TRACT I.
HISTORY OF THE CRIMINAL LAW.

OF the human Syſtem no part, ex⯑ternal or internal, is more remark⯑able than a claſs of principles in⯑tended obviouſly to promote Society, by reſtraining men from harming each other. Theſe principles, as the Source of the cri⯑minal Law, muſt be attentively examined; and, to form a juſt notion of them, we need but reflect upon what we feel when we com⯑mit a Crime, or witneſs it. The firſt re⯑flection will unfold Divine juſtice carried in⯑to [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 re⯑markable, 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 pu⯑niſhed 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 per⯑fect can be imagined^*. This dread, when the reſult of atrocious or unnatural Crimes, is itſelf a tremenduous puniſhment, far ex⯑ceeding all that have been invented by Man. Happy it is for Society, that in⯑ſtances 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 in⯑ſtance 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 pro⯑ſperity to the Inhabitants; and it is an ar⯑ticle in their Creed, that all the offences of [4] which they had been guilty to that mo⯑ment, are buried in oblivion, and all their iniquities pardoned^*. The dread which accompanies guilt, till puniſhment be in⯑flicted or forgiven, muſt undoubtedly be univerſal, when it makes a figure even among the Hottentotes.

UPON every wrong, reaſon and expe⯑rience 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 puniſh⯑ment, 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 par⯑ticular, to which man is adapted with wonderful foreſight, through the conſciouſ⯑neſs of their being juſtly inflicted, not on⯑ly by the perſon injured, but by the Ma⯑giſtrate, or by any one. Abſtracting from this conſciouſneſs, the moſt frequent in⯑ſtances of chaſtiſing Criminals, would readi⯑ly be miſapprehended for ſo many acts of violence and oppreſſion, the effects of Ma⯑lice 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 indigna⯑tion we have at groſs crimes, even when we ſuffer not by them; and next Reſent⯑ment in the perſon injured, even for the [6] ſlighteſt Crime; by which ſufficient provi⯑ſion 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 juſt⯑ly puniſhed; and if any perſon, preferably to others, be entitled to inflict the puniſh⯑ment, it muſt be the perſon injured.

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 appro⯑bation or diſapprobation of Conſcience. And thus the firſt Law of Nature, regard⯑ing [7] Society, that of abſtaining from in⯑juring others, is enforced by the moſt effi⯑cacious 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 con⯑ducing to our ſafety. As that is ſer⯑viceable in prompting us to ſhun Dan⯑ger, ſo is this in fortifying us againſt it, and enabling us to repel Injury and re⯑ſiſt violence when offered. 'Tis by this Paſſion that one Creature offering vio⯑lence 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 car⯑ried further, it will not paſs eaſily, or with impunity. 'Tis this paſſion with⯑al, which, after violence and hoſtility [8] executed, rouſes a Creature in oppoſi⯑tion, 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 remark⯑able 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 ex⯑amined with the utmoſt accuracy. Re⯑ſentment is raiſed in different degrees, ac⯑cording to the ſenſe one hath of the Injury. An Injury done to a man himſelf, provokes Reſentment in its higheſt degree. An In⯑jury of the ſame kind done to a friend or relation, raiſes reſentment in a lower de⯑gree; [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 princi⯑ple 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 indigna⯑tion, [10] it is true, but ſo faintly as not to prompt any degree of revenge. The paſ⯑ſion 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 Delin⯑quent 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 puniſh⯑ment, or at leaſt direct it; and the Criminal muſt be made ſenſible, not only that he is pu⯑niſhed 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 ac⯑curacy in the following Scene.

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 involun⯑tary 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 ob⯑ject 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 reſent⯑ment. If accidentally ſtriking my foot againſt a Stone, a ſmart pain enſues, Re⯑ſentment 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 apo⯑logy for ſuch abſurd fits of paſſion, is, that they are but momentary, and vaniſh upon [13] the firſt reflection. And yet ſuch indul⯑gence was by the Athenians given to this irrational Emotion, that if a man was killed by the fall of a Stone, or other ac⯑cident, the inſtrument of death was de⯑deſtroyed^*. ^† Reſentment raiſed by vo⯑luntary [14] wrong, which is a rational and uſeful paſſion, is in a very different condi⯑tion. It ſubſiſts till the ſenſe of the in⯑jury be done away, by puniſhment, atone⯑ment, or length of time.

BUT all the irregularities of this paſſion are not yet exhauſted. It is ſtill more ſa⯑vage and irrational, when, without diſtin⯑guiſhing the innocent from the guilty, it is exerted againſt the Relations of the Cri⯑minal, and even againſt the Brute Crea⯑tures [15] that belong to him. Such bar⯑barity 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 Sa⯑crilege, or betraying his Country, was ba⯑niſhed, 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 deſtruc⯑tion^†. In the Laws of the Bavarians^‡, the uſe of women was forbid to Clergy⯑mne, ‘"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.

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, pro⯑cul 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 fol⯑lowing words. ‘"Filii vero ejus, quibus vitam Imperatoria ſpecialiter lenitate con⯑cedimus, [18] (paterno enim deberent perire ſupplicio, in quibus paterni, hoc eſt, he⯑reditarii criminis exempla metuuntur) a materna, vel avita, omnium etiam proximorum hereditate ac ſucceſſione, habeantur alieni: teſtamentis extrane⯑orum nihil capiant: ſint perpetuo egen⯑tes, & pauperes, infamia eos paterna ſemper comitetur, ad nullos prorſus ho⯑nores, ad nulla ſacramenta perveniant: ſint poſtremo tales, ut his, perpetua ege⯑ſtate 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 Crimi⯑nal and his Relations, but againſt the whole Clan; a ſpecies of reſentment ſo common as to be diſtinguiſhed by a pecu⯑liar 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 de⯑ceas'd [19] and the Murderer himſelf; and de⯑claring, 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 pu⯑niſhment of capital Crimes^*.

A tendency to exceſs, ſo deſtructive in the paſſion of reſentment, is a quality, which in other paſſions is often the occa⯑ſion of good. Joy when exceſſive as well as Gratitude, are not confined to their pro⯑per 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 mo⯑derate, accompanied with a Senſe of fit⯑neſs and rectitude; but when exceſſive, they inflame the mind, which is violent⯑ly hurried to action, without due diſtinc⯑tion of Objects.

[20] AND this leads me to a reflection up⯑on the irregular tendency of Reſentment here diſplayed. If it be the nature of all active paſſions, when immoderate, to ex⯑pand themſelves beyond their proper ob⯑jects, which is remarkable in friendſhip, Love, Gratitude, and all the ſocial paſſions, it ought not to be ſurpriſing that Re⯑ſentment, Hatred, Envy, and other diſ⯑ſocial paſſions, ſhould not be more regu⯑lar. 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 ten⯑dency to exceſs is, upon the whole, ex⯑tremely beneficial.

IT is obſerved above, that revenge is a privilege beſtowed by the Law of Nature upon thoſe who ſuffer by a voluntary in⯑jury; 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 ſpeak⯑ing 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 re⯑ſemblance, reaſon about puniſhment unwa⯑rily, 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 puniſh⯑ment that another merits. Traces of this opinion are found in the religious ceremo⯑nies of the ancient Egyptians and other heathen nations. Among them the con⯑ceptions of a Deity were groſs, and of mo⯑rality not leſs ſo. We muſt not therefore be ſurpriſed at their notion of a transfe⯑rence of puniſhment, as of debt, from one perſon to another. They were impoſed upon by the ſlight analogy above men⯑tioned; which reaſoning taught them not to correct, becauſe reaſoning at that time was not ſo far advanced as to overba⯑lance the weight of natural prejudices. Even in later times, when a Roman ar⯑my 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.

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

THAT one ſhould undertake a debt for another, is a matter of conſent, not re⯑pugnant to the rules of Juſtice. But with reſpect to the adminiſtration of Juſtice a⯑mong [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, con⯑ſidered as a gratification of the party of⯑fended, is purely perſonal; and, being in⯑ſeparably connected with guilt, cannot ad⯑mit of ſubſtitution. A man may con⯑ſent, it is true, to ſuffer that pain which his friend the offender merits as a puniſh⯑ment. But the injured perſon is not gra⯑tified 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 ob⯑vious 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 hu⯑man 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 hor⯑ror^*. 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 in⯑fluence 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 my⯑ſelf 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 pu⯑niſhment in human ſociety, is ſubverſive [27] of humanity, and not leſs ſo of moral du⯑ty. Men we ſee have been miſled ſo far, as fondly to flatter themſelves, that, with⯑out 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 great⯑er than is willingly acknowledged, or even ſuſpected. Many men give punctual at⯑tendance at publick worſhip, to compound for hidden vices. Many men are openly charitable, to compound for private oppreſ⯑ſion; 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, pro⯑ceeding from a wrong bias in our nature, [28] cannot be eradicated after they have once got poſſeſſion of the mind; nor be prevent⯑ed, except by early culture, and by fre⯑quently 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 ſin⯑cere repentance, and thorough reformation of manners.

HAVING diſcourſed in general of the Nature of puniſhment, and of ſome ir⯑regular notions that have been entertain⯑ed 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 Indi⯑viduals as at preſent. Mutual Defence a⯑gainſt 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 re⯑tained conſiſtently with their great aim of [29] mutual Defence. In particular, the privi⯑leges 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 ad⯑juſted 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 Ar⯑biter? Or what if one of them proved re⯑fractory, after the choſen Arbiter had given his opinion? To remedy theſe inconveni⯑ences, it was found expedient to eſtabliſh Judges, who, at firſt, differed in one cir⯑cumſtance only from Arbiters, that they could not be declined. They had no ma⯑giſterial authority, not even that of com⯑pelling [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 occur⯑red, but the making it lawful for the Com⯑plainer 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 Coun⯑tries 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 puniſh⯑ment 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 wreſt⯑ed 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 in⯑fancy, comprehending no ſort of Juriſdic⯑tion 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 in⯑ſtead of wondering at the original weak⯑neſs 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 Au⯑thority, in contradiction to the ſtrongeſt and moſt active principles of human na⯑ture. 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 na⯑ture of Man, makes private revenge the moſt dangerous privilege that ever was left with Individuals. The man who is in⯑jured, having a ſtrong Senſe of the wrong done him, never dreams that his reſent⯑ment can be puſhed too far. The Of⯑fender, 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 with⯑out 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 rela⯑tions 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 of⯑fended party to ſubſide. If the man tak⯑ing benefit of the ſanctuary was found guil⯑ty, he was delivered to the avenger of blood that he might die^*. In the laws of the Athenians, and alſo of the barbarous na⯑tions 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 with⯑out any ceremony. Therefore it was law⯑ful for a man to kill his wife and the adul⯑terer 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 mani⯑feſt, there behoved to be a previous trial, in order to determine whether the ſuſpected perſon was guilty or innocent. Thus a mar⯑ried woman, ſuſpected of adultery, muſt be accuſed before the judge, and, if found guil⯑ty, 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 mar⯑ried 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 pleaſure^a. A ſlave who com⯑mits fornication with a free woman, muſt be delivered to her parents to be put to death^b.

[36] IN tracing the hiſtory of law through dark ages unprovided with records, or ſo ſlenderly provided, as not to afford any re⯑gular 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 conjec⯑tures drawn from the nature of the govern⯑ment, 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 re⯑gard 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 toge⯑ther 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 pro⯑ceed chearfully with the taſk I have under⯑taken. The neceſſity of applying to a judge, where any doubt aroſe about the au⯑thor of the crime, was probably, in all countries, the firſt inſtance of the legiſla⯑ture's interpoſing in matters of puniſhment. It was no doubt a novelty; but it was ſuch as could not readily alarm individuals, be⯑ing 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 Ba⯑varians, 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 apply⯑ing 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 em⯑pire, 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 pu⯑niſhment 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 ex⯑ceſs 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 unlaw⯑ful 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 un⯑neceſſary, by a cuſtom I am now to enter upon, which made a great figure in Europe for many ages, that of pecuniary Compo⯑ſitions for crimes.

OF theſe pecuniary compoſitions, I diſ⯑cover 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 pre⯑vails over the keeneſt paſſions. With re⯑gard to man-ſlaughter in particular, which doth not always prejudice the neareſt rela⯑tions, 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, dur⯑ing [41] the period that the right of puniſh⯑ment 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 al⯑ludes to this law, in his ſtory of Mars and Venus entangled by the huſband Vulcan in a net, and expoſed to publick view.

THE Greeks alſo admitted a compo⯑ſition for murder, as appears from the fol⯑lowing paſſage.

Again,

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 pe⯑corum numero, recipitque ſatisfactionem univerſa domus."’ We find traces of the ſame thing in Abyſſinia^*, among the Negroes on the coaſt of Guinea^†, and a⯑mong 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 prac⯑tice was eſtabliſhed among our Saxon an⯑ceſtors, under the name of Vergelt, is known to all the world.

THIS practice at firſt, as may reaſonably be conjectured, reſted altogether upon pri⯑vate 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 na⯑ſcent 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 impe⯑tuoſity 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 be⯑half of the delinquent, if he offered a reaſon⯑able 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 proſe⯑cute 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 demand⯑ing ſatisfaction, muſt reſtore what he has taken, and further be liable in a compenſa⯑tion. 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 Longo⯑bards^†, if the perſon injured refuſed to ac⯑cept of a compoſition, he was ſent to the king to be impriſoned, in order to reſtrain him from revenge. And if the criminal re⯑fuſed 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-ſlaugh⯑ter, the perſon injured muſt give his oath not further to proſecute his feud^‡; and if he, notwithſtanding, follow out his re⯑venge, he is ſubjected to a double compo⯑ſition^‖.

[46] ALTARS, among moſt nations, were places of ſanctuary. The perſon who fled to an altar, was held to be under the im⯑mediate protection of the Deity, and there⯑fore 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^*.

THE ſame notion prevailed among Chri⯑ſtians, and altars ſerved the purpoſe of the cities of refuge among the Jews. Thus, by the Law of the Viſigoths^*, if a mur⯑derer fly to the altar, the prieſt ſhall deliver him to the relations of the deceaſed, upon giving oath that, in proſecuting their re⯑venge, they will not put him to death. Had the proſecuter, at this period, been bound to accept of a compoſition, the pri⯑vilege of ſanctuary would have been unne⯑ceſſary. 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 Eng⯑land^*, 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 ap⯑pears, that the privilege of ſanctuary, tho' the child of ſuperſtition, was extremely uſe⯑ful, 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 puniſh⯑ment, 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 ſhil⯑lings; for breaking the ſkin, ten ſhillings; for a cut which reaches the bone, twenty ſhillings; and for a broken bone, one hun⯑dred ſhillings; but that greater crimes ſhall be more ſeverely puniſhed: maiming, diſ⯑membring, or depriving one of his natural liberty by impriſonment or fetters, to be puniſhed by the lex talionis ^*. But com⯑poſitions 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 Ri⯑puarii, of the Saxons, of the Angli and Thu⯑ringi, of the Friſians, of the Longobards, and of the Anglo Saxons, are full of theſe compo⯑ſitions, extending from the moſt triffling inju⯑ry, to the moſt atrocious crimes, not except⯑ing high treaſon, by imagining and compaſs⯑ing 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 de⯑linquencies? Such a thing is not heard of in later times. But the following anſwer will give ſatisfaction, That reſentment, al⯑lowed ſcope among Barbarians, was apt to take flame by the ſlighteſt ſpark^*. There⯑fore, to provide for its gratification, it be⯑came 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 puniſh⯑ment is choſen, as may have the effect of repreſſing the crime in time coming, with⯑out 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 repa⯑ration to the party injured for his loſs or damage. Therefore, in adjuſting theſe compoſitions, no ſteady or regular diſtinc⯑tion is made betwixt voluntary and involun⯑tary wrongs. He who wounded or killed a man by chance, was liable to a compoſi⯑tion^*; and even where a man was killed in ſelf-defence, a full compoſition was due^†. Voluntary and involuntary crimes were ge⯑nerally [52] put upon the ſame footing. But this was altered by a law among the Longo⯑bards, 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 puniſh⯑ment^†. But ſuch was the prevalency of Reſentment, that though at firſt no allevi⯑ation or excuſe was ſuſtained to mitigate the compoſition, aggravating circumſtances were often laid hold of to inflame the com⯑poſition. Thus he who took the oppor⯑tunity [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 ap⯑proach 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 com⯑poſition; and the reaſon given is, that they cannot aſſiſt in proſecuting revenge, non poſ⯑ſunt ipſam faydam levare ^*. But women are capable of receiving ſatisfaction or atone⯑ment for a crime committed againſt their relation, and therefore are entitled in ju⯑ſtice to ſome ſhare of the compoſition.

BEFORE entering upon a new branch, I muſt lay hold of the preſent opportuni⯑ty, to beſtow a reflection upon this ſingu⯑lar practice of compounding for crimes. However ſtrange it may appear to us, it was certainly a happy invention. By the temp⯑tation of money, men were gradually ac⯑cuſtomed to ſtiffle their reſentments. This was a fine preparation for transferring the [55] power of puniſhment to the magiſtrate, which would have been impracticable with⯑out ſome ſuch intermediate ſtep: for while individuals retain their privilege of aveng⯑ing injuries, the paſſion of reſentment, for⯑tified 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 cri⯑minal juriſdiction is ingroſſed by every in⯑dividual for his own behoof, there muſt be an overbalance of power in the people, in⯑conſiſtent 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 go⯑vernment. 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 can⯑not eſcape obſervation, that nothing tends more to ſupport the authority of the ma⯑giſtrate, than his power of criminal juriſ⯑diction; becauſe every exerciſe of that power, being publick, ſtrikes every eye. In a coun⯑try 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 ſub⯑miſſion 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 mo⯑tive, the idea of a common intereſt, other⯑wiſe than for defence, of a publick, of a com⯑munity, was ſcarce underſtood. War, in⯑deed, 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 com⯑mon 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 pre⯑tend to interpoſe in private differences, whe⯑ther civil or criminal. In the infancy of ſociety, the idea of a publick is ſo faint and obſcure, that publick crimes, where no in⯑dividual is hurt, paſs unregarded. But when government, in its natural growth, hath advanced to ſome degree of maturi⯑ty, the publick intereſt is then recognized, and the nature of a crime againſt the pu⯑blick underſtood. This notion muſt gain ſtrength, and become univerſal, in the courſe of a regular adminiſtration, ſpreading it⯑ſelf upon all affairs which have any con⯑nection with the common intereſt. It na⯑turally [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 re⯑gulation, 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 compo⯑ſitions for crimes eſtabliſhed by law, paved the way to theſe improved notions of go⯑vernment. Compoſitions were firſt ſoli⯑cited, and afterwards enforced by the legiſ⯑lative authority. It was now no longer a novelty for the chief magiſtrate to inter⯑poſe in private quarrels. Reſentment was now no longer allowed to rage, but was brought under ſome diſcipline: and this re⯑formation, at the ſame time, however bur⯑denſome to an individual during a fit of paſſion, was agreeable to all in their ordi⯑nary ſtate of mind. The magiſtrate, hav⯑ing thus acquired ſuch influence even in pri⯑vate [59] puniſhment, proceeded naturally to aſ⯑ſume 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 con⯑fined. And accordingly, in the laws of the Bavarians^*, we find that the goods of thoſe who contract marriage within the prohi⯑bited 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 re⯑deem 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 de⯑fend, 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 par⯑ticular, 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 con⯑ſtantly 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 com⯑poſitions, 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 be⯑longed 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 pe⯑cuniary converſion: and, perhaps, the low⯑neſs of the converſion contributed to this thought; for compoſitions eſtabliſhed in days of poverty, bore no proportion to crimes after nations became rich and power⯑ful. [62] That this was the caſe of the old Ro⯑man compoſitions, every one knows who has dip'd into their hiſtory. This evil re⯑quired 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 oppor⯑tunity for the King, or chief magiſtrate, to interpoſe, and to decree an adequate puniſh⯑ment. 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 pu⯑niſhing atrocious crimes gained credit, be⯑came cuſtomary, and paſt into a law. If a puniſhment was inflicted adequate to the crime, there could be no claim for a com⯑poſition, 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 im⯑portance.

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 pu⯑niſhed 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 con⯑ſent 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 acqui⯑ſition was ſupported by the common ſenſe of mankind, which, as obſerved in the be⯑ginning 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 privi⯑leged. 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 pu⯑niſhments.

[65] THE magiſtrates power of criminal ju⯑riſdiction being thus far advanced, was car⯑ried its full length without meeting any longer with the ſlighteſt obſtruction. Com⯑poſitions 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 ap⯑pointed for that purpoſe; admitting no o⯑ther 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 cri⯑minal law behoved to be galling to indi⯑viduals, unaccuſtomed to reſtrain their paſ⯑ſions^*, all meaſures were taken to make [66] the yoke eaſy, by directing ſuch a puniſh⯑ment as tended the moſt to gratify the per⯑ſon injured. Whether this was done in a political view, or through the ſtill ſubſiſt⯑ing 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 in⯑creaſed 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 cut⯑ting off the hand or foot; but this only af⯑ter repeated acts^†. Among the Longo⯑bards, it required a third act of theft, be⯑fore a capital puniſhment could be in⯑flicted^‡. And at laſt theft was to be pu⯑niſhed 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 in⯑tereſt; 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 compoſi⯑tion; ſubjecting the furtum manifeſtum to a four-fold reſtitution, and the furtum nec ma⯑nifeſtum, 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 ac⯑quired 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 Ro⯑mans were in thoſe days, who of puniſh⯑ment underſtood no other end but the gra⯑tification 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 pro⯑ſecutor 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 proſecu⯑tor's claim of reſtitution was little regarded, of which our act 26. p. 1661. is clear evi⯑dence; 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 puniſh⯑ing 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 ſo⯑ciety, hath, we ſee, in theſe inſtances, pre⯑vailed over even the ſtrict rules of the cri⯑minal law^†.

[72] UPON this head, a remark occurs which will be found to hold univerſally. It re⯑gards a material point, that of adjuſting puniſhments to crimes, when criminal juriſ⯑diction is totally ingroſſed by the publick. After this revolution in government, we find the firſt puniſhments extremely mode⯑rate; 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 legiſ⯑lature. But after publick authority is firm⯑ly rooted in the minds of the people, pu⯑niſhments 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 proporti⯑on 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 ſocie⯑ty. 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 ſuc⯑ceſſion 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 guil⯑ty of treaſon againſt their lawful ſovereign; and to prevent the ruine of civil war, it be⯑comes neceſſary that ſuch treaſon be at⯑tended with the ſevereſt puniſhment, with⯑out 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 evi⯑dent 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 ap⯑pears to have been brought to perfection among the antient Egyptians. It was a re⯑gulation among them, that a woman with child could not be put to death till ſhe was delivered. And our author Diodorus Si⯑culus^* 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 privi⯑vilege of the magiſtrate, before a law ſo moderate and ſo impartial could take place. We find no ſimilar inſtances while puniſh⯑ment [76] was in the hands of individuals; for a good reaſon, that ſuch regulations are in⯑compatible 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 avoid⯑ed as much as poſſible; and in their place puniſhments are choſen, which, equally with death, reſtrain the delinquent from com⯑mitting 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 wo⯑man [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 pu⯑blick puniſhment. Though all civilized na⯑tions have agreed to forbid private revenge, and to truſt puniſhment, whether of publick [79] or private crimes, in the hands of diſinte⯑reſted judges; yet they differ as to the per⯑ſons who are allowed to proſecute before theſe judges. In Rome, where they had [80] no calumniator publicus, no advocate or at⯑torney 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 in⯑ſtitution; 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 oblig⯑ed 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 jurisju⯑randi calumniae adinventa fuit in crimen ſubſcriptio, cujus vinculo cavet quiſque quod crimen objecturus ſit, et in ejus ac⯑cuſatione uſque ad ſententiam perſevera⯑turus, dato eum in finem fidejuſſore; ſi⯑mulque ad talionem ſeu ſimilitudinem ſupplicii ſeſe obſtringit, ſi in probatione defeciſſe & calumniatus eſſe deprehenſus [82] fuerit."’ Had the Roman law con⯑tinued 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 proſecu⯑tions 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 benefi⯑cial it may be to the ſtate, to have the criminal deſtroyed? This would be an ex⯑ertion of publick ſpirit, ſcarce to be expec⯑ted among the moſt virtuous people, not to talk of times of univerſal corruption and depravity.

IN modern governments, a better me⯑thod is invented. The privilege of proſe⯑cuting publick crimes belongs to the chief magiſtrate. The King's Advocate in Scot⯑land 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 Eng⯑land, perſonal liberty has, from the begin⯑ning, been more ſacred than in Scotland; and to prevent the oppreſſion of criminal proſecutions, there is in England a regula⯑tion much more effectual than that now mentioned. No criminal trial, in name of the crown, can proceed, till firſt the mat⯑ter 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 in⯑jured, have each of them ſeparately an in⯑tereſt. The King's Advocate may proſe⯑cute ſuch crimes alone, ſo far as the publick is concerned in the puniſhment. The pri⯑vate party again is intereſted to obtain re⯑paration 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 pro⯑ſecutor, 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 con⯑ſent, 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 au⯑thority, to puniſh crimes more ſeverely than by a compoſition, was at firſt, we may be⯑lieve, not common; nor to be obtained at any rate, unleſs where the atrocity of the crime called aloud for an extraordinary pu⯑niſhment. 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 pre⯑rogative, 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 en⯑groſſed 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 foun⯑dation 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 in⯑juſtice, that the law ſhould ſuffer a man to be injured, without affording him any ſa⯑tisfaction, either by a publick puniſhment, or by a private compoſition. This, how⯑ever, it would appear, has been attempted. But the matter was ſettled by a law of Ed⯑ward 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 com⯑poſition 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 foun⯑dation. 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 ge⯑nerally decreed in name of damages, pro⯑portioned 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 reſent⯑ment 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. Dama⯑ges 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, reſent⯑ment, were it more moderate, would, per⯑haps, ſcarce be ſufficient to keep men in awe, and to reſtrain them, in any conſide⯑rable degree, from mutual injuries. Happy [89] it is for civilized ſocieties, that the autho⯑rity of law hath, in a good meaſure, ren⯑dered unneceſſary this ſavage and impetu⯑ous paſſion; and happy it is for individuals, that early diſcipline, under the reſtraint of law, by calming the temper, and ſweeten⯑ing manners, hath rendered it a leſs trouble⯑ſome 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 con⯑ſent. Promiſes and covenants have full authority among nations tamed and diſ⯑ciplined in a long courſe of regular govern⯑ment: but among Barbarians it is rare to [92] find a promiſe or covenant of ſuch autho⯑rity as to counterbalance, in any conſide⯑rable degree, the weight of appetite or paſ⯑ſion. 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 ne⯑ceſſity 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 ſubſiſt⯑ence. The invention of agriculture pro⯑duced 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 be⯑lieve, that buying and ſelling alſo was at firſt [93] carried on in the ſame manner, viz. by ex⯑change 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 readi⯑ly ſupplied by a ſpecies of commerce ſo nar⯑row and confined. The uſe of an inter⯑poſed 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, with⯑out previous agreements.

So far back as we can trace the Roman law, we find its authority interpoſed in be⯑half 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 what⯑ever 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, re⯑moved 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 inven⯑tion, 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 en⯑force, by legal authority, thoſe particular duties that contribute the moſt to the well-being of ſociety. A regulation ſo impor⯑tant gave full ſatisfaction, and, while re⯑cent, left no deſire or thought of any far⯑ther improvement. This fairly accounts for what is obſerved above, that in the in⯑fancy of law, promiſes and agreements which make a figure, are countenanced with an action, while others of leſs utili⯑ty 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 liber⯑ty 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 enforc⯑ing, iniquity. It is not ſurpriſing to find courts confined, originally, within too nar⯑row 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 gratui⯑tous promiſe, there is no harm done: mat⯑ters are left where they were before courts were inſtituted. But it is undoubtedly un⯑juſt to demand payment of a debt after it is diſcharged, though by a gratuitous pro⯑miſe 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 Ro⯑man ſtipulatio, of which afterwards, it ap⯑pears to me that no naked promiſe or co⯑venant was, by our forefathers, counte⯑nanced with an action. A contract of buy⯑ing 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 at⯑tended with no other penalty, but loſs of [99] the arles, or value of them^*. Our antient writers are not ſo expreſs upon other cove⯑nants; 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 privi⯑leged.

THE caſe hinted above as an exception, is where an agreement is made or acknow⯑ledged 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 man⯑ner of making the agreement behoved to have an effect, the ſame with that of ſtipu⯑latio 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 diffi⯑cult or intricate caſes, it was an early prac⯑tice for judges to interpoſe, by preſſing a tranſaction betwixt the parties; of which we have ſome inſtances in the court of ſeſ⯑ſion, 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 agree⯑ment, 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 ſu⯑perſtition, 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 prov⯑ing payment of it. But experience diſco⯑vered both the danger and uncertainty of ſuch evidence; which, therefore, was con⯑fined 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 fol⯑low 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 com⯑mon law, by admitting two witneſſes to prove debt to any extent^*. ^†

[103] THE King's courts aſſumed the like pri⯑vilege in other actions. Though they ad⯑mitted witneſſes to prove that a contract of ſale, for example, or location, was per⯑formed 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 in⯑ſiſted 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 him⯑ſelf, 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 defend⯑ant's teſtimony, and he be held as confeſt, if he refuſe to give his oath. The tranſi⯑tion 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 evi⯑dence againſt himſelf.

THE diſcovery of truth, by oath of par⯑ty, denied in civil courts, was, in the eccle⯑ſiaſtical court, obtained by a circuit. An action for payment could not be brought before the eccleſiaſtical court; but, in a re⯑ligious 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 be⯑ing 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 ob⯑taining payment of the debt. And this, by the by, is the foundation of the privi⯑lege 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 acknow⯑ledged. And here it muſt be carefully re⯑marked, 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 evi⯑dence, that the ſeal was ſtole from him, and put to the writ by another.

A deed hath ſprung from the Recogniz⯑ance, 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 mat⯑ter more eaſy. The agreement is taken down in writing; and, with the ſame breath, a mandate is granted to a procurator to ap⯑pear [107] in court, and to obtain the writing to be recorded as the agreement of ſuch and ſuch perſons. If the parties happen to dif⯑fer 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 re⯑corded 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 autho⯑rity for recording the writ, but alſo to im⯑power 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 pre⯑ſent 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 Glan⯑vil 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 bare⯑ly 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 founda⯑tion for an action. This is in other words [110] ſaying, that ſuch bond is probative, and requires not the ſupport of extraneous evi⯑dence: and if ſo, it cannot be ſufficient for the defendant to reſt upon a denial, with⯑out 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, agree⯑able 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, im⯑probation 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 ſta⯑tutes, requiring witneſſes to the ſubſcription of an obligor, without enjoining the wit⯑neſſes to ſubſcribe, in token that they did witneſs the obligor's ſubſcription. To ap⯑point any act to be done, without requir⯑ing any evidence of its having been done, is undoubtedly an idle regulation. The teſting clauſe, it is true, bears, that the obli⯑gor ſubſcribed before ſuch and ſuch wit⯑neſſes. But the teſting clauſe, which, in point of time, goes before the ſubſcription of the obligor, cannot otherwiſe than pro⯑phetically 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 ſpe⯑cify in the declaration, that the bond was ſigned ſealed and delivered. Of the ſign⯑ing and ſealing, the bond itſelf is evidence; [112] and it is legal evidence of the delive⯑ry, 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 proba⯑tive, and not witneſſes inſert not ſub⯑ſcribing."’ By this regulation, the evi⯑dence of writ is now, with us, more com⯑pleat than it is in England. The ſubſcrip⯑tions of the witneſſes are juſtly held legal evidence of their having witneſſed the ſub⯑ſcription of the granter of the deed; and the ſubſcriptions muſt be held their ſubſcrip⯑tions; 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 be⯑fore witneſſes: but we no longer hold the teſting clauſe to be evidence of this fact. [113] The ſubſcription of the witneſſes is the evi⯑dence, 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 be⯑ing conſidered as an appeal to the Almighty, who would infallibly give the cauſe for the innocent, it continued long a ſucceſsful me⯑thod [114] of detecting guilt: for it was rare to find one ſo hardened in wickedneſs, as to behave with any degree of reſolution, un⯑der the weight of this conviction. But in⯑ſtances 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 rec⯑koned too preſumptuous to expect a mi⯑raculous 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 abo⯑liſhed. 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 defend⯑ant brings along with him into court, cer⯑tain 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 con⯑ſidering 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 ob⯑ſcurely 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 him⯑ſelf 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 defend⯑ant and compurgators, in place of joining iſſue upon a duel. But the oath of pur⯑gation, invented to ſoften this barbarous cuſtom of duels, being reckoned not ſuffi⯑cient to repreſs the evil, duels were after⯑wards limited to accuſations for capital crimes, where there are probable ſuſpici⯑ons and preſumptions, without direct evi⯑dence^‡. And conſequently, if the fore⯑going 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, for⯑merly named by the defendant, were now named by the judge. The variation proved notably advantageous to the defendant, though in appearance againſt him. Sin⯑gular battle wearing out of repute, the un⯑juſtice of burdening with a proof of inno⯑cence, 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 proſe⯑cutor 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 pri⯑vilege 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 be⯑ing 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 Maje⯑ſtatem^†, compared with the foregoing ci⯑tations. 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 di⯑ſtinct 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 per⯑jury. 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 ob⯑tained 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 difficul⯑ty of procuring twelve proper witneſſes ac⯑quainted 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 evi⯑dence; of which, when brought, it be⯑longed 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.

THAT peculiar relation betwixt per⯑ſons 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, original⯑ly, beſtowed no other privilege but mere⯑ly that of uſing or enjoying the ſubject. A privilege eſſential to commerce was afterwards acknowledged, viz. to alien for a valuable conſideration: and at pre⯑ſent [124] the relation of property is ſo inti⯑mate, 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 ob⯑ſcure, 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 con⯑ſiſtent 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 dedi⯑cate the whole of his induſtry to the com⯑mon intereſt, would be of the ſtricteſt kind. But it would be unnatural and incomfort⯑able, becauſe deſtructive of liberty and in⯑dependency. The enjoyment of the goods of fortune in common, would, for the ſame reaſon, be not leſs unnatural and incomfort⯑able. 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 na⯑tural 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; di⯑ſtinguiſhable indeed from the brutes, but ſcarce elevated above them. Gratitude and compaſſion might have ſome ſlight ex⯑erciſe; but how much greater is the figure they make in the preſent ſtate of things? The ſprings and principles of man are ad⯑juſted with admirable wiſdom to his exter⯑nal 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 un⯑doubtedly, from the beginning, conſidered by all as belonging to the occupant. The ſtrong appetite which man has for appro⯑priation, [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 ac⯑quired 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 ex⯑tremely 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 be⯑twixt 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 improve⯑ments. It appears to me extremely pro⯑bable, that among ſavages involved in ob⯑jects of ſenſe, and ſtrangers to abſtract ſpe⯑culation, property and the rights or moral powers ariſing from it, never are with ac⯑accuracy diſtinguiſhed from the natural powers, which muſt be exerted upon the ſubject to make it profitable to the poſſeſs⯑or. The man who kills and eats, who ſows and reaps, at his own pleaſure, indepen⯑dent of another's will, is naturally deemed proprietor. The groſſeſt ſavages can ap⯑prehend power without right, of which they are made ſenſible by daily acts of vio⯑lence: but it requires a habit of abſtraction, to conceive right or moral power indepen⯑dent of natural power; becauſe in this con⯑dition, right, being attended with no vi⯑ſible 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 poſ⯑ſeſſion, I infer, that, in the original concep⯑tion 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 poſ⯑ſeſſion, 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 obſcu⯑rity 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 be⯑hoyed 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 re⯑tain a ſubject which, though in his poſſeſ⯑ſion, is not his property; and he is beſides bound in conſcience to repair the damage done by him to the perſon formerly pro⯑prietor, 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 repa⯑ration.

To illuſtrate this ſubject, I figure the caſe of a horſe carried off by theft, which, af⯑ter 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 an⯑ſwers, ‘"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 where⯑ever 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 ſup⯑poſing the connection of property to ſub⯑ſiſt independent of poſſeſſion, this can only hold where there is no ſeparate con⯑nection 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 preten⯑ſions 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 gather⯑ed from traces of it, which, to this day, re⯑main in ſeveral countries. By the old law of Germany, the proprietor could demand [132] his goods from the perſon to whom he de⯑livered them, in order to be reſtored; be⯑cauſe this claim is founded on a contract. But he had no claim againſt any other poſ⯑ſeſſor; and hence the maxim, ‘"That a man muſt demand his ſubject from the perſon to whom he delivered it."’ And Heinec⯑cius^* 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 Em⯑peror Charles V.^‡. Upon the ſame prin⯑ciple 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 evi⯑dence, 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 Scot⯑land, that when a thief was condemned, his effects, including the ſtolen goods, were confiſcated. Nor is this law abrogated to⯑tally by the ſtatute. The proprietor can⯑not demand his goods, except upon condi⯑tion that he proſecute the thief uſque ad ſententiam. Such being the law with re⯑gard 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 prac⯑tice, may be gathered from many paſſages in our ancient law-books. In point of evi⯑dence, I ſhall confine myſelf to one fact. A regulation appears to have been early intro⯑duced, prohibiting buying and ſelling except in open market. The purpoſe undoubtedly was to repreſs theft, and to prevent the transference of property by private bar⯑gains. 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 teſti⯑fies, that property independent of poſſeſſion was conſidered to be a right of the ſlen⯑dereſt kind. In later times, when the rela⯑tion [138] of property was ſo ſtrengthned as to be clearly diſtinguiſhed from poſſeſſion, this pre⯑ſcription was, among the Romans, extended to ten years; and with us a man, by preſcrip⯑tion, is not deprived of the moſt trifling move⯑able 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 firm⯑neſs 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 un⯑qualified 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 preca⯑rious^*. 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 conve⯑niencies of living were greatly promoted: and in this ſtate, which makes the ſecond ſtage of the ſocial life, the relation of pro⯑perty, though not entirely disjoined from poſſeſſion, was conſiderably enlivened. The care and attention beſtowed upon a do⯑meſtic 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 poſ⯑ſeſſion, does not ſo readily vaniſh, as in the caſe of a wild beaſt ſeized by a hunter.

THUS, by a natural principle, the rela⯑tion of property was in ſome meaſure for⯑tified, and was conſidered, as forming a ſtricter connection betwixt man and other animals than it did originally. In this con⯑dition, a political principle contributed to make the relation appear ſtill more inti⯑mate. 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 pre⯑ſumed 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 iſ⯑land, introduced among our Saxon anceſ⯑tors, prohibiting all buying and ſelling ex⯑cept in open market. After this regula⯑tion, 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 effec⯑tual.

AND, by the way, the influence of pro⯑perty, 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 Eliſa⯑beth, enacting, That even a bona fide pur⯑chaſe, in open market, ſhall not transfer the property, provided the proprietor claim within ſix months, and offer to the pur⯑chaſer 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, whe⯑ther, 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 pro⯑duce the vender, otherwiſe to be liable for damages^*. But though this continues to be our ſtatute law, ſuch however is the in⯑fluence of property, that I doubt whether our judges would not be in hazard of ſu⯑ſtaining a rei vindicatio againſt the purchaſer in open market, even after uſing the forgo⯑ing precaution. Property, it is certain, is a great favourite of human nature, and is frequently the object of a very ſtrong affec⯑tion. 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 ad⯑miniſtration of law, the affection for pro⯑perty 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 improve⯑ment, have arrived at that ſtability and per⯑fection 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 mo⯑ment they removed to another quarter, there no longer ſubſiſted any connection be⯑twixt 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 rela⯑tion 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 in⯑timate 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 gradu⯑ally 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 pro⯑prietor happen to be diſpoſſeſſed in his ab⯑ſence, 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 a⯑gainſt the poſſeſſor, to whom the property cannot be transferred by an immoral act. But what if the ſubject, after a long inter⯑val, be purchaſed bona fide, and peaceable poſſeſſion attained? I have given my rea⯑ſons 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 re⯑gulations. 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 civi⯑lized [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 pro⯑perty 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 fa⯑mily. 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 aliena⯑tion muſt therefore have been early recog⯑nized [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 veri⯑fied 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 proper⯑ty, 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 ap⯑prehenſion 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 ſolem⯑nity 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 com⯑pleat 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 al⯑ways [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 eſtabliſh⯑ed, the innovation would have been too violent, to aſcribe to the bare will of the former proprietor, the efficacy of transfer⯑ring 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 proper⯑ty of land jump from one perſon to another, merely upon pronouncing certain words ex⯑preſſing will or conſent. Words are often ambiguous, and always too tranſitory to take faſt hold of the mind, without conco⯑mitant circumſtances. In place therefore of actual poſſeſſion, ſome ouvert act was held neceſſary in order to compleat the tranſmiſ⯑ſion. 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 obliga⯑tions and transferring land-property, than is commonly imagined. Words merely, make no great impreſſion upon the rude and illiterate. In ancient times there⯑fore, ſome external ſolemnity was always uſed to fortify covenants and engagements, without which they were reckoned not bind⯑ing^*. 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 no⯑tions [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, be⯑ſtowing no power of alienation, carries the mind naturally to the children of the poſ⯑ſeſſor, 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 with⯑out 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 rea⯑dily 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 chimeri⯑cal. But it will have a very different ap⯑pearance, after mentioning a few of the many ancient cuſtoms and regulations founded up⯑on 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 do⯑mini exiſtimantur. Unde etiam filius⯑familias [156] appellatur, ſicut pater-familias: ſola nota hac adjecta, per quam diſtingui⯑tur genitor ab eo qui genitus ſit. Itaque poſt mortem patris non hereditatem per⯑cipere videntur, ſed magis liberam bono⯑rum 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 fa⯑ther, termed a ſort of property. The only thing ſurpriſing in this paſſage is, that a notion ſo diſtinct ſhould remain of the pro⯑perty 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 neceſ⯑ſarii 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, be⯑cauſe, [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 fa⯑ther, 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 re⯑lations. Other regulations, acknowledging this right in children, and authoriſing parti⯑cular 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 move⯑ables; [158] and indeed ſociety could ſcarce ſub⯑ſiſt 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 aliena⯑tion of ſome ſmall part for value. This we certainly know, that a proprietor of land, which had deſcended to him from his an⯑ceſtors, 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 be⯑lieve it was univerſal. It obtained among the Jews^*. It was the law of Scotland^†, of which we have traces remaining not a⯑bove three centuries ago. And it appears alſo to have been the law among other Eu⯑ropean 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 conſidera⯑tion, is now univerſally held to be inherent in the property of land as well as of move⯑ables.

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 proprie⯑tors, 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 allo⯑dial 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 up⯑on this account there was no ſecurity againſt the heir, but by delivery. This alſo ap⯑pears 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 au⯑thority of a law; for it was hard to con⯑ceive 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 Athe⯑nians by a law of Solon, giving power to every proprietor who had no children, to regulate his ſucceſſion by teſtament. Plu⯑tarch, [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 teſtamen⯑tum condere, nam defuncti opes domum⯑que, penes genere proximos manere opor⯑tebat. Hic liberum fecit, ſi liberi non eſſent, res ſuas, cui vellet dare: praetulit⯑que amicitiam generi, et gratiam neceſſi⯑tati: et effecit, ut pecuniae poſſeſſorum pro⯑priae 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 teſt⯑ing made every man proprietor of his own goods. The Decemviri at Rome, transferred this law into their Twelve Tables in the fol⯑lowing words. Pater-familias uti legaſſit ſuper familiae, pecuniae, tutelaeve ſuae rei, ita jus eſto. This law, though conceived in words unli⯑mited, 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 in⯑tereſt 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 a⯑mong 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 ſpe⯑cify 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 preju⯑dice, 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, pro⯑vided [164] he bequeathed to them the fourth part of what they would have inherited ab inteſ⯑tato ^*. But Juſtinian^† reſtored the old law, declaring, That without a juſt cauſe of ex⯑heredation, 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 privi⯑lege upon creditors during their debtor's life; and conſequently alſo after his death; it be⯑ing inconſiſtent with juſtice that the heir ſhould profit by their loſs. This new cir⯑cumſtance introduced neceſſarily an altera⯑tion of the law as to the ſui et neceſſarii he⯑redes: 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 aban⯑doning the ſucceſſion, in which caſe their father's debts did not reach them^*.

IT may appear ſingular, that while chil⯑dren were thus gradually loſing ground, col⯑lateral heirs, who originally had no privi⯑lege, were in many countries gaining ground. I ſhall firſt ſtate the facts, and afterwards en⯑deavour [166] to aſſign the cauſe. Several na⯑tions 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 teſta⯑ment exheredating them without juſt cauſe, ſpread itſelf upon other near relations; and theſe therefore might inſiſt in a querela inof⯑ficioſi, which originally was competent to deſcendants only^‡. By the laws of the German Saxons, it was not lawful to diſ⯑inherit 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 conti⯑nuation of poſſeſſion, founded upon their own title of property. And while the re⯑lation of property continued ſo ſlight as it [168] was originally, it was perhaps thought ſuf⯑ficient, 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 fa⯑mily-eſtate was probably communicated firſt to children foris familiate, eſpecially if all the children were in that ſituation; there⯑after, 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 Lon⯑gobards, collaterals ſucceeded to the ſeventh degree^*. Our countryman Craig^† relat⯑eth [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 in⯑deed ſignifies his own opinion to the con⯑trary; and now it is eſtabliſhed, That rela⯑tions ſucceed, however diſtant, provided only they give evidence of their propin⯑quity.

THE ſucceſſion of collaterals, failing de⯑ſcendants, produced a new legal idea; for as they had no pretext of right, indepen⯑dent of the former proprietor, their pri⯑vilege 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, depend⯑ing on the will of the anceſtor, and the ſuc⯑ceſſion 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 ſucceſ⯑ſion in collaterals. They were put upon the ſame footing, and conſidered equally as re⯑preſentatives of the perſon in whoſe place they came. This deduction appears natu⯑ral; 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 commu⯑nicated to the latter.

BUT the privileges thus acquired by col⯑laterals were not of long continuance. The powers annexed to property being carried to their utmoſt bounds, it came, in moſt coun⯑tries which did not adhere to the Roman law, to be conſidered as an inherent power in pro⯑prietors, to ſettle their eſtates at their plea⯑ſure, 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 pro⯑prietors, that they cannot diſpoſe of their heretable ſubjects by teſtament. The for⯑mer is no longer conſidered as a limitation of the powers of property, but as a perſonal privilege belonging to heirs; for which rea⯑ſon 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 coun⯑try 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 war⯑randice 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 con⯑tains no warrandice: and therefore an here⯑table ſubject legated by teſtament is conſi⯑dered, [173] as of old, an incompleat donation, which the heir is not bound to make effec⯑tual. But though we admit not of the alien⯑ation 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 dif⯑ference 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 ſo⯑lemnities of law.

CHILDREN, by the law of Scotland, en⯑joy another privilege, which is a certain por⯑tion 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 death⯑bed, is obviouſly a branch of the original [174] law, being founded upon the nature of pro⯑perty as originally limited. The power over land is in Scotland not ſo far extended, as that an incompleat donation will be ef⯑fectual 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 fol⯑lowing 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 perſo⯑nal 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 move⯑able eſtate, is communicated to deſcendants only, and not to collaterals.

TOUCHING the foregoing privilege of chil⯑dren 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 perfec⯑tion 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 buy⯑ing 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 conve⯑niency of living, eſpecially if any other fa⯑mily 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 per⯑ſon accuſtomed to the preſent ſcene of af⯑fairs 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 uſu⯑fruct; 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 think⯑ing; it was deemed to be law by the legiſ⯑lature 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 ex⯑plained, how a notion ſhould have gained ground that is ſo repugnant to the moſt ob⯑vious principles of law. For it might occur, even at firſt view, that, the property remain⯑ing 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 dif⯑fered nothing from a right of poſſeſſion, which gave the enjoyment of the fruits; and therefore, that every man who was in poſ⯑ſeſſion, and who had the enjoyment of the fruits, was readily conceived to be pro⯑prietor. This was the caſe of the vaſſal; and accordingly, when the power of aliena⯑tion 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 proprie⯑tors from doing injuſtice to their own chil⯑dren, has a very odd appearance. ‘"Chil⯑dren [180] are not to be exheredated without a juſt cauſe, chiefly that of ingratitude. The cauſe muſt be ſet forth in the teſta⯑ment. It muſt be tried before the judge, and verified by witneſſes, if denied."’ A⯑mong other nations, natural affection, with⯑out the aid of law, is a ſufficient motive with parents to do full juſtice to their chil⯑dren. Shall we admit, that natural affec⯑tion 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 coun⯑try, and conſequently, one ſhould think, of their children; whence then ſhould proceed this want of parental affection? I do not ſup⯑poſe 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 fur⯑niſh 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. Na⯑ture lays the foundation: continual atten⯑tion 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 un⯑der, 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 be⯑hoved to have ſome ſuch effect; and we have reaſon to be pleaſed with our conjec⯑ture, when we find it juſtified by ſubſtantial facts.

PUTTING now an end to epiſodical a⯑muſements, we proceed with new vigour in our hiſtorical courſe. It was interrupted at that part, where, with a very few excep⯑tions, the powers of a proprietor were ex⯑tended, 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 en⯑joyment 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 u⯑nion, and, leaving nothing to the diſpoſal of providence, they wiſh to prolong this union, if poſſible, to the end of time. Such am⯑bitious 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 pre⯑liminary queſtion, Whether and how far they are conſiſtent with the nature of pro⯑perty? In order to anſwer this queſtion, ſome principles of law muſt be premiſed. The firſt reſpects every ſubject capable of proper⯑ty, that the whole powers of property, whe⯑ther united in one perſon, or diſtributed a⯑mong a plurality, muſt ſubſiſt entire ſome⯑where; 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 ef⯑fect 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 ſub⯑ject, 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 diſ⯑poſition of land. If the granter reſerve no right to himſelf, the entire property muſt be tranſferred to the diſponee, however ex⯑preſs 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 con⯑ſent, 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 man⯑ner, a civil obligation may reſtrain a pro⯑prietor 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 poſ⯑ſeſſed the legiſlative authority. The adopted ſon had all the privileges of one born in law⯑ful wedlock: he had the ſame intereſt in the family-eſtate, the ſame right to continue the father's poſſeſſion, and to have the full en⯑joyment of the ſubject. A teſtament, when authoriſed by the law of the Twelve Tables, received its form from this practice. A te⯑ſtament was underſtood to be only a diffe⯑rent form of adopting a ſon, which beſtowed the ſame privilege of ſucceeding to the fa⯑mily-eſtate, [187] after the teſtator's death, that belonged to the heir who was adopted in the more ſolemn manner in the Calata Co⯑mitia. A teſtament is in Britain a donatio mortis cauſa; an alienation to take effect af⯑ter 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 convey⯑ance of land or goods from one perſon to another; it entirely conſiſted in the nomi⯑nation of an heir, who, in this character, en⯑joyed the teſtator's effects. The perſon nam⯑ed 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 ſub⯑ject, 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 aliena⯑tion, 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 na⯑tural 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 pre⯑pared 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 pre⯑vent alienation, whether direct, by diſpon⯑ing land, or indirect, by contracting debt. A maxim, which makes a figure in the Ro⯑man law, muſt not be forgot, in explaining the firſt point concerning the power of ſub⯑ſtitution. 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 rea⯑ſon 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 open⯑ed 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 pecu⯑liarity 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 re⯑ſervation, 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 dif⯑ference 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 intro⯑duced from utility, viz. the pupillar ſub⯑ſtitution. 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 me⯑thod, 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 limit⯑ing 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 eſta⯑bliſhed in the original grant, is conſiſtent with the ſtricteſt principles of property. The order of ſucceſſion cannot be altered with⯑out 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 prac⯑tice, 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 under⯑ſtood to be heirs, all of them, to the ori⯑ginal 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 obtain⯑ed. 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 un⯑derſtood to be called as a conditional inſti⯑tute; 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 Sempro⯑nius: he is, as well as Sempronius, an inſti⯑tute, or a diſponee, with this only differ⯑ence, that the right of Sempronius is pure, and that of Titius conditional. This con⯑ditional right is, in England, termed a Re⯑mainder; 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 ſer⯑vice upon a brieve quod diem clauſit ſupre⯑mum, but as purchaſer, by authority of the original grant.

[197] THUS it is, that the feudal law, by fur⯑niſhing means for a perpetual ſucceſſion of heirs, as in Scotland, or of heirs and remain⯑der-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 pro⯑poſed 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 alien⯑ating the property which remained with the ſuperior. The only unlucky circum⯑ſtance for entails is, that during the vigour of the feudal law, conſtant wars and com⯑motions, a perpetual hurry in attacking or defending, afforded very little time for in⯑dulging [198] the foregoing ambitious views. In times only of peace, ſecurity and plenty, do men dream of diſtant futurity, and of per⯑petuating 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 indu⯑ſtrious of all the human appetites. After a regular government was introduced in Bri⯑tain, 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 bet⯑ter 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 ſta⯑tute, Quia emptores terrarum, above men⯑tioned. 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 con⯑ſequently, inſtead of being beneficiary as for⯑merly, was now become patrimonial. The property being thus transferred from the ſu⯑perior to the vaſſal, the vaſſal's power of alienation was a neceſſary conſequence.

BUT men who had acquired great poſſeſ⯑ſions, and who, in quiet times, found leiſure to think of perpetuating their families, be⯑gun 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 ob⯑tained without ſubjecting themſelves to the ſlaviſh dependence of that law. In parti⯑cular, 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, con⯑trary 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 ſettle⯑ments 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 ex⯑preſſed, 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, condi⯑tionally, 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 ob⯑ſerved, 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 Eng⯑land, a privilege was, by ſtatute, beſtowed upon proprietors of land, to eſtabliſh perpe⯑tuities, 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 prohibi⯑tory, [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 think⯑ing I proceed to examine.

To preſerve the ſubject-matter full in view, I take the liberty ſhortly to recapi⯑tulate 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, in⯑volved 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 patrimo⯑nial. A vaſſal has long enjoyed the power of contracting debt, and even of alien⯑ing mortis cauſa. To reſtrain him there⯑fore 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 diſ⯑cuſſion. 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 a⯑gainſt 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 ſerv⯑ing 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. Ad⯑mitting then, that the heir is bound by his acceptance, let us enquire, whether this con⯑ſent be effectual to fulfil the purpoſes of the entail. He ſells the eſtate notwithſtand⯑ing 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 do⯑ing what is unjuſt. But this argument ap⯑plies not againſt a bona fide purchaſer ig⯑norant 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 in⯑vented 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 for⯑feiting clauſe cannot have the ſame effect with a legal forfeiture, is even at firſt view evident. A forfeiture is one of the puniſh⯑ments introduced for repreſſing certain hei⯑nous crimes; and it is inconſiſtent with the nature of the thing, that a perſon ſhould be puniſhed who is not a criminal. An aliena⯑tion 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 ut⯑moſt 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 tranſ⯑greſſion, 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 inven⯑tion 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 con⯑ditional, ‘"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 te⯑nant in tail agrees to ſell by the lump: a diſ⯑poſition 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 for⯑feiture, 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 redemp⯑tion. 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 contract⯑ing debt ſingly will produce a forfeiture. All agree, that the debtor's right is for⯑feited no ſooner than when the debt is ſe⯑cured 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 com⯑pleated 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 ano⯑ther, 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 de⯑livery cannot transfer property. Nay, it is univerſally admitted, that conſent alone can⯑not even have the effect to diveſt the con⯑ſenter of his property till another be inveſt⯑ed; 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 prohi⯑bitory? Suppoſe the conſent to abandon, [209] which at firſt was conditional, is now puri⯑fied 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 infeft⯑ment ſtands good till the next heir be infeft; or at leaſt till the next heir obtain a decree declaring the forfeiture. Before ſuch pro⯑ceſs 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 exe⯑cuting, 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 un⯑der 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 ſe⯑cure; leaving no remedy to the firſt pur⯑chaſer, but an action of damages againſt the vender. In like manner, a tenant in tail, after tranſgreſſing every prohibition con⯑tained [210] in the entail, and after all the irri⯑tancies have taken place, continues ſtill pro⯑prietor, until a decree declaring the irri⯑tancy 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 ſu⯑ſtained, as being equivalent to an interdic⯑tion; 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 at⯑tachment to entails, which, at that time, had the grace of novelty, and were not ſeen in their proper light. There is cer⯑tainly no ground for beſtowing the force of [211] an interdiction upon prohibitory and reſo⯑lutive 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 per⯑ſon to deal with him without ſuch con⯑ſent. 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 prohibi⯑tion. 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 or⯑der 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, no⯑thing [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 entail⯑ed lands, after being ſold, and the purchaſer infeft, have again been purchaſed from him; and we may ſuppoſe a chain of ſuch pur⯑chaſers 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 credi⯑tors every day, who furniſh goods or work for ready money, and yet obtain not pay⯑ment; 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 up⯑on the direct oppoſite preſumption.

SOME eminent lawyers, aware of the fore⯑going difficulties, have endeavoured to ſup⯑port 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 ſure⯑ly [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 repre⯑ſents him; becauſe, ſuch as he has it, it is con⯑veyed to the heirs of entail whole and undi⯑vided, 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 prohibi⯑tory and irritant clauſes, if a tenant in tail were reſtrained from aliening by the limited nature of his right. Fetters are very pro⯑per 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 re⯑ſolves 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 ſub⯑jecting 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 wonder⯑ing, 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 feu⯑duties for two years? Both of them are ſub⯑jected to a declarator of irritancy, and both of them will be forfeited by a de⯑cree 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 adjudi⯑cation [216] upon the debt of a tenant in tail, muſt, in the ſame circumſtances, be equal⯑ly effectual. If there be a difference, it fa⯑vours the latter, who cannot be ſtript of his right till it be acquired by another; where⯑as a bare extinction of the feuar's right is ſufficient to the ſuperior. I cannot ac⯑count for an opinion void of all foundation, otherwiſe than from the weight of autho⯑rity. 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 pro⯑perty was faint and obſcure. This relation was gradually evolved, and, in its growth to⯑wards 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 in⯑herent 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 benevo⯑lence. But the paſſions of men are not to be confined within the bounds of reaſon: we thirſt after opulence, and are not ſatis⯑fied 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 con⯑ſcious, 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 diſ⯑mal proſpect, he makes a deed arreſting fleet⯑ing property, ſecuring his eſtate to himſelf, and to thoſe who repreſent him, in an end⯑leſs 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 ſy⯑ſtem unluckily ſuggeſted a hint for gratify⯑ing this irrational appetite. Entails in Eng⯑land, authoriſed by ſtatute, ſpread every where with great rapidity, till becoming a publick nuſance, they were checked and de⯑feated 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 le⯑giſlature interpoſe not, the time in which the whole will be locked up is not far di⯑ſtant. How pernicious this event muſt prove, need not be explained. Land-property, na⯑turally 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 re⯑lief; to the cautious again they are a perpe⯑tual 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.

THE multiplied connections among individuals in ſociety, and their va⯑rious 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 pay⯑ment of debt. Thus the property of land is ſplit, betwixt the ſuperior and vaſſal, be⯑twixt the debtor and creditor, and betwixt one having a perpetual and one a temporary right.

IN Scotland we diſtinguiſh, and not with⯑out reaſon, rights affecting land into two kinds, viz. Property, and a right burdening or limiting property. Property, in its na⯑ture unbounded, cannot otherwiſe be bound⯑ed, but by rights burdening or narrowing it; and it is reſtored to its original unbounded ſtate ſo ſoon as the burdening right is ex⯑tinguiſhed: but a burdening right, being in its nature bounded, becomes not more ex⯑tenſive 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 li⯑mited, 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 per⯑ſons 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, rever⯑ſions, rent-charges, &c.; and it is the pro⯑vince of municipal law, to make effectual, as far as utility will admit, private deeds and conventions of every ſort. This is ſo evi⯑dent, that wherever we read of great ſim⯑plicity [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 ſecu⯑rity of money. The one, diſtinguiſhed by the name of Antichreſis, reſembles the Eng⯑liſh 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 com⯑pleat 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 re⯑quired 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 ob⯑tained 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 him⯑ſelf was the vender, he ſor that reaſon could not be alſo the purchaſer. But Voet^‡ ob⯑ſerves, that in Holland the authority of a [226] judge being neceſſary, and the judge being the vender, the creditor may be the pur⯑chaſer.

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. enact⯑ing, ‘"That no man take a diſtreſs of his neighbour without award of court."’ In Scotland it was reſtrained by ſeveral ſta⯑tutes. In the firſt ſtatutes Robert I. cap. 7. it is enacted, ‘"That in time coming no man take a poynd for debt within ano⯑ther 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 de⯑ſire 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 bro⯑ther burgeſs without licence from the pro⯑voſt^*, 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 Eng⯑land, 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 ſta⯑tute of Robert III. This privilege of the landlord may be traced down to the preſent time; with ſome reſtrictions, it is true, in⯑troduced by change of manners. Craig obſerves^‡, That the landlord for three terms rent can poind by his private autho⯑rity; 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 ſub⯑jected to the ordinary ſolemnities. It is required indeed, that the arrears be conſti⯑tuted by a decree in his own court, which has been introduced in imitation of poind⯑ing [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 foun⯑dation of this privilege. It will appear in a clear light by tracing the hiſtory of leaſes in this iſland. Lands originally were oc⯑cupied by bond-men, who themſelves were the property of the landlord, and conſe⯑quently were not capable to hold any pro⯑perty 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 in⯑duſtry, it was found a ſalutary meaſure to aſſume this man as a partner, by communi⯑cating 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 year⯑ly quantity certain, and the overplus to re⯑main with the ſervant^*. By this contract, the benefit of the ſervant's induſtry accrued wholly to himſelf; and his indolence or ig⯑norance hurt himſelf alone. One farther ſtep was neceſſary, to bring this contract to its due perfection, which is, to give the ſer⯑vant 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 be⯑longed to the landlord, while growing up⯑on the ground; and the act of ſeparating them from the ground, could not transfer the property from him to his tenant: nei⯑ther could payment of the rent transfer the property of the remaining fruits, without actual delivery. It is true, the tenant, im⯑powered by the contract, could lawfully ap⯑ply 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 alter⯑ed by the act 18. p. 1449, making the te⯑nant 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 te⯑nant, 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 in⯑violable, 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 na⯑ture 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, pro⯑ceeded 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 into⯑lerable grievance, and indeed groſs injuſtice, that the landlord's creditor ſhould be ad⯑mitted 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 inter⯑poſe; 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 pay⯑ment of his rent. It was not adverted to, that a creditor is not bound to take poſſeſ⯑ſion 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; ju⯑ſtice, 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 char⯑ter of land, ſuch as a feu or blench-duty. Rent-charge is that which is conſtituted by the landlord in favour of a creditor, con⯑taining 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 in⯑tereſt, cannot lawfully take poſſeſſion, or levy rent. And it is evident, that poſſeſ⯑ſion 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 conſidera⯑tions. The tenants are not perſonally liable to the creditor; and the deed, which con⯑tains 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, be⯑cauſe 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 me⯑thod. Where the rent payable to the land⯑lord 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 land⯑lord's property: but then, as the goods di⯑ſtrained 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 re⯑pledge 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 occa⯑ſion 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 ne⯑glect his intereſt, there was no remedy till the 2d of William and Mary, cap. 5. by which it is enacted, ‘"That in caſe the te⯑nant or owner of the goods, do not with⯑in five days replevy the ſame, with ſuffi⯑cient ſecurity for the rent, the creditor ſhall have liberty to ſell for payment of the rent."’ Thus the form of diſtrain⯑ing 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 di⯑ſtreſs, and by impoinding and ſelling the goods, ſhall be in the caſe of rent-ſeck, that is provided in the caſe of rent re⯑ſerved upon leaſe."’

THAT a power to ſell the goods diſtrain⯑ed, 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 re⯑medy 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 govern⯑ment, ſhorter methods are indulged to come at right, than afterwards when under a go⯑vernment [240] long ſettled, the obſtinacy and ferocity of man are ſubdued, and ready obe⯑dience is paid to eſtabliſhed laws and cu⯑ſtoms. 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 ei⯑ther, it was lawful for a man to take re⯑venge at his own hand for injuries done him^*. None of theſe things, it is preſum⯑ed, are permitted at preſent in any civilized country, England excepted, where the an⯑cient privilege of forcing payment at ſhort⯑hand, 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 re⯑pledged 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 fun⯑damentally 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 di⯑rect 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 annual⯑rent, 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 ta⯑ken 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 aſſig⯑nees, 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 free⯑doms, 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 pay⯑ment out of the ſaid lands of Sawlyn, the debtor obliges and binds all his lands of the lordſhip of Dunſyre, to be diſtrain⯑ed 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 ap⯑pear 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 ſub⯑ſtituting an infeftment of annualrent in place of a rent-charge may be doubted. I pro⯑poſe to handle this ſubject at leiſure, becauſe it is curious. While land was held as a pro⯑per benefice for ſervices performed to a ſu⯑perior, 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 ſub⯑ject of commerce, and, like moveables, to be exchanged for money, forms and caſualties, which were the reſult of the feudal connec⯑tion [245] betwixt the ſuperior and vaſſal, could regularly have no place in theſe new tranſ⯑actions, with which they were inconſiſtent in every reſpect. When a man makes a pur⯑chaſe of land and pays a ſull price, the pur⯑poſe of the bargain is, That he ſhall have the unlimited property, without being ſub⯑jected 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 metamor⯑phoſed into a vaſſal, and of conſequence ſub⯑jected 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 remain⯑ed, but the ſubſtance wore out gradually. This change produced blench duties, an elu⯑ſory [246] ſum for non-entry in place of the full rents, collateral ſucceſſion without limita⯑tion; 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 ex⯑pence 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 deduc⯑tion. So many different perſons were con⯑nected with the ſame portion of land, ſtages of ſuperiors being commonly interjected be⯑twixt 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 attempt⯑ing early to withdraw land from under feu⯑dal titles. And when time diſcovered that the feudal forms could be ſqueezed and moulded into a new ſhape, ſo as to corre⯑ſpond in ſome meaſure with a patrimonial eſtate, it is not wonderful that our forefa⯑thers 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 non⯑entry duties, and it required an act of par⯑liament^† to correct this glaring abſurdity. It muſt be confeſt to be ſomewhat ludi⯑crous, 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 nei⯑ther for ſervice nor duty to his imaginary ſuperior, ſhould yet be puniſhed with the loſs of the intereſt of his money for neglect⯑ing 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 ſub⯑ſtance of the deed to which it relates, than an infeftment of annualrent is. The won⯑der 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 opi⯑nion. We had long been accuſtomed to the feudal law, and to conſider a feudal te⯑nure 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 te⯑nure; 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 poſ⯑ſeſſion: 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 poſſeſ⯑ſion [250] really, it is improper, nay, it is abſurd, to give ſymbolical poſſeſſion before the perſon be entitled to poſſeſs. A ſeiſin in⯑deed 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 infeft⯑ment of annualrent, that, conſidered as a commercial ſubject, it is not leſs brittle than unwieldy. In its tranſmiſſion as well as eſta⯑bliſhment, 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 receiv⯑ing 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 com⯑merce; for there is no ſafety in laying out money to purchaſe it. Nor does the ſymbo⯑lical [251] poſſeſſion by a ſeiſin give it any advan⯑tage over a rent-charge. The ſeiſin does not publiſh the ſecurity: regiſtration is neceſ⯑ſary; 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 pro⯑ceeds 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 rent⯑charge 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 annual⯑rent binds not the tenants to pay to the creditor: he has no claim againſt them per⯑ſonally for their rents, unleſs there be in [252] the deed an aſſignment to the mails and duties^*.

BUT in the following particulars, exe⯑cution upon an infeftment of annualrent, or other debitum fundi, differs from exe⯑cution upon a rent-charge. Firſt, An in⯑feftment 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 for⯑merly. Poinding could not now proceed upon a perſonal debt, till firſt a decree was obtained againſt the debtor. But an infeft⯑ment 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 con⯑trived, 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 meſ⯑ſengers, &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 inter⯑poſed, the form was extended to an infeft⯑ment 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 a⯑gainſt them to make the appearance of a proceſs. This difficulty is removed, or ra⯑ther 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 poynd⯑ing and appriſing, directed by decreet of the ſaids Lords, for poynding the ready⯑eſt goods and gear upon the ground of the ſaid lands, &c."’ A decree proceed⯑ing 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 na⯑ture 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, giv⯑ing power to the creditor to ſell the goods diſtrained; becauſe the rent-charge was laid [255] aſide in Scotland, long before the ſaid reme⯑dy 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 com⯑modious to adjudge the goods to the cre⯑ditor 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 former⯑ly. Of old, execution was directed againſt the moveables only, that were found upon the land; but by our later practice, it is di⯑rected both againſt the moveables and a⯑gainſt the land itſelf, in their order. It ap⯑pears [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 ex⯑ample 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 in⯑feftment 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 reme⯑dy; 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 arreſt⯑ment to be founded upon an infeftment of annualrent: and till this be introduced, there is a neceſſity for indulging the poind⯑ing of goods for the current rent; for other⯑wiſe, ſuppoſing the rents to be punctually paid, there would be no acceſs to the move⯑ables at all. This reſtriction in a poind⯑ing of the ground, paved the way for poind⯑ing the land itſelf; which was ſeldom ne⯑ceſſary 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 exe⯑cution. This being a more ſummary me⯑thod 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 pay⯑ment of his debts, the judge ought to inter⯑poſe, 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 land⯑lord'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, with⯑out any reverſion; becauſe, in legal execu⯑tion, 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 cre⯑ditor. Execution again upon debt affect⯑ing 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 au⯑thors. 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 no⯑thing 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 af⯑ter this ſtatute continued as formerly, ex⯑cept 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 ano⯑ther. 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 conſe⯑quence^†, That there is a reverſion of ſeven years when lands are appriſed upon a debi⯑tum 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 re⯑mains 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 intro⯑duced 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 per⯑ſonal debt; and therefore, that execution upon a decree for poinding the ground, re⯑mains, 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.

CUJACIUS gives an accurate defi⯑nition 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 after⯑wards 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 ſer⯑vice; 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 tempo⯑rary. 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 employ⯑ed 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 forma⯑lity, 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, whe⯑ther it will be his intereſt to undertake the ſervice. During this period, being entitled to no wages ſince he ſubmits not to the ſer⯑vice, 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 can⯑not, 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 ſu⯑perior 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 com⯑pleat; and for that reaſon, the heir of a military vaſſal, while under age, is not en⯑titled 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 deſcen⯑dants 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 exer⯑tions of property, make a ſtrong impreſſion on the vulgar; and naturally produce a no⯑tion, 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 inter⯑miſſion of military ſervice in times of peace, favoured this notion; which at laſt, through the influence of general opinion, was adopt⯑ed by the legiſlature.

THIS heteroclite notion, that by a feu⯑dal 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 learn⯑ed 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 de⯑ceaſed, (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 be⯑nefit 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 notwith⯑ſtanding be entitled to the wages. Glan⯑vil, who wrote in this king's reign, makes the diſtinction, but without referring to any ſtatute^*. And we have Bracton's autho⯑rity for the ſame^†.

THAT the King's vaſſals were not com⯑prehended 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 ſub⯑ject. The firſt ſection of this ſtatute de⯑clares it to be law, That the heir-apparent, in land held of a ſubject, is entitled to con⯑tinue the poſſeſſion of his anceſtor; and provides certain remedies againſt the ſupe⯑rior 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 mortan⯑ceſtor, with the damages he hath ſu⯑ſtained 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-ap⯑parent, and known for heir, and he be found in the inheritance, the chief Lord ſhall not put him out, nor take nor re⯑move 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 mali⯑ciouſly, 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 en⯑titled 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 poſſeſ⯑ſion, 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, in⯑trude 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 other⯑wiſe attain the poſſeſſion, but by a ſervice [272] upon a brieve from the chancery. The dif⯑ference here eſtabliſhed, betwixt the King's military vaſſals and thoſe who hold of ſub⯑jects, is put beyond all doubt by the ſta⯑tute 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 re⯑ceived 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 Wil⯑liam Earl-marſhal of England his bro⯑ther, 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 rea⯑ſon to doubt, that this ſtatute, concern⯑ing 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, ſu⯑perceded 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 occa⯑ſion [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 ſu⯑perior 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 proper⯑ty, 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 poſ⯑ſeſs the land. The general biaſs according⯑ly, in ſpite of theſe ſtatutes, continued in [275] favour of the heirs poſſeſſion; and one cir⯑cumſtance undoubtedly contributed to give him the preference. A young man in fa⯑milia with his father, is conſidered as in poſ⯑ſeſſion, 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 con⯑tinues 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 diſtinguiſh⯑ing 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 free⯑hold, 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 origi⯑nally, 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 evi⯑dent, 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 corre⯑ſpends to our brieve of inqueſt. But now that in England military tenures are abo⯑liſhed, heirs require not ſervice and infeft⯑ment; 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 poſſeſ⯑ſorio, 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 caſual⯑ties of ſuperiority, being unfavourable, is meaſured by the new extent, which, by con⯑ſtruction 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 privi⯑lege 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 poſ⯑ſeſſed 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 num⯑ber, it has been judged, that tenants pay⯑ing 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 te⯑nants 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 adjudica⯑tion 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 ap⯑priſing 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 con⯑cluſion.

THE ſuperior, during the heir's non-en⯑try, 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 tranſ⯑action. 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 ſu⯑perior. 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 continu⯑ing the poſſeſſion of his anceſtor, has right to the rents without a formal entry, it fol⯑lows, that theſe rents are not to be conſi⯑dered as in hereditate jacente of the anceſtor, to be carried by an adjudication upon a ſpe⯑cial 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 com⯑pleat [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 barba⯑rous 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 tole⯑rable, but long uſage and inveterate habit. It behoved however to yield gradually, to the prevailing love of liberty and indepen⯑dency; and accordingly, through all Europe, it dwindled away gradually, and became a ſhadow, before any branch of it was abro⯑gated 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 antiqui⯑ty, and our ancient hiſtorians ſeldom take notice of civil tranſactions that have any re⯑lation to law.

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

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 peo⯑ple, by name more than by any ſolid pre⯑eminence.

THE growing power of the crown-vaſſals, may be eaſily accounted for. It was plain⯑ly 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 be⯑came 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 encourage⯑ment 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, Re⯑galities were created with the higheſt civil and criminal juriſdiction, and with all other powers annexed to Palatinates in England.

WHETHER regalities originally were ex⯑empted 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, Calder⯑cleer, Kinclaven, &c. to be held in one en⯑tire 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 in⯑tromiſſion 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 privi⯑lege by the common law. However this be, it appears by indenture betwixt king Ro⯑bert 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 enjoy⯑ed 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, ap⯑pointing Lords of regality to hold juſtice airs within their regalities: the latter ap⯑pointing 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 remark⯑ed, that the act 43. p. 1455, is no ſlight inſtance of the authority of the great ba⯑rons. 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 enter⯑priſe, and obtained the ſaid act, declaring, ‘"That in time coming no regalities be granted without deliverance of parlia⯑ment;"’ 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 ſta⯑tute; for the publick good is a motive of no great influence in rude ages. In Scot⯑land, the great families, by monopolizing the higher powers and privileges, ſecured to them⯑ſelves dignity and authority. In England, the ſame ſpirit procured the ſtatute de donis conditionalibus, which, by the power of mak⯑ing 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 eſtabliſh⯑ment of the right of primogeniture. With reſpect to the two circumſtances firſt men⯑tioned, it is a maxim in politics, That [291] power, in a good meaſure, depends on pro⯑perty. 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 pre⯑vailing 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 ſu⯑perior 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 af⯑forded money and introduced luxury. The grandees, deſpiſing the frugality of their an⯑ceſtors, could no longer confine their ex⯑pences 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 mul⯑tiplying [292] the crown-vaſſals without end, their connection was broke, and their power re⯑duced 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 explana⯑tion, 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 primoge⯑niture in this caſe, cannot take faſt hold of the mind, in oppoſition to the general rule of ſucceſſion, which, in private eſtates, be⯑ſtows an equal right on all the males. We ſee a notable example of this in Turky, where primogeniture has no privilege, ex⯑cept 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 feu⯑dal law was eſtabliſhed, primogeniture did not beſtow any privilege in point of ſucceſ⯑ſion. The feudal ſyſtem, by confining to a ſingle heir the ſucceſſion of the feudal ſub⯑ject, made way for the eldeſt ſon. Then it was, and no ſooner, that the ſucceſſion to the crown, and to private eſtates, were go⯑verned 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 no⯑tions, and to give that preference to primo⯑geniture which now is never called in queſ⯑tion. 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 primo⯑geniture came to be a general law in ſucceſ⯑ſion, the European princes, depending now no longer on the choice of their people, ac⯑quired by degrees that extent of power, which naturally belongs to a hereditary monarch. The crown-vaſſals at the ſame time gra⯑dually declining by the commerce of land, and by the transference of their property to their vaſſals, are reduced within pro⯑per bounds, and have now no power but what tends to ſupport a monarchial govern⯑ment.

GERMANY is in a ſingular caſe. Com⯑poſed of many great parts, which were never ſolidly united under one government, or un⯑der one Royal family, it fluctuated many centuries betwixt hereditary and elective mo⯑narchy. This ſerving to increaſe the power of the great Lords, the monarchy was re⯑duced 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 de⯑cline. 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 diffe⯑rent 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 diſtribut⯑ing juſtice, it is neceſſary to this end, that the juriſdiction of every judge be aſcertain⯑ed, with reſpect to cauſes as well as per⯑ſons. 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 ſe⯑veral judges. And were it poſſible to di⯑ſtinguiſh cauſes by a rule equally preciſe, diſputes among judges about their juriſdic⯑tions 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 in⯑vented, 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 wan⯑dering ſtate, could not be of any conſidera⯑tion. 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, differ⯑ing in their laws, and differing in their man⯑ners. 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 chief⯑tains privilege of judging his own people, continued long in force, and traces of it re⯑main to this day. Clans were diſtinguiſhed from each other, ſo as to prevent any con⯑fuſion in exerciſing the privilege. Clans of⯑ten differed in their language, or in their dreſs; and when theſe differences were not found, thoſe who lived together, and paſtur⯑ed in common, were reckoned to be of one clan. After agriculture was introduced, clans were diſtinguiſhed, partly by a com⯑mon 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 per⯑ſons or families, without relation to land⯑property, ſuch as an heretable juſticiary or an heretable ſheriffship, is perſonal with re⯑ſpect 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 ori⯑ginal 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 confer⯑red 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 peo⯑ple from other judges, and judging them in their own courts.

UPON the ſame principle, the Royal bur⯑rows 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 privi⯑lege, neceſſary for preſerving peace among their people, that in proceſſes againſt ſtrang⯑ers before the baillies, for riots or breach of the peace committed within the town, re⯑claiming to the Lord's court was not ad⯑mitted^‡.

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 crimi⯑nals, 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 ju⯑ſtice 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 uſe⯑ful precaution, proved however but an im⯑perfect remedy. Nor was better to be ex⯑pected; for the privilege of repledging was an unnatural excreſcence in the body po⯑litick, 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 pre⯑ſent in court.

FROM what is ſaid above, there can be no doubt, that barons had a power of re⯑pledging 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 imme⯑diate 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 oc⯑caſion to repledge their people, apprehended within their own territory by the authority of any extraneous judge; becauſe ſuch at⯑tachment [305] was illegal, and a proper decli⯑nator lay.

THE firſt manifeſt ſymptom of the de⯑clining 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 ſta⯑tute, 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 re⯑finements of law, the encroachment would ſcarce be perceived, ſo long as the ſubſtan⯑tial prerogative remained with the chief⯑tains, 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-ordi⯑nate with the King's ſupreme courts, its de⯑crees continued, as formerly, to be ſubjected to no review, except in parliament.

BY the eſtabliſhment of the court of ſeſ⯑ſion, which is the ſupreme court in civil matters, the regality-courts were rendered ſo far ſubordinate. But in matters crimi⯑nal, the juriſdiction, as co-ordinate with that of the juſticiary court, was preſerved entire, together with the power of repledg⯑ing even from that court^*.

THE royal authority with that of the ſovereign courts, gaining a firm eſtabliſh⯑ment, annihilated the baron's power of re⯑pledging. 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 incompa⯑tible with the growing power of the crown, as well as with the orderly adminiſtration of juſtice; yet ſuch was their influence in par⯑liament, 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 a⯑bridge 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 ob⯑tain a ſtatute againſt them. And accord⯑ingly, 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 pre⯑vention by the firſt citation:"’ which was abrogating their privilege of repledg⯑ing 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 appear⯑ance 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 abridg⯑ing 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 ex⯑tended againſt all regalities of whatever ſort. The privilege of repledging was how⯑ever 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 reſerv⯑ed, and particularly ‘"their right of preven⯑tion for fifteen days;"’ importing, That if the perſon was cited before the juſtice court within fifteen days of committing the al⯑ledged 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 re⯑ſpects, the regality-court ſtill maintained its rank, as co-ordinate with the court of ju⯑ſticiary; 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 mat⯑ters, 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 up⯑on the reformation; and the privileges of ſuch regality only being called in queſtion, it was reckoned a ſingular caſe, and there⯑fore alarmed not much thoſe who were poſ⯑ſeſt of laick-regalities. But the court of ſeſſion gave theſe regalities the dead blow without neceſſity, after heretable juriſdicti⯑ons 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 juſti⯑ciary belonging to the Earl of Morton, over the iſlands of Orkney and Zetland, ‘"to be [311] an inferior juriſdiction only, and not co⯑ordinate with the court of juſticiary."’ This judgment did not reſt upon any limita⯑tion 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 ju⯑riſdictions 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 circum⯑ſtance operating upon the mind impercep⯑tibly. Thus, in the preſent caſe, the act 1672, was the profeſſed cauſe of the judg⯑ment; though, in all probability, what at [312] bottom moved the judges, was a very diffe⯑rent conſideration. The new form which the court of juſticiary received, by ſubſtitut⯑ing five lords of ſeſſion as perpetual mem⯑bers, 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 commu⯑nicates 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 ele⯑vation of the court of juſticiary, touching the mind imperceptibly, was really what in⯑fluenced the judges. For it is extremely difficult to ſupport an equality of juriſdic⯑tion in two courts, that are ſo unequal in all other reſpects. And thus, by natural cauſes which govern all human affairs, ter⯑ritorial juriſdiction in Scotland was reduced to a mere ſhadow; which made it be eſteem⯑ed no harſh meaſure, to aboliſh it altogether by ſtatute.

TRACT VII.
HISTORY OF COURTS.

IN moſt countries originally, the inhabi⯑tants were collected into clans or tribes, governed each by a chieftain, in whom were accumulated the ſeveral offices of ge⯑neral, 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 indi⯑viduals 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 inter⯑marriages, and conſequently by blood. Com⯑merce aroſe, and united under its wings, not only diſtant individuals, but different nati⯑ons. The clan-connection gave way by de⯑grees; and no longer ſubſiſts in any civilized country, being loſt in the more extended connections that have no relation to clan⯑ſhip.

THIS change of connection among indi⯑viduals, 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 diffe⯑rent 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 bet⯑ter 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 re⯑gulation hath its limits. Courts may be diſtinguiſhed into civil, criminal, and eccle⯑ſiaſtical; 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 ſepa⯑rated from each other, in the diſtincteſt manner, by the natural marches and boun⯑daries 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 for⯑merly 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 ſit⯑ting and acting, commonly called terms. And ſuch is the preſent condition of the ſu⯑perior courts in this iſland.

THESE obſervations lead us to diſtin⯑guiſh 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 boun⯑dary, 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 ſepara⯑tion, other than the firſt citation.

BESIDES theſe, there is generally in well regulated ſtates, a court of a peculiar con⯑ſtitution, that has no original juriſdiction, but is eſtabliſhed as a court in the laſt re⯑ſort, to review the proceedings of all other courts. This may be properly called a court of appeal; and ſuch is the conſtitu⯑tion 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 o⯑ther inferior civil courts; the ſecond in the criminal court; and the third in the com⯑miſſary court. Beſides theſe, the court of exchequer is eſtabliſhed, for managing ſub⯑jects, 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 juriſ⯑dictions 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 deter⯑mine 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 par⯑liament. 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, mention⯑ed in Durie's deciſions; and in the que⯑ſtion of the peerage of Lovat, decided a few years ago.

[320] THE matters now mentioned, are obvi⯑ouſly not comprehended under the ordinary juriſdiction of the court of ſeſſion; and the court had no occaſion to aſſume extraordi⯑nary 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 them⯑ſelves within their ordinary juriſdiction, refuſed to interpoſe in behalf of a free⯑holder who had ſuffered this wrong, and diſ⯑miſſed the complaint as incompetent before them^*. Conſidering this caſe attentively, [321] it may be juſtly doubted, whether ſuch con⯑fined 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 ima⯑gine, of the Sovereign and ſupreme court, to redreſs wrongs of all ſorts, where a pecu⯑liar remedy is not provided. Under the cognizance of the privy-council in Scotland, came many injuries, which, by the aboli⯑tion of that court, are left without any pe⯑culiar remedy; and the court of ſeſſion have been forced to liſten to complaints of va⯑rious 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 pro⯑duce a general maxim, That it is the pro⯑vince 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 obſcure⯑ly, to have any ſteady influence on the prac⯑tice of the court. And for that reaſon our deciſions upon this ſubject are far from be⯑ing uniform. In the foregoing caſe of the freeholders of Cromarty, we have one in⯑ſtance where the court would not venture beyond their ordinary limits; though there⯑by a palpable wrong was left without a re⯑medy. I ſhall mention another inſtance, equally with the former beyond the ordi⯑nary 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 num⯑ber 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, re⯑fuſed the petition. Upon a complaint to the court of ſeſſion againſt the commiſ⯑ſioners, [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 lay⯑ing a greater proportion of the land-tax up⯑on 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 judg⯑ments 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 po⯑lice; which admitting many views, not leſs various than intricate, occaſions much dif⯑ficulty 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 experi⯑ments of a bold interpoſition for the publick good, the court of ſeſſion will clearly per⯑ceive the utility, of extending their juriſdic⯑tion to every ſort of wrong, where the per⯑ſons injured have no other means of obtain⯑ing 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 extraor⯑dinary 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 in⯑tereſt; 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 un⯑der 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 in⯑tend 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 bound⯑leſs 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 move⯑able, conſidered as a civil claim, cannot be aſcertained by the juſticiary, by the exche⯑quer, by the admiralty, or by the commiſ⯑ſaries. [327] The caſe is not preciſely the ſame in other matters of pecuniary intereſt. The commiſſaries of Edinburgh, as well as infe⯑rior 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 mention⯑ed, the powers and privileges of the admi⯑ral 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 ſeſ⯑ſion. 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 preſcrip⯑tion it hath acquired a juriſdiction in mer⯑cantile affairs; an incroachment which has no foundation, other than the natural con⯑nection that ſubſiſts between maritime af⯑fairs 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 ju⯑riſdiction in mercantile affairs; and in theſe it is preciſely like the ſheriff court, conſi⯑dered 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 en⯑tire 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 compre⯑hended under one rule, That all extraor⯑dinary 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 declara⯑tors, 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 equi⯑ty, 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 expe⯑rience, 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 conſe⯑quence, 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 enor⯑mous, [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 im⯑pulſe of puniſhing a criminal; an indul⯑gence 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 e⯑lapſe, 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 ad⯑miralty, 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 commit⯑ted at ſea. But after mature deliberation, the court ſuſtained its own juriſdiction, up⯑on 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, wound⯑ing, 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 ſea⯑ſaring [334] crimes, and come under the excluſive juriſdiction of the admiral. But if murder, adultery, forgery, or high treaſon, be com⯑mitted on board a ſhip, the cognition will belong to the judge ordinary. The com⯑miſſaries of Edinburgh will divorce, and the court of juſticiary, or commiſſioners of Oyer and Terminer, will puniſh. The only argu⯑ment for the admiral that ſeems plauſible is, That he is declared the King's juſtice-general upon the ſeas, and in all ports, har⯑bours, creeks, &c. But to what effect? The anſwer to this queſtion will clear the diffi⯑culty. 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 ſeſ⯑ſion, 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 na⯑tural, that this branch of criminal juriſ⯑diction, 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 puniſh⯑ment 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 pu⯑niſhment, would be an encroachment too bold upon the juriſdiction of the criminal [336] court. A ſlight puniſhment may be con⯑ſidered 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 ju⯑riſdiction, 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 ſeſ⯑ſion 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 pro⯑ſecuted in this court, baratry, for ex⯑ample, and uſury, even where it is pro⯑ſecuted by the King's advocate ad vin⯑dictam [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 bank⯑ruptcy, 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 me⯑thod of trial; and for that reaſon, no cri⯑minal 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 ca⯑pital 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 ju⯑riſdiction 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 quali⯑fied 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 op⯑poſition 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 en⯑title 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 de⯑prive 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 ne⯑ceſſary 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 contri⯑butions. It belongs indeed to the eccleſi⯑aſtical court to provide a pariſh with a mi⯑niſter: but then it belongs to the civil court, to judge whether that miniſter be entitled to a ſtipend; and the court of ſeſ⯑ſion 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 ar⯑bitrary power in providing pariſhes with mi⯑niſters. To prevent ſuch arbitrary power, the check, provided by law, is, That a mi⯑niſter 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 diſ⯑cuſſion of certain civil matters, which, a⯑mong our ſuperſtitious anceſtors, ſeemed to have a more immediate connection with re⯑ligion; divorce, for example, baſtardy, ſcan⯑dal, cauſes referred to oath of party, and ſuch like.

WHAT ſhall we ſay in point of juriſdic⯑tion, 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 Bri⯑tain. 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 ver⯑bal 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 com⯑miſſaries, 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 be⯑fore the court of ſeſſion.

WHEN the ſeveral branches of juriſdic⯑tion, 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 eccleſi⯑aſtical court; and ſo ſtrictly was this ob⯑ſerved, that if a queſtion of baſtardy oc⯑curred 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 bi⯑ſhop, to try the baſtardy as a prejudicial queſtion^*. The expence and delay of ju⯑ſtice, occaſioned by ſuch ſcrupulous con⯑finement of courts within preciſe limits, produced in Scotland an enlargement of ju⯑riſdiction; by impowering every court to decide in all points neceſſary to a final con⯑cluſion 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 reduc⯑tion 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 reduc⯑tion. And this has been their practice a⯑bove 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 huſ⯑band. 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 fun⯑damental propoſition, and the aliment mere⯑ly a conſequence. For this reaſon, they ſtayed the proceſs of aliment, till the pur⯑ſuer ſhould inſtruct her marriage before the commiſſaries. Fountainhall, 29th Decem⯑ber 1710, Forbes, 25th January 1711, Ca⯑meron 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 mar⯑riage; 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 in⯑conſiſtent, that two courts ſhould give con⯑trary 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 par⯑ticularly a conflict betwixt different juriſ⯑dictions, 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 in⯑extricable, as being flatly inconſiſtent; one of the courts, for example, order⯑ing a thing to be done, and the other court diſcharging it to be done. This has happened betwixt the two houſes of par⯑liament: 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 in⯑direct conflict may indeed happen, where two courts handling occaſionally the ſame point, in different cauſes, are of different opi⯑nions 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 proprie⯑tor, 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 pro⯑perty, as a preliminary point. It is judged, that the evidence I have given of my pro⯑perty, is not ſufficient. The reſult is a ſen⯑tence 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 proſecu⯑tion, nothing bars me from bringing there⯑after 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 cri⯑minal ſentence, nor relieve me from the pu⯑niſhment.

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, a⯑gainſt [348] John Ranken officer of exciſe, charg⯑ing, ‘"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 up⯑on a particular information of prohibited goods, he, by virtue of a writ of aſſiſt⯑ance 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 im⯑priſoned till payment. In this caſe there is no difficulty. The officers of the re⯑venue are not exempted from the courts of [349] common law; and upon a complaint againſt any one of them for a riot or other mal⯑verſation, the juſtices muſt ſuſtain them⯑ſelves 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 fore⯑going 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 reſtitu⯑tion, 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 plain⯑tiff, 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 of⯑ficer ſhall, at his own charge, cauſe the ſame to be repacked; which charge ſhall be allowed to the officer, by the com⯑miſſioners of the cuſtoms, if they think it reaſonable."’ Upon this ſtatute, a pro⯑ceſs 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 be⯑took [351] themſelves to a declinator of the court, contending, That this being a revenue af⯑fair, it ſhould not be tried but in the court of exchequer. The court of ſeſſion had no opportunity to judge of this declinator, be⯑cauſe the matter was taken away by a tranſ⯑action. But the following reaſons make it clear, that this declinator has no founda⯑tion. 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 deno⯑mination. 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 exche⯑quer, the Barons are the ſole judges in all demands by the King upon his ſubjects, concerning the revenues of cuſtoms, ex⯑ciſe, &c.; but they have no juriſdiction where the claim is at the inſtance of the ſubject againſt the King. And for that rea⯑ſon, 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 dif⯑ferent cauſes appropriated to each, and as thereby different in kind; I proceed to con⯑ſider courts of the ſame kind, as diſtin⯑guiſhed by territorial limits. The juriſdic⯑tion of a territorial judge extending over all perſons, and over all things within his territory, I ſhall firſt take under view per⯑ſonal 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 in⯑habitants 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 juriſdic⯑tions 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 re⯑ſidence for forty days before the cita⯑tion. This however is not ſo ſtrictly un⯑derſtood, as that a man can have but one domicil. There is no inconſiſtency in his having at the ſame time different do⯑micils; 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 poſ⯑ſideat^‡".’ 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 reſi⯑dence. 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 cer⯑tain 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 intel⯑ligitur, 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 commit⯑ting delicts within his territory, provided the delinquent be found within the terri⯑tory, 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 pre⯑text which in ordinary caſes would be ſuf⯑ficient, 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 pre⯑ferable 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 mat⯑ter ſtood entire to be tried by the ſheriff; becauſe the fact was not done upon the ba⯑ron'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 com⯑mitted 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 delin⯑quent^*.

WITH relation to juriſdiction, civil, cri⯑minal, and eccleſiaſtical, I have had occa⯑ſion 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 con⯑fine 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 natu⯑rally 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 juriſ⯑diction, the thought was natural, that it is the duty of every judge to watch over the inhabitants of his territory, and to re⯑gulate 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 ſtati⯑onary, and their commercial dealings con⯑fined to the neighbourhood. But it be⯑came altogether impracticable, after men were put in motion by extenſive commerce. The impediment to the diſtribution of ju⯑ſtice, occaſioned by this narrow and con⯑fined principle of the common law, was in England ſoon perceived, and an early re⯑medy 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 ac⯑tions were tried jure gentium. This court was much frequented while the Engliſh con⯑tinued to have a footing in France. After they were forced to abandon their con⯑queſts 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 na⯑ture that occurred. A fiction is an ad⯑mirable reſource for lawyers, in all matters of difficulty. The cauſe of action is ſet forth in the declaration, as having hap⯑pened in ſome particular place within Eng⯑land. It is not incumbent upon the pur⯑ſuer to prove this fact, nor is it lawful for the defendant to traverſe it^*. But infe⯑rior 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 per⯑ſonally 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 Edin⯑burgh, 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 no⯑tions. [362] As to an action of debt, for example, what can it ſignify, in point of juriſdiction, where the cauſe of action aroſe? This cir⯑cumſtance 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 commit⯑ted 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 no⯑tions 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-ju⯑riſdiction becoming by theſe means inexpli⯑cable, gave place to territorial juriſdiction; after which the locus originis became a migh⯑ty ſlight affair. The law of nations in⯑dulges individuals to change their country, and to fix their reſidence where they can find better bread than at home. Such mi⯑grations are frequent in all trading coun⯑tries; [364] and it would be unreaſonable to ſub⯑ject a man to the laws of his native country, after he has deſerted it, and is perhaps natu⯑ralized 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 reſi⯑dence, 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 na⯑tivity even with regard to treaſon, is at pre⯑ſent 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 fo⯑reign 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 cri⯑mine. And therefore, upon the whole, the following concluſion ſeems to be well found⯑ed, 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 terri⯑ritory. 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 pre⯑text commonly is, that the decree is in⯑tended for no other purpoſe, than to attach the debtor's effects in Scotland, and his per⯑ſon 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 ap⯑pears from them, that the court of ſeſſion did not pretend to aſſume a juriſdiction over the ſubjects of a foreign prince, upon ac⯑count ſingly of their being natives of Scot⯑land; and that, in order to found ſuch ju⯑riſdiction, it was neceſſary to have ſome re⯑ference 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 circum⯑ſtances. If on the other hand, nativity ſingly make not a forum, no other circum⯑ſtance 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 ef⯑fects are found within Scotland.

THE foregoing exceptions to the rule of law quod actor ſequitur forum rei, are con⯑ſtraints upon the defendant, by obliging him to anſwer in another juriſdiction than where he has fixed his reſidence. Proro⯑gation of juriſdiction, is an exception of a different nature, for it puts the party under no conſtraint. Where a man is called be⯑fore 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 law⯑yers with great accuracy^*. The words are: ‘"Si ſe ſubjiciant alicui juriſdictioni et con⯑ſentiant; inter conſentientes, eujuſvis ju⯑dicis qui tribunali praeeſt, vel aliam juriſ⯑dictionem 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 doc⯑trine laid down by commentators, may be eaſily underſtood. They mention four dif⯑ferent 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 other⯑wiſe. 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 a⯑gainſt [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 liv⯑ing in another territory is bound to obey his ſummons, yet by our law, as well as that of the Romans, if a man cited irregu⯑larly chuſe to appear, or if he appear with⯑out 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 juriſ⯑diction, and pleading defences, will not pro⯑rogate the juriſdiction. The decree is null by way of exception^*. And the like judg⯑ment was given with reſpect to an extraor⯑dinary 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 juriſ⯑diction, nor impower the judge to give ſen⯑tence. Cauſes againſt members of the col⯑lege 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 ad⯑vocate upon his privilege, if he chuſe not to ſubmit to the inferior judge. Acquieſ⯑cence 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 compe⯑tent before the ſheriff, againſt every inha⯑bitant within his territory, not excepting members of the college of juſtice. The only difference is, that theſe enjoy the pe⯑culiar 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 juriſ⯑diction by preſcription; not ſo perfectly in⯑deed, 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 defen⯑dant who chuſes not to ſubmit to ſuch ju⯑riſdiction, 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 with⯑in another? This is not an intricate que⯑ſtion. 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 juriſdic⯑tion, undoubtedly, is connected with things as well as with perſons. But then a diffi⯑culty 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 ſin⯑gular. I acknowledge, that thoſe perſons only who have a domicil within the terri⯑tory, 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 for⯑born, by a perſon who is not under his au⯑thority. 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 juriſdic⯑tion, why may not an intimation or notifica⯑tion ſuffice, in a caſe where there is no per⯑ſonal 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 equi⯑valent [375] to a regular citation; becauſe it hath all the advantages of a citation, by afford⯑ing 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 an⯑tagoniſt 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 da⯑mages, but will not put me in poſſeſſion of the ſubject. This branch of my claim can⯑not 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 re⯑manendi, [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 pro⯑ceſs I have in my eye, is that which com⯑monly paſſes under the name of arreſtment juriſdictionis fundandae gratia. The judge within whoſe territory the goods of a fo⯑reign debtor are, having a juriſdiction over theſe goods, though not over the proprietor, can adjudge them to a creditor for his pay⯑ment. In this proceſs of adjudication or forthcoming, the perſon in whoſe hands the goods are found, is truſted with the notifi⯑cation; 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 juriſ⯑dictionis [377] fundandae gratia; improperly indeed. The arreſtment, ſo far from founding the juriſdiction, ſuppoſes the juriſdiction ante⯑cedently founded; for by what authority could the arreſtment be uſed, if the goods were not already ſubjected to the juriſdic⯑tion? 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 men⯑tioned 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 per⯑ſonal action; for there the rule obtains, Quod actor ſequitur forum rei. And it ap⯑pears to me, that this form of a letter of ſupplement has crept in, not from neceſ⯑ſity, 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 natu⯑rally productive of a bias, and takes ſo firm hold of the mind, that it requires the ut⯑moſt 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 regu⯑larly 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 ter⯑ritory [379] I have no reſidence, the court of ſeſ⯑ſion cannot give warrant for a letter of ſup⯑plement to oblige me to defend myſelf there; and were my preſence equally neceſ⯑ſary 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 pre⯑ſence is not neceſſary, where there is no per⯑ſonal concluſion againſt me. Common ju⯑ſtice 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 cir⯑cumſtances, we ſhall invert the caſe, by ſuppoſing the debtor to be within the juriſ⯑diction, 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 juriſ⯑diction. [380] The ſheriff hath, by preſcrip⯑tion, 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 pro⯑nounce ſuch a decree. Hence in this mat⯑ter a remarkable difference appears, be⯑twixt a judicial transference of property or any real decerniture, and a perſonal decer⯑niture 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 com⯑mand the defendant to fulfil his bargain, by conveying land or moveables to the pur⯑ſuer. 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 impriſon⯑ment, or condemn him in damages. There the judge muſt ſtop ſhort; for he has no [381] authority over the ſubject. Upon this foot⯑ing, a burgeſs of Edinburgh ſuing a bro⯑ther 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 juriſ⯑diction; and the forgery being proved, the forged deed was ordained to be can⯑celled^†. A debtor, within threeſcore days of his notour bankruptcy, goes to Eng⯑land with a favourite creditor, and there aſſigns to him, for his ſecurity and pay⯑ment, a number of Engliſh debts. In a reduction upon the act 1696, againſt the aſſignee, he pleads, that the court of ſeſ⯑ſion hath no juriſdiction over Engliſh debt⯑ors, and that this court cannot reduce an aſſignment which conveys ſubjects not un⯑der [382] its juriſdiction. According to the prin⯑ciples above laid down, the following an⯑ſwer appears to be good, That it was wrong in the aſſignee to concur with the bank⯑rupt, 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 ſub⯑jected 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 with⯑in 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 terri⯑tory. [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 con⯑conceived 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 na⯑tives of Scotland wherever exiſting, provid⯑ed they have not deſerted their native coun⯑try, 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 ob⯑ſerving, that the common method of ſeek⯑ing [384] redreſs of injuſtice done by an inferior court, is by appealing to one that is ſupe⯑rior. That this particularly was the me⯑thod 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 a⯑gainſt 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 ap⯑peal can be made; becauſe it is the higheſt court, and ordained for redreſ⯑ſing 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 origi⯑nally, 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 Bri⯑tiſh 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 in⯑ſtitution 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 ra⯑tional conjecture.

[386] IN order to talk with the greater per⯑ſpicuity, 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 com⯑poſed 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 a⯑bove obſerved, cauſes originally were re⯑moved 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 re⯑gular times of meeting and diſtributing ju⯑ſtice, 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 Ed⯑ward 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 com⯑pleated in leſs time than ſeven years^†. This court was far from being a compleat reme⯑dy. Its members and its place of ſitting [388] were changeable; and its terms were too ſhort for expediting buſineſs. The next at⯑tempt 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, occa⯑ſioned by the ſhort terms of the ſeſſion, and their want of time to finiſh cauſes, ap⯑points 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 im⯑pediment 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 at⯑tendance.

TO return to appeals, I remark, that an appeal was competent againſt an interlocu⯑tory as well as againſt a definitive ſen⯑tence^*; 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 pe⯑remptory, to the amount of half a dozen, which is no bold ſuppoſition; and let us ob⯑ſerve 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 ba⯑ron court, or of the baillie court in a royal burrow, there behoved to be no fewer than three appeals in order to obtain the judg⯑ment of the parliament, or of the court of appeal put in place of the parliament. Hence each of the exceptions above ſuppoſ⯑ed, might occaſion no fewer than three ap⯑peals; 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 an⯑nulled."’ 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 re⯑liſhed 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 re⯑cords 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 proceed⯑ings were rectified or annulled. The very nature and conſtitution of this court, be⯑hoved to give birth to ſome ſuch remedy; eſpecially as the remedy was not altogether new. This court could not receive an ap⯑peal, becauſe no ſuch privilege was beſtow⯑ed upon it; and the whole forms of a pro⯑ceſs [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 dif⯑ferent courts, before he could get his cauſe determined in the laſt reſort. We may therefore readily believe, that a direct appli⯑cation 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 autho⯑rity from the court, more than the latter. This aſſumed power of reviewing the de⯑crees of inferior judges, was ſoon improved into a more regular form. Decrees of regi⯑ſtration 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 exe⯑cution, the defect was ſupplied by a ſuſpen⯑ſion.

HERE then is a matter fairly accounted for, which ſeems to have puzzled our anti⯑quaries, 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 in⯑ſtitution of this college, they fell in deſue⯑tude, and gave place to advocations, ſu⯑ſpenſions 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 hap⯑pened, 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 ap⯑peals went into diſuſe, the ſheriff loſt his power of reviewing the ſentences of the baron court; and theſe courts came by de⯑grees to be conſidered as of equal rank, when the proceedings of both were equally ſubjected to the review of the court of ſeſ⯑ſion.

THE redreſs of wrong judgment by ap⯑pealing 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, when⯑ever an act of injuſtice is done by an infe⯑rior 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 Cer⯑tiorari, as termed in England, which at any rate muſt not be neglected; being the form for redreſſing iniquity committed by an in⯑ferior judge, before the final ſentence is pro⯑nounced. 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 privi⯑lege was not communicated to the court of ſeſſion inſtituted in the 1425; for it ap⯑pears 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 ob⯑ſerved 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 connec⯑tions with foreign ſtates, becoming gradual⯑ly more intricate and involved, the admi⯑niſtration of juſtice by the King and coun⯑cil, came to be pretty much neglected. The privilege of advocation, which had been denied to the court of ſeſſion, was permit⯑ted to the daily council; but ſtill to be exerciſed within its original limits. Bal⯑four^* mentions a caſe ſo late as the 1531, where it was decided, that after litiſcon⯑teſtation 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 re⯑duction 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 con⯑viction, that it was a ſhorter and leſs ex⯑penſive 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 infe⯑rior judge, or where there occurred any per⯑ſonal objection, till it obtained, that ini⯑quity ſingly was a ſufficient ground. This change, however beneficial to the publick, was not allowed to take place without op⯑poſition. The improvement, it would ap⯑pear, was not at firſt reliſhed by our legiſ⯑lature. 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 occa⯑ſioned by the ſtill remaining influence of former practice, having no great authority, ſoon ſlipt into diſuſe. Advocations upon iniquity gaining ground daily, baniſhed ap⯑peals 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, re⯑ductions and ſuſpenſions, the power of advo⯑cation was for many years reckoned an extra⯑ordinary 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 un⯑doubtedly 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 pri⯑vileges. 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 ſu⯑preme criminal court, can both of them iſſue a certiorari. No other court in Eng⯑land enjoys this privilege. Some method for redreſſing iniquity committed by an in⯑ferior 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 me⯑thod, in criminal as well as in civil actions. The inconveniencies of this method, ren⯑dered 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 diffi⯑culty. The privilege of advocation, accord⯑ing 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 ſu⯑preme court. The known advantages of an advocation, as an expeditious method for obtaining redreſs of wrong judgment, ſur⯑mounted this difficulty. The court of ſeſ⯑ſion 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 unſuſpec⯑cted^*. The ſlight figure made in thoſe days, by the court of juſticiary which con⯑ſiſted 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 advo⯑cated 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 pre⯑ſented 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 additi⯑onal 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 ad⯑vocations. This privilege, as is uſual, was aſſumed at firſt with ſome degree of heſita⯑tion. 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 in⯑ſtances 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 ex⯑ample of the two ſupreme courts of ſeſſion and juſticiary, is in the practice of advo⯑cating cauſes to himſelf from inferior ad⯑miral 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 ſen⯑tence pronounced by an inferior judge; and it appears to me doubtful, whether the court will ever be inclined to extend its juriſdic⯑tion 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 cor⯑rected by an advocation. The execution of a ſentence of condemnation, may be pre⯑vented [405] by a ſuſpenſion. If the perſon ac⯑cuſed 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 reduc⯑tion, 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 un⯑dertake 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 con⯑ſequence by a natural connection. The court of ſeſſion, which by way of reduction, judges of fines, expences, and damages, re⯑fuſed in an inferior criminal court, aſſumes naturally the power to judge of the ſame articles by way of ſuſpenſion, when an ex⯑orbitant [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 advo⯑cation 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 pro⯑ceedings 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 fol⯑lowing purpoſe. ‘"The purſuer hath under⯑taken 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 ac⯑tions, 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 contra⯑dictor, 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 ver⯑dict 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 ver⯑dict 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 pu⯑niſhed 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 de⯑linquent, without affording any relief to the party injured. However this be, the ſum⯑mons of error is limited to three years, not only where the purpoſe is to have the aſ⯑ſizers 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 cri⯑minal [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 mat⯑ter offers me a fair opportunity to trace the hiſtory of this revolution, and to diſ⯑cover, 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 writ⯑ers, I muſt take the help of a maxim which [411] appears to have been adopted by our fore⯑fathers, and to have had a ſteady influence in the practice of law. The maxim is, That though queſtions in law may be truſt⯑ed to a ſingle judge, matters of proof are ſafeſt in the hands of a plurality. It was probably thought, that in determining que⯑ſtions of law there is little truſt repoſed in a judge, becauſe he is tied down to a pre⯑ciſe 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 employ⯑ed. 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 ſuffi⯑ciently [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 con⯑tinuance 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 recur⯑ring 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, pre⯑ciſely as we do at this day. Theſe facts conſidered, it ſeems a well founded conjec⯑ture, 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 autho⯑rity 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 ſeſ⯑ſion, [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 borrow⯑ed from the court of parliament, the mem⯑bers 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 excep⯑ted, formed themſelves into a jury, and brought in a regular verdict, declaring the pannel not guilty. A copy of the trial is annexed, Appendix, N^o. 5.

UPON this occaſion, I cannot avoid de⯑claring my opinion, that in civil cauſes, it is a real improvement to truſt with eſtabliſh⯑ed 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 un⯑doubtedly be more relied on for doing ju⯑ſtice, [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 ſeſ⯑ſion, to be ſatisfactory, it will no doubt occur, that it proves nothing with reſpect to inferior courts, where the judges are ge⯑nerally ſingle. I admit the obſervation to be juſt; and therefore muſt aſſign a dif⯑ferent 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 inſti⯑tution of the college of juſtice; and indeed we are not at freedom to doubt of this fact, after conſidering the act 42. p. 1587, ap⯑pointing 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 jury⯑trial in a civil action. But this circum⯑ſtance 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 ſhe⯑riff'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 in⯑ferior 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 judg⯑ments [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 pro⯑ceed to the power which courts have to re⯑view their own decrees. The court of ju⯑ſticiary enjoys not this power, becauſe the verdict is ultimate, and cannot be over⯑turned. This obſtacle lyes not in the way of the court of ſeſſion; and as the forms of this court give opportunity for ſuch re⯑view, neceſſity brought it early into prac⯑tice. For the ſhort ſederunts of parlia⯑ment 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 de⯑crees. And ſo an appeal came to be ne⯑ceſſary in thoſe caſes only where the ulti⯑mate 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 juſt⯑ly 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, af⯑ford little matter for an appeal; which at the ſame time would be but a partial re⯑medy, 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 be⯑ing 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 mi⯑niſter, by which the eſtabliſhed miniſters were turned out of poſſeſſion. In this caſe the following circumſtance came to be ma⯑terial 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 ju⯑ſticiary 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 ap⯑peal 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 pro⯑ſecution are with us called pannels, ap⯑pealed alſo from this ſentence of the court of juſticiary, and the ſentence was re⯑verſed.

THE diſtinctions above handled, com⯑prehend moſt of the courts that are to be found any where, but do not totally ex⯑hauſt 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 puniſh⯑ment is directed againſt what was formerly reckoned a venial tranſgreſſion; as for in⯑ſtance, 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 hap⯑pens in civil cauſes; witneſs the juriſdiction given by act of parliament to the juſtices of peace in revenue matters. With rela⯑tion 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 ju⯑riſdiction 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 ju⯑riſdiction for the puniſhment of it, and preſcribes a certain method of proceed⯑ing; 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 other⯑wiſe be taken away but by expreſs words. On the other hand, a right is not preſum⯑ed to be given, and therefore cannot be given but by expreſs words. Treaſon of all ſorts, wherever committed, is under the ju⯑riſdiction [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 im⯑ply ſo much. A new offence created by a ſtatute, muſt be conſidered in a different light. If the trial of ſuch offence be com⯑mitted to a particular judge, there is no foundation in law for extending the pri⯑vilege to any other judge; becauſe the words do not neceſſarily import ſuch exten⯑ſion. The juſticiary therefore, or ſheriff, have no power to inflict the ſtatutory pu⯑niſhment upon thoſe who maliciouſly de⯑ſtroy growing trees. They have evident⯑ly no ſuch juriſdiction by the ſtatute, and they cannot have it by common law, be⯑cauſe 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 ex⯑tent 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 compe⯑tent 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 how⯑ever [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 conſtitu⯑tion, a power to arrogate to itſelf an un⯑bounded juriſdiction, which would be ab⯑ſurd. 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 cogni⯑ſance of the juſtices of peace, who are au⯑thoriſed to rectify the ſame ultimately and without appeal. The truſtees made a tranſ⯑action with a neighbouring heretor, allow⯑ing thoſe who purchaſed his coal and ſalt the uſe of the turnpike-road free of toll; but obliging him to pay 3l. Sterling year⯑ly, whenever he ſhould open coal in a different field ſpecified. This bargain, an exemption in reality, and not a compo⯑ſition, [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 de⯑clared final. With regard to the prelimi⯑nary point, aſcertaining their own juriſdic⯑tion, 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 ju⯑riſdiction be affirmed, the court of ſeſſion muſt ſtop ſhort; and however wrong the [429] judgment upon the cauſe may to them ap⯑pear, they cannot interpoſe, becauſe the judgment is final.

I ſhall finiſh this diſcourſe with a compa⯑rative 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 de⯑crees 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 reduc⯑tion, advocation, or appeal. The admiral court again is, by the act 1681, declared [430] ſovereign, and accordingly every act of au⯑thority 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 foot⯑ing with the admiral court.