods diſtrained; becauſe the rent-charge was laid [255] aſide in Scotland, long before the ſaid remedy was invented. This old form muſt yield to our preſent form of poinding upon debita fundi, borrowed from poinding for payment of perſonal debt; which is, to ſell the goods if a purchaſer can be found; otherwiſe to adjudge them to the creditor upon a juſt appretiation. 'Tis to be regreted, that in practice we have dropt the moſt ſalutary branch of the execution, which is that of ſelling the goods. But ſtill, it is more commodious to adjudge the goods to the creditor upon a juſt appretiation, than to make payment depend on the tenant; whereby matters may be kept in ſuſpenſe for ever.

IN the next place, The moſt remarkable difference is, that execution upon a debitum fundi is much farther extended than formerly. Of old, execution was directed againſt the moveables only, that were found upon the land; but by our later practice, it is directed both againſt the moveables and againſt the land itſelf, in their order. It appears [256] probable, that this novelty has been introduced, in imitation of execution for payment of perſonal debt, though there is no analogy betwixt them.

THIS ſubject affords an illuſtrious example of the prevalency of humanity and equity, in oppoſition to the rigour of the common law. By the common law, the creditor who hath a rent-charge, or an infeftment of annualrent, may ſweep off the tenant's whole moveables, for payment of the intereſt that is due upon his bond, and is not limited to the arrears of rent. But the palpable injuſtice of this execution with regard to the tenant, has produced a remedy; which is, that though goods may be impoinded to the extent of the intereſt due, yet theſe goods may be repledged by the tenant, upon payment of the arrears due by him and the current term. And in poinding for payment of perſonal debt, the attaching the tenant's goods even for the current term, is in diſuſe; and has given [257] place to an arreſtment, which relieves the tenant from the hardſhip, of paying his rent before the term. The tenant remains ſtill expoſed to this hardſhip, when a decree for poinding the ground is put in execution. But it is unavoidable in this caſe, becauſe we have not hitherto admitted an arreſtment to be founded upon an infeftment of annualrent: and till this be introduced, there is a neceſſity for indulging the poinding of goods for the current rent; for otherwiſe, ſuppoſing the rents to be punctually paid, there would be no acceſs to the moveables at all. This reſtriction in a poinding of the ground, paved the way for poinding the land itſelf; which was ſeldom neceſſary of old, when the moveables upon the land could be poinded without limitation.

BY the Levari Facias in England, rents payable to the debtor can be ſeized in execution. This being a more ſummary method than arreſtment, for attaching rents, is the reaſon, I ſuppoſe, that arreſtment is [258] not uſed in England. For if rents can be thus taken in execution, other debts muſt be equally ſubjected to the ſame execution.

I ſhall conclude with pointing out ſome miſtakes in writers who handle the preſent ſubject. Few things paſſing under the ſame name, differ more widely than the two kinds of poinding above mentioned. Poinding for payment of perſonal debt, proceeds upon a principle of common juſtice, viz. That if a man will not diſpoſe of his effects for payment of his debts, the judge ought to interpoſe, and wreſt them from him. Poinding for payment of debt ſecured upon land, is an exertion of the right of property. The effects are poinded or diſtrained by the landlord's order or warrant; and the execution can reach no effects but what are underſtood to be his property. His property, it is true, is limited, and cannot be exerted farther than to make the claim of debt effectual; and upon this account, the tenant, or others who have an intereſt in the effects poinded, [259] may repledge, upon ſatisfying the claim. But if they do not repledge, a proportion of the effects, is, in Scotland, adjudged to the creditor as his abſolute property, without any reverſion; becauſe, in legal execution, matters ought not for ever to be in ſuſpenſe. Hence execution upon perſonal debt, is directed againſt the debtor, and the property is transferred from him to his creditor. Execution again upon debt affecting land, is directed againſt the land and its product; and transfers not property, but only removes the limitations that were upon the landlord's property, by extinguiſhing the tenant's right of reverſion. Though theſe matters come out in a clear light, when traced to their origin, yet the two poindings are often confounded by our authors. Lord Stair* mentions the brieve of diſtreſs as the foundation of both ſorts of poinding, and remarks, that by the act 36. p. 1469, the irrational cuſtom of poinding the tenant's goods without limitation, was [260] reſtrained as to both. And he is copied by Mackenzie*. This is erroneous in every particular. The brieve of diſtreſs was nothing elſe but the King's commiſſion to a judge named, to determine upon a certain claim of debt. This brieve entitled the bearer to a decree, ſuppoſing his claim well ſounded; and of conſequence to poind for payment of the ſum decreed. And the act now mentioned, introduceth a regulation, which reſpects ſolely the execution upon a debt of this kind; and relates not at all to execution upon debts affecting land.

IN the ſame paragraph, the author firſt mentioned adds, That there was no more uſe for the brieve of diſtreſs after the ſaid ſtatute. This muſt be a careleſs expreſſion; for our author could not ſeriouſly be of this opinion. Execution upon perſonal debt after this ſtatute continued as formerly, except that as to tenants it was limited to their arrears including the current term. [261] And with regard to the brieve of diſtreſs, conſidered as an authority from the King to judge of perſonal debt, there was a very different cauſe for its wearing out of uſe, which is, that judges took upon them to determine upon claims of perſonal debt, without any authority*.

ONE miſtake commonly produceth another. Our author taking it for granted, that poinding upon debita fundi is regulated by the act 1469, as well as poinding upon perſonal debt, draws the following conſequence, That there is a reverſion of ſeven years when lands are appriſed upon a debitum fundi, as well as when they are appriſed upon a perſonal debt; obſerving at the ſame time, that the extenſion of the reverſion to ten years, by the act 62. p. 1661, relates to the latter only, and that the former remains upon the footing of the act 1469. But it will be evident, from what is juſt [262] now ſaid, that appriſings upon debita fundi have no reverſion as to land more than as to moveables; the act 1469, which introduced the privilege of a reverſion, relating only to execution for payment of perſonal debt.

THIS author is again in a miſtake, when he lays down, That appriſing of land upon a debitum fundi is laid aſide, and that the land muſt be adjudged by a proceſs before the court of ſeſſion*. It is clear, that the act 1672, introducing adjudications, goes not one ſtep farther, than to ſubſtitute them in place of appriſings for payment of perſonal debt; and therefore, that execution upon a decree for poinding the ground, remains, to this day, upon its original footing.

TRACT V.
HISTORY OF THE Privilege which an HEIR-APPARENT in a feudal holding has, to continue the poſſeſſion of his ANCESTOR.

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CUJACIUS gives an accurate definition of a feudal holding in the following words: ‘"Feudum eſt jus in praedio alieno, in perpetuum utendi, fruendi, quod pro beneficio dominus dat ea lege, ut qui accipit, ſibi fidem et militiae munus, aliudve ſervitium exhibeat*."’ [264] The feudal contract is diſtinguiſhed from others, by the following circumſtance, That land is given for ſervice in place of wages in money. This contract at its firſt dawn was limited to a time certain. It was afterwards made to ſubſiſt during the vaſſal's life; and in progreſs of time was extended to the male iſſue of the original vaſſal. It was not the purpoſe of this contract to transfer the property, but only to give the vaſſal the profits of the land during his ſervice; or in other words, to give him the uſufruct. To transfer the property would have been inconſiſtent with the nature of the covenant; becauſe wages ought not to be perpetual, when the ſervice is but temporary. Hence it neceſſarily followed, when the male iſſue of the original vaſſal, called to the ſucceſſion, were exhauſted, that the land returned to the ſuperior, to be employed by him, if he pleaſed, for procuring a new vaſſal. And the caſe behoved to be the ſame, when any of theſe heirs refuſed in his courſe to undertake the ſervice. Such [265] being the nature and intendment of the feudal contract, it is evident, that while a feu was for life only, it was the ſuperior's privilege as proprietor, without any formality, to enter to the poſſeſſion of the land upon the death of his vaſſal. Nor was this privilege loſt by making feus hereditary. Every heir hath a year to deliberate, whether it will be his intereſt to undertake the ſervice. During this period, being entitled to no wages ſince he ſubmits not to the ſervice, the poſſeſſion and profits of the land muſt of courſe remain with the ſuperior. And even ſuppoſing the heir makes an offer of his ſervice, without deliberating, he cannot, upon ſuch offer, take poſſeſſion, at ſhort hand, of land which is not his own. It is neceſſary, from the very nature of the thing, that the ſuperior, accepting his offer, ſhould give orders to introduce him to the land; and this act is termed renovatio feudi.

THIS is not the only caſe, where the ſuperior is entitled to an interim poſſeſſion. A [266] young man, is, by law, held not capable to bear arms, till he be twenty one years compleat; and for that reaſon, the heir of a military vaſſal, while under age, is not entitled to poſſeſs the land. The ſuperior, during that interval, holds the poſſeſſion and reaps the profits; for a ſervant has not a claim to wages, while he is incapable to do duty.

BATING theſe interruptions of poſſeſſion, preparatory to the heirs entry, which at the ſame time are caſual, and for the moſt part momentary, the vaſſal and his male deſcendants continue in poſſeſſion, and enjoy the whole profits of the land. When a vaſſal dies, the eſtate deſcends to his heir, and from one heir to another in a long train. But poſſeſſion and enjoyment, which are ouvert acts, and the moſt beneficial exertions of property, make a ſtrong impreſſion on the vulgar; and naturally produce a notion, that the land belongs in property to the family in poſſeſſion. Hence it came [267] that the property, or the moſt beneficial part of it, was, in popular eſtimation, transferred from the ſuperior to the vaſſal. The intermiſſion of military ſervice in times of peace, favoured this notion; which at laſt, through the influence of general opinion, was adopted by the legiſlature.

THIS heteroclite notion, that by a feudal contract, the property is ſplit into parts, and the moſt ſubſtantial part transferred to the vaſſal, produced another, viz. that after the vaſſal's death, the heir, and not the ſuperior, is entitled to poſſeſs the land. This notion prevailed ſo much, as to procure in England a law, during the reign of Henry II. which ſhall be given in the words of a learned author*. ‘"If any one ſhall die holding a frank pledge, (i. e. having a free tenure) let his heirs remain in ſuch ſeiſin, as their father had on the day he was alive and died, of his fee, and let them have his chattels, out of which they may make [268] alſo the deviſe or partition of the deceaſed, (that is the ſharing of his goods according to his will) and afterwards may require of their lord, and do for their relief and other things, which they ought to do as touching their fee, (i. e. in order to their entering upon the eſtate.")’ This law was undoubtedly intended for the benefit of thoſe only who were of full age, capable of the ſervices which a vaſſal in poſſeſſion is bound to perform. For it would be abſurd, that an heir under age, who is incapable of doing ſervice, ſhould notwithſtanding be entitled to the wages. Glanvil, who wrote in this king's reign, makes the diſtinction, but without referring to any ſtatute*. And we have Bracton's authority for the ſame.

THAT the King's vaſſals were not comprehended under this regulation, is evident from the ſtatute 52d Henry III. cap. 16, where a diſtinction is made betwixt the [269] King's vaſſals and thoſe who hold of a ſubject. The firſt ſection of this ſtatute declares it to be law, That the heir-apparent, in land held of a ſubject, is entitled to continue the poſſeſſion of his anceſtor; and provides certain remedies againſt the ſuperior who endeavours to exclude the heir from poſſeſſion. ‘"If any heir, after the death of his anceſtor, be within age, and the Lord have the ward of his lands and tenements, if the Lord will not render unto the heir his land (when he cometh to full age) without plea, the heir ſhall recover his land by aſſize of mortanceſtor, with the damages he hath ſuſtained by ſuch with-holding, ſince the time that he was of full age. And if an heir, at the time of his anceſtor's death, be of full age, and he is heir-apparent, and known for heir, and he be found in the inheritance, the chief Lord ſhall not put him out, nor take nor remove any thing there, but ſhall take only ſimple ſeiſin therefor, for the recognition [270] of his ſeigniority, that he may be known for Lord. And if the chief Lord do put ſuch an heir out of the poſſeſſion maliciouſly, whereby he is driven to purchaſe a writ of mortanceſtor, or of couſenage, then he ſhall recover his damages, as in aſſize of nouvel diſſeiſin."’ Here we find it clearly laid down, that the heir, being of full age, is entitled to continue the poſſeſſion of his anceſtor, and that the ſuperior is entitled to ſimple ſeiſin only, by which is meant the relief*. And it is equally clear, that though the ſuperior is entitled to poſſeſs the land, while the heir of his military vaſſal is under age; yet that this heir, arriving at full age, is entitled to recover the poſſeſſion, without neceſſity of a ſervice or any other formality; evident from this, that if the ſuperior be refractory, the heir has a direct remedy by an aſſize of mortanceſtry, which is a ſpecies of the aſſize of nouvel diſſeiſin.

[271] BUT the ſecond ſection of this ſtatute is in a very different ſtrain. The words are: ‘"Touching heirs which hold of our Lord the King in chief, this order ſhall be obſerved, That our Lord the King ſhall have the firſt ſeiſin of their lands, likeas he was wont to have beforetime. Neither ſhall the heir, or any other, intrude into the ſame inheritance, before he hath received it out of the King's hands, as the ſame inheritance was wont to be taken out of his hands and his anceſtors in time paſt. And this muſt be underſtood of lands and fees, the which are accuſtomed to be in the King's hands, by reaſon of knight's ſervice, or ſerjeantry, or right of patronage."’ Here we ſee the old law preſerved in force, as to the King's military vaſſals, that they have no title to continue the poſſeſſion of their anceſtors; that after the death of ſuch a vaſſal, the poſſeſſion returns to the King as proprietor; and that the heir cannot otherwiſe attain the poſſeſſion, but by a ſervice [272] upon a brieve from the chancery. The difference here eſtabliſhed, betwixt the King's military vaſſals and thoſe who hold of ſubjects, is put beyond all doubt by the ſtatute 17th Edward II. cap. 13. ‘"When any (that holdeth of the King in chief) dieth, and his heir entereth into the land that his anceſtor held of the King the day that he died, before that he hath done homage to the King, and received ſeiſin of the King, he ſhall gain no freehold thereby; and if he die ſeized during that time, his wife ſhall not be endowed of the ſame land; as it came late in ure by Maud, daughter to the Earl of Hereford, wife to Manuſel the marſhal, which, after the death of William Earl-marſhal of England his brother, took his ſeiſin of the caſtle and manour of Scrogoil, and died in the ſame caſtle, before he had entered by the King, and before he had done homage to him: whereupon it was agreed, that his wife ſhould not be endowed, becauſe that her [273] huſband had not entered by the King, but rather by intruſion. Howbeit this ſtatute doth not mean of ſoecage and other ſmall tenures."’ We have no reaſon to doubt, that this ſtatute, concerning the King's military vaſſals, continued in force till the 12th Charles II. cap. 24. when military tenures, of whomever held, were aboliſhed.

IT appears from our law-books, that the privilege beſtowed upon heirs by the ſtatute of Henry II. of continuing the poſſeſſion of their anceſtors, obtained alſo in Scotland*. This privilege made a great change in the form of feudal titles; and in particular, with reſpect to land held of a ſubject, ſuperceded totally the brieve of inqueſt, and the conſequential ſteps of ſervice and retour. For where an heir is privileged by law to continue, or apprehend at ſhort hand the poſſeſſion of his anceſtor, he has no occaſion [274] for a ſervice and retour, of which the only purpoſe is to procure poſſeſſion. We followed alſo the Engliſh law with reſpect to military tenures held of the King. The 2d ſtatute Robert I. cap. 7. which is our authority, is copied almoſt verbatim from the ſtatute of Henry III. above mentioned. But we did not reſt there; for we ſee from the ſtatutes of Robert III.* that the old law was totally reſtored, entitling every ſuperior to the poſſeſſion at the firſt inſtance, and leaving the heir to claim the poſſeſſion from his ſuperior.

BUT the authority of theſe ſtatutes was not ſufficient to ſtem altogether the torrent of popular opinion. By this time, the property, in common apprehenſion, was transferred from the ſuperior to the vaſſal; and after the vaſſal's death, his heir, it was thought, had a better title than the ſuperior to poſſeſs the land. The general biaſs accordingly, in ſpite of theſe ſtatutes, continued in [275] favour of the heirs poſſeſſion; and one circumſtance undoubtedly contributed to give him the preference. A young man in familia with his father, is conſidered as in poſſeſſion, even during his father's life; and after his father's death, there is no change with regard to him: he has no occaſion to apprehend poſſeſſion: he remains or continues in it, and cannot be thruſt out at ſhort hand without ſome ſort of proceſs. Our forefathers, at the ſame time, in this favourite point, were not nice in diſtinguiſhing betwixt heirs. If a ſon in familia was entitled to continue in poſſeſſion, it was reckoned no wide ſtretch, that a ſon foris familiated ſhould be entitled to ſtep into the poſſeſſion: nor was it reckoned a wide ſtretch to communicate this privilege to other heirs, though leſs connected with the anceſtor. Thus, as to the mere right of poſſeſſion, the heir in Scotland has, for many centuries, been preferred before the ſuperior. I muſt obſerve, however, that this privilege, acquired by cuſtom, againſt the authority [276] of ſtatute-law, has not the effect to veſt in the heir the property, or to give him a freehold, as termed in England. This would be to overturn the ſtatute altogether; which we have not attempted. The ſtatute is ſo far only encroached upon in practice, as to privilege the heir, at the firſt inſtance, to ſtep into the void poſſeſſion; reſerving the ſuperior's privilege to turn the heir out of poſſeſſion by a proper proceſs, unleſs the heir make up his title by a ſervice, and, in the regular method, demand poſſeſſion or ſeiſin from the ſuperior.

THE difference then betwixt our preſent practice, and what it was before the days of Henry II. appears to be what follows. The heir originally had no right to poſſeſs, till he was regularly entered by the ſuperior. If the heir entered at his own hand, he was guilty of intruſion, and could be ſummarily ejected. At preſent we conſider, as originally, the land to be the ſuperior's property, and that the heir has not a freehold till he [277] be regularly entered: but then we conſider him as entitled, at the firſt inſtance, to the poſſeſſion; that his poſſeſſion is lawful; and that the ſuperior cannot turn him out of poſſeſſion at ſhort hand or by a ſummary ejection, but muſt inſiſt in a regular proceſs of removing, after a declarator of non-entry is obtained.

FROM what is above laid down, it is evident, that in no caſe have we adopted the Engliſh maxim, Quod mortuus ſaſit vivum. Formerly the Engliſh law, with regard to military tenures held of the crown, was the ſame with what obtains here in all tenures, viz. That the heir has no freehold, till he ſue out his livery, after a ſervice upon the brieve Diem clauſit ſupremum, which correſpends to our brieve of inqueſt. But now that in England military tenures are aboliſhed, heirs require not ſervice and infeftment; the maxim holds univerſally there as in France, Quod mortuus ſaſit vivum.

[278] IT may be thought, at firſt view, a very ſlight favour, to prefer the heir in poſſeſſorio, when it requires only a proceſs to thruſt him out of poſſeſſion. But not to mention, that he has a defence at hand, which is an offer to enter heir, it belongs more to the preſent ſubject to obſerve, that this privilege of poſſeſſion is attended with very remarkable advantages, ariſing from the biaſs of popular notions, to which the law hath ſubmitted. The ſuperior is entitled to a year's rent in name of relief, or primer ſeiſin as termed in England; and if the ſuperior were entitled to the poſſeſſion, this relief would undoubtedly be the full rent. But by the heir's privilege of poſſeſſion, the ſuperior for the year's rent is reduced to a claim; and this claim, like all other caſualties of ſuperiority, being unfavourable, is meaſured by the new extent, which, by conſtruction of law, or rather of practice, is, in this caſe, held to be the rent of the land. And the ſame rule is obſerved in the claim of non-entry. This claim of non-entry is [279] alſo founded upon the ſuperior's legal privilege of poſſeſſion. The rents claimed are underſtood to be the rents of the ſuperior's land, levied by the heir without a title, and for which therefore he is bound to account. But the burden of accounting is made eaſy to him, the new extent being in this caſe, as in the former, put for the real rent.

THERE is ſcarce one point in our law ſo indiſtinctly handled by writers, and upon which there is ſuch contrariety of deciſions, as the following, What right an heir poſſeſſed of his anceſtor's eſtate has to the rents, before he be infeft. In many caſes it has been judged, that the rents are his, in the ſame manner as if he were regularly entered. In other caſes, not fewer in number, it has been judged, that tenants paying their rents to him bona fide are ſecure; but that he has no legal claim to the rents, and therefore has no action againſt the tenants to force them to pay. Purſuant to the latter opinion, the growing rents, after [280] the predeceſſor's death, have been conſidered as a part or acceſſory of the haereditas jacens, and therefore to be carried by an adjudication deduced againſt the heir, upon a ſpecial charge to enter*: and yet it weighs on the other ſide, that an appriſing upon a ſpecial charge was never thought to carry bygone rents; for a good reaſon, which applies equally to an adjudication, viz. That an appriſing upon a ſpecial charge ought not to have a more extenſive effect, than an appriſing at common law, deduced againſt the the heir after he is infeft, which aſſuredly doth not carry any arrears. To relieve us from this uncertainty, we muſt ſearch for ſome principle that may lead to a juſt concluſion.

THE ſuperior, during the heir's non-entry, is undoubtedly proprietor of the land. Hence it follows, that, at common law, the rents belong to the ſuperior, and that the heir [281] in poſſeſſion is liable to account to him for the rents. But our law, or rather our judges, indulging the general prepoſſeſſion in favour of the heir, have been long in uſe of limiting this claim to the new extent, which once having been the full rent of the land, is preſumed to continue ſo, in order to relieve the heir from a rigorous claim. What then is to become of the difference betwixt this ſuppoſed value of the rents, and what they extend to in reality? This difference muſt undoubtedly accrue to the heir, becauſe it is, in effect, what he gains from the ſuperior, by the favour of the law. Let us ſuppoſe a declarator of non-entry is commenced, which entitles the ſuperior, in equity as well as at common law, to the full rents; and that upon a tranſaction with the heir, he accepts of the one half: the other half muſt belong to the heir by this tranſaction. It ought to be the ſame before a declarator; for a legal compoſition has the ſame effect with one that is voluntary. This reaſoning appears to be ſolid; and therefore [282] we need not heſitate to conclude, that the heir in poſſeſſion is entitled to levy the rents, in order to account for the ſame to the ſuperior. And indeed, without a circuit, the power of levying the rents may reaſonably be thought a neceſſary conſequence of the right of poſſeſſion; for without it poſſeſſion is a mere ſhadow.

THIS point being eſtabliſhed, there no longer remains any dubiety. If the heir-apparent, ſeizing the poſſeſſion, or continuing the poſſeſſion of his anceſtor, has right to the rents without a formal entry, it follows, that theſe rents are not to be conſidered as in hereditate jacente of the anceſtor, to be carried by an adjudication upon a ſpecial charge. On the contrary, they muſt be attached as the property of the apparent heir, that is, by arreſtment. What of theſe rents remain in the hands of the tenants, without being levied by the heir-apparent, muſt after his deceaſe belong to his next of kin; and the next heir, though he compleat [283] his right to the land by infeftment, will have no claim to theſe rents.

TO conclude; This is a curious branch of the hiſtory of the feudal law in Britain, and of a ſingular nature. The feudal law was a violent ſyſtem, repugnant to natural principles. It was ſubmitted to in barbarous times, when the exerciſe of arms was the only ſcience, and the only commerce. It is repugnant to all the arts of peace, and when mankind came to affect ſecurity more than danger, nothing could make it tolerable, but long uſage and inveterate habit. It behoved however to yield gradually, to the prevailing love of liberty and independency; and accordingly, through all Europe, it dwindled away gradually, and became a ſhadow, before any branch of it was abrogated by ſtatute. When it was undermined by ſo powerful a cauſe, we would have great reaſon to conjecture, that it could never recover any ground it had once loſt: and yet here is a very ſtrong contrary inſtance, [284] which muſt have had ſome ſingular cauſe, that probably is now loſt to us for ever; for we have no regular records of any antiquity, and our ancient hiſtorians ſeldom take notice of civil tranſactions that have any relation to law.

TRACT VI.
HISTORY OF REGALITIES, and of the privilege of repledging.

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AMONG all the European nations who embraced the feudal ſyſtem, it is remarkable, that the crown-vaſſals roſe gradually into power and ſplendor, till they became an overmatch for the ſovereign. It is ſtill more remarkable, that the ſame crown-vaſſals, thoſe of Germany excepted, after attaining this height of power and ſplendor, ſunk by degrees, and at preſent [286] are diſtinguiſhed from the maſs of the people, by name more than by any ſolid preeminence.

THE growing power of the crown-vaſſals, may be eaſily accounted for. It was plainly the reſult of making feus hereditary. Experience diſcovered, what might have been diſcovered without experience, that to make the bread of a man's family depend upon his life, is apt to damp the braveſt ſpirits. This engaged firſt one prince and then another, to promiſe a renovation of the feu to the heir, if the vaſſal ſhould loſe his life in battle, till theſe engagements became univerſal. The ſovereigns in Europe, having no ſtanding army, could not promiſe to carry on a war ſucceſsfully, without the good-will of their vaſſals, to whom therefore it became neceſſary to give all encouragement and indulgence. If one prince led the way, others behoved to follow. At length, no powers were to be with-held from the crown-vaſſals, who were already become [287] too powerful. In England, Palatinates were erected, exempted from the juriſdiction of the King's judges, with power of coining money, levying war, &c. In Scotland, Regalities were created with the higheſt civil and criminal juriſdiction, and with all other powers annexed to Palatinates in England.

WHETHER regalities originally were exempted from the juriſdiction of the King's judges, is uncertain. I incline to think they were not; at leaſt, that it has been a matter of doubt. For there are ſeveral inſtances of grants by the King to Lords of regality, exempting them from the juriſdiction of the King's judges. One inſtance I have at hand. There is a charter by king Robert II. to his brother James de Douglaſs de Dalkeith, knight of the baronies of Dalkeith, Caldercleer, Kinclaven, &c. to be held in one entire and free barony, and in free regality, with the four pleas of the crown. This charter is in the 16th year of the King's reign, ſuppoſed to be in the 1386. And [288] in the year immediately following, there is a grant under the Great Seal to the ſame James de Douglaſs, reciting the ſaid charter, and ‘"diſcharging all the King's juſticiars, ſheriffs, and their miniſters, from all intromiſſion and adminiſtration of their offices within the ſaid lands."’ Such a grant, it may be thought, was unneceſſary, if the Lords of regality enjoyed this privilege by the common law. However this be, it appears by indenture betwixt king Robert I. and his parliament 1326, authoriſing a tax to be levied for the King's uſe during his life, that many of the great Lords enjoyed the foreſaid privilege. For this indenture goes upon the ſuppoſition, that the King's officers could not act within regalities: and therefore, theſe Lords take upon themſelves, to levy what part of the tax was laid upon their lands, and to pay the ſame to the King's officers*. And this excluſive privilege, in whatever manner introduced, came to be fully eſtabliſhed in Lords of regality, as will [289] appear from the act 5. p. 1440, and act 26. p. 1449; the former regulating the juſtice airs on the north and ſouth ſides of the Scotch ſea; and, with the ſame breath, appointing Lords of regality to hold juſtice airs within their regalities: the latter appointing regalities to be ſubjected to the King's juſtice, while they remain in the King's hands.

AND here, by the way, it may be remarked, that the act 43. p. 1455, is no ſlight inſtance of the authority of the great barons. Thoſe who had obtained regalities, were fond to engroſs to themſelves the power and privileges depending thereon; and to prevent future rivalſhip, they exerted their power, to wreſt from the crown one capital branch of its prerogative, that of erecting regalities. They ſucceeded in their enterpriſe, and obtained the ſaid act, declaring, ‘"That in time coming no regalities be granted without deliverance of parliament;"’ that is, without conſent of the [290] Lords who had already obtained regalities; for in them was centered the power of the parliament. The circumſtances of theſe times readily unfold the political view of this ſtatute; for the publick good is a motive of no great influence in rude ages. In Scotland, the great families, by monopolizing the higher powers and privileges, ſecured to themſelves dignity and authority. In England, the ſame ſpirit procured the ſtatute de donis conditionalibus, which, by the power of making entails, and attaching unalienably a great eſtate to a great family, laid a ſtill more ſolid foundation for dignity and authority.

THE downfal of theſe great families was occaſioned by circumſtances more complex. Theſe are many in number, but the chief appear to be, the transference of property from the ſuperior to the vaſſal, the free commerce of land, and the firm eſtabliſhment of the right of primogeniture. With reſpect to the two circumſtances firſt mentioned, it is a maxim in politics, That [291] power, in a good meaſure, depends on property. The great Lords behoved originally to have great power, becauſe their vaſſals had the uſe only of the lands they poſſeſſed, not the property. But popular notions prevailing over ſtrict law, the vaſſal came by degrees to be conſidered as proprietor, and law accommodated itſelf to popular notions. And thus the property of the feudal ſubject was imperceptibly transferred from the ſuperior to his vaſſal, which made the latter in a good meaſure independent. The free commerce of land, repugnant to the genius of the feudal law, brought the great Lords lower and lower. Peace and commerce afforded money and introduced luxury. The grandees, deſpiſing the frugality of their anceſtors, could no longer confine their expences within their yearly income. They were obliged to diſpoſe of land for payment of their debts; and the induſtrious, who had money, were fond to purchaſe land, which, for the ſake of independency, they choſe to hold of the crown. Thus by multiplying [292] the crown-vaſſals without end, their connection was broke, and their power reduced to nothing.

WHILE the crown-vaſſals were declining, the crown was gaining ground daily by the privilege of primogeniture. To explain this circumſtance, for it requires explanation, it muſt be obſerved, that, in matter of ſucceſſion, primogeniture has no privilege by the law of nature. And though a crown may be an exception, where the ſucceſſion is confined to a ſingle perſon; yet primogeniture in this caſe, cannot take faſt hold of the mind, in oppoſition to the general rule of ſucceſſion, which, in private eſtates, beſtows an equal right on all the males. We ſee a notable example of this in Turky, where primogeniture has no privilege, except with regard to the imperial dignity. Influenced by the general rule of an equal ſucceſſion, the younger ſons of the Emperor conſider themſelves to be upon a level with the firſt-born; and that their title to the [293] empire is not inferior to his title. By this means, where one is preferred by will, or the eldeſt where there is no will, the other ſons are apt to pronounce it an act of injuſtice, depriving them of their birthright. Hence perpetual jealouſies and civil diſcord, which commonly terminate in the eſtabliſhment of one of the ſons, at the expence of the lives of his brethren. And conſidering the matter impartially, this is leſs the effect of brutal manners, than of an infirm political conſtitution*.

[294] FROM the hiſtory of Europe we learn, that in the deſcent of the crown, hereditary right was of old little regarded: and this is not wonderful, conſidering, that till the feudal law was eſtabliſhed, primogeniture did not beſtow any privilege in point of ſucceſſion. The feudal ſyſtem, by confining to a ſingle heir the ſucceſſion of the feudal ſubject, made way for the eldeſt ſon. Then it was, and no ſooner, that the ſucceſſion to the crown, and to private eſtates, were governed by the ſame rules; which gave force to the right of primogeniture, as if it were a law of nature. This however was a work of time; and, after introduction of feus, it required many ages to obliterate former notions, and to give that preference to primogeniture which now is never called in queſtion. By this means it happened, that while the crown-vaſſals were in the meridian of power, kings had very little authority. Being indebted for their advancement to the will of the people more than to the privilege of blood, they were little better than elective [295] monarchs. But from the time that primogeniture came to be a general law in ſucceſſion, the European princes, depending now no longer on the choice of their people, acquired by degrees that extent of power, which naturally belongs to a hereditary monarch. The crown-vaſſals at the ſame time gradually declining by the commerce of land, and by the transference of their property to their vaſſals, are reduced within proper bounds, and have now no power but what tends to ſupport a monarchial government.

GERMANY is in a ſingular caſe. Compoſed of many great parts, which were never ſolidly united under one government, or under one Royal family, it fluctuated many centuries betwixt hereditary and elective monarchy. This ſerving to increaſe the power of the great Lords, the monarchy was reduced to be purely elective. The electors became ſovereign princes, and the power of the emperor is almoſt annihilated.

[296] THE juriſdiction of the crown-vaſſals, comparing the preſent with former times, is a beautiful example of this gradual decline. With the power and dominion of the great Lords, their juriſdiction ſunk in proportion. What they loſt on the one hand, was on the other acquired by the King and his judges; and at preſent, with the other privileges of crown-vaſſals, their juriſdiction is reduced to an empty name. The extent of this juriſdiction in its different periods, and its gradual decline, being chiefly the purpoſe of the preſent eſſay, it will be neceſſary to make a large circuit, in order to ſet the matter in its proper light.

As no branch of publick police is of greater importance, than that of diſtributing juſtice, it is neceſſary to this end, that the juriſdiction of every judge be aſcertained, with reſpect to cauſes as well as perſons. Concerning the latter, a plain and commodious rule is eſtabliſhed, through moſt civilized nations. The kingdom is [297] divided into diſtricts, and in each, a judge is appointed who has under his juriſdiction the people reſiding in his diſtrict. Thus, with regard to juriſdiction, the people are diſtinguiſhed by their place of reſidence, which ſo far regulates the powers of the ſeveral judges. And were it poſſible to diſtinguiſh cauſes by a rule equally preciſe, diſputes among judges about their juriſdictions would ſcarce ever occur.

BUT this inſtitution is the reſult of an improved police: our notions of juriſdiction were originally different, and behoved to be different. Before agriculture was invented, people in a good meaſure depended on their cattle for ſuſtenance. In theſe early times, the few inhabitants that were in a country, being claſſed in tribes or clans, led a wandering life from place to place, for the convenience of paſture. Every clan or tribe had a head, who was their general in war, and their judge in peace. And thus every chieftain was the judge over his own people, [298] without regard to territory, which, in a wandering ſtate, could not be of any conſideration. After the invention of agriculture which fixed a clan to a certain ſpot, the ſame principle prevailed, and neighbouring clans, to prevent diſputes about juriſdiction, ſettled upon the following regulation, That the people of each clan, wherever found, ſhould be judged by their own chieftain.

DURING the third and fourth centuries, we find this regulation ſteadily obſerved in France, after it was deſerted by the Romans and abandoned to the Barbarians. It was an eſtabliſhed rule among the Burgundians, Franks, Goths, and ancient inhabitants, that each people ſhould be governed by their own laws, and by their own judges; even after they were intermixed by marriages and commerce. Nor was this an incommodious inſtitution, in a country poſſeſſed by nations or clans, differing in their language, differing in their laws, and differing in their manners. There can be no doubt, that the [299] ſame practice prevailed in this country, both before and after our ſeveral tribes or clans were united under one general head. The laws of the different clans have been digeſted into one general law, known by the name of The Common Law of Scotland; but the chieftains privilege of judging his own people, continued long in force, and traces of it remain to this day. Clans were diſtinguiſhed from each other, ſo as to prevent any confuſion in exerciſing the privilege. Clans often differed in their language, or in their dreſs; and when theſe differences were not found, thoſe who lived together, and paſtured in common, were reckoned to be of one clan. After agriculture was introduced, clans were diſtinguiſhed, partly by a common name, and partly by living within a certain territory.

THIS juriſdiction was favoured by the feudal law, which made an additional bond of union betwixt the chieftain and his people, by the relation of ſuperior and vaſſal. And [300] the juriſdiction being thereby connected with land-property, is, with reſpect to the title, termed territorial juriſdiction; though, with reſpect to its exerciſe it is perſonal, without relation to territory. On the other hand, juriſdiction granted by the crown to perſons or families, without relation to landproperty, ſuch as an heretable juſticiary or an heretable ſheriffship, is perſonal with reſpect to the title, but territorial with reſpect to its exerciſe. The firſt barons were no doubt the chieftains of clans, and the right of juriſdiction ſpecified in the charters of creation, muſt not be conſidered as an original juriſdiction flowing from the King, but as the juriſdiction which theſe chieftains enjoyed from the beginning over their own people. In imitation of theſe firſt barons, every man who got his lands erected into a barony, was conſidered as a chieftain, or the head of a clan; and the juriſdiction conferred upon him, though depending entirely upon the grant, was, by the connection of ideas, conſidered notwithſtanding to be the [301] ſame that belonged originally to chieftains. And hence it is, that theſe territorial judges had the power of reclaiming their own people from other judges, and judging them in their own courts.

UPON the ſame principle, the Royal burrows had the power of reclaiming their own burgeſſes, not only from territorial judges, but even from the King's judges*. Pleas of the crown were excepted; becauſe the Royal burrows had no juriſdiction in ſuch crimes. And here it muſt be remarked, that Royal burrows had a peculiar privilege, neceſſary for preſerving peace among their people, that in proceſſes againſt ſtrangers before the baillies, for riots or breach of the peace committed within the town, reclaiming to the Lord's court was not admitted.

BUT among a rude people, delighting in war, where the authority of the chieftain [302] depends upon the good-will of his clan, this privilege was often exerted to protect criminals, inſtead of being exerted to bring them to juſtice. Endeavours were early uſed to correct this corrupt practice, by enacting, That chieftains or barons ſhould be bound, to give a pledge or ſurety in the court where the criminal is attached, to do juſtice upon him in the Lord's own court within year and day*: and from this time, upon account of the pledge or ſurety given, the privilege of reclaiming obtained the name of repledging.

THIS regulation, though a wiſe and uſeful precaution, proved however but an imperfect remedy. Nor was better to be expected; for the privilege of repledging was an unnatural excreſcence in the body politick, which admitted of no effectual cure, other than amputation. The ſtatutes of Alexander II. cap. 4. are evidence, that the power of repledging was proſtituted in a [303] vile manner, not only to protect the Lord's own men from juſtice, but alſo to protect others for hire; and accordingly by that ſtatute, and by the firſt ſtatutes Robert I. cap. 10. the power of repledging is confined within narrower bounds than formerly. But this power, after all the limitations impoſed, being found ſtill prejudicial to the common intereſt, an attack was prudently made upon it, in its weakeſt part, viz. that of the Royal burrows, which produced the act 1. p. 1488. ordaining burgeſſes to ſubmit to trial in the juſtice air, without power of repledging. And to make this new regulation palatable, it was made the duty of the King's juſtice, to give an aſſize to a burgeſs of his own neighbours, if a ſufficient number were preſent in court.

FROM what is ſaid above, there can be no doubt, that barons had a power of repledging from the King's courts, as well as from each other. The privilege, however, was of no great moment; becauſe every [304] partial judgment of the baron, in favour of any of his own people, lay open to immediate redreſs, by an appeal to the King's court. An appeal lay even to the ſheriff againſt every ſentence pronounced in the baron-court*. In this reſpect, the power of repledging, which the Lords of regality enjoyed, was a privilege of much greater moment; becauſe from a court of regality there lay no appeal but to the parliament.

LORDS of regality had undoubtedly the power of repledging, when their people were apprehended out of their territory, and brought before another court. Properly ſpeaking, this is the only caſe in which there was occaſion to exerciſe the privilege. For their juriſdiction being excluſive even of the King's courts, as appears from what is mentioned above, they could have no occaſion to repledge their people, apprehended within their own territory by the authority of any extraneous judge; becauſe ſuch attachment [305] was illegal, and a proper declinator lay.

THE firſt manifeſt ſymptom of the declining power of the crown-vaſſals, was the extenſion of the juriſdiction of the King's judges over regalities, ſo as to produce a cumulative juriſdiction. As this privilege was introduced by practice, and not by ſtatute, the encroachment was gradual, one inſtance following another, till the privilege was firmly eſtabliſhed. It is probable, that the above mentioned power of repledging, ſo well known in the practice of Scotland, paved the way to this encroachment. For among a rude people, unſkilled in the refinements of law, the encroachment would ſcarce be perceived, ſo long as the ſubſtantial prerogative remained with the chieftains, viz. that of judging their own people. And whether this excluſive juriſdiction was maintained by a proper declinator, or by the power of repledging; would be reckoned a mere punctilio. The people of a regality, [306] originally exempted from all juriſdiction ſave that of their own lord, were thus imperceptibly ſubjected alſo to the King's courts. But ſtill a regality being co-ordinate with the King's ſupreme courts, its decrees continued, as formerly, to be ſubjected to no review, except in parliament.

BY the eſtabliſhment of the court of ſeſſion, which is the ſupreme court in civil matters, the regality-courts were rendered ſo far ſubordinate. But in matters criminal, the juriſdiction, as co-ordinate with that of the juſticiary court, was preſerved entire, together with the power of repledging even from that court*.

THE royal authority with that of the ſovereign courts, gaining a firm eſtabliſhment, annihilated the baron's power of repledging. But the Lords of regality did not ſo readily ſuccumb under the weight of an enlarged prerogative; and though their [307] privileges were in a great meaſure incompatible with the growing power of the crown, as well as with the orderly adminiſtration of juſtice; yet ſuch was their influence in parliament, that the attempt to rob them of their privileges by an expreſs law, was found not adviſeable. It was more prudent, to lie in wait for favourable opportunities, to abridge theſe privileges by degrees. The firſt opportunity that offered, reſpected church-regalities, annexed to the crown after the reformation. The heretable baillies of theſe regalities, being an inconſiderable body and in a ſingular caſe, it was not difficult to obtain a ſtatute againſt them. And accordingly, though their power of repledging from the ſheriff, both in civil and criminal matters, was reſerved entire, yet it was enacted*, ‘"That they ſhould have no power of repledging from the court of juſticiary, except in the caſe of prevention by the firſt citation:"’ which was abrogating their privilege of repledging from the juſticiary court. This being [308] a direct attack upon regality-privileges, though in ſome meaſure diſguiſed, it was neceſſary to ſoften its harſhneſs; which was done by ſubſtituting, in place of the power of repledging, a privilege in appearance greater, but in effect a mere ſhadow. It was, that the heretable baillie might ſit with the King's juſtice, and judge with him, and, upon conviction, receive a proportion of the eſcheat.

THIS ſtatute paved the way for abridging the privileges of laick-regalities; as any handle is ſufficient againſt a declining power. The ſpeciality in the ſtatute was forgot, or not regarded, and it was extended againſt all regalities of whatever ſort. The privilege of repledging was however kept alive, though it wore fainter and fainter every day; and at the long-run was indulged for fifteen days only, after the crime was committed. This we learn from the ſtatutes appointing juſticiars in the Highlands*, in which the rights and [309] juriſdiction of Lords of regality are reſerved, and particularly ‘"their right of prevention for fifteen days;"’ importing, That if the perſon was cited before the juſtice court within fifteen days of committing the alledged crime, the Lord of regality might repledge; for if he was the firſt attacher, even after the fifteen days, it cannot be doubted, that, of common right, he had the excluſive privilege of proceeding in the trial, and of paſſing a definitive ſentence.

THUS we ſee the power of repledging reduced to a ſhadow, though, in other reſpects, the regality-court ſtill maintained its rank, as co-ordinate with the court of juſticiary; acknowledging no ſuperior but the parliament. But as the regality-court had by this time loſt all its original authority, its privileges were little regarded. The judges of the court of juſticiary gradually increaſing in power and dignity, heightned by contraſting them with regality baillies, gave regality courts a ſevere blow, anno 1730, by admitting an advocation from the [310] regality court of Glaſgow*; which was in effect declaring a regality court ſubordinate to the court of juſticiary in criminal matters, as it had all along been to the court of ſeſſion in civil matters. This, it is true, was a church-regality, annexed to the crown upon the reformation; and the privileges of ſuch regality only being called in queſtion, it was reckoned a ſingular caſe, and therefore alarmed not much thoſe who were poſſeſt of laick-regalities. But the court of ſeſſion gave theſe regalities the dead blow without neceſſity, after heretable juriſdictions were aboliſhed by a late ſtatute. For by virtue of the powers delegated to this court, to try the rights of thoſe who ſhould claim heretable juriſdictions, and to eſtimate the ſame in money, they found the juſticiary belonging to the Earl of Morton, over the iſlands of Orkney and Zetland, ‘"to be [311] an inferior juriſdiction only, and not coordinate with the court of juſticiary."’ This judgment did not reſt upon any limitation in the Earl's right, which was granted by parliament in the moſt ample terms; but upon the following ground, That the court of juſticiary, as conſtituted by act 1672, is the ſupreme court in criminal, as the court of ſeſſion is in civil matters, which, of conſequence, muſt render all heretable juriſdictions ſubordinate; courts of juſticiary as well as courts of regality. But though the act 1672 was called in aid to ſupport this inference, yet there is not in that ſtatute, a ſingle clauſe which ſo much as hints at a greater power in the court of juſticiary than it formerly enjoyed. And this ſuggeſts a reflection, which is curious, and appears to be juſt, That the reaſon profeſſed and ſpoke out, is not always that which produces the judgment, but perhaps ſome latent circumſtance operating upon the mind imperceptibly. Thus, in the preſent caſe, the act 1672, was the profeſſed cauſe of the judgment; though, in all probability, what at [312] bottom moved the judges, was a very different conſideration. The new form which the court of juſticiary received, by ſubſtituting five lords of ſeſſion as perpetual members, in place of juſtice-deputes who were ambulatory, beſtowed a dignity upon this court, to which it was formerly a ſtranger. This circumſtance, joined with the growing power of the crown, which readily communicates itſelf to the miniſters of the crown, advanced this court to a degree of ſplendor, that quite obſcured baillies of regality. We have reaſon to believe, that this elevation of the court of juſticiary, touching the mind imperceptibly, was really what influenced the judges. For it is extremely difficult to ſupport an equality of juriſdiction in two courts, that are ſo unequal in all other reſpects. And thus, by natural cauſes which govern all human affairs, territorial juriſdiction in Scotland was reduced to a mere ſhadow; which made it be eſteemed no harſh meaſure, to aboliſh it altogether by ſtatute.

TRACT VII.
HISTORY OF COURTS.

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IN moſt countries originally, the inhabitants were collected into clans or tribes, governed each by a chieftain, in whom were accumulated the ſeveral offices of general, magiſtrate, and judge. Theſe clans or tribes, for a long courſe of time, ſubſiſted perfectly diſtinct from each other, without any connection or intercourſe among individuals of different clans. The invention of agriculture, extending connections beyond the clan, had a tendency to blend different [314] clans together. Individuals of different clans, came to be more and more blended by intermarriages, and conſequently by blood. Commerce aroſe, and united under its wings, not only diſtant individuals, but different nations. The clan-connection gave way by degrees; and no longer ſubſiſts in any civilized country, being loſt in the more extended connections that have no relation to clanſhip.

THIS change of connection among individuals, introduced a change in juriſdiction. After clans were diſſolved, and individuals were left free to their private connections, the juriſdiction of the chieftain could no longer ſubſiſt. In place of it, judges were appointed, to exerciſe juriſdiction in different cauſes, and in different territories.

IN a very narrow ſtate, one judge perhaps may be ſufficient to determine all matters that are in controverſy: but this cannot be, where the ſtate is of any extent. Many [315] judges, in that caſe, are required for an accurate and expeditious diſtribution of juſtice. If there muſt be a number, it is better to diſtribute among them the different branches of law, than to give each of them a juriſdiction in controverſies of whatever kind. It is here as in a manufacture. An artificer confined to one branch, becomes more expert, than where he is employed ſucceſſively in many. But in law, this regulation hath its limits. Courts may be diſtinguiſhed into civil, criminal, and eccleſiaſtical; but more minute diviſions would be inconvenient, becauſe the boundaries could not be accurately aſcertained.

FOR the reaſon now given, it becomes alſo proper in an extenſive ſociety, to beſtow the ſame powers upon a plurality of judges, who preſide over different territories, and whoſe juriſdictions accordingly are ſeparated from each other, in the diſtincteſt manner, by the natural marches and boundaries of diſtricts or provinces.

[316] BUT judges ſubjected to no review, ſoon become arbitrary. Hence the neceſſity of ſuperior courts, to review the proceedings of thoſe that are inferior. Where the ſuperior court is a court of appeal only, it has no regular continuance, and is never convened but when there is occaſion. This was formerly the caſe in Scotland, as we ſhall ſee by and by. It is an improvement to make this court perform, not only the duty of a court of appeal, but alſo that of an original court. In this caſe, it muſt have ſtated times of ſitting and acting, commonly called terms. And ſuch is the preſent condition of the ſuperior courts in this iſland.

THESE obſervations lead us to diſtinguiſh courts into their different kinds. In the firſt place, Courts are diſtinguiſhed by the nature of the cauſes appropriated to each. They are either civil, criminal, or eccleſiaſtical. This is the primary boundary, which ſeparates the juriſdiction of one court from that of another.

[317] THE next boundary is territory. Courts of the ſame rank, which judge the ſame cauſes, are ſeparated from each other by a local juriſdiction.

COURTS ſuperior and inferior which judge the ſame cauſes, admit not of any local diſtinction; becauſe a court ſuperior or ſupreme has a juriſdiction that extends over the ſeveral territories of many inferior courts. In this caſe, there can be no ſeparation, other than the firſt citation.

BESIDES theſe, there is generally in well regulated ſtates, a court of a peculiar conſtitution, that has no original juriſdiction, but is eſtabliſhed as a court in the laſt reſort, to review the proceedings of all other courts. This may be properly called a court of appeal; and ſuch is the conſtitution of the houſe of Lords in Britain.

IN the order here laid down, I proceed to examine the peculiar conſtitutions of the [318] courts in this country. And firſt, of the difference of juriſdiction with regard to cauſes. A man may be hurt in his goods, in his perſon, or in his character. The firſt is redreſſed in the court of ſeſſion, and other inferior civil courts; the ſecond in the criminal court; and the third in the commiſſary court. Beſides theſe, the court of exchequer is eſtabliſhed, for managing ſubjects, and making effectual claims, belonging to the crown. The court of admiralty has an excluſive juriſdiction, at the firſt inſtance, in all maritime and ſea-faring cauſes, foreign and domeſtic, whether civil or criminal, and over all perſons within this realm, as concerned in the ſame. There are alſo, by expreſs ſtatutes, many particular juriſdictions eſtabliſhed with reſpect to certain cauſes, which muſt be tried by the judges appointed, and by none other.

THE court of ſeſſion hath an original juriſdiction in matters of property, and in every thing which comes under the notion [319] of pecuniary intereſt. But this court hath not an original juriſdiction in matters of rank and precedency, nor in bearing arms. Controverſies of this kind belong to the juriſdiction of the Lord Lyon. To determine a right of peerage, is the excluſive privilege of the houſe of Lords. Nor has the court of ſeſſion an original juriſdiction, with reſpect to the qualifications of thoſe who elect or are elected members of parliament. The reaſon is, that none of the foregoing claims make a pecuniary intereſt. The court of ſeſſion, therefore, aſſumed a juriſdiction which they had not, when they ſuſtained themſelves judges, in the diſpute of precedency betwixt the Earls of Crawfurd and Sutherland. It was a ſtill bolder ſtep, to ſuſtain themſelves judges in the queſtion of the peerage of Lord Oliphant, mentioned in Durie's deciſions; and in the queſtion of the peerage of Lovat, decided a few years ago.

[320] THE matters now mentioned, are obviouſly not comprehended under the ordinary juriſdiction of the court of ſeſſion; and the court had no occaſion to aſſume extraordinary powers, when, by our law, a different method is eſtabliſhed for determining ſuch controverſies. But what ſhall we ſay of wrongs, where no remedy is provided? Many inſtances of this kind may be figured, which, having no relation to pecuniary intereſt, come not regularly under the cognizance of the court of ſeſſion. The freeholders of a ſhire, for example, in order to diſappoint one who claims to be inrolled, forbear to meet at the Michaelmas Head-court. This is a wrong, for which no remedy is provided by law; and yet our judges, confining themſelves within their ordinary juriſdiction, refuſed to interpoſe in behalf of a freeholder who had ſuffered this wrong, and diſmiſſed the complaint as incompetent before them*. Conſidering this caſe attentively, [321] it may be juſtly doubted, whether ſuch confined notions, with reſpect to the powers of a ſupreme court, be not too ſcrupulous. No defect in the conſtitution of a ſtate deſerves greater reproach, than the giving licence to wrong without affording redreſs. Upon this account, it is the province, one ſhould imagine, of the Sovereign and ſupreme court, to redreſs wrongs of all ſorts, where a peculiar remedy is not provided. Under the cognizance of the privy-council in Scotland, came many injuries, which, by the abolition of that court, are left without any peculiar remedy; and the court of ſeſſion have been forced to liſten to complaints of various kinds, which belonged properly to the privy-council while it had a being. A new branch of juriſdiction is thus ſprung up in the court of ſeſſion, which daily increaſing by new matter, will probably in time produce a general maxim, That it is the province of this court, to redreſs all wrongs for which no other remedy is provided. We are however as yet far from being ripe for [322] adopting this maxim. The utility of it is indeed perceived, but perceived too obſcurely, to have any ſteady influence on the practice of the court. And for that reaſon our deciſions upon this ſubject are far from being uniform. In the foregoing caſe of the freeholders of Cromarty, we have one inſtance where the court would not venture beyond their ordinary limits; though thereby a palpable wrong was left without a remedy. I ſhall mention another inſtance, equally with the former beyond the ordinary juriſdiction of the court, where the judges ventured to give redreſs. A ſmall land-eſtate, conſiſting of many parcels, houſes, acres, &c. was ſplit among a number of purchaſers, who in a body petitioned the commiſſioners of ſupply, to divide the valuation among them, in order to have it aſcertained what part of the land-tax each ſhould pay. The commiſſioners, unwilling to ſplit the land-tax into ſo ſmall parts, refuſed the petition. Upon a complaint to the court of ſeſſion againſt the commiſſioners, [323] the conveener was appointed to call a general meeting, in order to divide the valuation among the complainers*. This was not even a matter of judgment, but of pure authority, aſſumed from the neceſſity of the thing, there being no other remedy provided; for otherwiſe the court of ſeſſion hath not by its conſtitution any authority over the commiſſioners of ſupply. A wrong done by the commiſſioners, in laying a greater proportion of the land-tax upon a proprietor of land than belongs to him, may be rectified by the court of ſeſſion, as the ſupreme court in pecuniary matters: but this court has no regular authority over the commiſſioners, to direct their proceedings before hand.

UPON a new ſubject, not moulded into any form, nor reſolved into any principle, men are apt to judge by ſentiment more than by general rules; and for that reaſon, [324] the fluctuation, or even oppoſition, of judgments upon ſuch ſubjects, is not wonderful. This is peculiarly the caſe of the ſubject under conſideration: for beſides its novelty, it is reſolvable into a matter of publick police; which admitting many views, not leſs various than intricate, occaſions much difficulty in the law queſtions that depend on it. Such difficulties however are not inſuperable. Matters of law are ripened in the beſt manner, by warmth of debate at the bar, and coolneſs of judgment on the bench; and after many ſucceſsful experiments of a bold interpoſition for the publick good, the court of ſeſſion will clearly perceive the utility, of extending their juriſdiction to every ſort of wrong, where the perſons injured have no other means of obtaining reparation.

THIS extraordinary power of redreſſing wrongs, ſo far from a novelty, has a name appropriated to it in the language of our law. For what elſe can be meant by the [325] nobile officium of the court of ſeſſion, ſo much talked of and ſo little underſtood? The only queſtion is, How far this extraordinary juriſdiction or nobile officium, is, or ought to be, extended? The juriſdiction of the court of ſeſſion, as a court of common law, is confined to matters of pecuniary intereſt; and it poſſibly may be thought, that its extraordinary juriſdiction ought to be confined within the ſame bounds. Such is the caſe of the court of exchequer; for its extraordinary or equitable powers, reach no farther than to rectify the common law, ſo far as relates to the ſubjects which come under its juriſdiction as a court of common law. But the power to redreſs wrongs of all kinds, muſt ſubſiſt ſomewhere in every ſtate; and in Scotland ſubſiſts naturally in the court of ſeſſion. And with reſpect to the wrongs in particular which came under the juriſdiction of the privy-council, it muſt have been the intention of our legiſlature when they annihilated that court, that its powers ſhould ſo far devolve upon the court [326] of ſeſſion; for the legiſlature could not intend to leave without a remedy, many wrongs which belonged to the juriſdiction of the privy-council.

THE rule I am contending for, ſeems to be adopted by the Engliſh court of chancery, in its utmoſt extent. Every ſort of wrong occaſioned by the omiſſion or tranſgreſſion of any duty, is redreſſed in the court of chancery, where a remedy is not otherwiſe provided by common or ſtatute law. And hence it is, that the juriſdiction of this court, confined originally within narrow bounds, has been gradually enlarged over a boundleſs variety of affairs.

THE juriſdiction of the court of ſeſſion in matters of property, is not only original, but totally excluſive of all other ſupreme courts. The property of the ſlighteſt moveable, conſidered as a civil claim, cannot be aſcertained by the juſticiary, by the exchequer, by the admiralty, or by the commiſſaries. [327] The caſe is not preciſely the ſame in other matters of pecuniary intereſt. The commiſſaries of Edinburgh, as well as inferior commiſſaries, have, with the court of ſeſſion, a cumulative juriſdiction in all ſuch matters referred to oath of party. And in all maritime and ſea-faring cauſes, the high court of admiralty has, by act 16. p. 1681, an excluſive juriſdiction at the firſt inſtance. Formerly the juriſdiction of the court of ſeſſion in ſuch cauſes, was cumulative with that of the admiral. One peculiarity there indeed was in this cumulative juriſdiction, that where a maritime cauſe was brought before the ſeſſion at the firſt inſtance, the judge of the admiral court took his place among the Lords of ſeſſion, and voted with them*. But by the ſtatute now mentioned, the powers and privileges of the admiral court are greatly enlarged, and with relation to this court, the ſeſſion at preſent cannot be conſidered in any other light, than as a court of appeal; preciſely as the [328] houſe of Lords is with relation to the ſeſſion. Hence it ſeems to follow, that the court of ſeſſion cannot regularly ſuſpend the decree of an inferior admiral; which would be the ſame, as if a cauſe ſhould be appealed from the ſheriff to the houſe of Lords. With regard to the admiral court, it muſt be alſo obſerved, that by preſcription it hath acquired a juriſdiction in mercantile affairs; an incroachment which has no foundation, other than the natural connection that ſubſiſts between maritime affairs and thoſe that are mercantile. But the privileges of this court with reſpect to the former, are not extended to the latter. The court pretends not to an excluſive juriſdiction in mercantile affairs; and in theſe it is preciſely like the ſheriff court, conſidered as an inferior juriſdiction, ſubjected to the orders and review of the ſupreme court of ſeſſion, by advocation, ſuſpenſion, and reduction, in the ordinary courſe. And we ſhall have occaſion to ſee afterwards, that the privileges of the admiral court, with [329] regard to mercantile cauſes, are not ſo entire as even thoſe of the ſheriff; it being the privilege of every perſon to decline the admiral court in theſe cauſes.

HAVING deſcribed the cauſes proper to the court of ſeſſion, in contradiſtinction to the other ſupreme courts, I proceed to cauſes, proper to it, in contradiſtinction to inferior courts. Theſe may be comprehended under one rule, That all extraordinary actions, not founded on common law, but invented to redreſs any defect or wrong in the common law, are appropriated to the court of ſeſſion, being in civil cauſes the ſovereign and ſupreme court. Inferior courts are juſtly confined within the limits of the common law; and if extraordinary powers be neceſſary for doing juſtice, theſe cannot ſafely be truſted but with a ſovereign and ſupreme court. Upon this account, the court of ſeſſion only, enjoys the privilege of voiding bonds, contracts, and other private deeds. For the ſame reaſon, declarators of [330] right, of nullity, and in general all declarators, are competent nowhere but in this court. An extraordinary removing againſt a tenant, who having a current tack is due a year's rent, is peculiar to this court, as alſo a proving of the tenor. And laſtly, all actions that are founded ſolely upon equity, belong to the court of ſeſſion, and to none other.

WITH reſpect to criminal juriſdiction, our old law was abundantly circumſpect. Jealous of inferior courts, it confined their privileges within narrow bounds; and experience, the beſt teſt of political inſtitutions, hath juſtified our law in this particular. All publick crimes, i. e. all crimes by which the publick is injured, and where, of conſequence, the King is the proſecutor, are confined to the court of juſticiary. With the political reaſon there is joined another, that it is not conſiſtent with the dignity of the crown, to proſecute in an inferior court. All private crimes, however enormous, [331] may be proſecuted before the ſheriff. For if the private proſecutor who is injured chuſe this court, the law ought to give way. The only caſe where a baron is truſted with life and death, is where a thief is catched with the ſtolen goods; and, in this caſe, the law requires, that the thief be put to death within three ſuns. The law ſo far gives way to the natural impulſe of puniſhing a criminal; an indulgence not much greater than is given to the party injured; for he himſelf may put the thief to death, if catched breaking his houſe. But after the matter is allowed to cool, and paſſion ſubſides, every one is ſenſible, that now there ought to be a regular trial*. The ſheriff has the ſame power with reſpect to ſlaughter, that the baron has with reſpect to theft. A man taken in the act of murder, or with red hand, as expreſſed in our law, muſt have juſtice done upon him by the ſheriff within [332] three ſuns. If this time be allowed to elapſe, the criminal cannot be put to death without a citation and a regular proceſs, which muſt be before the juſticiary, unleſs the relations of the deceaſed undertake the proſecution.

BY the act 1681, mentioned above, an excluſive juriſdiction is given to the high admiral, ‘"in all maritime and ſea-faring cauſes, foreign and domeſtick, whether civil or criminal; and over all perſons within this realm, who are concerned in the ſame."’ With reſpect to the civil branch of this juriſdiction, I have had occaſion to mention, that by preſcription it is extended to mercantile cauſes. But though the civil juriſdiction of this country, is ſo far encroached on by the court of admiralty, the criminal judges, I preſume, will be more watchful over the powers truſted with them. Prohibited goods were ſeized at ſea, and after they were put in a boat to be carried to land, the ſeizure-makers were [333] attacked by thoſe who had an intereſt in the goods, and in the ſcuffle a man was put to death. A criminal proſecution being brought before the court of juſticiary, the judges demurred whether it did not belong to the admiral, to try this crime as committed at ſea. But after mature deliberation, the court ſuſtained its own juriſdiction, upon the following grounds. It is not every civil cauſe ariſing at ſea, that is appropriated to the juriſdiction of the admiral, but only maritime and ſea-faring cauſes. In like manner, every crime committed at ſea, is not appropriated to this juriſdiction. The admiral has not a juriſdiction by the ſtatute, unleſs ſuch crime relate to maritime or ſea-faring matters. Every crime committed againſt navigation, ſuch as a mutiny among the crew, orders diſobeyed, a ſhip prevented by violence from ſailing, beating, wounding, or killing, perſons in ſuch fray, pyracy, and in general all crimes where the animus of the delinquent is to offend againſt the laws of navigation, are maritime or ſeaſaring [334] crimes, and come under the excluſive juriſdiction of the admiral. But if murder, adultery, forgery, or high treaſon, be committed on board a ſhip, the cognition will belong to the judge ordinary. The commiſſaries of Edinburgh will divorce, and the court of juſticiary, or commiſſioners of Oyer and Terminer, will puniſh. The only argument for the admiral that ſeems plauſible is, That he is declared the King's juſtice-general upon the ſeas, and in all ports, harbours, creeks, &c. But to what effect? The anſwer to this queſtion will clear the difficulty. He is not made juſtice-general with reſpect to all crimes whatever, but ſingly with reſpect to crimes concerning maritime or ſea-faring matters.

THAT a criminal juriſdiction belongs to the court of ſeſſion is certain. The preciſe nature of it is not altogether ſo certain. Inſtead of pretending to aſcertain a matter that appears ſomewhat dubious, I venture no farther than to give two different views [335] of this juriſdiction, leaving every man to judge for himſelf. The firſt is as follows. In certain criminal matters, the court of ſeſſion, by the force of connection, have been in uſe to exerciſe a criminal juriſdiction. Upon witneſſes who prevaricate before them, they are in uſe to animadvert by a corporal puniſhment*. And indeed it ſeems natural, that this branch of criminal juriſdiction, ſhould be exerciſed by every court. Again, in the caſe of forgery, tried by the court of ſeſſion, the court itſelf commonly inflicts the puniſhment, where it is within the pain of death, without remitting the delinquent to the juſticiary. The puniſhment here, being a direct conſequence of the civil ſentence, finding the defendant guilty of the forgery, belongs naturally to the court of ſeſſion, unleſs where the crime deſerves death; the inflicting of which puniſhment, would be an encroachment too bold upon the juriſdiction of the criminal [336] court. A ſlight puniſhment may be conſidered as acceſſory to the civil judgment; but a capital puniſhment makes too great a figure in the imagination to be conſidered in that light.

I proceed to the ſecond view of this juriſdiction, It is not accurate to ſay, That the two courts of ſeſſion and juſticiary, are diſtinguiſhed by the cauſes appropriated to each; and that the former is a civil court, the latter a criminal court. The juſticiary is confined to crimes; but the court of ſeſſion is not confined to civil actions. It may juſtly be held, that this court hath a juriſdiction in all crimes, unleſs where the proof depends totally or chiefly upon witneſſes. Not to mention puniſhments that are acceſſory to judgments in civil caſes, ſuch as the puniſhment of forgery, many crimes publick and private are proſecuted in this court, baratry, for example, and uſury, even where it is proſecuted by the King's advocate ad vindictam [337] publicam *. Theſe, and ſuch like cauſes, are undertaken by the court, where the evidence is chiefly by writ, and not by witneſſes. The proceſſes of fraudulent bankruptcy, and of wrongous impriſonment, are, by ſtatute, confined to this court; and for the reaſon now given, ſtellionate will alſo be competent before it. It is clear indeed, that this court cannot judge in any criminal action that muſt be tried by a jury; becauſe its forms admit not this method of trial; and for that reaſon, no criminal action where a jury is neceſſary can be brought before the court of ſeſſion. Purpreſture muſt be tried by a jury; and for that reaſon only, cannot be brought before it. And for the ſame reaſon, a capital puniſhment is denied to this court; for a capital puniſhment cannot be inflicted without a jury.

ECCLESIASTICAL courts, beſides their cenſorial powers with relation to manners [338] and religious tenets, have an important juriſdiction in providing pariſhes with proper miniſters or paſtors; and they exerciſe this juriſdiction, by naming for the miniſter of a vacant church, that perſon duly qualified who is preſented by the patron. Their ſentence, however, is ultimate, even where their proceedings are illegal. The perſon authoriſed by their ſentence, even in oppoſition to the preſentee, is de facto miniſter of the pariſh, and as ſuch is entitled to perform every miniſterial function.

ONE would imagine, that this ſhould entitle him to the benefice or ſtipend; for a perſon inveſted in any office, is entitled of courſe to the emoluments. And yet the court of ſeſſion, without pretending to deprive a miniſter of his office, will bar him from the ſtipend, if the eccleſiaſtical court have proceeded illegally in the ſettlement. Such interpoſition of the court of ſeſſion, ſingular in appearance, is however founded on law, and is alſo neceſſary in good policy. [339] With reſpect to the former, there is no neceſſary connection betwixt being miniſter of a pariſh, and being entitled to a ſtipend; witneſs the paſtors of the primitive church, who were maintained by voluntary contributions. It belongs indeed to the eccleſiaſtical court to provide a pariſh with a miniſter: but then it belongs to the civil court, to judge whether that miniſter be entitled to a ſtipend; and the court of ſeſſion will find, that a miniſter wrongouſly ſettled, has no claim for a ſtipend. With reſpect to the latter, it would be a great defect in the conſtitution of a government, that eccleſiaſtical courts ſhould have an arbitrary power in providing pariſhes with miniſters. To prevent ſuch arbitrary power, the check, provided by law, is, That a miniſter ſettled illegally ſhall not be entitled to a ſtipend. This happily reconciles two things generally oppoſite. The check is extremely mild, and yet is fully effectual to prevent the abuſe.

[340] THE commiſſary court is a branch of the eccleſiaſtical court, inſtituted for the diſcuſſion of certain civil matters, which, among our ſuperſtitious anceſtors, ſeemed to have a more immediate connection with religion; divorce, for example, baſtardy, ſcandal, cauſes referred to oath of party, and ſuch like.

WHAT ſhall we ſay in point of juriſdiction, with reſpect to an injury by which a man is affronted or diſhonoured, without being hurt in his character or good fame; as, for example, where he is reviled, or contemptuouſly treated. For redreſſing ſuch injuries, I find no court eſtabliſhed in Britain. We have not ſuch a thing as a court of honour. Hence it is, that in England, words merely of paſſion are not actionable; as, you are a villain, rogue, varlet, knave. But if one calls an attorney a knave, the words are actionable, if ſpoken with relation to his profeſſion, whereby he gets his living*. [341] I am not certain, that in England any verbal injury is actionable except ſuch as may be attended with pecuniary loſs or damage. If not, we in Scotland are more delicate. Scandal, or any imputation upon a man's good name, may be ſued before the commiſſaries, even where the ſcandal is of ſuch a nature, that it cannot be the occaſion of any pecuniary loſs. It is ſufficient to ſay, I am hurt in my character. If I can qualify any pecuniary damage, or probability of damage, ſuch ſcandal is alſo actionable before the court of ſeſſion.

WHEN the ſeveral branches of juriſdiction, civil, criminal, and eccleſiaſtical, were diſtributed among different courts, great care ſeems to have been taken, that courts ſhould be confined each preciſely within its own limits. Baſtardy, for example, could not be tried any where but in the eccleſiaſtical court; and ſo ſtrictly was this obſerved, that if a queſtion of baſtardy occurred incidentally, in a proceſs depending [342] before another court, the cauſe was ſtayed, till the queſtion of baſtardy was tried in the proper court. This was done by a brieve from chancery, directed to the biſhop, to try the baſtardy as a prejudicial queſtion*. The expence and delay of juſtice, occaſioned by ſuch ſcrupulous confinement of courts within preciſe limits, produced in Scotland an enlargement of juriſdiction; by impowering every court to decide in all points neceſſary to a final concluſion of the cauſe. This regulation is but lately eſtabliſhed, though we had been long tending towards it. In the ſervice of an heir, it was the practice, and perhaps may be found ſo at this day, that if baſtardy be objected, the judge to whom the brieve is directed, is bound to ſtay his proceedings, till the queſtion of baſtardy be determined by the commiſſaries. But if in the reduction of ſuch a ſervice, baſtardy be objected, the court of ſeſſion remit not the queſtion of baſtardy to be tried by the commiſſaries, [343] but take the cogniſance of it to themſelves, ſingly to the effect of finiſhing the reduction. And this has been their practice above a century*. The following caſe is of the ſame kind. A proceſs of aliment was brought before the court of ſeſſion, at a woman's inſtance againſt her alledged huſband. He denied the marriage, and ſhe offered a proof. It was thought by the court, that marriage here was not properly an incidental queſtion; that it was the fundamental propoſition, and the aliment merely a conſequence. For this reaſon, they ſtayed the proceſs of aliment, till the purſuer ſhould inſtruct her marriage before the commiſſaries. Fountainhall, 29th December 1710, Forbes, 25th January 1711, Cameron contra Innes. But that this was too ſcrupulous, I have authority to ſay, from a ſimilar caſe determined lately. A child was produced in the ſeventh month after marriage; and the woman confeſſed, that her huſband was not the father, but a man ſhe [344] named. In a proceſs of aliment againſt this man, he denied that he was the father, and inſiſted upon the preſumption, quod pater eſt quem nuptiae demonſtrant. Here legitimacy was the fundamental point, of which that of aliment was a conſequence. Yet the court, in order to give judgment on the aliment, had no difficulty of entering into the queſtion about the baſtardy. And it was the general voice, that though, upon the medium of the child's being a baſtard, they ſhould decern for the aliment, this would not bar the child thereafter from bringing a proceſs before the commiſſaries, to aſcertain its legitimacy*. Nor is it inconſiſtent, that two courts ſhould give contrary judgments to different effects. This produces not a conflict of juriſdictions; for both judgments may ſtand and be effectual. Such contrariety of judgments one would wiſh to avoid: but it is better to ſubmit to that riſk, than to make it neceſſary, that different courts ſhould club their judgments [345] to the finiſhing of a ſingle cauſe; which has always been found a great impediment to juſtice. It is upon the ſame principle, that inferior judges, though they have no original juriſdiction as to forgery, can try that crime incidentally, when ſtated as a defence.

AND this leads me to conſider more particularly a conflict betwixt different juriſdictions, where the ſame point is tried by both. This happens frequently, as above mentioned, with reſpect to different effects. But I ſee not that there can be in Britain a direct conflict betwixt two courts, both trying the ſame cauſe to the ſame effect. Oppoſite judgments would indeed be inextricable, as being flatly inconſiſtent; one of the courts, for example, ordering a thing to be done, and the other court diſcharging it to be done. This has happened betwixt the two houſes of parliament: it may again happen; and I know of no remedy in the conſtitution of our [346] government. But in this iſland, matters of juriſdiction are better ordered than to afford place for ſuch an abſurdity. An indirect conflict may indeed happen, where two courts handling occaſionally the ſame point, in different cauſes, are of different opinions upon that point. Such contrariety of opinion, ought as far as poſſible to be avoided for the ſake of expediency; as tending to leſſen the authority of one of the courts, and perhaps of both. But as ſuch contrary opinions, are the foundation of judgments calculated for different ends and purpoſes, theſe judgments when put to execution, can never interfere. For example, being in purſuit of a horſe ſtole from me, and, in the hands of a ſuſpected perſon, finding a horſe which I judge to be mine, I uſe the privilege of a proprietor, and take away the horſe by violence. A criminal proceſs is brought againſt me for robbery; againſt which my defence is, that the horſe is mine, and that it is lawful for a man to ſeize his own goods [347] wherever he finds them, This obliges the criminal judge to try the queſtion of property, as a preliminary point. It is judged, that the evidence I have given of my property, is not ſufficient. The reſult is a ſentence to reſtore the horſe, and to pay a fine. I obey the ſentence in both particulars. But as the queſtion of property was diſcuſſed with a view ſolely to the criminal proſecution, nothing bars me from bringing thereafter a claim of property before a civil court; and if I prevail, the horſe muſt again be put in my poſſeſſion. This is not a conflict of execution, but only of opinion, which diſturbs not the peace of ſociety. The horſe is declared mine: this ſecures to me the property; but does not unhinge the criminal ſentence, nor relieve me from the puniſhment.

ANOTHER caſe of a ſimilar nature really exiſted. Before the juſtices of peace, a complaint was brought by General St. Clair, with concourſe of the procurator-fiſcal, againſt [348] John Ranken officer of exciſe, charging, ‘"That the ſaid John Ranken did, without any legal order, forcibly break open the doors or windows of the houſe of Pitteadie, belonging to the General; and, after rummaging, left the houſe open, ſo as any perſon might have acceſs to ſteal or carry away the furniture; and concluding that he ſhould be fined and puniſhed for the ſaid riot and treſpaſs."’ The defendant acknowledged, ‘"That upon a particular information of prohibited goods, he, by virtue of a writ of aſſiſtance from the court of exchequer, did force open a window of the houſe, and made a ſearch for prohibited goods, but found none; that in this matter, acting virtute officii, he was liable to no other court but the exchequer."’ The juſtices rejected the declinator, impoſed a fine upon the defendant, and ordered him to be impriſoned till payment. In this caſe there is no difficulty. The officers of the revenue are not exempted from the courts of [349] common law; and upon a complaint againſt any one of them for a riot or other malverſation, the juſtices muſt ſuſtain themſelves competent, and of courſe judge of the defence as well as of the libel. But I put a ſtraiter caſe, That the officer had found prohibited goods, and ſent them to the cuſtom-houſe. According to the foregoing ſentence of the juſtices, they muſt, in the caſe now ſuppoſed, have proceeded to order reſtitution of the goods, quia ſpoliatus ante omnia reſtituendus. But before reſtitution, a proceſs is brought in exchequer for forfeiting theſe goods as prohibited. In this proceſs the ſeizure is found regular, and the goods are adjudged to belong to the King. This judgment, which transfers the property to the King, relieves of courſe the officer from obeying the ſentence of the juſtices ordering him to reſtore the goods; for if the goods belong not to the plaintiff, he cannot demand reſtitution. But then if the officer be fined by the juſtices, their ſentence ſo far muſt be effectual. The [350] judgment of the court of exchequer, cannot relieve him from this fine.

BY an act 12th George I. cap. 27. § 17. intituled, ‘"An act for the improvement of of His Majeſty's revenues of cuſtoms and exciſe, and inland duties,"’ it is enacted, ‘"That for the better preventing of frauds in the entering for exportation any goods whereon there is a drawback, bounty or premium, it ſhall be lawful for any officer of the cuſtoms, to open any bale or package; and if upon examination the ſame be found right entered, the officer ſhall, at his own charge, cauſe the ſame to be repacked; which charge ſhall be allowed to the officer, by the commiſſioners of the cuſtoms, if they think it reaſonable."’ Upon this ſtatute, a proceſs was brought before the court of ſeſſion, againſt the officers of the cuſtoms at Port-Glaſgow, for unpacking many hogſheads of tobacco entered for exportation, without repacking the ſame. The defendants betook [351] themſelves to a declinator of the court, contending, That this being a revenue affair, it ſhould not be tried but in the court of exchequer. The court of ſeſſion had no opportunity to judge of this declinator, becauſe the matter was taken away by a tranſaction. But the following reaſons make it clear, that this declinator has no foundation. 1mo, Where an action of debt, from whatever cauſe ariſing, is brought before the court of ſeſſion, there can be no doubt of the competency of the court; becauſe its juriſdiction, with regard to ſuch matters, extends over all perſons of whatever denomination. The court therefore muſt be competent. And if ſo, every thing pleaded in way of defence muſt alſo come under the cogniſance of the ſame court, according to the modern rule, viz. that it is competent to judge of points proponed as a defence, to which the court is not competent in an original proceſs. 2do, With reſpect to the claim under conſideration, it is not competent before the court of exchequer, [352] but only before the court of ſeſſion. By the act 6to Ann. conſtituting the exchequer, the Barons are the ſole judges in all demands by the King upon his ſubjects, concerning the revenues of cuſtoms, exciſe, &c.; but they have no juriſdiction where the claim is at the inſtance of the ſubject againſt the King. And for that reaſon, the claims againſt the forfeited eſtates, are by ſtatute appointed to be determined by the court of ſeſſion.

HAVING ſaid what was thought proper upon courts, as diſtinguiſhed by the different cauſes appropriated to each, and as thereby different in kind; I proceed to conſider courts of the ſame kind, as diſtinguiſhed by territorial limits. The juriſdiction of a territorial judge extending over all perſons, and over all things within his territory, I ſhall firſt take under view perſonal actions, and thereafter thoſe that are real. With relation to the former, it is a rule, that Actor ſequitur forum rei. The [353] reaſon is, that the plaintiff muſt apply to that judge who hath authority over his party, and can oblige him to do his duty. This muſt be the judge of that territory, within which the party dwells, and has his ordinary reſidence. The inhabitants only, are ſubjected to a territorial judge, and not every perſon who may be found occaſionally within the territory. Such a perſon is ſubjected to the judge of the territory where his reſidence is; and it concerns the publick police, that juriſdictions be kept as diſtinct as poſſible. And as it may frequently be doubtful where the reſidence or domicil of a party is, a plain rule is eſtabliſhed in practice, That a man's domicil is conſtrued to be his lateſt reſidence for forty days before the citation. This however is not ſo ſtrictly underſtood, as that a man can have but one domicil. There is no inconſiſtency in his having at the ſame time different domicils; and, of conſequence, in his being equally ſubjected to different juriſdictions, [354] ſuppoſing theſe domicils to be ſituated in different territories*. It was accordingly judged, that a gentleman who had his country-houſe in the ſhire of Haddington, and at the ſame time lived frequently with his mother-in-law in Edinburgh, and had a ſeat in one of the churches there, was ſubjected to both juriſdictions. On the other hand, a man who has no certain domicil, muſt be ſubjected to that judge within whoſe territory he is found. This is commonly the caſe of ſoldiers; and hence the maxim, ‘"Miles ibi domicilium habere videtur, ubi meret, ſi nihil in patria poſſideat".’ In a reduction accordingly of a decree againſt a ſoldier, pronounced by the baillies of a town where the regiment was for the time, and he perſonally cited; it being urged that he was not forty days there, and therefore not ſubjected to the juriſdiction; the Lords conſidering, that [355] ſoldiers have no fixed dwelling, repelled the reaſons of reduction*.

To this rule, that Actor ſequitur forum rei, there are ſeveral exceptions, depending on circumſtances which entitle the claimant to cite his party to appear before the judge of a territory where the party hath not a reſidence. A covenant, a delict, nativity, have each of them this effect. A covenant beſtows a juriſdiction upon the judge of the territory where it is made, provided only the party be catched within the territory, and be cited there. The reaſon is, that if no other place for performance be ſpecified, it is implied in the covenant, that it ſhall be performed in the place where it is made; and it is natural to apply for redreſs to the judge of that territory where the failure happens, provided the party who fails be found there. For the ſame reaſon, if a certain place be named for performance, this [356] place only, is regarded, and not the place of the covenant; according to the maxim, ‘"Contraxiſſe unuſquiſque in eo loco intelligitur, in quo ut ſolveret ſe obligavit*."’ The court of ſeſſion, accordingly, though they reſuſed to ſuſtain themſelves judges betwixt two foreigners, with relation to a covenant made abroad, thought themſelves competent, where it was agreed the debt ſhould be paid in this country.

A criminal judge, in the ſame manner, hath a juriſdiction over all perſons committing delicts within his territory, provided the delinquent be found within the territory, and be cited there, or be ſent there by the authority of a magiſtrate to whom he is ſubjected ratione domicilii . Nor can the delinquent decline the court, upon a pretext which in ordinary caſes would be ſufficient, viz. that he hath not a domicil within the territory, nor hath reſided there [357] forty days*. This matter is carried ſo far, as that the forum delicti is reckoned preferable to that of the domicil; according to a maxim, That crimes ought to be tried and puniſhed where they are committed; and that a judge hath no concern with any crime but what is committed within his own territory. Hence it is, that a baron having unlawed his tenant for blood, the decree was declared null, and that the matter ſtood entire to be tried by the ſheriff; becauſe the fact was not done upon the baron's ground; nor did the party hurt, live within his territory; nor did he make his complaint there. In like manner, the Lords turned into a libel, the decree of an inferior court, fining a party for a riot committed in a different territory. In theſe caſes the proſecution was at the inſtance of the procurator-fiſcal. But where the party injured is the proſecutor, I ſee no reaſon [358] why he may not have his choice of either forum, viz. of the delict, or of the delinquent*.

WITH relation to juriſdiction, civil, criminal, and eccleſiaſtical, I have had occaſion to obſerve, how ſtrictly each court was confined originally within its own province. The ſame way of thinking obtained, with relation to territorial juriſdiction. It was not ſufficient to found an action, that the defendant lived within the territory: if the cauſe of action did not alſo ariſe within the territory, the judge was not competent. In remedying diſorders and inconveniencies, men ſeldom are moderate enough to confine themſelves within proper bounds. The juriſdiction exerciſed by chieftains over their own people was found to be ſo inconvenient, eſpecially after different clans came to be mingled together by blood and commerce, that in reforming the abuſe, we were naturally carried to the oppoſite extreme, by [359] confining judges within the ſtricteſt limits, with reſpect to territory as well as cauſes. And indeed, in eſtabliſhing territorial juriſdiction, the thought was natural, that it is the duty of every judge to watch over the inhabitants of his territory, and to regulate their conduct and behaviour while ſubjected to his authority; but that he hath no concern with what is done in another territory. This I ſay is a thought which figures extremely well in theory; and might likewiſe anſwer tolerably well in practice, while men were in a good meaſure ſtationary, and their commercial dealings confined to the neighbourhood. But it became altogether impracticable, after men were put in motion by extenſive commerce. The impediment to the diſtribution of juſtice, occaſioned by this narrow and confined principle of the common law, was in England ſoon perceived, and an early remedy provided. The court of the conſtable and mariſhal was eſtabliſhed for trying all actions founded upon contracts, delicts, [360] or other facts, that had their exiſtence in foreign parts; and as the common law of England did not reach ſuch caſes, theſe actions were tried jure gentium. This court was much frequented while the Engliſh continued to have a footing in France. After they were forced to abandon their conqueſts there, this court, by want of buſineſs, dwindled away to nothing. To ſupport a court with ſo little proſpect of buſineſs, was thought unneceſſary; and a contrivance was found out, to bring before the courts of Weſtminſter, the few cauſes of this nature that occurred. A fiction is an admirable reſource for lawyers, in all matters of difficulty. The cauſe of action is ſet forth in the declaration, as having happened in ſome particular place within England. It is not incumbent upon the purſuer to prove this fact, nor is it lawful for the defendant to traverſe it*. But inferior courts enjoy not the privilege of this [361] fiction; and therefore in England, to this day, an inferior court is not competent in any proceſs, where the cauſe of action doth not ariſe within the territory of that court*. It is not enough that the party againſt whom the claim lyes is ſubjected perſonally to the juriſdiction. And if he retire into foreign parts, there is no power by the common law to cite him to appear before any court in England. There is not in the practice of England any form of a citation, reſembling ours at the market-croſs of Edinburgh, pier and ſhore of Leith.

WE probably had once the ſame ſtrict way of thinking with reſpect to territorial judges: but in later times we have relaxed greatly and uſefully from ſuch confined notions. [362] As to an action of debt, for example, what can it ſignify, in point of juriſdiction, where the cauſe of action aroſe? This circumſtance therefore is quite diſregarded. If the party againſt whom the claim lyes, be ſubjected perſonally to the court, we reckon the juriſdiction well founded. Crimes indeed admit of a different conſideration. A judge or magiſtrate muſt preſerve the peace within his own territory; but reckons himſelf not concerned with crimes committed any where elſe. Upon this account, there cannot regularly be a proſecution for a crime at the inſtance of the publick, but before that judge within whoſe territory the crime was committed. But, as above ſuggeſted, where the proſecution is at the inſtance of the party injured, he may, if he chuſe, bring the proſecution before that judge to whom the delinquent is ſubjected ratione domicilii. Such proſecution being chiefly intended to gratify the reſentment of the party injured, it naturally belongs to him to chuſe the forum.

[363] I proceed to the third exception, viz. that of nativity; and in what caſes this makes a forum, deſerves peculiar attention; becauſe writers ſeem not to have any accurate notions about it. Juriſdiction was of old, for the moſt part, perſonal, founded upon the clan-connection; every perſon belonging to a clan, being ſubjected to the juriſdiction of the chieftain, and to none elſe. While ſuch was the law, nativity or the locus originis, was the only circumſtance that founded a juriſdiction. Commerce gave a new turn to this matter, by the connections it formed among different nations, and by the confluence it produced in places of trade from all different countries. The clan-juriſdiction becoming by theſe means inexplicable, gave place to territorial juriſdiction; after which the locus originis became a mighty ſlight affair. The law of nations indulges individuals to change their country, and to fix their reſidence where they can find better bread than at home. Such migrations are frequent in all trading countries; [364] and it would be unreaſonable to ſubject a man to the laws of his native country, after he has deſerted it, and is perhaps naturalized in the country where he is ſettled for life. It is indeed not an abſurd rule, that, even in this caſe, the duty he owes to his native country, ought to reſtrain him from carrying arms againſt it; and I obſerve, that this has been reckoned the law of nations. But ſuppoſing him ſo far bound, it is a much wider ſtep, to ſubject him to the courts of his native country, where he has no reſidence, where he has no effects, and to which he has no intention ever to return. I might add, were it neceſſary, that the effect of nativity even with regard to treaſon, is at preſent ſcarce thought rational, without other circumſtances to ſupport it; and that it is a puniſhment too ſevere, to put to death as guilty of high treaſon the ſubjects of a foreign prince taken in war, merely becauſe they were born in the country where they are priſoners. Voet* cites many authorities [365] to prove, that birth ſingly doth not produce a forum competens, excepto ſolo majeſtatis crimine. And therefore, upon the whole, the following concluſion ſeems to be well founded, That nativity, with reſpect to the preſent ſubject, ſtands upon the preciſe ſame footing with contracts and delicts; and that like the locus contractus, and locus delicti, the locus originis will found a juriſdiction, provided only the party be found within the terriritory. None of them have any other effect, than to exclude the privilege of a domicil, and to ſubject the party to a juriſdiction where he hath not a reſidence*.

[366] I am aware, that in practice actions are commonly ſuſtained againſt natives of this country, even when they are abroad animo remanendi; and in this caſe that an edictal citation at the market-croſs of Edinburgh, pier and ſhore of Leith, is held ſufficient. It is not however poſitively aſſerted, that ſuch perſons, like inhabitants, are ſubjected to the courts of this country. The pretext commonly is, that the decree is intended for no other purpoſe, than to attach the debtor's effects in Scotland, and his perſon when he ſhall happen to be found in his native country. Several of theſe caſes, which cannot be juſtified by principles, are collected in the dictionary*. So much appears from them, that the court of ſeſſion did not pretend to aſſume a juriſdiction over the ſubjects of a foreign prince, upon account ſingly of their being natives of Scotland; and that, in order to found ſuch juriſdiction, it was neceſſary to have ſome reference to effects ſituated here, either really [367] or by ſuppoſition. But there is no accuracy in this way of thinking. If nativity, ſingly conſidered, make a forum, the juriſdiction requires no ſupport from collateral circumſtances. If on the other hand, nativity ſingly make not a forum, no other circumſtance can be held ſufficient, unleſs actual preſence. Without this circumſtance the judge cannot give authority even to the firſt act of juriſdiction, viz. a citation. And therefore, all that can in this caſe be done, is to proceed as againſt foreigners whoſe effects are found within Scotland.

THE foregoing exceptions to the rule of law quod actor ſequitur forum rei, are conſtraints upon the defendant, by obliging him to anſwer in another juriſdiction than where he has fixed his reſidence. Prorogation of juriſdiction, is an exception of a different nature, for it puts the party under no conſtraint. Where a man is called before an incompetent court, he may offer a declinator; and it is only in caſe he forbear [368] to make this objection, that the decree is held good againſt him, upon his actual or ſuppoſed acquieſcence in the juriſdiction. How far and in what caſes ſuch prorogation can have effect, is not clearly laid down by our writers. Lawyers are apt to be miſled, by following implicitely what is ſaid in the Roman law upon this ſubject. For theſe reaſons, I ſhall handle the ſubject at large, and endeavour to fix, the beſt way I can, how far decrees are by our law effectual, upon the footing merely of prorogation. This ſubject is treated by the Roman lawyers with great accuracy*. The words are: ‘"Si ſe ſubjiciant alicui juriſdictioni et conſentiant; inter conſentientes, eujuſvis judicis qui tribunali praeeſt, vel aliam juriſdictionem habet, eſt juriſdictio."’ Thus, though conſent, by the Roman law, cannot make a man a judge, who is not otherwiſe a judge, it has however the effect, to beſtow upon a judge a new juriſdiction, and to enable him to determine in a caſe, to which, [369] abſtracting from conſent, he is altogether incompetent. Upon this principle, a civil judge may determine in a criminal matter, a criminal judge in a matter that is civil, and a judge, whoſe juriſdiction is limited with reſpect to ſums, may give judgment without limitation*. And hence the doctrine laid down by commentators, may be eaſily underſtood. They mention four different ways, by which a juriſdiction may be limited. It may be limited as to time, as to place, as to perſons, and as to cauſes. With reſpect to the two firſt, it is evident from the law above cited, that juriſdiction cannot be prorogated. A judge after his commiſſion is at an end, has no manner of juriſdiction; and as little juriſdiction has he, beyond the bounds of his territory. But as to perſons and cauſes the matter is otherwiſe. For though conſent cannot advance a private man to be a judge; yet, ſuppoſing him once a judge, conſent will, in the Roman law, enable him to pronounce ſentence againſt [370] a perſon not otherwiſe ſubjected to his juriſdiction, and in a cauſe where he has no original juriſdiction.

OUR law, with relation to perſons, is the ſame. For though it be a rule in both laws, that the authority of a judge is confined within his territory, and that no perſon living in another territory is bound to obey his ſummons, yet by our law, as well as that of the Romans, if a man cited irregularly chuſe to appear, or if he appear without citation, and ſubmit to the judge, by pleading defences as if he were regularly cited, the juriſdiction is thereby prorogated, and the decree hath its full effect. But with reſpect to cauſes, our law differs widely. A civil cauſe brought before the juſticiary or exchequer, will not produce an effectual decree, even with the expreſs conſent of the defendant. In like manner, if a proceſs for contravention of laburrows, which is peculiar to the court of ſeſſion, be brought before an inferior court, the acquieſcence [371] of the defendant, ſubmitting to the juriſdiction, and pleading defences, will not prorogate the juriſdiction. The decree is null by way of exception*. And the like judgment was given with reſpect to an extraordinary proceſs of removing, founded on the leſſee's failure to pay his rent. With reſpect to cauſes of this nature, where the judge is incompetent, it is a rule with us, That conſent alone cannot found a juriſdiction, nor impower the judge to give ſentence. Cauſes againſt members of the college of juſtice, when ſued before an inferior court, are not an exception from this rule. It is the privilege of this body, to have every civil action againſt them tried in the court of ſeſſion; and the defendant may advocate upon his privilege, if he chuſe not to ſubmit to the inferior judge. Acquieſcence however in the inferior judge, is not a prorogation of juriſdiction, but merely waving a privilege; for a court which hath [372] a radical juriſdiction, ſtands in no need of a prorogation to eſtabliſh its authority. An action of debt, for example, is competent before the ſheriff, againſt every inhabitant within his territory, not excepting members of the college of juſtice. The only difference is, that theſe enjoy the peculiar privilege of removing the cauſe, if they think proper, to the court of ſeſſion. But if they chuſe not to uſe their privilege, the ſheriff goes on againſt them as againſt others, by virtue of his original juriſdiction. The ſame is preciſely the caſe of the judge admiral, with relation to mercantile cauſes. Theſe are not contained in his charter; but in theſe however he hath obtained a juriſdiction by preſcription; not ſo perfectly indeed, as to oblige any one to ſubmit to this aſſumed juriſdiction. If they ſubmit, the decree will be effectual; and even a decree in abſence will be effectual. But a defendant who chuſes not to ſubmit to ſuch juriſdiction, may bring the cauſe before the court of ſeſſion by advocation, ſingly upon [373] privilege, without being obliged to aſſign any other reaſon.

HAVING diſcuſſed perſonal actions, which, with relation to territorial juriſdiction, are firſt in order, I proceed to real actions. A real action is, where the concluſion of the declaration or libel reſpects things only, and not perſons; as, for example, a declarator of property or ſervitude, a declarator of marches, and ſuch like. And the queſtion is, What is the proper court for trying ſuch cauſes, when the ſubject or thing is locally within one territory, and the poſſeſſor within another? This is not an intricate queſtion. The anſwer obviouſly is, That where the concluſion regards the ſubject, that judge muſt be choſen who hath authority over it, viz. the judge of that territory where it is ſituated; for territorial juriſdiction, undoubtedly, is connected with things as well as with perſons. But then a difficulty occurs in this caſe. The poſſeſſor ought, in common juſtice, to be called, in [374] order to defend his intereſt; and yet he cannot be ſummoned by a judge within whoſe territory he reſides not. My notion in this matter may, I am afraid, appear ſingular. I acknowledge, that thoſe perſons only who have a domicil within the territory, are ſubjected to the authority of the court; and that it is in vain for a judge to command any thing to be done or forborn, by a perſon who is not under his authority. Such perſon cannot even be cited to appear in court; becauſe no perſon is bound to obey the commands of a judge, who hath no authority over him. The matter, however, is not without a remedy. Inſtead of a citation, which implies juriſdiction, why may not an intimation or notification ſuffice, in a caſe where there is no perſonal concluſion againſt the party*. Such notification may be given by any one, and in particular by a judge. Such notification withal, in point of material juſtice, is equivalent [375] to a regular citation; becauſe it hath all the advantages of a citation, by affording the party full opportunity to defend his own intereſt. If this form of proceſs be unexceptionable in point of rationality, it is in a good meaſure neceſſary in point of expediency. For how otherwiſe ſhall any real claim be made effectual, where the antagoniſt and the ſubject in debate are not both within the ſame territory? If I ſhall follow the domicil of my party, a decree againſt him may be a foundation for damages, but will not put me in poſſeſſion of the ſubject. This branch of my claim cannot by any other judge be made effectual to me, than by the judge of the territory where the ſubject locally exiſts. From this hint, it is evident, that if a notification be not ſufficient, the ſupreme court muſt be applied to in every caſe of this nature, which would be a great defect in publick police. Nor, if a citation were neceſſary, would even this in all caſes be an effectual remedy; for what if my party be abroad animo remanendi, [376] or perhaps a foreigner? In this caſe, there is no reſource but the notification; and in this caſe, luckily for my argument, the notification is held ſufficient. The proceſs I have in my eye, is that which commonly paſſes under the name of arreſtment juriſdictionis fundandae gratia. The judge within whoſe territory the goods of a foreign debtor are, having a juriſdiction over theſe goods, though not over the proprietor, can adjudge them to a creditor for his payment. In this proceſs of adjudication or forthcoming, the perſon in whoſe hands the goods are found, is truſted with the notification; though, in my apprehenſion, the proceſs would be more regular, and more ſolemn, were the notification directed by authority of the court. This proceſs, when it reſpects moveables, is generally preceded by an arreſtment of the goods, in order to prevent their being withdrawn and carried out of the territory; and as by this means the juriſdiction is ſecured, the arreſtment in that view is termed an arreſtment juriſdictionis [377] fundandae gratia; improperly indeed. The arreſtment, ſo far from founding the juriſdiction, ſuppoſes the juriſdiction antecedently founded; for by what authority could the arreſtment be uſed, if the goods were not already ſubjected to the juriſdiction? And ſo little eſſential is an arreſtment to this proceſs, that if the creditor rely upon the perſon in whoſe hands the goods are, he may carry on the proceſs to its final iſſue, without uſing an arreſtment.

IN following out any real action, where the diſpute is with one of our own country who reſides not within the juriſdiction, I ſee no good cauſe why the form now mentioned may not be uſed as well as in the caſe of foreigners. And I muſt obſerve, that we approach extremely near to this form, by obtaining the interpoſition of the court of ſeſſion, or rather of the King, for citing the party to appear within the juriſdiction where the ſubject lyes. The warrant for citation, in this caſe, is termed a letter of [378] ſupplement, which is never given in a perſonal action; for there the rule obtains, Quod actor ſequitur forum rei. And it appears to me, that this form of a letter of ſupplement has crept in, not from neceſſity, becauſe I hold a private notification to be ſufficient, but from the prepoſſeſſion of cuſtom; a regular citation, as the firſt ſtep of proceſs, being ſo general, as to be thought neceſſary in all caſes. Cuſtom is ſo naturally productive of a bias, and takes ſo firm hold of the mind, that it requires the utmoſt fortitude of reaſon to overcome it. Were I not afraid of refining too much, I would venture to ſay further, that every inhabitant in Scotland, being in civil cauſes ſubjected to the juriſdiction of the court of ſeſſion, is bound to appear there when regularly called. But I deny their ſubjection to be ſuch, as to put it in the power of this court, to oblige them to appear in any court to which they are not ſubjected. If my creditor ſhall bring a proceſs againſt me for payment before a ſheriff, within whoſe territory [379] I have no reſidence, the court of ſeſſion cannot give warrant for a letter of ſupplement to oblige me to defend myſelf there; and were my preſence equally neceſſary in a real action, a letter of ſupplement could not be iſſued in a real action more than in one that is perſonal. But my preſence is not neceſſary, where there is no perſonal concluſion againſt me. Common juſtice indeed requires a notification; and the deſign of a letter of ſupplement is not to be a warrant for citation, but only for notification.

To view this matter in its different circumſtances, we ſhall invert the caſe, by ſuppoſing the debtor to be within the juriſdiction, and not his effects. Upon a minute of ſale of land, the vender is ſued within the ſheriffdom where he reſides, to grant a diſpoſition. Damages may be awarded for not fulfilling the covenant, but the land cannot be adjudged to the purſuer, becauſe it is not under the ſheriff's juriſdiction. [380] The ſheriff hath, by preſcription, obtained a privilege of pronouncing a decree of adjudication contra hereditatem jacentem: but if the real eſtate be not locally within his territory, he cannot pronounce ſuch a decree. Hence in this matter a remarkable difference appears, betwixt a judicial transference of property or any real decerniture, and a perſonal decerniture reſpecting a particular ſubject. The former is ultra vires where the ſubject is not locally within the territory: not ſo the latter; for it is enough that the defendant have his reſidence within the territory. A judge may interpoſe his authority, and command the defendant to fulfil his bargain, by conveying land or moveables to the purſuer. To found the judge's authority in this caſe, it is not neceſſary that the ſubject be locally within the territory. But what if after all the defendant be refractory? The judge may puniſh him with impriſonment, or condemn him in damages. There the judge muſt ſtop ſhort; for he has no [381] authority over the ſubject. Upon this footing, a burgeſs of Edinburgh ſuing a brother burgeſs in the town-court, to remove from certain lands extra territorium, the Lords thought the proceſs regular*. And upon the ſame footing, a Scotſman being convened before the court of ſeſſion, for forging a title to a land-eſtate in Ireland, the court tried the forgery, becauſe the defendant was ſubjected to their juriſdiction; and the forgery being proved, the forged deed was ordained to be cancelled. A debtor, within threeſcore days of his notour bankruptcy, goes to England with a favourite creditor, and there aſſigns to him, for his ſecurity and payment, a number of Engliſh debts. In a reduction upon the act 1696, againſt the aſſignee, he pleads, that the court of ſeſſion hath no juriſdiction over Engliſh debtors, and that this court cannot reduce an aſſignment which conveys ſubjects not under [382] its juriſdiction. According to the principles above laid down, the following anſwer appears to be good, That it was wrong in the aſſignee to concur with the bankrupt, in a ſtratagem to defraud the other creditors, who, in the caſe of bankruptcy, are each entitled to a proportion of the debtor's effects; that the aſſignee is ſubjected to the court of ſeſſion, and to their orders, and that it is the duty of the court, to ordain the aſſignee to make over to the creditors the debts in queſtion, in order to an equal diſtribution; or rather to ſubject him to the creditors for a ſum equivalent to theſe debts, deducting what of theſe debts he ſhall convey to the creditors within a limited time.

IN the beginning of this diſcourſe, I have given a ſketch of the different powers of our ſupreme courts, with reſpect to cauſes. Upon the preſent head it is proper to be obſerved, that theſe courts are alſo, in ſome meaſure, diſtinguiſhed with reſpect to territory. [383] The territorial juriſdictions of the juſticiary and exchequer are not confined to land, but reach over all friths, and alſo over the ſea adjoining to the land. Theſe juriſdictions reach over Scotland; and the portions of water now mentioned are conconceived to make part of Scotland. The juriſdiction of the court of ſeſſion is not leſs extenſive, conſidered as territorial; and it enjoys beſides a juriſdiction over all the natives of Scotland wherever exiſting, provided they have not deſerted their native country, but are abroad occaſionally only*. The admiral court again hath a juriſdiction with regard to all maritime and ſea-faring matters, civil and criminal, happening in whatever part of the world, provided the perſon againſt whom the complaint, civil or criminal, is laid, be found in this country.

ADVANCING to our courts conſidered as ſuperior and inferior, I begin with obſerving, that the common method of ſeeking [384] redreſs of injuſtice done by an inferior court, is by appealing to one that is ſuperior. That this particularly was the method in Scotland, is clear from our moſt ancient law-books. It is laid down, ‘"That a party may appeal from one court to another, as oft as judgment is given againſt him, finding borghs lawful for every doom gainſaid; from court to court; till it be decided for or againſt him in parliament; from which no appeal can be made; becauſe it is the higheſt court, and ordained for redreſſing wrongs done by all inferior courts*."’ An appeal lay from the ſentence of a baron or freeholder to the ſheriff; and from the ſentence of magiſtrates within burgh to the chamberlain; from the ſheriff and chamberlain to the King's juſticiar; and from him, not to the parliament, as originally, but to thirty or forty perſons named by his majeſty, with parliamentary powers to diſcuſs the appeal.

[385] THIS method for obtaining redreſs of wrong judgment, hath in Scotland gone into diſuſe, excepting an appeal to the Britiſh houſe of Lords from the ſovereign courts; and to the higher eccleſiaſtical courts from thoſe that are inferior. What was the cauſe of this innovation? We have the authority of Stair*, that after the inſtitution of the college of juſtice, appeals gave place to advocations, ſuſpenſions, and reductions. But by what means, and after what manner? Appeals are not diſcharged by any ſtatute; and being interpoſed at the will of thoſe who conceive themſelves wronged, are too obſequious to the paſſions and prejudices of mankind, to be tamely ſurrendered. We are here left in the dark by our writers. I ſhall endeavour however to trace this matter the beſt way I can; ſupplying the want of poſitive facts by rational conjecture.

[386] IN order to talk with the greater perſpicuity, I find it neceſſary to premiſe a hiſtorical account of the ſupreme courts, that in this country have ſucceſſively been eſtabliſhed for civil cauſes. Through moſt of the European nations, at a certain period of their hiſtory, the King and council compoſed the only ſupreme civil court, in which all cauſes were tried that came not under the juriſdiction of inferior courts. But it muſt be remarked, that, in Scotland at leaſt, this was not a court of appeal; for, as above obſerved, cauſes originally were removed by appeal from the King's juſticiary to the parliament, and thereafter to perſons appointed by the King with parliamentary powers. This court, compoſed of the King and council, having no continuance, nor regular times of meeting and diſtributing juſtice, was extremely inconvenient; and it greatly heightened the inconvenience, that the King who preſided, being involved in the greater affairs of government, had little time or inclination for deciding in [387] private affairs. This made it neceſſary to eſtabliſh regular courts for different cauſes; having appointed terms of ſufficient length for all matters that ſhould come before them. Thus in England, the King's bench, the exchequer, and the court of common pleas, aroſe out of the ſaid court, and were all fully eſtabliſhed in the reign of Edward I. We did not ſoon apply ſo effectual a remedy. The firſt thought that occurred to our legiſlature, was to relieve the King and council, by ſubſtituting in their place the court of ſeſſion*, to ſit three times in the year, in order ‘"finally to determine all and ſundry complaints, cauſes, and quarrels that may be determined before the King and his council."’ This court acted but forty days at a time; and the members, who ſerved by rotation, were ſo numerous, that the round was ſeldom compleated in leſs time than ſeven years. This court was far from being a compleat remedy. Its members and its place of ſitting [388] were changeable; and its terms were too ſhort for expediting buſineſs. The next attempt to remedy the inconveniencies of the former courts, was the daily council, erected by the act 58. p. 1503. The ſtatute, after narrating the great delay of juſtice, occaſioned by the ſhort terms of the ſeſſion, and their want of time to finiſh cauſes, appoints a council to be choſen by the King, to ſit continually in Edinburgh the year round, or where elſe it ſhall pleaſe the King to appoint, to determine all cauſes that were formerly competent before the ſeſſion. This court, called The Daily Council, from their ſitting daily through the year, was alſo defective in its conſtitution, having no quorum named, nor any compulſion upon the judges to attend. The ſame cauſes paſſing through the hands of different judges at different times, was a great impediment to the regular adminiſtration of juſtice. In a politic body of judges, there is not a greater diſeaſe than a fluctuation of the members. This court accordingly [389] was ſoon laid aſide, to make way for the court of council and ſeſſion, eſtabliſhed in anno 1532, in the ſame form that at preſent ſubſiſts, having ſtated terms of a reaſonable endurance, and a certain number of judges, who all of them are tied to a punctual attendance.

TO return to appeals, I remark, that an appeal was competent againſt an interlocutory as well as againſt a definitive ſentence*; which behoved to be extremely vexatious, by putting it in the power of the defendant to prolong a cauſe without end. Let us only figure a civil action furniſhing exceptions partly dilatory and partly peremptory, to the amount of half a dozen, which is no bold ſuppoſition; and let us obſerve what may follow. In an appeal the aſcent behoved to be gradual to the court next in order; and there was not acceſs to the court in the laſt reſort, unleſs redreſs was denied by each of the intermediate [390] courts. Thus, from the ſentence of a baron court, or of the baillie court in a royal burrow, there behoved to be no fewer than three appeals in order to obtain the judgment of the parliament, or of the court of appeal put in place of the parliament. Hence each of the exceptions above ſuppoſed, might occaſion no fewer than three appeals; and conſequently there might be eighteen appeals in this cauſe before a final determination; a moſt admirable device to give full ſcope to a ſpirit of litigioſity, which, by all wiſe men, came to be deemed an intolerable grievance. The firſt attempt I find made for redreſs, is in the act 105. p. 1487, beſtowing a privilege upon thoſe who are hurt by the partiality of inferior judges, ‘"to ſummon before the King and council, the judge and party, who ſhall be bound to bring the rolls of court along with them in order to verify the matters of fact: and if iniquity be committed, the proceſs ſhall be reduced and annulled."’ It is declared at the ſame time, [391] that this method of obtaining redreſs, ſhall not exclude the ordinary proceſs of appeal, if it ſhall be more agreeable to the party aggrieved. This regulation is declared to endure till the next parliament only. But though we do not find it renewed in any following parliament, it would be raſh to infer that it was laid aſide. If it was reliſhed by the nation, which we have great reaſon to believe, it is more natural to infer, that it was kept in obſervance without a ſtatute. One thing appears from the records of the daily council ſtill preſerved, that very early after the inſtitution of this court, complaints were received againſt the proceedings and decrees of inferior judges, and, upon iniquity found, that the proceedings were rectified or annulled. The very nature and conſtitution of this court, behoved to give birth to ſome ſuch remedy; eſpecially as the remedy was not altogether new. This court could not receive an appeal, becauſe no ſuch privilege was beſtowed upon it; and the whole forms of a proceſs [392] of appeal, were accurately adjuſted by parliament immediately after the inſtitution of this court*. Now, no man who had once experienced an eaſier remedy, would ever patiently ſubmit to the hardſhip and expence, of multiplying appeals through different courts, before he could get his cauſe determined in the laſt reſort. We may therefore readily believe, that a direct application to the daily council for redreſs, would be the choice of every man who conceived injuſtice to be done him by an inferior judge. He could not bring his cauſe before this court by appeal; which juſtified his bringing it by ſummons or complaint. And in this form he had not any difficulty to ſtruggle with, more than in an appeal; for the former requires no antecedent authority from the court, more than the latter. This aſſumed power of reviewing the decrees of inferior judges, was ſoon improved into a more regular form. Decrees of regiſtration were from the beginning ſuſpended [393] and reduced in this court; and by its very inſtitution it was the proper court for ſuch matters. The ſame method came to be followed, in redreſſing iniquity committed by inferior judges. In place of a complaint, a regular proceſs of reduction was brought; and becauſe this proceſs did not ſtay execution, the defect was ſupplied by a ſuſpenſion.

HERE then is a matter fairly accounted for, which ſeems to have puzzled our antiquaries, viz. How it comes that we hear not of appeals after the inſtitution of the college of juſtice. Stair, in the paſſage cited above, ſays ſlighty, That after the inſtitution of this college, they fell in deſuetude, and gave place to advocations, ſuſpenſions and reductions. We now find this to be a miſtake. And indeed had they not been antecedently in diſuſe, it would be difficult to account how it ſhould have happened, that in none of the records, relative to the inſtitution of this court, is there a [394] ſingle word of appeals. On the contrary, in the very firſt form of proceſs eſtabliſhed for this court, we find reductions of inferior decrees among thoſe proceſſes, which are to be called in a certain order*.

IT may be obſerved by the way, that this proceſs of reduction, firſt practiſed in the daily council, and afterwards in the preſent court of ſeſſion, put an end to the difference betwixt the ſheriff and baron courts in point of ſuperiority. When appeals went into diſuſe, the ſheriff loſt his power of reviewing the ſentences of the baron court; and theſe courts came by degrees to be conſidered as of equal rank, when the proceedings of both were equally ſubjected to the review of the court of ſeſſion.

THE redreſs of wrong judgment by appealing to a ſuperior court, is undoubtedly the more natural remedy; becauſe, in caſe [395] of variance, it reſembles in private life an appeal to a common friend, or to a neutral perſon. But reductions and ſuſpenſions have more the air of a compleat legal police. Theſe actions proceed upon authority of letters from the King, who, by the form of the action, is conceived to be watchful over the welfare of his people, and attentive that juſtice be done them. In this view, whenever an act of injuſtice is done by an inferior court, he brings the cauſe before his own court, where he is more confident that juſtice will be impartially diſtributed.

THE connection of the ſubjects leads me to the hiſtory of an advocation, or of a Certiorari, as termed in England, which at any rate muſt not be neglected; being the form for redreſſing iniquity committed by an inferior judge, before the final ſentence is pronounced. An advocation originally was not granted but for a delay or refuſal of juſtice. So ſays Voet in expreſs terms*. And that [396] this alſo was the uſe of an advocation here, appears from Reg. Maj. L. 3. cap. 20, 21. The King and council was at firſt the only court that had the privilege of advocating cauſes ob denegatam juſtitiam. This privilege was not communicated to the court of ſeſſion inſtituted in the 1425; for it appears from act 62. p. 1457, that the court of ſeſſion was confined to original actions founded on brieves; and complaints againſt judges for delay of juſtice, continued as formerly to be tried before the King and council, act 26. p. 1469, act 62. p. 1475. From the former of theſe it appears, that, upon a complaint of injuſtice or partiality, letters of advocation were iſſued to bring the judge before the King and council, to anſwer to the complaint, and to puniſh him if the complaint was verified. But as to the cauſe itſelf, ſo ſtrictly was the rule obſerved of confining an advocation to the denial or delay of juſtice, that the party wronged got in this caſe no redreſs; being left to ſeek redreſs in the ordinary form of [397] law by an appeal. Matters of government, by the increaſe of commerce and connections with foreign ſtates, becoming gradually more intricate and involved, the adminiſtration of juſtice by the King and council, came to be pretty much neglected. The privilege of advocation, which had been denied to the court of ſeſſion, was permitted to the daily council; but ſtill to be exerciſed within its original limits. Balfour* mentions a caſe ſo late as the 1531, where it was decided, that after litiſconteſtation a cauſe could not be advocated; for litiſconteſtation removed any pretext of a complaint for delay of juſtice. But the preſent court of ſeſſion begun early to apply the remedy of an advocation, to correct unjuſt or irregular proceedings in inferior courts, termed Iniquity in the law-language of Scotland. An appeal by this time was in diſrepute; and ſeeing it was eſtabliſhed, that iniquity could be redreſſed by a reduction after a final ſentence, it was thought [398] natural to prevent an unjuſt ſentence, by advocating the cauſe, whenever iniquity was committed, in order inſtantly to redreſs the wrong. And the court was encouraged to proceed in this manner, from a juſt conviction, that it was a ſhorter and leſs expenſive method of obtaining redreſs, than by an appeal. Thus it came about, that an advocation, invented as a remedy for delay of juſtice, was extended to remove cauſes to the court of ſeſſion, where there was any ſuſpicion of partiality in the inferior judge, or where there occurred any perſonal objection, till it obtained, that iniquity ſingly was a ſufficient ground. This change, however beneficial to the publick, was not allowed to take place without oppoſition. The improvement, it would appear, was not at firſt reliſhed by our legiſlature. It was ordained by the act 39. p. 1555, ‘"That cauſes be not advocated by the Lords from the judge ordinary, except for deadly feud, or where the judge is a party, or the cauſes of the [399] Lords of ſeſſion, their advocates, ſcribes, and members."’ But this ſtatute occaſioned by the ſtill remaining influence of former practice, having no great authority, ſoon ſlipt into diſuſe. Advocations upon iniquity gaining ground daily, baniſhed appeals againſt interlocutory ſentences; and being more eaſy and expeditious, became the only remedy.

AFTER appeals were laid aſide in civil actions, and gave place to advocations, reductions and ſuſpenſions, the power of advocation was for many years reckoned an extraordinary privilege, competent to the court of ſeſſion only. Stair obſerves*, ‘"That no court in Scotland has this privilege but the court of ſeſſion."’ It was undoubtedly ſo in his time; but matters have ſince taken a different turn. The court of juſticiary enjoys this privilege, and even the admiral court; and from the following hiſtorical deduction, it will appear by what [400] means theſe courts have extended their privileges. The writ of Certiorari in England, is the ſame with our advocation. The court of chancery being the ſupreme civil court, and the King's bench being the ſupreme criminal court, can both of them iſſue a certiorari. No other court in England enjoys this privilege. Some method for redreſſing iniquity committed by an inferior judge, is not leſs neceſſary in criminal than in civil actions. The only difference is, that in a criminal action the remedy muſt be applied, before the matter be brought before the jury; for we ſhall ſee by and by that a verdict is inviolable. An appeal to a ſuperior court, was originally the only method, in criminal as well as in civil actions. The inconveniencies of this method, rendered it generally unpopular. We have heard that it gave way to advocation in civil cauſes, which was reckoned a great improvement. The practice of England ſhowed the advantages of the ſame method in criminal cauſes. But how to come at [401] this remedy, was a matter of no ſmall difficulty. The privilege of advocation, according to the eſtabliſhed notion, was confined to the court of ſeſſion. The juſticiary court did not pretend to this privilege, and the court of ſeſſion could not properly interpoſe in matters which belonged to another ſupreme court. The known advantages of an advocation, as an expeditious method for obtaining redreſs of wrong judgment, ſurmounted this difficulty. The court of ſeſſion received complaints of wrong done by inferior criminal judges, and upon finding a complaint well founded, took upon them to remove the cauſe by advocation to the juſticiary. They alſo ventured to remove criminal cauſes from one court, to another that was more competent and unſuſpeccted*. The ſlight figure made in thoſe days, by the court of juſticiary which conſiſted but of a ſingle judge, with aſſeſſors [402] choſen from time to time to hold circuit courts, encouraged the court of ſeſſion to claim this extraordinary privilege. And through the ſame influence they interpoſed in eccleſiaſtical matters alſo. They advocated a cauſe for church cenſure, from the Dean of the chappel-royal, and remitted the ſame to the Biſhop and clergy*. And a miniſter who was purſued before a ſheriff as an intruder into a church, having preſented a bill of advocation to the court of ſeſſion, the cauſe was advocated to the privy council.

THE court of juſticiary, after it was new modeled by the act 1672, received additional ſplendor, and made a much greater figure than formerly. It did not however begin early to feel its own weight and importance. This court did not at firſt aſſume the privilege of advocation, though now that appeals were totally in diſuſe, that [403] privilege belonged to it as the ſupreme court in criminal actions, as well as to the court of ſeſſion in thoſe that are civil. The court of ſeſſion continued to exerciſe the power of advocation as formerly; for which we have Mackenzie's evidence in his criminals, title Advocations, and that of Dirleton in his doubts, upon the ſame title. But the court of juſticiary afterwards, took this privilege to itſelf, and the court hath a ſignet of its own, which gives authority to its advocations. This privilege, as is uſual, was aſſumed at firſt with ſome degree of heſitation. It was doubted, whether a ſingle judge could paſs an advocation, or even grant a ſiſt upon a bill of advocation. Some thought the matter of ſo great importance, as to require a quorum of the judges. But the practice of the court of ſeſſion, made this doubt vaniſh. There are many inſtances as early as the 1699 and 1700, of advocations being paſt by ſingle judges; and now it is no longer a matter of doubt. It remains only to be added upon this head, [404] that the judge admiral, following the example of the two ſupreme courts of ſeſſion and juſticiary, is in the practice of advocating cauſes to himſelf from inferior admiral courts.

THE privilege of advocation introduced that of ſuſpenſion, which is now cuſtomary in the court of juſticiary, with regard to any error in the proceedings of the inferior judge. This court, ſo far as I know, has never ſuſtained a reduction of a criminal ſentence pronounced by an inferior judge; and it appears to me doubtful, whether the court will ever be inclined to extend its juriſdiction ſo far. My reaſon of doubt is, that a regular proceſs of reduction is not proper for a court which hath no continuance, and which is held occaſionally only. And were it proper, the privilege would be of very little uſe. An error in an interlocutory ſentence of an inferior judge, may be corrected by an advocation. The execution of a ſentence of condemnation, may be prevented [405] by a ſuſpenſion. If the perſon accuſed be acquitted by the verdict of the jury, the matter cannot be brought under review by reduction. If he be diſmiſſed from the bar upon any informality in the proceſs, he is liable to a new proſecution. I can diſcover then no neceſſity for a reduction, except ſingly with regard to pecuniary matters, as where damages and expences are unjuſtly refuſed. If in ſuch caſes the court of ſeſſion could not interpoſe, it would be neceſſary for the court of juſticiary to undertake the reduction. But as the court of ſeſſion is reckoned competent to pecuniary matters, from whatever cauſe they ariſe, civil or criminal, the juſticiary court acts wiſely, in leaving ſuch reduction to the court of ſeſſion. This draws after it another conſequence by a natural connection. The court of ſeſſion, which by way of reduction, judges of fines, expences, and damages, refuſed in an inferior criminal court, aſſumes naturally the power to judge of the ſame articles by way of ſuſpenſion, when an exorbitant [406] ſum is given. Theſe conſiderations clearly lay open the foundation of a practice current in the court of ſeſſion. Of riots, batteries, and bloodwits, depending before the ſheriff or other inferior judge, no advocation is iſſued, becauſe the court hath not an original juriſdiction in ſuch matters. But as the puniſhment of ſuch delinquencies is commonly a pecuniary fine, the court of ſeſſion ſuſtains its juriſdiction in the ſecond inſtance by reduction or ſuſpenſion*. From what is now ſaid, it muſt follow, that the courts of ſeſſion and juſticiary, have in ſome particulars a cumulative juriſdiction. In a criminal proſecution before the ſheriff, the perſon accuſed is, for example, acquitted, and obtains immoderate expence againſt the proſecutor, without any good foundation. In this, and many caſes of the ſame kind which may be figured, the party aggrieved has his option to apply to either court for a ſuſpenſion.

[407] UPON the power of reviewing the proceedings of inferior courts, whetherbythe old form of appeal, or by the latter forms of advocation and reduction, what I have ſaid relates ſingly to iniquity committed by the judge. Iniquity alledged committed by a jury in giving their verdict, was reſerved to be handled ſeparately. In judging of proof, every thing ſworn by a witneſs in judgment, was held by our forefathers to be true, a poſition which indicates great integrity and ſimplicity of manners, but little knowledge of mankind. So far was this carried, that, till within a century and a half, a defendant was not ſuffered to alledge any fact contrary to thoſe contained in the declaration or libel. The reaſoning of our judges was to the following purpoſe. ‘"The purſuer hath undertaken to prove the facts mentioned in his libel. If he prove them, they muſt be true; and therefore any contradictory fact alledged by the defendant muſt be falſe."’ Hence the rule in our old law, That what is determined by an aſſize muſt [408] be held for truth, and cannot thereafter paſs to another aſſize. This is declared to be the rule in verdicts, even upon civil actions, Reg. Maj. L. 1. cap. 13. §. 3. Quon. attach. cap. 82. But in the ſervice of brieves not pleadable, ſuch as a brieve of inqueſt, of tutory, of idiocy, which may be carried on without waiting for a contradictor, it was found by experience, that the verdict is not always to be truſted. And therefore by the act 47. p. 1471, a remedy was provided, which was a complaint to the King and council of the falſehood or ignorance of the inqueſt; and if the verdict was found wrong, it was voided, and the parties concerned were reſtored to their original ſituation. The legiſlature did not venture upon any remedy, where the verdict proceeded upon a pleadable brieve. This was left upon the common law, which preſerves the verdict entire, even where it is proved to be iniquitous, being ſatisfied to keep jurymen to their duty by the terror of puniſhment. In a proceſs of error, they [409] were ſummoned before a great inqueſt, and, if found guilty of perjury, they were puniſhed with eſcheat of moveables, infamy, and a year's impriſonment*. This is a ſingular regulation, which deviates from juſt principles, and has not a parallel in the whole body of our law. It is both common and rational, to redreſs a wrong with relation to the party aggrieved, without proceeding to puniſh the wrong-doer, where he can excuſe or extenuate his fault. But it is not leſs uncommon than irrational, to puniſh a delinquent, without affording any relief to the party injured. However this be, the ſummons of error is limited to three years, not only where the purpoſe is to have the aſſizers puniſhed, but alſo as to the concluſion of annulling the verdict or its retour upon a brieve not pleadable. But the reduction of the verdict or retour, upon a brieve of inqueſt, was afterwards extended to twenty years. No verdict pronounced in a criminal [410] cauſe ever was reviewable. For though the jury ſhould be found guilty of perjury by a great aſſize, yet their verdict is declared to be res judicata, whether for or againſt the pannel*. So far as I can diſcover, the ſame rule obtained with regard to verdicts in civil caſes, retours alone excepted; and continued to be the rule till jury-trials in civil caſes were laid aſide.

AND as the diſuſe of jury-trials in civil cauſes, is another revolution in our law, not leſs memorable than that already handled concerning appeals, the connection of matter offers me a fair opportunity to trace the hiſtory of this revolution, and to diſcover, if I can, by what influence or by what means it has happened, that juries are no longer employed in civil actions, even where proof is requiſite. To throw all the light I can upon a dark part of the hiſtory of law, which is overlooked by all our writers, I muſt take the help of a maxim which [411] appears to have been adopted by our forefathers, and to have had a ſteady influence in the practice of law. The maxim is, That though queſtions in law may be truſted to a ſingle judge, matters of proof are ſafeſt in the hands of a plurality. It was probably thought, that in determining queſtions of law there is little truſt repoſed in a judge, becauſe he is tied down to a preciſe rule; but that as no preciſe rule can be laid down to direct the judgment in matters of proof, all queſtions of this kind ought to be referred to a number of judges, who are a check one upon another. Whatever may be the foundation of this maxim, we find it conſtantly applied in practice. In all courts, civil and criminal, governed by a ſingle judge, we find juries always employed. Before the judge matters of law were diſcuſſed, and every thing preparatory to the verdict; but to the jury was reſerved to judge of the matter of fact. On the other hand, juries never were employed in any Britiſh court, where the judges were ſufficiently [412] numerous to act the part of a jury. Juries, for example, were never employed in parliament, nor in proceſſes before the King and council. And in England, when the court laſt named was ſplit into the King's bench, the exchequer, and the common pleas, I am verily perſuaded, that the continuance of jury-trials in theſe new courts, was owing to the following circumſtance, that four judges only were appointed in each of them, and but a ſingle judge in the circuit-courts. Hence I preſume, that juries were not employed in the court of ſeſſion, inſtituted anno 1425. The very nature of its inſtitution leads me to think ſo; not only that the members of this court were choſen out of the three eſtates; but alſo that the purpoſe of its inſtitution was to relieve the King and council, of the load of buſineſs growing daily upon them. There is little reaſon to doubt, that this new court, conſiſting of many members, would follow and imitate the forms of the two courts, to which it was ſo nearly allied. And [413] that this was really the caſe, may be gathered not obſcurely from Balfour*. One thing we are certain of, without neceſſity of recurring to a conjecture, that the daily council, which came in place of the ſeſſion, and equally with it conſiſted of many judges, had not from the beginning any jury-trials, but took evidence by witneſſes, and in every cauſe gave judgment upon the proof, preciſely as we do at this day. Theſe facts conſidered, it ſeems a well founded conjecture, that ſo large a number of judges as fifteen, which conſtitute our preſent court of ſeſſion, were appointed with a view to the practice of the preceeding courts, and in order to prevent the neceſſity of trying cauſes by juries. In the former court, viz. The daily council, we find it compoſed of biſhops, abbots, earls, lords, gentlemen, and burgeſſes, in order probably that every man might be tried by ſome at leaſt of his own rank; and in examining the records of this court, we find at firſt few ſederunts, but [414] where at leaſt twelve judges are preſent. This matter is ſtill better ordered in the preſent court of ſeſſion. Nine judges muſt be preſent to make a quorum; and it ſeldom happens in examining any proof, that the judges preſent are under twelve in number. This I am perſuaded is the foundation of a maxim, which among us paſſes current, without any direct authority from the regulations concerning the juriſdiction of this court. It is ſaid to be the grand jury of the nation in civilibus; and it is ſuppoſed, that its privilege to take proof without the aid of a jury, proceeds from this branch of its conſtitution. In fact, it is the inviolable practice to give judgment upon the teſtimony of witneſſes, in a full court where there muſt always be at leaſt a quorum preſent; which is no ſlight indication that the court in this caſe acts as a jury. For why otherwiſe ſhould it be leſs competent to a ſingle member of the court, to judge of a proof than to judge of a point of law? This account of the court of ſeſſion, [415] as having united in it the powers both of the judge and jury, cannot fail to be reliſhed, when it is diſcovered, that this was far from being a novelty when the court was inſtituted. The thought was borrowed from the court of parliament, the members of which, in all trials, acted both as judges and jurymen. One clear inſtance we have upon record, anno 1481, in the trial of Lord Lile for high treaſon. The members preſent, the King only excepted, formed themſelves into a jury, and brought in a regular verdict, declaring the pannel not guilty. A copy of the trial is annexed, Appendix, No. 5.

UPON this occaſion, I cannot avoid declaring my opinion, that in civil cauſes, it is a real improvement to truſt with eſtabliſhed judges, the power of deciding upon facts as well as upon law. A number of men trained up to law, and who are daily in the practice of weighing evidence, may undoubtedly be more relied on for doing juſtice, [416] than the ſame number occaſionally collected from the maſs of the people, to undertake an unaccuſtomed taſk, which is, to pronounce a verdict upon an intricate proof.

SUPPOSING the foregoing account why juries are not employed in the court of ſeſſion, to be ſatisfactory, it will no doubt occur, that it proves nothing with reſpect to inferior courts, where the judges are generally ſingle. I admit the obſervation to be juſt; and therefore muſt aſſign a different cauſe for the diſuſe of jury-trials in inferior courts. Were the ancient records preſerved of theſe inferior courts, it would, I preſume, be found, that civil cauſes were tried in them by juries, even after the inſtitution of the college of juſtice; and indeed we are not at freedom to doubt of this fact, after conſidering the act 42. p. 1587, appointing moleſtations to be tried by a jury before the ſheriff. In the records indeed of the ſheriff's court of Edinburgh, there is [417] not the leaſt veſtige remaining of a jurytrial in a civil action. But this circumſtance created no great perplexity, becauſe the records of that court are not preſerved farther back than the year 1595. I had little expectation of more ancient records in other ſheriffdoms; but conjecturing that the old form of jury-trials might wear out more ſlowly in ſhires remote from the capital, I continued to ſearch, and in the record, luckily ſtumbled upon a book of the ſheriff's court of Orkney, beginning 3d July 1602, and ending 29th Auguſt 1604. All the proceſſes engroſſed in this book, civil as well as criminal, are tried by juries. That juries at the long-run wore out of uſe in inferior courts, will not be ſurpriſing, when it is conſidered, that an appetite for power, as well as for imitating the manners of our ſuperiors, do not forſake us when we are made judges. It is probable alſo, that this innovation was favoured by the court of ſeſſion, willing to have under their power of review, iniquitous judgments [418] with relation to matters of fact, from which review they were debarred, when facts were aſcertained by the verdict of a jury.

FROM the power which courts have to review the decrees of inferior judges, I proceed to the power which courts have to review their own decrees. The court of juſticiary enjoys not this power, becauſe the verdict is ultimate, and cannot be overturned. This obſtacle lyes not in the way of the court of ſeſſion; and as the forms of this court give opportunity for ſuch review, neceſſity brought it early into practice. For the ſhort ſederunts of parliament would have rendered appeals, when multiplied, an impracticable remedy. It was neceſſary therefore to find a remedy in the court itſelf, which was obtained by aſſuming a power to reduce its own decrees. And ſo an appeal came to be neceſſary in thoſe caſes only where the ultimate judgment of the court is unjuſt. This [419] is the very reaſon, according to Balfour, which moved the court of ſeſſion to reduce its own decrees*. The admiralty is the only other court in Scotland that hath a privilege to review its own decrees; and this privilege is beſtowed by the act 16. p. 1681.

HAVING diſcuſſed what occurred upon our courts in the three firſt views, I proceed to conſider a court of appeal; upon which I obſerve in general, that in its powers it is more limited, than where it enjoys alſo an original juriſdiction. The province of a court of appeal, ſtrictly ſpeaking, is not to try the cauſe, but to try the juſtice of the ſentence appealed from. All that can be done by the court of appeal, is to examine whether the interlocutor or ſentence be juſtly founded upon the pleadings. If any new point be ſuggeſted, the court of appeal, having no original juriſdiction, cannot take more upon it, than to remit this point to [420] be tried in the court below. A court which, along with its power of receiving appeals, hath alſo an original juriſdiction in the ſame cauſes, cannot only rectify any wrong done by the inferior court, but has further an option, either to remit the cauſe thus amended to the court below, or to retain it to itſelf, and proceed to the final determination.

THE houſe of Lords is undoubtedly a court of appeal, with reſpect to the three ſovereign courts in this country. There are appeals daily from the court of ſeſſion. Appeals from the court of juſticiary have hitherto been rare, and probably will never become frequent. The proceedings of this court, being brought under preciſe rules, afford little matter for an appeal; which at the ſame time would be but a partial remedy, as the verdict of the jury can never be called in queſtion. An appeal however from this court is competent, as well as from the ſeſſion; of which there is one [421] noted inſtance. The King's advocate and the procurator for the Kirk proſecuted the magiſtrates of Elgin before the juſticiary, for an attrocious riot; ſpecifying, that being entruſted by the miniſters of Elgin with the keys of the little kirk of Elgin, inſtead of reſtoring them when required, they had delivered them to Mr. Blair epiſcopal miniſter, by which the eſtabliſhed miniſters were turned out of poſſeſſion. In this caſe the following circumſtance came to be material to the iſſue, whether the ſaid little kirk was or was not a part of the pariſh church. The affirmative being found by the court of ſeſſion, to which the point of right was remitted as preliminary to the criminal trial, the magiſtrates entered an appeal from the court of ſeſſion, and upon that pretext craved from the court of juſticiary a ſtay of further proceedings till the appeal ſhould be diſcuſſed. The proſecutors oppoſed this demand, founded on an order of the houſe of Lords, 19th April 1709, reſolving, ‘"That an appeal neither ſtays [422] proceſs nor ſiſts execution, unleſs the appeal be received by the houſe, an order made for the reſpondent to anſwer, and the order duly ſerved on the reſpondent;"’ and urged, that this not being done in the preſent caſe, the court ought to proceed. The court accordingly proceeded in the trial, and pronounced ſentence, 2d March 1713, ‘"ordaining the pannels to deliver up the keys of the little kirk, with 20l. of fine, and 30l. of expences."’ The defendants, who in a criminal proſecution are with us called pannels, appealed alſo from this ſentence of the court of juſticiary, and the ſentence was reverſed.

THE diſtinctions above handled, comprehend moſt of the courts that are to be found any where, but do not totally exhauſt them. We have many inſtances in Britain, of a new juriſdiction erected for a particular purpoſe and for no other. This for the moſt part happens, when a fact is [423] made criminal by ſtatute, and to be tried by certain perſons named for that preciſe purpoſe; or where a new and ſevere puniſhment is directed againſt what was formerly reckoned a venial tranſgreſſion; as for inſtance, the ſtatute 1ſt George I. cap. 18. againſt the malicious deſtroying growing trees, which impowers the juſtices of peace to try this crime. This alſo ſometimes happens in civil cauſes; witneſs the juriſdiction given by act of parliament to the juſtices of peace in revenue matters. With relation to ſuch courts, the queſtion of the greateſt importance is, Whether they be ſubject to any review. The author of a new abridgment of the law*, talking of the King's bench, has the following paſſage. ‘"Alſo it hath ſo ſovereign a juriſdiction in all criminal matters, that an act of parliament, appointing all crimes of a certain denomination to be tried before certain judges, doth not exclude the juriſdiction of this court, without expreſs [424] negative words. And therefore it hath been reſolved, that 33d Henry VIII. cap. 12. which enacts, That all treaſons within the King's houſe ſhall be determined before the Lord ſteward, doth not reſtrain this court from proceeding againſt ſuch offences. But where a ſtatute creates a new offence, which was not taken notice of by the common law, erects a new juriſdiction for the puniſhment of it, and preſcribes a certain method of proceeding; it ſeems queſtionable how far this court has an implied juriſdiction in ſuch a caſe."’ The diſtinction here ſuggeſted, with ſome degree of heſitation, is, in my apprehenſion, ſolidly founded on a clear rule of law. A right eſtabliſhed in any court, or in any perſon, is not preſumed to be taken away; and therefore cannot otherwiſe be taken away but by expreſs words. On the other hand, a right is not preſumed to be given, and therefore cannot be given but by expreſs words. Treaſon of all ſorts, wherever committed, is under the juriſdiction [425] of the King's bench; and a ſtatute impowering the Lord ſteward to try treaſon committed within the King's houſe, beſtows upon him, in this particular, a cumulative juriſdiction with the King's bench; but not an excluſive juriſdiction, becauſe the words do not neceſſarily imply ſo much. A new offence created by a ſtatute, muſt be conſidered in a different light. If the trial of ſuch offence be committed to a particular judge, there is no foundation in law for extending the privilege to any other judge; becauſe the words do not neceſſarily import ſuch extenſion. The juſticiary therefore, or ſheriff, have no power to inflict the ſtatutory puniſhment upon thoſe who maliciouſly deſtroy growing trees. They have evidently no ſuch juriſdiction by the ſtatute, and they cannot have it by common law, becauſe the puniſhment is not directed by the common law.

[426] ONE queſtion there is relative to courts of all kinds, and that is, How is the extent of their juriſdiction to be tried, and who is the judge in this caſe? This is a matter of no difficulty. It is inherent in the nature of every court, to judge of its own juriſdiction, and, with reſpect to all cauſes, to determine whether they come or come not under its cogniſance. For to ſay, that this queſtion, even at the firſt inſtance, muſt be determined by another court, involves the following abſurdity, that no cauſe can be taken in by any court, till antecedently it be found competent by the judgment of a ſuperior court. This therefore is one civil queſtion, to which every court, civil, criminal, and eccleſiaſtical, muſt be competent. As this preliminary queſtion muſt, before entering upon the cauſe, be determined, if diſputed, or be taken for granted, if not diſputed, the power to judge of it muſt neceſſarily be implied, wherever a court is eſtabliſhed and a juriſdiction granted. A judgment however [427] of a court upon its own powers, ought never, in good policy, to be declared final; for this, in effect, would be to beſtow upon the court, however limited in its conſtitution, a power to arrogate to itſelf an unbounded juriſdiction, which would be abſurd. This doctrine ſhall be illuſtrated, by applying it to a very plain caſe, which was diſputed in the court of ſeſſion. In the turnpike act for the ſhire of Haddington, 23d George II. the truſtees are impowered to make compoſitions with individuals for their toll. Any abuſe withal of the powers given by the act, is ſubjected to the cogniſance of the juſtices of peace, who are authoriſed to rectify the ſame ultimately and without appeal. The truſtees made a tranſaction with a neighbouring heretor, allowing thoſe who purchaſed his coal and ſalt the uſe of the turnpike-road free of toll; but obliging him to pay 3l. Sterling yearly, whenever he ſhould open coal in a different field ſpecified. This bargain, an exemption in reality, and not a compoſition, [428] was complained of as an abuſe; and upon that footing was, by the juſtices of peace, declared void, and the toll ordered to be levied. The queſtion was, Whether this ſentence could be reviewed by the court of ſeſſion. The queſtion admits of a clear ſolution, by ſpliting the ſentence into its two conſtituent parts, the firſt reſpecting the juriſdiction, the other reſpecting the cauſe. With regard to the laſt only, are the ſentences of the juſtices of peace declared final. With regard to the preliminary point, aſcertaining their own juriſdiction, their judgment is not final. The cauſe therefore may be brought before the court of ſeſſion to try this preliminary point, and if, upon a review, it be judged, that the juſtices have exceeded the limits of their juriſdiction, the judgment they have given in the cauſe muſt alſo be declared void, as ultra vires. On the other hand, if the opinion of the juſtices about their own juriſdiction be affirmed, the court of ſeſſion muſt ſtop ſhort; and however wrong the [429] judgment upon the cauſe may to them appear, they cannot interpoſe, becauſe the judgment is final.

I ſhall finiſh this diſcourſe with a comparative view of our different chief courts in point of dignity and pre-eminence. The court of ſeſſion is ſovereign and ſupreme: ſovereign, becauſe it is the King's court, and it is the King who executes the acts and decrees of this court: ſupreme, with reſpect to inferior courts having the ſame or part of the ſame juriſdiction, but ſubjected to a review in this court. The court of juſticiary, in the foregoing reſpects, ſtands preciſely upon the ſame footing with the court of ſeſſion. The court of exchequer is ſovereign, but not ſupreme. I know no inferior court with which it has a cumulative juriſdiction, and whoſe proceedings it can review. Cauſes cannot be brought before the exchequer from any inferior court, whether by reduction, advocation, or appeal. The admiral court again is, by the act 1681, declared [430] ſovereign, and accordingly every act of authority of this court goes in the King's name. It is alſo ſupreme with reſpect to inferior admiral courts, whoſe ſentences it can review. But with regard to the courts of ſeſſion and juſticiary, it is an inferior court; becauſe its decrees are ſubjected to a review in theſe courts. The commiſſary court of Edinburgh is properly the biſhop's court, and not ſovereign. With reſpect to its ſupremacy, it ſtands upon the ſame footing with the admiral court.

The End of the Firſt Volume.
Notes
*
Bolinbroke of the ſtudy of hiſtory, page 353. Quarto edition.
*
Eſſays on the Principles of Morality and natural Religion, Part 1. Eſſ. 2. Chap. 3.
*
Kolben's Preſent State of the Cape of Good Hope, Vol. 1. Page 99.
*
Geneſis Chap. iv. Ver. 13, 14.
*
Characteriſtic's, Vol. 2. Page 144.
*
Meurſius de leg. Atticis, L. 1. Cap. 17.

THE Actio Noxalis among the Romans, founded alſo upon the privilege of reſentment, appears not altogether void of reaſon. Animals, it was thought, were not to be exempted from puniſhment more than men; and when a domeſtick animal did miſchief contrary to its nature, the law required that it ſhould be given up to the perſon who was hurt, in order to be puniſhed. To make this law effectual the Actio Noxalis was given, which followed the animal, though even in the hands of a purchaſer bona fide . So far it was well judged, that property ſhould yield to the more eſſential right of ſelf-preſervation, and to the privilege of puniſhing injuries. It is probable that originally there was a neceſſity to deliver the animal to puniſhment, without admitting any alternative. But afterwards, when the paſſions of men were more under ſubjection, and the connection of property became more vigorous, which laſt will be the ſubject of a following diſcourſe, an alternative was indulged to the defendant to repair the damage, if he choſe rather to be at that expence than to ſurrender his animal. Among modern nations, in Scotland at leaſt, this action went into diſuſe with the privilege of private puniſhment. As at preſent it belongs to the Magiſtrate only to inflict puniſhment, the miſchief done by irrational animals is not otherwiſe regarded, than as a reaſon for preventing the like miſchief in time coming. The Satisfaction of private revenge is quite diſregarded.

ULPIAN ſeems not to have underſtood the nature or foundation of the Actio Noxalis, in teaching the following doctrine, That the proprietor is primarly liable to repair the miſchief done by his animal, and that the alternative of delivering up the animal was afterwards indulged by the law of the Twelve Tables*. The Law of Nature ſubjects no man to repair the miſchief done by his horſe or his ox, if not antecedently known to be vitious. All that can be incumbent upon him, by any rational principle, is to deliver up the animal to be puniſhed; and hence it is evident that the privilege indulged by law was not that of giving up the animal, but that of retaining it upon repairing the damage.

§ 5. Inſt. de Noxal. Action.
l. 1. pr. D. ſi quadrupes pauperiem feciſſe dicatur.
*
l. 6. § 1. de re judicata.
*
Meurſius, L. 2. Cap. 2.
Ibid. L. 2. Cap. 15.
HANNO, one of the moſt conſiderable Citizens of Carthage, formed a deſign to make himſelf Tyrant of his Country, by poiſoning the whole Senate at a Banquet. The plot being diſcovered, he was put to death by torture, and his Children, with all his Relations, were at the ſame time cut off without mercy, though they had no ſhare in his guilt.
Juſtin, L. 21. Cap. 4.
*
Quintus Curtius, L. 6. Cap. 11.
Herodotus, L. 4.
Tit. 1. § 13.
L. 9. l. 145.
*
l. 22. C. de poenis.
*
I. 5. § 1. C. ad Leg. Jul. Majeſt.
*
See Kemfer's hiſtory of Japan.
*
Upon this reſemblance, the expreſſion in the Roman Language, ſolvere, or pendere poenas, is founded.
*
Tit. Liv. L. 8. § 9. and again, L. 10. § 28, 29.
*
WHEN Agathocles King of Syracuſe, after a compleat victory, laid ſiege to Carthage, the Carthaginians, believing that their Calamities were brought upon them by the anger of the Gods, became extremely ſuperſtitious. It had been the cuſtom to ſacrifice to their God Saturn, the Sons of the moſt eminent perſons; but, in later times, they ſecretly bought and bred up Children for that purpoſe. That they might therefore without delay reform what was amiſs, they offered, as a publick Sacrifice, two hundred of the Sons of the Nobility.
Diodorus Siculus, Book 20. Ch. 1.
*
Micah, Ch. vi.
*
L. 6. Tit. 4. § 4.
*
Numbers, Ch. xxxv. Deuteronomy, Ch. xix.
Meurſius de leg. Atticis, L. 1. C. 4. Laws of the Viſigoths, L. 3. Tit. 4. § 4. Laws of the Bavar. Tit. 7. § 1.
*
Laws of the Viſig. L. 3. Tit. 4. § 5.
Laws of the Bavar. Tit. 8. § 5.
Laws of the Viſig. L. 3. Tit. 4. § 3.
Ibid. § 9.
a
Ibid. L. 7. Tit. 3. § 3.
b
Laws of the Bavar. Tit. 7. § 9.
*
Father Lobo's voyage to Abyſſinia, Ch. 3.
Meurſius de leg. Atticis, L. 1. Cap. 20.
*
Meurſius de leg. Atticis, L. 1. Cap. 4.
*
Aulus Gellius, L. 20. Cap. 1.
De moribus Germanorum.
*
Lobo, Ch. 7.
Deſcription of the coaſt of Guinea, letter 10 & 11.
Drury, p. 240.
*
Lambards Collection, Law 9.
L. 1. Tit. 37. § 1.
Laws of the Longobards. L. 1. Tit. 9. § 34.
Ibid. L. 1. Tit. 9. § 8.
*
Meurſms de leg. Atticis, L. 2. Cap. 32.
*
L. 6. Tit. 5. § 16.
*
Laws of King Ina collected by Lambard. Law 5.
L. 6. Tit. 4. § 1.
*
Laws of the Viſigoths, L. 6. Tit. 4. § 3.
*
In the year 1327, moſt of the great houſes in Ireland were banded one againſt another, the Giraldines, Butlers and Breminghams on the one ſide, and the Bourkes and Poers on the other. The ground of the quarrel was no other, but that the Lord Arnold Poer had called the Earl of Kildare Rimer. This quarrel was proſecuted with ſuch malice and violence, that the counties of Waterford and Kilkenny were deſtroyed with fire and ſword*.
*
Affairs of Ireland by Sir John Davies.
Laws of the Longobards, L. 1. Tit. 12. § 6.
Ibid. § 8.
*
Laws of the Angli and Thuringi, § 10. Laws of Henry I. of England, law 70.
Laws of the Longo. L. 1. Tit. 9. § 19.
*
Law 1. Tit. 2. § 11.
What is ſaid above about the nature of reſentment, that, when ſuddenly raiſed, it is apt to make no diſtinction betwixt a voluntary and involuntary wrong, may help to explain this matter. It is certain, that ſuch groſſneſs of conception was not peculiar to the barbarous nations. The polite Grecians appear to be as little ſenſible of the diſtinction as the others. Ariſtotle talks familiarly of an involuntary crime; and that this was not merely a way of ſpeaking, appears from the ſtory of Oedipus, whoſe crimes, if they can be called ſo, were, ſtrictly ſpeaking, involuntary. And by an expreſs law among the Athenians, involuntary ſlaughter was puniſhed with baniſhment, without liberty of returning till the relations of the deceaſed were ſatisfied*.
*
Meurſius de leg. Atticis, L. 1. Cap. 16.
*
Laws of the Viſigoths, L. 7. Tit. 2. § 18.
Tit. 65.
*
L. 1. Tit. 9. § 18.
*
Tit. 6. § 1.
Lambard's Collection, Law 6.
Laws of William the Conqueror, Wilkin's Edition, Law 41.
*
Lambard's Collection, Law 2.
*
Laws of King Ina, Lambard's Collection, Law 18.
L. 1. Tit. 25. § 67.
Tit. 70. § 7.
Tit. 70. § 5.
*
For ſome time after this revolution was compleated, we find, among moſt European nations, certain crimes prevailing, one after another, in a regular ſucceſſion. Two centuries ago, aſſaſſination was the crime in faſhion. It wore out by degrees, and made way for a more covered, but more deteſtable method of deſtruction, and that is poiſon. This horrid crime was extremely common, in France and Italy chiefly, almoſt within a century. It vaniſhed imperceptibly, and was ſucceeded by a leſs diſhonourable method of exerciſing revenge, viz. duelling. This curious ſucceſſion, is too regular to have been the child of accident. It muſt have had a regular caufe; and this cauſe, I imagine, may be gathered from the hiſtory now given of the criminal law. We may readily believe, that the right of puniſhment, wreſted from individuals, and tranſferred to the magiſtrate, was at firſt ſubmitted to with the utmoſt reluctance. Reſentment is a paſſion too fierce to be ſubdued till man be firſt humanized and ſoftened in a long courſe of diſcipline, under the awe and dread of a government firmly eſtabliſhed. For many centuries after the power of the ſword was aſſumed by the magiſtrate, individuals, prone to avenge their own wrongs, were inceſſantly breaking out into open violence, murder not excepted. But the authority of law, gathering ſtrength daily, became too mighty for revenge executed in this bold manner; and open violence, through the terror of puniſhment, being repreſſed, confined men to more cautious methods, and introduced aſſaſſination in place of murder committed openly. But as aſſaſſination is ſeldom practicable without accomplices or emiſſaries, of abandoned morals, experience ſhewed that this crime is never long concealed; and the fear of detection prevailed at laſt over the ſpirit of revenge gratified in this hazardous manner. More ſecret methods of gratification were now ſtudied. Aſſaſſination repreſſed made way for poiſoning, the moſt dangerous peſt that ever invaded ſociety, if, as believed, poiſon can be conveyed in a letter, or by other-latent means that cannot be traced. Here legal authority was at a ſtand; for how can a criminal be reached who is unknown? But nature happily interpoſed, and afforded a remedy when law could not. The gratification which poiſoning affords, muſt be extremely ſlight, when the offender is not made ſenſible from what quarter the puniſhment comes, nor for what cauſe it is inflicted. Repeated experience ſhowed the emptineſs of this method of avenging injuries; a method which plunges a man in guilt, without procuring him any gratification. This horrid practice, accordingly, had not a long courſe. Conſcience and humanity exerted their lawful authority, and put an end to it. Such, in many inſtances, is the courſe of providence. It exerts benevolent wiſdom in ſuch a manner as to bring good out of evil. The crime of poiſoning is ſcarce within the reach of the magiſtrate: but a remedy is provided in the very nature of its cauſe; for, as obſerved, revenge is never gratified, unleſs it be made known to the offender that he is puniſhed by the perſon injured. To finiſh my reflections upon this ſubject, duelling, which came in the laſt place, was ſupported by a notion of honour; and the ſtill ſubſiſting propenſity to revenge blinded men ſo much, as to make them ſee but obſcurely, that the practice is inconſiſtent with conſcience and humanity.
*
Tit. 8. § 1.
Laws of King Ina, Lambard, L. 18.
L. 1. Tit. 25. § 67.
Salic Laws, Tit. 70. § 7.
*
l. ult. de Furtis.
Judicia Civitatis Lundoniae, Wilkins, p. 65.
Carpzovius, part 4. conſt. 32. def. 23.
l. 1. § ult. de leg. Cornel. de fals.
*
Reg. Maj. L. 4. Cap. 13. Stat. Alexr. II. Cap. 19.
Durum eſt, torquere leges, ad hoc, ut torqueant homines. Non placet igitur extendi leges paenales, multo minus capitales, ad delicta nova. Quod ſi crimen vetus fuerit, et legibus notum, ſed proſecutio ejus incidat in caſum novum, a legibus non proviſum; omnino recedatur a placitis juris, potius quam delicta maneant impunita*. By the law of Egypt, perjury was capital: for it was ſaid to involve the two greateſt crimes, viz. impiety to the gods, and violation of faith and truth to man. This, and many other laws of the antient Egyptians ſhow, that publick police was carried to a conſiderable degree of perfection in that celebrated country.
*
Eacon de augmentis ſcientiarum, L. 8. Cap. 3. aphor. 13.
Diodorus Siculus, Book 1. Ch. 6.
*
WE diſcover a ſimilar progreſs in the civil law of this country. Some ages ago, before the ferocity of the inhabitants of this part of the iſland was ſubdued, the utmoſt ſeverity of the civil law was neceſſary, to reſtrain individuals from plundering each other. Thus the man who intermedled irregularly with the moveables of a perſon deceaſed, was ſubjected to all the debts of the deceaſed without limitation. This makes a branch of the law of Scoland, known by the name of Vitious Intromiſſion; and ſo rigidly was this regulation applied in our courts of law, that the moſt triffling moveable abſtracted mala fide, ſubjected the intermedler to the forgoing conſequences, which proved, in many inſtances, a moſt rigorous puniſhment. But this ſeverity was neceſſary, in order to ſubdue the undiſciplined nature of our people. It is extremely remarkable, that in proportion to to our improvement in manners, this regulation has been gradually ſoftned, and applied by our ſovereign court with a ſparing hand. It is at preſent ſo little in repute, that the vitious intromiſſion muſt be extremely groſs which provokes the judges to give way to the law in its utmoſt extent; and it ſeldom happens, that vitious intromiſſion is attended with any conſequence beyond reparation, and coſts of ſuit.
*
Book 1. Ch. 6.
*

WE have an inſtance in this law of ſtill greater refinement. The criminal law of other civilized nations has not, in any inſtance, a farther aim than to prevent injury and miſchief. Egypt is the only country we read of, where individuals were laid under an obligation to aid the diſtreſſed, under a penal ſanction. In the table of laws recorded by the above mentioned author, we read the following paſſage. ‘"If a man be violently aſſaulted, and in hazard of death, it is the duty of every by-ſtander to attempt a reſcue; and if it be proved againſt ſuch a man, that he was ſufficiently able to prevent the murder, his neglect or forbearance is to be puniſhed with death."’ It is altogether concordant with the refined ſpirit of the other laws mentioned by our author, that relieving the diſtreſſed ſhould be made the duty of every individual: but to puniſh with death an act of omiſſion, or a neglect of any duty, far more the neglect of a duty ſo refined, muſt ariſe from the moſt exalted notions of morality. Government muſt have arrived at great perfection, before ſuch a regulation could be admitted. None of the preſent European nations are even at preſent ſo far refined as to admit of ſuch a law. There muſt be ſome cauſe, natural or artificial, for ſuch early perſection of the criminal law in Egypt; and as the ſubject is of importance, in tracing the hiſtory of mankind, I cannot reſiſt the preſent opportunity of attempting to inveſtigate this cauſe.

HUNTING and fiſhing, in order for ſuſtenance, were the original occupations of man. The ſhepherd life ſucceeded; and the next ſtage was that of agriculture. Theſe progreſſive changes, in the order now mentioned, may be traced in all nations, ſo far as we have any remains of their original hiſtory. The life of a fiſher or hunter is averſe to ſociety, except among the members of ſingle families. The ſhepherd life promotes larger ſocieties, if that can be called a ſociety, which hath ſcarce any other than a local connection. But the true ſpirit of ſociety, which conſiſts in mutual benefits, and in making the induſtry of individuals profitable to others as well as to themſelves, was not known till agriculture was invented. Agriculture requires the aid of many other arts. The carpenter, the blackſmith, the maſon, and other artificers, contribute to it. This circumſtance connects individuals in an intimate ſociety of mutual ſupport, which again compacts them within a narrow ſpace. Now, in the firſt ſtate of man, viz. that of hunting and fiſhing, there obviouſly is no place for government, except that which is exerciſed by the heads of families over children and domeſticks. The ſhepherd life, in which ſocieties are formed, by the conjunction of families for mutual defence, requires ſome ſort of government; ſlight indeed in proportion to the ſlightneſs of the mutual connection. But it was agriculture which firſt produced a regular ſyſtem of government. The intimate union among a multitude of individuals, occaſioned by agriculture, diſcovered a number of ſocial duties, formerly unknown. Theſe behoved to be aſcertained by laws, the obſervance of which muſt be enforced by puniſhment. Such operations cannot be carried on, otherwiſe than by lodging power in one or more perſons, to direct the reſolutions, and apply the force of the whole ſociety. In ſhort, it may be laid down as an univerſal maxim, that in every ſociety, the advances of government towards perfection, are ſtrictly proportioned to the advances of the ſociety towards intimacy of union.

WHEN we apply theſe reflections to the preſent ſubject, we find that the condition of the land of Egypt makes huſbandry of abſolute neceſſity; becauſe in that country, without huſbandry, there are no means of ſubſiſtence. All the ſoil, except what is yearly covered with the river when it overflows, being a barren ſand unfit for habitation, the people are confined to the low grounds adjacent to the river. The fandy grounds produce little or no graſs; and however fit for paſture the low grounds may be during the bulk of the year, the inhabitants, without agriculture, would be deſtitute of all means to preſerve their cattle alive during the inundation. The Egyptians muſt therefore, from the beginning, have depended upon huſbandry for their ſubſiſtence; and the ſoil, by the yearly inundations, being rendered extremely fertile, the great plenty of proviſions produced by the ſlighteſt culture, could not fail to multiply the people exceedingly. But this people lived in a ſtill more compact ſtate, than is neceſſary for the proſecution of huſbandry in other countries; becauſe their cultivated lands were narrow in proportion to their fertility. Individuals, thus collected within very narrow bounds, could not ſubſiſt a moment without a regular government. The neceſſity, after every inundation, of adjuſting marches by geometry, naturally productive of diſputes, muſt alone have early taught the inhabitants of this wonderful country, the neceſſity of due ſubmiſſion to legal authority. Joining all theſe circumſtances, we may aſſuredly conclude, that, in Egypt, government was coeval with the peopling of the country; and this, perhaps, is the ſingle inſtance of the kind. Government, therefore, muſt have long ſubſiſted among the Egyptians in an advanced ſtate; and for that reaſon it ceaſes to be a wonder, that their laws were brought to perfection more early than thoſe of any other people.

THIS, at the ſame time, accounts for the practice of Hieroglyphics, peculiar to this country. In the adminiſtration of publick affairs, writing is, in a great meaſure, neceſſary. The Egyptian government had made vigorous advances toward perfection before writing was invented. A condition ſo ſingular, behoved to make a ſtrong demand for ſome method to publiſh laws, and to preſerve them in memory. This produced hieroglyphical writing, if the emblems made uſe of to expreſs ideas, can be called ſo.

N. B. Publick police appears, in antient Egypt, to have been carried to an eminent degree of perfection in other articles, as well as in that of law. We have the authority of Ariſtotle*, and of Herodote, for ſaying, That in Egypt the art of phyſick was diſtributed into ſeveral diſtinct parts, that every phyſician employed himſelf wholely in the cure of a ſingle diſeaſe, and that by this means the art was brought to great perfection.

*
Polit. l. 3. Ch. 15.
l. 2.
*
Tit. de accuſationibus & inſcriptionibus, § 13.
*
Lambard's Collection, Law 18.
*
See Eſſays on the Principles of Morality and Natural Religion, Part 1. Eſſay 2. Ch. 9.
*
A naked promiſe, which is a tranſitory act, makes but a ſlender impreſſion upon the mind among a rude people. Hence it is, that after the great utility of conventions came to be diſcovered in the progreſs of the ſocial life, we find certain ſolemnities uſed in every nation, to give conventions a ſtronger hold of the mind than they have naturally. The Romans and Grecians, after their police was ſomewhat advanced, were ſatisfied with a ſolemn form of words. Ouvert acts were neceſſary among other people leſs refined. The ſolemnity uſed among the Scythians, according to Herodotus*, is curious and remarkable- ‘"The Scythians (ſays that author) in their alliances and contracts, uſe the following ceremonies. They pour wine into an earthen veſſel, and tinge it with blood drawn from the parties contracters. They dip a ſcymeter, ſome arrows, a bill, and a javelin, in the veſſel, and after many imprecations, the perſons principally concerned, with the moſt conſiderable men preſent, drink of the liquor."’ Among other barbarous nations, ancient and modern, we find ceremonies contrived for the ſame end. The Medes and Lydians, in their federal contracts, obſerve the ſame ceremonies with the Grecians, with this difference, that both parties wound themſelves in the arm, and then mutually lick the blood*. The Arabians religiouſly obſerve thoſe contracts which are attended with the following ceremonies. A third perſon ſtanding between the parties, draws blood from both, by making an inciſion with a ſharp ſtone in the palm of the hand under the longeſt fingers; and cuting a thread from the garment of each, dips it in the blood, and anoints ſeven ſtones brought there to that end; invoking their gods, Bacchus and Urania, and exhorting the parties to perform the conditions. The ceremony is cloſed with a mutual profeſſion of the parties, that they are bound to perform. The Naſamones of Africa, in pledging their faith to each other, mutually preſent a cup of liquor; and if they have none, they take up duſt, which they put into their mouths. To the ſame purpoſe is the ſtriking or joining hands, and a practice ſo frequent among the Grecians and Romans as to be introduced into their poetry, of ſwearing by the gods, by the tombs of their anceſtors, or any other object of awe and reverence.
*
Book 4.
*
Herodotus, Book 1.
Ibid. Book 3.
Ibid. Book 4.
*
This difference betwixt an action and an exception, ariſing from the original conſtitution of courts of law, is not peculiar to the preſent ſubject, but obtains univerſally. Thus, in the Roman law, the exceptiones doli et metus, were ſuſtained from the beginning; though for many ages after the Roman courts were eſtabliſhed, no action was afforded to redreſs wrong done by fraud or force. It was the Praetor who firſt gave an action, after it became a rule, that it was his province to ſupply what was defective in the courts of common law.
*
Reg. Maj. L. 3. Cap. 10. Fleta, L. 2. Cap. 58. § 3. & 5.
Glanvil, L. 10. Cap. 8. Reg. Maj. L. 3. Cap. 4.
*
See Glanvil, L. 8. Cap. 1, 2, 3, &c.
*
Curia quatuor Burg. Cap. 3. § 6.
This limitation of proof regards the conſtitution only of a debt. Payment being a more favourable plea, was left to the common law; and accordingly, in England, parole evidence, to this day, is admitted to prove payment of money. The rule was the ſame in Scotland while our ſovereign court, named the Daily Council, ſubſiſted; witneſs the records of that court ſtill preſerved; and continued to be the rule till the Act of Sederunt, 8th June 1597, was made, declaring the reſolution of the court, That thereafter they would not admit witneſſes to prove payment of any ſum above 100 Pounds.
*
Glanvil, L. 10. Cap. ult. Reg. Maj. L. 3. Cap. 14. § ult.
*
Glanvil, L. 10. Cap. 12. Reg. Maj. L. 3. Cap. 8.
*
New Abridgment of the Law, vol. 2. p. 306.
*
Book 4. Tit. 40. § 39, 40.
*
THIS ſort of artificial trial prevailed in nations that had no communication with each other, which may be accounted for by the prevalency of ſuperſtition. Among the Indians, on the Malabar coaſt, when a man is to clear himſelf of ſome heinous crime, as theft, adultery, or murder, he is obliged to ſwim over the river Cranganor, which ſwarms with Alligators of a monſtrous ſize. If he reach unhurt the oppoſite bank, he is reputed innocent. If devoured, he is concluded guilty*. The trial by fire alſo, is diſcovered in a country not leſs remote than Japan.
*
Texeira's Hiſtory of Perſia.
Kempter's Hiſtory of Japan, Book 3. Ch. 5.
Cap. 7. of his Statutes.
*
AMONG the Longobards, an accuſer could not demand ſingular battle, in order to prove the perſon accuſed guilty, till he ſwore upon the goſpel that he had a well founded ſuſpicion of the perſon's guilt. And it is added, ‘"Quia incerti ſumus de judicio dei; & multos audivimus per pugnam ſine juſta cauſa, ſuam cauſam perdere. Sed propter conſuetudinem gentis noſtrae, Longobardorum legem impiam vetare non poſſumus*."’
*
Laws of the Longobards, L. 1. Tit. 9. § 23.
Quon. Attach. Cap. 5. § 7.
*
See Spelman's Gloſſary, Tit. Adrhamire.
Jacob's Law Dictionary (voce) Wager at Law.
Stat. Rob. III. Cap. 16.
*
L. 2. Cap. 7. to the end of that book.
L. 4. Cap. I. § 13. and Cap. 4. § 2.
*
See. Reg. Maj. L. 1. Cap. 12.
*
THE term property has three different ſignifications. It ſignifies properly, as above, a peculiar relation betwixt a perſon and certain ſubjects, as land, houſes, moveables, &c. Sometimes it is made to ſignify the privileges a perſon has with relation to ſuch a ſubject; and ſometimes it ſignifies the ſubject itſelf, conſidered with relation to the perſon. I have not ſcrupled to uſe the term, in theſe different ſenſes, as occaſion offered.
*
Compend of the Pandects, Pars 2. § 86.
Maevius de jur. Lubec. Part 4. Tit. 1. § 2.
Conſtit. Crim. 218.
Carpzovius, Part 4. Conſt. 32. def. 23.
a

IF the reader, neglecting the opinions delivered by writers on the Roman law, form his judgment on facts and circumſtances reported by them, he will, to the foregoing authorities, add the practice of the ancient Romans, which, to the man who loſt his goods by theft, afforded a condictio furtiva againſt the thief. This action being merely perſonal, and founded on the delinquency of the defendant, takes it for granted, that the purſuer had, by the theft, loſt his property; and accordingly the action is calculated to reſtore the property to the purſuer, by compelling the defendant to yield the poſſeſſion to him. Afterwards, ſo ſoon as property was diſtinguiſhed from poſſeſſion, and theft was held not ſufficient to deprive a man of his property, a rei vindicatio was given. This again being a real action, takes it for granted, that the property remains with the purſuer; and accordingly it concludes only, that the poſſeſſion be reſtored to him. After this alteration of the law concerning property, there was evidently no longer occaſion or place for the condictio furtiva; becauſe a man who has not loſt his property, cannot demand that it be reſtored to him. And yet the later Roman writers, Juſtinian in particular, not adverting to this alteration, hold moſt abſurdly, That the rei vindicatio, and condictio furtiva, are competent both of them againſt the thief, and that the Purſuer has his choice of either; which is, in effect, maintaining, That the purſuer is proprietor and not proprietor at the ſame time*. Vinnius, in his commentary on Juſtinian's Inſtitutes, ſees clearly the inconſiſtency of giving to a proprietor the condictio furtiva. His words are, ‘"Quomodo igitur fur qui dominus non eſt, domino cui ſoli condictionem furtivam competere conſtat, rem dare poterit? Quod ſi hoc impoſſibile eſt, abſurdiſſimum videtur quod hic traditur, furem ſic convenire poſſe, ut dare jubeatur, et dominium rei quod non habet transferre in actorem, eundemque rei petitae dominum. Nodus hic indiſſolubilis eſt, &c."’ Is it not ſtrange, that an inconſiſtency ſet in ſo clear a light, did not open this author's eyes, nor lead him to conclude, naturally and infallibly, that the ſuſtaining a condictio furtiva is compleat evidence, that when this action was invented, the property, as well as the poſſeſſion, was by theft underſtood to be loſt?

WE find traces of the ſame way of thinking in other matters. A man who, by force or fear, was compelled to ſell his ſubject at an undervalue, had no redreſs by the common law of the Romans*. It was the Pretor who firſt took upon him to reſtore in integrum, by an action, thoſe who were thus deprived of their property. This action originally was ſtrictly perſonal, being directed againſt the wrong doer only; nor could it be extended againſt a bona fide purchaſer, ſo long as property was held to vaniſh when the poſſeſſion was loſt. For though, by the law of nature, no man is bound by a covenant which by force or fear he is compelled to make, yet when delivery is made, and the ſubject is acquired by a third party, who purchaſes bona fide, an action of reſtitution could not lie againſt him. The claimant, who loſt his property with the poſſeſſion, had not a rei vindicatio; and a perſonal action could not lie againſt a purchaſer who had no acceſſion to the wrong. But after the doctrine prevailed, That property can ſubſiſt independent of poſſeſſion, it came naturally to be a ſubject of deliberation, whether a rei vindicatio might not lie in this caſe againſt the bona fide purchaſer, as well as where a ſubject is robbed or ſtolen without the formality of a contract. There is fundamentally no difference. For a Contract, however formal, is no evidence of conſent where force has been interpoſed; and delivery, without conſent, transfers not property. In this caſe, however, which had the appearance of ſome intricacy, the Roman Pretor did not venture to ſuſtain a rei vindicatio in direct terms. But the ſame thing, in effect, was done under diſguiſe. The connection of property had by this time taken ſo faſt hold of the mind, as to make it a rule, That a man cannot be deprived of his ſubject by an involuntary ſale, more than by theft or robbery; and to redreſs ſuch wrong, the actio metus was, by the perpetual edict, extended even againſt the bona fide purchaſer*. The actio metus being in this caſe made truly a real action, differed in nothing but the name from a rei vindicatio; for, from a purchaſer bona fide, the ſubject evidently cannot be claimed upon any medium, other than that the claimant is proprietor; and conſequently is entitled to a rei vindicatio. Hence it is, that, in the Roman Law, the actio metus is claſſed under a ſpecies denominated, Actiones in rem ſcriptae, a ſpecies which has puzzled all the commentators, and which none of them have been able to explain. It is the hiſtory of law only that can give us a clear notion of theſe actions. All actions paſs under that name, which, originally perſonal, were, by the augmented vigour of the relationof property, made afterwards real.

WE alſo diſcover from the Roman law, that other real rights made a progreſs ſimilar to that mentioned concerning property. There was, for example, in the Roman law no real action originally for recovering a pledge, when the creditor, by accident or otherwiſe, had loſt the poſſeſſion. It was the Pretor Servius who gave a real action.

*
l. 7. pr. de condict. ſuit. § ult. Inſtitut. de Oblig. quae ex delict.
Tit. de Action. § 14
*
The reaſon of this is given in the ſecond Tract.
*
l. 3. C. his quae vi metuſque cauſ.
§ 8. Inſtit. de action. and Vinnius upon that §.
*
COKE ſeems not to have underſtood this matter, when he can find no cauſe for the regulation, other than the encouragement of fairs and markets, in order to promote commerce. This implies, that formerly a purchaſe, even in open market, afforded no ſecurity againſt the proprietor; and that the legiſlature, to encourage fairs and markets, could think of no better expedient, than to render property precarious, and to ſubject individuals to frequent forfeitures. A meaſure ſo unjuſt and ſo violent, is not agreeable to the genius of the law of England. This regulation (as in the text) was introduced to ſecure property, not to unhinge it; which alſo appears from the two ſtatutes mentioned by our author, confining the privilege of thoſe who purchaſe in open market within the narroweſt bounds. By the latter, viz. 31ſt of Eliſabeth, no perſon is in ſafety to buy a horſe even in open market, unleſs ſome ſufficient or credible perſon vouch for the vender. And even in that caſe, the horſe muſt be reſtored to the proprietor claiming within ſix months, and offering the price that was paid by the bona ſide purchaſer.
Inſtit. 2. p. 713.
*
WHEN men were hunters, and lived, like the Savage animals, upon prey, there could be no regular ſupplies of food; and after they became ſhepherds, the former habit of abſtinence, made their meals probably leſs frequent than at preſent, though food was at hand. In old times there was but one meal a day; which continued to be the faſhion, even after great luxury was indulged in other reſpects. In the war which Xerxes made upon Greece, it was pleaſantly ſaid of the Abderites, who were appointed to provide for the King's table, that they ought to go in a general proceſſion, and acknowledge the favour of the gods, in not inclining Xerxes to eat twice a day*. In the reign of Henry VI. of England, we have Shakeſpear's authority, that the people of England fed but twice a day. Our hiſtorian, Hector Boyes, exclaims againſt the growing luxury of his time, that, not ſatisfied with two meals, ſome men were ſo gluttonous as to eat thrice every day. Cuſtom, no doubt, has a powerful effect in this caſe, as well as in many others: but the human frame is not ſo much under the power of cuſtom, as to make it eaſy for a man, like an eagle, to faſt perhaps for a month.
*
Herodotus, L. 7.
Vol. 5. page 95. near the top, compared with page 93. in the middle. Warburton's edition.
*
Leg. Burg. Cap. 128.
*
THE Scythians drawing no ſubſiſtence from the plough, but from cattle, and having no cities nor incloſed places, made their carts ſerve them for houſes: by which it was eaſy for them to move from place to place. Herodotus from this obſerves, that the Scythians are never to be found by an enemy they chuſe to avoid.
Book 4.
See the deſcription given by Thucydides of the original ſtate of Greece. Book 1. at the beginning.
*
Janus Anglorum, Cap. 25.
IT is a common practice among the ſalmon-fiſhers to purloin from their maſters part of the fiſh; and it is very difficult to reſtrain them, becauſe they ſcarce think it a fault. They cannot conceive that the ſalmon, before delivery, belong to their maſter. After delivery indeed, or after the maſter's mark is put upon the fiſh, they readily admit, that it would be theft to take any away. This ſhows, that in the natural ſenſe of mankind, occupation or delivery is requiſite to eſtabliſh property.
*
See the eſſay immediately forgoing.
*
HEREDES tamen ſucceſſoreſque ſui cuique liberi: et nullum teſtamentum*.
*
Tacitus de morbus Germanorum.
*
I. 11. de liber. & poſthum. hered.
*
Lambard's collection of old Engliſh laws, Edw. the Confeſſor, lex 19. at the end.
L. 1. Tit. 10. § 1.
*
Ruth, Ch. 4.
Leg. Burg. cap. 45, 94, 95, 96, 115, 125. 57, 127.
Laws of the Saxons, § 14, 16.
*
L. 5. Tit. 1. § 1.
Laws of the Burgundians, Tit. 1.
Laws of the Bavar. Tit. 1. §. 1.
*
Of ancient deeds and charters, page 234.
L. 7. cap. 1.
L. 2. cap. 18.
*
Heineccii antiquitates Romanae, L. 2. Tit. 7. § 13.
*
l. 8. § 6. de inoff. teſt.
Novel. 115. cap 3.
L. 2. Tit. 14. § 12.
*
l. 12. de acquir. vel omit. hered.
*
Lex Ripuariorum, § 48.
Lex Viſigothorum, L. 4. Tit. 2. § 20.
l. 1. de inoff. teſt.
Laws of the Saxons, § 14.
*
Lambard's collection. Laws of king Alfred, l. 37.
*
L. 2. Tit. 14. § 1.
L. 2. Dieg. 17.
*
WHILE the law ſtood, as it did originally, That no man could diſpoſe of his eſtate in prejudice of his heir, there could not be place for the law of death-bed. This law was the conſequence of indulging proprietors to diſpoſe of a part for rational conſiderations; from which indulgence death-bed was an exception. Hence it appears, that the law of death-bed was not a new regulation introduced into Scotland by ſtatute or cuſtom. It is in reality a branch of the original law, confining proprietors from aliening their lands in prejudice of their heirs, which original law is ſtill preſerved entire in the circumſtance of death-bed. Our authors therefore are in a miſtake, when they aſcribe the law of death-bed to the wiſdom of our forefathers, in order to protect their eſtates from the rapacity of the clergy. It exiſted too early among us to make this a probable ſuppoſition. In thoſe early times, the prevalence of ſuperſtition would have prevented ſuch a regulation, had a poſitive law been neceſſary.
See Glanvil, L. 7. Cap. 1. Reg. Maj. L. 2. Cap. 18.
34 and 35 Hen. VIII. Cap. 5. § 4.
*
Glanvil, L. 7. cap. 1. Reg. Maj. L. 2. cap. 20. § 4.
*
THE coins of a Roman emperor had ſcarce any currency after his death; and therefore the firſt act of power generally was to recoin the money of the former emperor*. It was the preſent emperor's will only which could give authority to publick money, or to any other publick concern. This ſerves to illuſtrate the principle, That a man's will after his death cannot have the effect to regulate the conduct, or limit the property of the next ſucceſſor; particularly, that it cannot have the effect to limit the ſucceſſor with regard to the choice of his own heir.
*
Walker's Grecian and Roman hiſtory, illuſtrated by medals, page 15.
*
ACCORDING to the original conſtitution of feudal holdings, a perpetual ſucceſſion to theſe ſubjects was eſtabliſhed on a foundation ſtill more clear and indiſputable. A feudal holding, while it was beneficiary and not patrimonial, admitted not, properly ſpeaking, of a ſucceſſion of heirs. When a vaſſal died the ſubject returned to the ſuperior, who made a new grant in favour of the heir called to the ſucceſſion in the original grant; and ſo on till all the heirs were exhauſted to whom the ſucceſſion was originally limited; after which the ſubject returned ſimply and abſolutely to the ſuperior. The title therefore of poſſeſſion being a new grant from the ſuperior, the perſons called to the ſucceſſion could not properly be conſidered as heirs but as purchaſers.
*
13 Edw. I. cap. 1.
*
Voet, Tit. de Pignor. et Hypoth. § 9 and 10.
ib. § 10.
Tit de deſtruct. pignor. § 3.
*
Leg. Burg. cap. 4.
Cap. 34 and 58.
Cap. 35 and 37.
*
Leg. Burg. cap. 57.
Firſt Stat. Rob. I. cap. 7.
L. 1. Dieg. 10. § 38. in fine.
L. 2. Dieg. 7. § 26.
*
Act. 4. p. 1669.
*
SERVIS, non in noſtrum morem, deſcriptis per familiam miniſteriis, utuntur. Suam quiſque ſedem, ſuos paenates regit. Frumenti modum dominus, aut pecoris, aut veſtis, ut colono injungit*.
*
Tacitus de moribus Germanorum.
*
See 2d Will. and Mary, cap. 5.
*
Inſtitut. page 268.
New abridgement of the law, Tit. (Annuity and rent-charge.)
*
Jacob's law dictionary, Tit. (Rent.)
*
See Tract I.
*
Firſt Stat. Rob. I. cap. 7.
*
No. 2.
*
A clauſe burdening a diſpoſition of land with a ſum to a third party, is, in our practice, made effectual by poinding the ground. A right thus eſtabliſhed ſtrongly reſembles a rent-charge. The power which in this caſe the creditor hath to poind the ground, can have no other foundation to reſt on, than a clauſe of diſtreſs, which is expreſt in a rent-charge, and is implied in the right we are ſpeaking of.
*
Stair, page 263.
Act 42. p. 1692.
*
Durie, 24th March 1626, Gray contra Graham. Fountainhall, 5th July 1701, Kinloch contra Rochead.
*
See a copy of this letter in the Appendix, No. 3.
*
Book 4. Tit. 23. § 1.
*
Inſtit. Book 2. Tit. 8. § 14.
*
See as to this point, Tract VIII. Of brieves.
Book 4. Tit. 23. § 8.
*
Book 4. Tit. 23. § 8. Tit. 35. § 27. Tit. 51. § 2, & 11.
*
Ad. lib. 1. feud. Tit. 1. §. 10.
*
Selden's Janus Anglorum, ch. 17.
*
L. 7. C. 9. L. 9. Cap. 4.
L. 4. pa. 252. [...]
*
Coke, 2 Inſtit. 134.
*
Reg. Maj. L. 2. cap. 40. cap. 71. § 1. Second ſlat. Rob. I. cap. 6. § 1, 2, 3.
*
Cap. 19, & 38.
*
13th February 1740, Dickſon of Kilbucho contra apparent heir of Poldean.
*
See this indenture in the Appendix, No. 4.
*
IT was a regulation in Perſia, that the King behoved to name his ſucceſſor, if he choſe to make war in perſon. Darius had three ſons by the daughter of Gobryas, his firſt wife; all born before he was king. After his acceſſion to the throne, he had four more by Atoſſa, the daughter of Cyrus. Of the former, Artabazanes was the eldeſt: of the latter, Xerxes: and theſe two were competitors for the ſucceſſion. Artabazanes urged, that he was the eldeſt of all the ſons of Darius, and that, by the cuſtom of all nations, the eldeſt ſon has a right to the crown. On the other hand, it was urged by Xerxes, that he was the ſon of Atoſſa, the daughter of Cyrus, who had delivered the Perſians from ſervitude, and that he was born after Darius was king; whereas Artabazanes was only the ſon of Darius a private man. Theſe reaſons appeared ſo juſt, that Xerxes was declared the ſucceſſor*. The privilege of primogeniture could not be firmly eſtabliſhed in Perſia, when it gave way to ſuch trivial circumſtances.
*
Herodotus, Book 7.
*
Leg. Burg. cap. 61.
Ib. cap. 7.
Firſt ſtat. Rob. I. cap. 16. § 3.
*
Quon. attach. cap. 8.
*
Reg. Maj. L. 1. cap. 3.
*
Skene de verb. ſignif. Tit. (Iter) § 12.
*
Act 29. p. 1587.
*
Act 39. P. 1693, act 37. P. 1695, and, act 8. P. 170 [...].
*
THE act 3. Geo. II. cap. 32. impowering the judges of the court of juſticiary, or any of them, to ſtay for thirty days, the execution of any ſentence of a regality court importing corporal puniſhment, encouraged probably the court of juſticiaryto aſſume this power.
21ſt January 1748.
*
20th December 1753, Mackenzie of Highfield contra freeholders of the ſhire of Cromarty.
*
4th Auguſt 1757, Malcolm and others contra commiſſioners of ſupply for the ſtewartry of Kircudbright.
*
Sinclair, 9th March 1543, Lord Bothwell contra Flemings.
*
A baron is deprived of all juriſdiction in capital caſes, by act 20. Geo. II. 43.
*
Gosford, 6th July 1669, Heirs of Towie contra Barclay.
Durie, 14th July 1638, Dunbar contra Dunbar.
*
Haddington, 2d March 1611, Officers of ſtate contra Coutie and others.
Act 5. P. 1696. act 6. P. 1701.
*
See Wood's Inſtit. book 4. pa. 536.
*
Reg. Maj. L. 2. cap. 50.
*
See Durie, 23d July 1630, Pifſligo contra Davidſon.
*
January 1756, Smith contra Fowler.
*
See l. 6. §. 2. l. 27. § 2. ad municipalem.
Fountainhall, 15th July 1701, Spotſwood contra Moriſon.
l. 23. § 1. ad municipalem.
*
Fountainhall, 12th November 1709, Lees contra Parlan.
See l. 19. de judiciis.
*
l. 21. de obligat. et action.
Haddington, 23d November 1610, Vernor contra Elvies.
l. 3. pr. de re militari.
*
Gosford, 18th Novem. 1673, Gordon contra Macculloch.
Durie, 28th July 1630, Freeland contra ſheriff of Perth.
Fountainhall, 14th February 1708, Procurator-fiſcal of Dumblane contra Wright.
*
See to this purpoſe, l. 1. C. ubi de crimin. agi oporteat.
*
See Arth. Duck de authoritate juris civilis, L. 2. cap. 8. pars 3. § 15, 16, 17, and 18.
*
Bacon's abridgement, p. 562, 563, & 564.
THIS defect in the common law may occaſion ſo groſs injuſtice, that the court of chancery, I can have no doubt, will find a remedy. The perſon abroad cannot be legally cited, but notice may be given him by authority of the court; and if he appear not in his own defence, a decree will, I preſume, be given, for making the claim effectual out of his funds perſonal and real.
*
De judiciis, § 91.
*
To carry this matter a ſtep farther, I put the caſe, That a Scotſman having a land-eſtate in Scotland, goes abroad, is naturalized in a foreign country, acquires a fortune, and ſettles there with his family, animo remanendi. Will not he and his deſcendants, while they retain their family-eſtate in Scotland, be conſidered as Scotſmen? I incline to the affirmative, and that they will be ſubjected to the courts here, preciſely like natives. And if this doctrine hold where a Scotſman ſettles in Holland, France, or Germany, it muſt a fortiori hold where he ſettles in England, which with Scotland makes one kingdom. But an Engliſhman, by purchaſing a land-eſtate here, becomes not eo ipſo a Scotſman, to be ſubjected perſonally to the courts of this country. In particular, he is not liable to anſwer a citation at the marketcroſs of Edinburgh, pier and ſhore of Leith. Such weight is ſtill laid upon the locus originis.
*
Vol. I. page 327.
*
L. 1. de judiciis.
*
See as to this laſt point, I. 74. § 1. de judiciis.
*
Haddington, 6th July 1611, Kennedy contra Kennedy.
Falconer, 22d December 1681, Beaton contra his tenants.
*
See a form of proceſs annexed to the Reg. Majeſt. Ch. 4. § 4, & 5.
*
Colvil, 7th March 1579, Johnſton contra Johnſton.
Falconer, 14th Feb. 1683, Murray contra Murray.
*
See abridgment of ſtatute-law, Note 7th.
*
Mod. Ten. Cur. cap. 16.
Act 95. p. 1503.
*
L. 4. cap. 1. § 31.
*
Act 65. p. 1425.
See act 63. p. 1457.
*
Act 41. p. 1471.
*
Act 95. p. 15 [...].
*
Act 45. p. 1537.
*
De judiciis. §. 143.
*
Page 342. cap. 12.
*
L. 4. Tit. 1. §. 35.
*
See Durie, 9th January 1629, Baron of Burghton contra Kincaid. Stair, 21ſt February 1666,—contra ſheriff of Inverneſs.
*
Stair, 19th December 1680, Macclellan contra Biſhop of Dumblane.
Fountainhall, 5th June 1696, Alexander contra ſheriff of Inverneſs.
*
Fountainhall, 4th March 1707, Alves contra Maxwell.
*
Reg. Maj. L. 1. cap. 14.
Act 57. p. 1494.
Act 13. p. 1617.
*
Act 63. p. 1475.
*
Page 443. cap. 5.
*
Page 268.
*
Vol. I. page 592.
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TextGrid Repository (2020). TEI. 4456 Historical law tracts pt 1. University of Oxford Text Archive. . https://hdl.handle.net/21.T11991/0000-001A-623A-5