HISTORICAL LAW-TRACTS.
VOLUME. II.
EDINBURGH: Printed for A. MILLAR, at BUCHANAN's Head in the STRAND, LONDON; and A. KINCAID, and J. BELL, EDINBURGH. MDCCLVIII.
TRACT VIII.
HISTORY OF BRIEVES.
JURISDICTION was originally a mighty simple affair. The chieftain who led the hord or clan to war, was naturally appealed to in all controversies among individuals.
JURISDICTION involved not then what it doth at present,
viz.
a privilege to declare what is law, and authority to command obedience. It involved no more than what naturally follows when two persons differ in matter of interest, which is to take the opinion of a third.
THUS a judge originally was merely an umpire or arbiter, and litigation was in effect a submission; upon which account litiscontestation is, in the Roman law, defined a judicial contract.
THE chieftain, who afterwards when several clans united for common defence got the name of King, was the sole judge originally in matters of importance
CAESAR describing the Germans and their manners.
"Quum bellum civitas aut illatum defendit, aut infert; magistratus, qui ei bello praesint, ut vitae necisque habeant potestatem, deliguntur. In pace nullus communis est magistratus, sed principes regionum atque pagorum inter fous jus dicunt, controversiasque minuunt
Commentaria, Lib. 6.
."
. Slighter controversies were determined by fellow-subjects; and persons distinguished by rank or office, were commonly chosen umpires.
BUT differences multiplying by multiplied connections, and causes becoming more intricate by the art of subtilizing, the Sovereign made choice of a council to assist him in his awards; and this council was denominated,
The King's Court;
because in it he always presided. Through most of the European nations, at a certain period of their history, we find this court established.
IN the progress of society, matters of jurisdiction becoming still more complex, and multiplying without end, the Sovereign, involved in the greater affairs of government, had not leisure nor skill to decide differences among his subjects. Law became a science. Courts were instituted; and the several branches of jurisdiction, civil, criminal, and ecclesiastical, were distributed among these courts. Their powers were ascertained, and the causes that could be tried by them. These were likewise called the King's courts, not only as being put in place of the King's court properly so called, but also as the King did not renounce the power of judging in person, but only freed himself from the burden of necessary attendance.
BUT the Sovereign, jealous of his royal authority, bestowed upon these courts no other power but that of jurisdiction in its strictest sense,
viz.
a power to declare what is law. He reserved to himself all magisterial authority, even that which is necessary for explicating the jurisdiction of a court. Therefore, with relation to sovereign courts, citation and execution proceed in the King's name, and by his special authority.
AS to inferior courts, all authority is given to them that is necessary for explicating their jurisdiction. The trust is not great, considering that an appeal lyes to the sovereign court; and it is below the dignity of the crown, to act in an inferior court.
IN the infancy of government, the danger was not perceived, of trusting with the King, both the judicative and executive powers of the law. But it being now understood, that the safety of a free government depends upon balancing its several powers, it has become an established maxim, That the King, with whom the executive part of the law is trusted, has no part of the judicative power.
"It seems now agreed, that our Kings having delegated their whole judicial power to the judges of their several courts, they, by the constant and uninterrupted usage of many ages, have now gained a known and stated jurisdiction, regulated by certain established rules, which our Kings themselves cannot make any alteration in, without an act of parliament
New abridgement of the law, vol. I. page 554.
."
The same, no doubt, is understood to be the law of Scotland, though so late as Craig's time it was otherwise. That author
L. 3. Dieg. 7. § 12.
mentions a case, where it was declared to be law, that the King might judge even in his own cause.
RELIGION and law, originally simple, were strangers to form. In process of time, form took the place of substance, and law, as well as religion, were involved in solemnities. What is solemn and important, produceth naturally order and form among the vulgar, who are addicted to objects of sense. For this reason, forms in most languages are named solemnities, being connected with things that are solemn. But by gradual improvements in society, and by refinement of taste, forms come insensibly to be neglected, or reduced to their just value; and law as well as religion are verging towards their original simplicity. Thus, opposite causes produce sometimes the same effects. Law and religion were originally simple, because man was so. They will again be simple, because simplicity contributes to their perfection.
AFTER courts were instituted, and the cognizance of all causes at that time known was distributed among them, several new grounds of action occurring, it behoved to be often doubtful, in what court a new action should be tried. An expeditious method was invented, for resolving doubts of this sort. The King was the fountain of jurisdiction, and to him was ascribed the prerogative of delegating to what judge he thought proper, any cause of this kind that occurred. This was done by a brieve from the chancery, directed to some established judge, ordering him to try the particular cause mentioned in the brieve. The King at first was under no restraint as to the choice of the judge, other than what arose from rational motives; provided only, the party, who was to be made defendant, was subjected to the jurisdiction of the judge named in the brieve. This limitation was necessary; because the King's brieve contained not a warrant for citing the party to appear before the judge; and the judge's warrant could not reach beyond his territory. But in time, reason produced custom, and custom became law. Matters of moment behoved to be delegated to a supreme judge; and, in general, the rule was, to avoid mixing civil and criminal jurisdiction.
IN the most general sense of the word, every one of the King's writs, commanding or prohibiting any thing to be done, is termed a brieve. But brieves, with respect to judicial proceedings, are of two kinds. One is directed to the sheriff, or a messenger in place of the sheriff, ordering him to cite the party to appear in the King's court, to answer the complaint made against him. This brieve is, in the English law, termed an original, and corresponds to our summons including the libel. The other kind is that above mentioned, directed to a judge, delegating to him the power of trying the particular cause set forth in the brieve.
OF the first kind of brieve, that for breaking the King's protection, is an instance
Quon. attach. cap. 54.
. Of the other kind, the brieve of bondage, the brieve of distress, the brieve of mortancestry, the brieve of nouvel disseisin, of perambulation, of terce, of right, &c. are instances.
OF the last mentioned brieve the following was a peculiar species. When in the King's court a question of bastardy occurred, to which a civil court is not competent, a brieve was directed from the chancery to the bishop, to try the bastardy as a prejudicial question
Reg. Maj. L. 2. cap. 54.
. If such a case happened in an inferior court, the court, probably by its own authority, made the remit to the spiritual court. And the same being done at present in the King's courts, there is no longer any use for this brieve.
THE brieve of bondage might be directed either to the justiciar or to the sheriff
Quon. attach. cap. 56.
. The brieve for relief of cautionry, might be directed to the justiciar, sheriff, or provost and baillies within burgh
Idem. cap. 51.
. The brieves of mortancestry, and of nouvel disseisin, could only be directed to the justiciar
Idem. cap. 52 & 53.
.
THE brieve of distress, corresponding to the English brieve,
Justicies,
must be examined more deliberately, because it makes a figure in our law. While the practice subsisted of poinding
brevi mann
for payment of debt, there was no necessity for the interposition of a judge to force payment
See Tract IV.
History of securities upon land for payment of debt.
. When courts therefore were instituted, a process for payment of debt was not known. The rough practice of forcing payment by private power being prohibited, an action became necessary; and the King interposed by a brieve, directing one or other judge to try the cause.
"The brieve of distress for debts shall be determined before the justiciar, sheriff, baillies of burghs, as it shall please the King by his letter to command them particularly within their jurisdiction
Reg. Maj. L. 1. cap. 5.
."
And it may be remarked by the way, that when a decree was recovered under the authority of this brieve, the judge directed execution by his own authority, even so far as to adjudge to the creditor, for his payment, the land of the debtor, if the moveables were not sufficient. With regard to the sheriff at least, the fact is ascertained by the act 36. p. 1469. This brieve explains a maxim of the common law of England:
"Quod placita de catallis, debitis, &c. quae summum 40
sh.
attingunt vel excedunt, secundum legem et consuetudinem Angliae sine brevi regis placitari non debent
New abridgment of the law, vol. I. page 646.
."
The indulging a jurisdiction to the extent of 40 shillings without a brieve, arose apparently from the hardship of compelling a creditor to take out a brieve for a sum so small. In England the law continues the same to this day; for the sheriff, without a brieve, cannot judge in actions of debt beyond 40 shillings. But in Scotland, an original jurisdiction was, by statute, bestowed upon the Lords of session, to judge in actions of debt
Act 61. p. 1457.
; and the sheriff and other inferior judges, copying after this court, have, by custom and prescription, acquired an original jurisdiction in actions of debt, without limitation; and the brieve of distress is no longer in use, because no longer necessary.
AFTER the same manner, most of these brieves have gone into desuetude; for to nothing are we more prone than to an inlargement of power. A court, which has often tried causes by a delegated jurisdiction, loses in time sight of its warrant, and ventures to try such causes by its own authority. Some few instances there are of brieves still in force, such as these which found the process of division of lands, of terce, of lyning within burgh, and of perambulation. For this reason I think it wrong in the court of session to sustain a process of perambulation at the first instance, which ought to be carried on before the sheriff, upon the authority of a brieve from the chancery. And what inclines me the rather to be of this opinion, is, that all the brieves of this sort preserved in use, regard either the fixing of land marches, or the division of land among parties having interest, which never can be performed to good purpose, except upon the spot.
SOON after the institution of the college of justice, it was made a question, whether that court could judge in a competition about the property of land, without being authorized by a brieve of right. But they got over the difficulty upon the following consideration;
"That the brieve of right was long out of use; and that this being a sovereign and supreme court for civil causes, its jurisdiction, which in its nature is unlimited, must comprehend all civil causes from the lowest to the highest
Ult. February 1542, Weems
contra
Forbes, observed by Skene (voce) Breve de recto.
."
As the King's writs issuing from chancery did pass under either the Great or the Quarter Seal, such solemnity came to be extremely burdensome, and behoved to be severely felt in the multiplication of law proceedings. This circumstance was, no doubt, of influence, in antiquating the brieves that conferred a delegated jurisdiction, and in bringing all causes under some one original jurisdiction. The other sort of brieve, which is no other than the King's warrant to call the defendant into the King's court, has been very long in disuse; and in place of it a simpler form is chosen, which is a letter from the King, passing under the signet, directed to the sheriff, or to a messenger in place of the sheriff, ordering him to cite the party to appear in court. This change probably happened without an express regulation. A few singular instances which were successful, discovered the conveniency; and instances were multiplied, till the form became universal, and brieves from the chancery were altogether neglected. One thing is certain, that letters under the signet for citing parties to appear in the King's courts, can be traced pretty far back. In the chartulary of Paisley, preserved in the advocates library
Page 246.
, there is a full copy of a libelled summons, in English, dated the 2d February 1468, at the instance of George, abbot of Paisley, against the baillies of the burgh of Renfrew, with respect to certain tolls, customs, privileges, &c. for summoning them to appear before the King and his council, at Edinburgh, or where it shall happen them to be for the time, ending thus:
"Given under our signet at Perth, the second of December, and of our reign the eight year."
And there are extant letters under the signet
2d June 1514.
, containing a charge to enter heir to the superiority, and infeft the vassal within twenty days; and, if he fail, summoning him to appear before the Lords of council the seventh of July next, to hear him decerned to tyne his superiority, and that the vassal shall hold of the next lawful superior.
"Given under our signet at Stirling, the second of June, and of our reign the first year."
It is to be observed, at the same time, that this must have been a recent innovation; for so late as the year 1457, the ordinary form of citing parties to appear before the Lords of session, was by a brieve issued from chancery
See act 62. p. 1457.
.
IT is probable, that originally every sort of execution, which passed upon the decrees of the King's courts, was authorized by a brieve issuing from chancery; for if a brieve was necessary to bring the defendant into court, it is not to be supposed, that less solemnity was used in executing the decree pronounced against him; and that this in particular was the case when land was apprised for payment of debt, is testified by 2d statutes Robert I. cap. 19. At what time this form was laid aside, or upon what occasion, we know not. For so far back as we have any records, we sind every sort of execution, personal and real, upon the decrees of the King's courts, authorized by letters passing the signet.
OF old, a certain form of words was established for every sort of action; and if a man could not bring his case under any established form, he had no remedy. In the Roman law, these forms are termed
formulae actionum.
In Britain, copying from the Roman law, all the King's writs or brieves, these at least which concern judicial proceedings, are in a set form of words, which it was not lawful to alter. But in the progress of law, new cases occurring without end, to which no established form did correspond, the Romans were forced to relax from their solemnities, by indulging
actiones in factum,
in which the fact was set forth without reference to any form. The English follow this practice, by indulging
actions upon the case.
It is probable, that in Scotland, the warrant for citation passing under the Signet, was at first conceived in a set form, in imitation of the brieve to which it was substituted. But if this originally was the case, the practice did not long continue. These forms have been very long neglected, every man being at liberty to set forth his case in his own words; and it belongs to the court to consider, whether the libel or declaration be relevant; or, in other words, whether the facts set forth be a just cause for granting what is requested by the pursuer.
TRACT IX.
HISTORY OF PROCESS in ABSENCE.
IN Scotland, the forms of process against absents, in civil and criminal actions, differ too remarkably to pass unobserved. Our curiosity is excited to learn whence the difference has arisen, and upon what principle it is founded: and for gratifying our curiosity in this particular, I can think of no means more promising, than a view of some foreign laws that have been copied by us.
BUT in order to understand the spirit of these laws, it will be necessary to look back upon the origin of civil jurisdiction, of which I have had occasion, in a former tract, to give a sketch
History of the Criminal Law.
;
viz.
that at first judges were considered as arbiters, without any magisterial powers; that their authority was derived from the consent of the litigants; that litiscontestation was in reality a judicial contract; and therefore, that the decrees of judges had not a stronger effect than an award pronounced by an arbiter properly so called. Upon this system of jurisdiction, there cannot be such a thing as a process in absence; for a judge, whose authority depends upon consent, cannot give judgment against any person who submits not to his jurisdiction. But civil jurisdiction, like other human inventions, faint and imperfect in its commencement, was improved in course of time, and became a more useful system. After a publick was recognized, and a power in the publick to give laws to the society, and to direct its operations, the consent of litigants was no longer necessary to found jurisdiction. A judge is held to be a public officer, having authority from the publick to settle controversies among individuals, and to oblige them to submit to his decrees. The defendant, being bound to submit to the authority of the court, cannot hurt the pursuer by refusing to appear; and hence a process in absence against a person who is legally cited.
IN the primitive state of Rome, jurisdiction was altogether voluntary. A judge had no coercive power, not even that of citation. The first dawn of authority we discover in old Rome, with relation to judicial proceedings, is a power which was given to the claimant to drag his party into court,
obtorto collo,
as expressed in the Roman law. This was a very rude form, suitable however to the ignorance and rough manners of those times. This glimpse of authority was improved, by transferring the power of forcing a defendant into court, from the claimant to the judge; and this was a natural transition, after a judge was held to be a publick officer, vested with every branch of authority that is necessary to explicate his jurisdiction. Litiscontestation ceased to be a judicial contract. But as our notions do not immediately accommodate themselves to the fluctuation of things, litiscontestation continued to be handled by lawyers as a judicial contract, long after jurisdiction was authoritative, and neither inferred nor required consent. Litiscontestation, it is true, could no longer be reckoned a contract: but then, as any subterfuge will serve a lawyer, it was defined to be a
quasi
-contract; which, in plain language, is saying, that it hath nothing of a contract except the name. We return to the history. The power of citation assumed by the judge, was at first, like most innovations, exercised with remarkable moderation. The defendant in civil causes behoved, for the most part, to be cited no fewer than four times, before he was bound to put in his answer. The fourth citation was peremptory, and carried the following certification:
"Etiam absente diversa parte, cogniturum se, et pronunciaturum
L. 71. de judiciis.
."
What followed is distinctly explained.
"Et post edictum peremptorium impetratum, cum dies ejus supervenerit, tunc absens citari debet: et sive responderit, sive non responderit, agetur causa, et pronunciabitur: non utique secundum praesentem, sed interdum vel absens, si bonam causam habuit, vincet
Ibid. l. 73.
."
IN criminal actions, the form of proceeding against absents, appears not, among the Romans, to have been thoroughly settled. Two rescripts of the Emperor Trajan are founded on, to prove, that no criminal ought to be condemned in absence. And because a proof
ex parte
cannot afford more than a suspicion or presumption, the reason given is,
"Quod satius est impunitum relinqui facinus nocentis, quam innocentem damnare."
On the other hand, it is urged by some writers, that contumacy, which is itself a crime, ought not to afford protection to any delinquent; and therefore that a criminal action ought to be managed like a civil action. Ulpian, to reconcile these two opposite opinions, labours at a distinction; admits, as to lesser crimes, that a person accused may be condemned in absence; but is of opinion, that of a capital crime no man ought to be condemned in absence
l. 5. de poenis.
. Marcian seems to be of the same opinion
l. 1. pr. et § 1. de requir. vel absen. damnan.
. And it is laid down, that the criminals whole effects, in this case, were inventaried and sequestred; to the effect, that if within the year he did not appear to purge his contumacy, the whole should be consiscated
viz.
in the title now mentioned.
.
THIS form of proceeding, as to civil actions at least, appears to have a good foundation both in justice and expediency. If my neighbour refuse to do me justice, it is the part of the judge or magistrate to compel him. If my neighbour be contumacious, and refuse to submit to legal authority, this may subject him to punishment, but cannot impair my right. In criminal causes, where punishment alone is in view, there is more room for hesitating. No individual hath an interest so substantial, as to make a prosecution necessary merely upon his account; and therefore writers of a mild temper, satisfy themselves with punishing the person accused for his contumacy. Others, of more severe manners, are for proceeding to a trial in every case which is not capital.
THAT a difference should be established between civil and criminal actions, in the form of proceeding, is extremely rational. I cannot however help testifying some degree of surprise, at an opinion, which gives peculiar indulgence to the more atrocious crimes. I should rather have expected, that the horror mankind naturally have at such crimes, would have disposed these writers, to break through every impediment, in order to reach a condign punishment; leaving crimes which make a less figure, to be prosecuted in the ordinary form. Nature and plain sense undoubtedly suggest this difference. But these matters were at Rome settled by lawyers, who are led more by general principles, than by plain sensations. And as the form of civil actions, it may be supposed, was first established, analogy moved them to bring pecuniary mulcts, and consequently all the lesser crimes, under the same form.
I reckon it no slight support to the foregoing reflection, that as to high treason, the greatest of all crimes, the Roman lawyers, deserting their favourite doctrine, permitted action to proceed upon this crime, not only in absence of the person accused, but even after death
l. 11. ad leg. Jul. majest.
.
So far back as we can trace the laws of this island, by the help of ancient writings and records, we find judges vested with authority to explicate their jurisdiction. We find, at the same time, the original notion of jurisdiction so far prevalent, as to make it a rule, that no cause could be tried in absence; which to this day continues to be the law of England. This rule is unquestionably a great obstruction to the course of justice. For instead of trying the cause, and awarding execution when the claim is found just, it has forced the English courts upon a wide circuit of pains and penalties. The refusing to submit to the justice of a court invested with legal authority, is a crime of the grossest nature, being an act of rebellion against the state. And it is justly thought, that the person who refuses to submit to the laws of his country, ought not to be under the protection of these laws. Therefore, this contempt and contumacy, in civil actions as well as criminal, subjects the party to diverse forfeitures and penalties. He is held to be a rebel or outlaw: he hath not
personam standi in judicio:
he may be killed
impune;
and both his liferent and single escheat fall
Bacon's new abridg. of the law, Tit. (Outlawry)
.
IN Scotland, we did not originally try even civil causes in absence, more than the English do at present. The compulsion to force the defendant to appear, was attachment of his moveables, to the possession of which he was restored upon finding bail to sist himself in court. If he remained obstinate, and offered not bail, the goods attached were delivered to the claimant, who remained in possession, till the proprietor was willing to submit to a trial. This is plainly laid down in the case of the brieve of right, or declarator of property; where, if the defendant remain contumax, and neither appear nor plead an essoinȝie, the land in controversy is seized and sequestred in the King's hands, there to remain for fifteen days: if the defendant appear within the fifteen days, he recovers the possession, upon finding caution to answer as law will: otherwise the land is adjudged to the pursuer, after which the defendant has no remedy but by a brieve of right
Reg. Maj. l. 1. cap. 7.
. Neither appears there to be any sort of cognition in other civil causes, such as actions for payment of debt, for performance of contracts, for moveable goods; where the first step was to arrest the defendant's moveables, till he found caution to answer as law will
Quon. attach. cap. 1. cap. 49. § 3.
. And in these cases, as well as in the brieve of right, the goods attached were, no doubt, delivered to the claimant, to be possessed by him while his party remained contumacious.
AFTER the Roman law prevailed in this part of the island, the foregoing practice wore out, and, with regard to civil actions, gave place to a more mild and equitable method, which, without subjecting the defendant to any penalty, is more available to the pursuer. This method is to try the cause in absence of the defendant, in the same manner as was done in Rome, of which mention is made above. The relevancy is settled, proof taken, and judgment given, precisely as where the defendant is present. The only inconvenience of this method, upon its introduction, was the depriving the pursuer of the defendant's testimony, when he chose to refer his libel to the defendant's oath. This was remedied by holding the defendant as confessed upon the libel. To explain this form, I must shortly premise, that by the old law of this island, it was reckoned a hardship too great, to oblige a man to give evidence against himself; and for that reason the pursuer, even in a civil action, was denied the benefit of the defendant's testimony. In Scotland, the notions of the Roman law prevailing, which, in the particular now mentioned, were more equitable than our old law, it was made a rule, that the defendant in a civil action is bound to give evidence against himself; and if he refuse to give his oath, he is held as confessing the fact alledged by the pursuer. This practice was at hand to be transferred into a process where the defendant appears not; and from this time, the contumacy of the defendant who obeys not a citation in a civil cause, has been attended with no penal consequence; for a good reason, that the pursuer hath a more effectual method for attaining his end, which is to insist, that the defendant be held as confest upon the libel. Nor is this a stretch beyond reason; for the defendant's acquiescence in the claim may justly be presumed, from his refusing to appear in court.
BUT this new form is defective in one particular case. We hold not a party as confest, unless he be cited personally. What if one, to avoid a personal citation, keep out of the way: is there no remedy in this case? why not recur to the ancient practice of attaching his effects, till he find caution to answer.
THE English regulation, that there can be no trial in absence, holds, we may believe, in criminal as well as in civil causes, not even excepting a prosecution for high treason. But as this crime will never be suffered to go unpunished, a method has been invented, which, by a circuit, supplies the defect of the common law. If a party accused of treason or felony, contumaciously keep out of the way, the crime, it is true, cannot be tried: but the person accused may be outlawed for contumacy; and the outlawry, in such cases, is made the means to gain the end proposed by the prosecution. For though outlawry, by the common law, hath no other effect, as above observed, than a denunciation upon a horning with us; yet the horror of such offences hath introduced a regulation beyond the common law,
viz.
that outlawry in the case of felony, subjects the party to that very punishment which is inflicted upon a felon convict; and the like in treason, corruption of blood excepted. There is no occasion to make any circuit with relation to other crimes. For the punishment of outlawry, by the common law, equals the punishment of any crime, treason and felony excepted.
HENCE the reason why death before trial is, in England, a total bar to all forfeitures and penalties, even for high treason. The crime cannot be tried in absence; and after death there can be no contempt for not appearing.
LAWYERS have generally but an unhappy talent at reformation; for they seldom aim at the root of the evil. In the case before us, a superstitious attachment to ancient forms, hath led English lawyers into a glaring absurdity. To prevent the hazard of injustice, there must not be such a thing as a trial in absence of the person accused. Yet no difficulty is made, to presume a man guilty in absence without a trial, and to punish him in the same manner as if he had been fairly tried and regularly condemned. This is in truth converting a privilege into a penalty, and holding the absent guilty, without allowing them the benefit of a trial. The absurdity of this method is equally glaring in another instance. It is not sufficient that the defendant appear in court: it is necessary that he plead, and put himself upon a trial by his country. The English adhere strictly to the original notion, that a process implies a judicial contract, and that there can be no process, unless the defendant submit to have his cause tried. Upon this account, it is an established rule, that the person accused who stands mute or refuses to plead, cannot be tried. To this case a peculiar punishment is adapted, distinguished by the name of
peine fort et dure.
The person accused is pressed to death. And there are instances upon record, of persons submitting to this punishment, in order to save their landestates to their heirs, which, by the law of England, are forfeited on some cases of felony, as well as on high treason. But here again high treason is an exception. Standing mute in this case is attended with the same forfeiture, which is inflicted on a person attainted of high treason.
WE follow the English law so far as that no crime can be tried in absence. Some exceptions to this rule were, it is true, for a time, indulged, which shall be mentioned by and by. But we at present adhere so strictly to the rule, that a decree in absence, obtained by the procurator-fiscal before an inferior court for a bloodwit upon full proof, was reduced:
"The Lords being of opinion, that a decreet in absence could not proceed; and that the judge could go no further, than to fine the party for contumacy, and to grant warrant to apprehend him, till he should find caution to appear personally
Dalrymple, 19th July 1715, Procurator-fiscal
contra
Simpson.
."
IT is certainly a defect in our law, that voluntary absence should be a protection against the punishment of atrocious crimes. Excepting the crime of high treason, with regard to which the English regulation hath now place with us, the punishment of outlawry, whatever the crime be, never goes farther than single and liferent escheat.
As to the trial of a crime after death, which, by the Roman law, was indulged in the case of treason, there are two reasons against it. The first and chief is, that whether the crime be committed against the publick or against a private person, resentment, the spring and foundation of punishment, ought to be buried with the criminal; and, in fact, never is indulged by any person of humanity, after the criminal is no more. The other is drawn from the unequal situation of the relations of the deceased, who, unacquainted with his private history, have not the same means of justification, which to himself, as it may be supposed, would have been an easy task. Upon this account, the indulging criminal prosecutions after death, would open a door to most grievous oppression. In a country where such is the law, no man can be secure, that his heirs shall inherit his fortune. With respect, however, to treason, it seems reasonable, that in some singular cases it ought to be excepted from this rule. If a man be slain in battle, fighting obstinately against an established government, there is no inhumanity in forfeiting his estate after his death: nor can such a privilege in the crown, confined to the case now mentioned, be made an engine of oppression, considering the notoriety of the fact. And indeed it carries no slight air of absurdity, that the most daring acts of rebellion,
viz.
rising in arms against a lawful sovereign, and opposing him in battle, should, if death ensue, be out of the reach of law: for dying in battle, honourably in the man's own opinion and in that of his associates, can in no light be reckoned a punishment. This in reality is a very great encouragement, to persevere in rebellion. A man who takes arms against his country, where such is the law, can have no true courage, if he lay them down, till he either conquer or die. This may be thought a reasonable apology for the Roman law, which countenanced a trial of treason after death, confined expresly to the case now mentioned.
"Is, qui in reatu decedit, integri status decedit. Extinguitur enim crimen mortalitate, nisi forte quis majestatis reus fuit; nam hoc crimine, nisi a successoribus purgetur, hereditas fisco vindicatur. Plane non quisquis legis Juliae majestatis reus est, in eadem conditione est; sed qui perduellionis reus est, hostili animo adversus rempublicam vel principem animatus: caeterum si quis ex alia causa legis Juliae majestatis reus sit, morte crimine liberatur
l. ult. ad leg. Jul. majest.
."
THE Roman law was copied, indiscreetly indeed, by our legislature, authorizing, without any limitation, a process for treason after the death of the person suspected
Act 69. p. 1540.
. But the legislature, reflecting upon the danger of trusting with the crown a privilege so extraordinary, did, by an act in the year 1542, which was never printed, restrain this privilege within proper bounds. The words are:
"And because the saids Lords think the said act (
viz.
the act 1540) too general and prejudicial to all the Barons of this realm; therefore statutes and ordains, that the said act shall have no place in time coming, but against the airs of them that notourly committs, or shall commit crimes of lese majesty against the King's person, against the realm for everting the same; and against them that shall happen to betray the King's army, allenarly, it being notourly known in their time: and the airs of these persons to be called and pursued within five years after the decease of the said persons committers of the saids crimes: and the said time being bypast, the saids airs never to be pursued for the same
IN the year 1609, Robert Logan of Restalrig was, after his death, accused in parliament, as accessory to the Earl of Gowrie's conspiracy, and his estate was forfeited to the crown; though, in appearance at least, he had died a loyal subject, and in fact never had committed any ouvert act of treason. Strange, that this statute was never once mentioned during the trial, as sufficient to bar the prosecution! Whether to attribute this to the undue influence of the crown, or to the gross ignorance and stupidity of our men of law at that period, I am at a loss. Of one thing I am certain, that there is not to be found upon record, another instance of such flagrant injustice in judicial proceedings.
."
A process of treason against an absent person regularly cited, rests upon a different footing. It is some presumption of guilt, that a man accused of a crime, obstinately refuses to submit himself to the law of his country; and yet the dread of injustice or of false witnesses, may, with an innocent person, be a motive to keep out of the way. This uncertainty about the motive of the person accused, ought to confine to the highest court every trial in absence, that of treason especially, where the person accused is not upon an equal footing with his prosecutors. And probably this would have been the practice in Scotland, but for one reason. The sessions of our parliament of old, were generally too short for a regular trial in a criminal cause. Upon this account, the trial of treason after death, was, from necessity rather than choice, permitted to the court of justiciary. And this court which enjoyed the greater privilege, could entertain no doubt of the less,
viz.
that of trying treason in absence. This latter power however being called in question, the legislature thought proper to countenance it by an express statute; not indeed as to every species of treason in general, but only in the case of
"treasonable rising in arms, and open and manifest rebellion against his majesty
Act 11. p. 1669.
."
FROM this deduction it will be manifest, that the act 31. p. 1690, rescinding certain forfeitures in absence pronounced by the court of justiciary before the said statute 1669, proceeds upon a mistake in fact, in subsuming,
"That before the year 1669, there was no law impowering the Lords of justiciary to forfeit in absence for perduellion."
And yet this mistake is made an argument, not indeed for depriving the court of justiciary of this power in time coming, but for annulling all sentences for treason pronounced in absence by this court before the 1669. These sentences, it is true, proceeding from undue influence of ministerial power, deserved little countenance. But if they were iniquitous, it had been suitable to the dignity of the legislature, to annul them for that cause, instead of assigning a reason that cannot bear a scrutiny. However this be, I cannot avoid observing, that the jurisdiction of the court of justiciary to try in absence open and manifest rebellion, was far from being irrational. And it is remarkable, that this was the opinion of our legislature, even after the revolution; for though they were willing to lay hold of any pretext to annul a number of unjust forfeitures, they did not however find it convenient to abrogate the statute 1669, but left it in full force. Comparing our law in this particular with that of England, it appears to me clear, that the form authorized by the said statute, which gives access to a fair trial, ought to be preferred before the English form, which annexes the highest penalties to an outlawry for treason, without any trial.
IT remains only to be observed, that the English treason laws, being since the union made a part of our criminal law, the foregoing regulations, for trying the crime of treason in absence of the party accused or after his death, are at an end; and at present, that the rule holds universally, that no crime can be tried in absence. In England, no crime was ever tried in absence, far less after death. The parliament itself did not assume this power; for an attainder for high treason in absence of the delinquent, proceeds not upon trial of the cause, but is of the nature of an outlawry for contumacious absence. Nor is this form varied by the union of the two kingdoms; for the British parliament, as to all matters of law, is governed by the forms established in the English parliament before the union. At the same time, the humanity of our present manners, affords great security, that the treason laws will never be so far extended in Britain as they have been in Scotland, to forfeit an heir for the crime of his ancestor. I am not of opinion, that such a forfeiture is repugnant to the common rules of justice, when it is confined to the case above mentioned; and yet it is undoubtedly more beneficial for the inhabitants of this island, that by the mildness of our laws some criminals may escape, than that an extraordinary power, which in perilous times may be stretched against the innocent, should be lodged even in the safest hands. The national genius, so far from favouring rigorous punishments, or any latitude in criminal prosecutions, has the direct opposite tendency. There cannot be a stronger evidence of this benign disposition, than the late acts of parliament, discharging all forfeiture of lands or hereditaments, even for high treason, after the death of the Pretender and his two sons
7th Ann. 20. and 17th Geo. II. 39.
.
TRACT X.
HISTORY OF EXECUTION against MOVEABLES and LAND for payment of debt.
AGAINST a debtor refractory or negligent, the proper legal remedy is to lay hold of his effects for paying his creditors. This is the method prescribed by the Roman law
l. 15. § 2. de re judic,
, with the following addition, that the moveables, as of less importance than the land, should be first sold. But the Roman law is defective, in one respect that the creditor was disappointed, if no buyer was found. The defect was supplied by a rescript of the Emperor
l. 15. § 3. de re judic.
, appointing, that, failing a purchaser, the goods shall be adjudged to the creditor by a reasonable extent.
AMONG other remarkable innovations of the feudal law, one is, that land was withdrawn from commerce, and could not be attached for payment of debt. Neither could the vassal be attached personally, because he was bound personally to the superior for service. The moveables therefore, which were always the chief subject of execution, came now to be the only subject. In England, attachment of moveables for payment of debt, is warranted by the King's letter directed to the Sheriff, commonly called a
Fieri Facias;
and this practice is derived from common law without a statute. The sheriff is commanded,
"to sell as many of the debtor's moveables as will satisfy the debt, and to return the money with the writ into the court at Westminster."
The method is the same at this day, without any remedy, in the case where a purchaser is not found.
LAND, when left free to commerce by dissolution of the feudal fetters, was of course subjected to execution for payment of debt. This was early introduced with relation to the King. For from the
Magna Charta
Cap. 8th.
, it appears to have been the King's privilege, failing goods and chattels, to take possession of the land till the debt was paid. And from the same chapter it appears, that the like privilege is bestowed upon a cautioner, in order to draw payment of what sums he is obliged to advance for the principal debtor. By the statute of merchants
13th Edward I.
, the same privilege is given to merchants; and by 13th Edward I. cap. 18. the privilege is communicated to creditors in general; but with the following remarkable limitation, that they are allowed to possess the half only of the land. By this time it was settled, that the military vassal's power of aliening, reached the half only of his freehold
See abridgement of statute law, Tit,
Recognition.
. And it was thought incongruous, to take from the debtor, by force of execution, what he himself could not dispose of even for the most rational consideration. The last mentioned statute enacts,
"That where debt is recovered, or knowledged in the King's court, or damages awarded, it shall be in the election of him that sueth, to have a
fieri facias
unto the sheriff, to levy the debt upon the lands and chattels of the debtor; or that the sheriff shall deliver to him all the chattels of the debtor, (saving his oxen and beasts of his plough) and the one half of his land, until the debt be levied upon a reasonable extent: and if he be put out of the land, he shall recover it again by writ of nouvel disseisin, and after that by writ of redisseisin if need be."
The writ authorized by this statute, which, from the election given to the creditor, got the name of
Elegit,
is the only writ in the law of England, that in any degree corresponds to our apprising or adjudication. The operations however of these two writs are far from being the same. The property of the land apprised or adjudged, is transferred to the creditor in satisfaction of his claim, if the debtor forbear to make payment for ten years: but an
elegit
hath no other effect, but to put the creditor in possession till the debt be paid, by levying the rents and profits. This is an inconvenient method of drawing payment
FOR besides the inconvenience of getting payment by parcels, it is not easy for the creditor in compting for the rents to avoid a law-suit, which in this case must always be troublesome and expensive. It may also happen, that the rent does no more but satisfy the interest of the money; must the creditor in this case be satisfied with the possession, without ever hoping to acquire the property? The common law assuredly affords him no remedy. But it is probable, that upon application by the creditor, the court of chancery, upon a principle of equity, will direct the land to be sold for payment of the debt.
: but at the time of the statute, it was probably thought a stretch, to subject land at any rate to a creditor for his payment. And the English, tenacious of their customs, never think of making improvements, or even of supplying legal defects; of which this statute affords another instance, still greater than that now mentioned. In England, at present, land, generally speaking, is absolutely under the power of the proprietor; and yet the ancient practice still subsists, confining execution to the half, precisely as in early times, when the debtor could dispose of no more but the half. Means however are contrived, indirect indeed, to supply this palpable defect. Any other creditor is authorized to seize the half of the land left out of the first execution, and so on without end. Thus, by strictly adhering to form without regarding substance, law, instead of a rational science, becomes a heap of subterfuges and incongruities, which tend insensibly to corrupt the morals of those who make law their profession.
AND here, to prevent mistakes, it must be observed, that the clause in the statute, bearing,
"That the sheriff by a
fieri facias
may levy the debt upon the land and chattels of the debtor,"
authorises not the sheriff to deliver the land to the creditor, but only to sell what is found upon the land, such as corn or cattle, and to levy the rents which at the time of the execution are due by the tenants.
LETTERS of poinding in Scotland, correspond to the writ of
Fieri Facias
in England: but the defect above mentioned in the
fieri facias,
is supplied in our execution against moveables according to its ancient form, which is copied from the Roman law. The execution was in the following manner:
"The goods upon the debtor's land, whether belonging to the master or tenant, are carried to the market cross of the head burgh of the sheriffdom, and there sold for payment of the debt. But if a purchaser be not found, goods are apprized to the value of the debt, and delivered to the creditor for his payment
Quon. attach. cap. 49.
."
And here it must be remarked, that bating the rigour of selling the tenant's goods for the landlord's debt, this method is greatly preferable to that presently in use, which enjoins not a sale of the goods, but only that they be delivered to the creditor at apprized values. This is unjust; because in place of money, which the creditor is entitled to claim, goods are imposed on him, to which he has no claim. But this act of injustice to the creditor, is a triffle compared with the wrong done to the debtor by another branch of the execution that has crept into practice. In letters of poinding, a blank being left for the name of the messenger, the creditor is impowered to chuse what messenger he pleases, and of consequence to chuse also the appretiators; by which means he is in effect both judge and party. In a practice so irregular, what can be expected but an unfair appretiation, always below the value of the goods poinded? And for grasping at this undue advantage, the creditor's pretext is but too plausible,
viz.
that, contrary to the nature of his claim, he is forced, as I have said, to accept goods in lieu of money. Thus our execution against moveables in its present form, is irregular and unjust in all views. Wonderful, that contrary to the tendency of all publick regulations towards perfection, this should have gradually declined from good to bad, and from bad to worse! And we shall have additional cause to wonder, when, in the course of this enquiry, it appears, that the indulging to the creditor the choice of the messenger and appretiators, has, with respect to execution against land, produced effects still more pernicious than that under consideration
POINDING is put upon a better footing by act of sederunt, 9th August 1754.
.
OUR Kings, it is probable, borrowed from England the privilege of entering upon the debtor's land, for payment of debt. That they had this privilege appears from 2d statutes Robert I. cap. 9. which is copied almost word for word from the 8th chapter of the
Magna Charta.
Cautioners had the same privilege
Ibid. cap. 10.
, which was extended, as in England, to merchants
Ibid. cap. 19.
. This execution did not entitle the creditor to have the land sold for payment of the debt, but only to take possession of the land, and to maintain his possession till the debt was paid; precisely as in England. But as it has been the genius of our law, in all ages, to favour creditors, a form of execution against land for payment of debt, more effectual than that now mentioned, or to this day is known in England, was early introduced into this part of the island, which is to sell land for payment of the debt, in the same manner that moveables were sold. The brieve of distress, failing moveables, is extended to the debtor's land, which is appointed to be sold by the sheriff for payment of the debt
Stat. Alex. II. cap. 24.
. Nor was this execution restricted to the half as in England; for our forefathers were more regardful of the creditor than of the superior. And though this originally might be a stretch, it happens luckily to be perfectly well accommodated to the present condition of land-property, which, for the most part, is not more limited than the property of moveables.
BUT here a defect will be observed in Alexander's statute, that no provision is made in case a purchaser be not found; the less excusable that the legislature had before their eyes a perfect model, in the form prescribed for the attachment of moveables.
THERE are words in this statute to occasion a doubt, whether attachment of land for payment of debt, was not an earlier practice in our law. The words are:
"The debtor not selling his lands within fifteen days, the sheriff and the King's servants shall sell the lands and possessions pertaining to the debtor,
conform to the consuetude of the realm,
until the creditor be satisfied of the principal sum, with damage, expence, and interest."
But these words,
Conform to the consuetude of the realm,
seem to refer to the form of selling moveables. For I see not what other regulation was introduced by the statute, if it was not selling of land for payment of debt. And considering the circumstances of these times, when the feudal law was still in vigour, and the commerce of land but in its infancy, we cannot rationally assign an earlier date to this practice.
IN England, the statute of merchants was necessary to creditors, who at that period had not access to the land of their debtors. But as in Scotland every creditor had access to the land of his debtor, it will be expected that some account should be given, why the statute of merchants was introduced here. What occurs is, that the chief view of the Scotch statute, was to give access to the debtor's person, which formerly could not be attached for payment of debt. And when such a novelty was introduced, as that of giving execution against the person of the debtor, against his moveables, and against his land, all at the same time, it was probably thought sufficient, to give security upon the land for payment of the debt, without proceeding to a sale.
IT appears from our records, that sometimes land was sold for payment of debt upon the above mentioned statute of Alexander II. and sometimes that security only was granted upon the land by authority of the statute of merchants. Of the latter, one instance occurs upon record, in a seisin dated 29th January 1450; and many such instances are upon record down to the time that general apprisings crept into practice.
IT is said above, that the statute of Alexander II. is defective, in not providing a remedy where a purchaser is not found. But this defect was supplied by our judges; and land, failing a purchaser, was adjudged to the creditor by a reasonable extent; which, without a statute, was done by analogy of the execution against moveables. Of this there is one precise instance in a charter, dated 22d July 1450, a copy of which is annexed
No . 6th.
. And thus we find, that what is properly called a decreet of apprising, was introduced into practice before the statute 1469, though that statute is by all our authors assigned as the origin of apprisings. But it appears from the statute itself, compared with former practice, that nothing else was in view, but to limit the effect of the brieve of distress with respect to tenants, that there should not be execution against their goods for the landlord's debt, farther than to the extent of a term's rent. And because it was reckoned a hardship on a debtor considered as landlord, to have his land taken from him, neglecting the moveable goods upon the land; therefore a sweetning privilege is bestowed on him, of redeeming the land within seven years. But this regulation was attended with an unhappy consequence, probably not foreseen. It rendered ineffectual the most useful branch of the execution,
viz.
the selling land for payment of the debt. For no person will chuse to purchase land under reversion, while there is any prospect of coming at land without an embargo. This statute therefore, instead of giving a beginning to apprisings of land, did in reality reduce them to a form less perfect than they had originally.
ONE salutary regulation was introduced by this statute. By the former practice, no bounds being set to the time of compleating the execution, it was left to the discretion of the sheriff, to delay as long as he pleased for a purchaser. To supply this defect, it was enacted,
"That if a purchaser be not found in six months, the sheriff must proceed to apprise land, and to adjudge it to the creditor."
IN no particular are the different manners of the two nations more conspicuous, than in their laws. The English, tenacious of their customs, have, from the beginning, preserved their forms entire with little or no variation. The Scotch, delighting in change, have been always attempting or indulging innovations. By this propensity, many articles of our law are brought to a reasonable degree of perfection. But by the same propensity, we are too apt to indulge relaxation of discipline, which has bred a profusion of slovenly practice in lawmatters. The following history will justify the latter part of this reflection.
DURING a vacancy in the office of sheriff, or even when the sheriff was otherwise employed, it appears to have been early the practice of the King's courts, to name a substitute for executing any particular affair; and this substitute was called
The sheriff in that part.
Within thirty years of the statute 1469, there are examples of letters of apprising, directed to messengers at arms, as
sheriffs in that part.
These letters, we may believe, were at first not permitted without a sufficient cause: but slighter and slighter causes being sustained, heretable sheriffs took the alarm, and obtained an act of parliament
Act 82. p. 1540.
,
"discharging commissions to be given in time coming for serving of brieves, or apprising of lands, but to the judge ordinary, unless
causa cognita
upon calling the judge ordinary to object against the cause of granting."
But this statute did not put an end to the abuse. The practice was revived of naming messengers at arms as sheriffs in that part, for executing letters of apprising, till at the long run it became an established custom, to direct all letters of apprising to these officers.
APPRISING of land, being an execution by the sheriff, behoved of consequence to be within the county. But the substitution, as aforesaid, of messengers, who are not connected with any particular county, paved the way to the infringement of a regulation necessarily derived from the very nature of the execution. The first instance on record, of permitting the court of apprising to be held at Edinburgh, is in the year 1582. The reason given for a step so irregular was, that the debtor's lands lay in two shires. And as Edinburgh by this time was become the capital of the kingdom, where the King's courts most commonly were held, and where every landed gentleman was supposed to have a procurator to answer for him, it was reckoned no wide stretch, to hold courts of apprising at Edinburgh for the whole kingdom. From this period downward, instances of holding courts of apprising at Edinburgh, multiply upon us; and this came to be considered as a matter of right, without necessity of assigning any cause for demanding a dispensation, or at least without necessity of verifying the cause assigned.
THIS substitution of a messenger in place of the sheriff, produced another effect, not less irregular than that now mentioned, and much more pernicious to debtors. In letters of poinding, as observed above, a blank is left for the name of the messenger: the same is the form of letters of apprising; and by this means, in both executions equally, the creditor has the choice of the messenger, and consequently of the appretiators. Thus, by obtaining the court of apprising to be held at Edinburgh by a judge chosen at will, the creditor acquired the absolute direction of the execution against land, and, precisely as in the execution against moveables, became in effect both judge and party. It will not be surprising, that the grossest legal iniquity was the result of such slovenly practice. Creditors taking the advantage of the indulgence given them, exerted their power with so little reserve, as to grasp at the debtor's whole land-estate, without the least regard to the extent of the debt. In short, without using so much as the formality of an appretiation, it became customary, to adjudge to the creditor every subject belonging to the debtor that could be carried by this execution; for which the expence of bringing witnesses to Edinburgh from distant shires to value land, and the difficulty of determining the value of real burdens affecting land, were at first the pretext.
As there is no record of apprisings before the year 1636, we are not certain of the precise periods of these several innovations. The only knowledge we have of apprisings before that time, is from the King's charters passing upon apprisings; which is a very lame record, considering how many apprisings must have been led, that were not compleated by charter and seisin. But imperfect as this record may be, we find several charters in the 1607, 1608, 1613, 1614, &c. passing upon these general apprisings.
IT cannot but appear strange, that such gross relaxation of essential forms, and such robbery under colour of law, were not checked in the bud by the sovereign court. Yet we find nothing of this kind attempted, though the remedy was at hand. There was no occasion for any new regulation. It would have been sufficient to restore the brieve of distress to its original principles. All excesses however promote naturally their own cure; which is the most remarkable in avarice when exorbitant. These general apprisings, by their frequency, became a publick nusance past all enduring. The matter was brought under consideration of parliament, and a statute was made, by far too mild. For instead of cutting down general apprisings root and branch, as illegal and oppressive, the exorbitant profits were only pruned off; and it was enacted
Act 6. p. 1621.
,
"That the rents intromitted with by the creditor, if more than sufficient to pay his annualrent, shall be applied towards extinction of the principal sum."
IT must not escape observation, that by this new regulation, an apprising is in effect moulded into quite a new form, much less perfect than it was originally; for from being a judicial sale, it is reduced to the nature of a judicial security, or a
pignus praetorium,
approaching much nearer than formerly to the English
elegit.
AN attempt was made by act 19. p. 1672. to restore special adjudications, but unsuccessfully. It might have been forseen, without much penetration, that no debtor will voluntarily give off land sufficient to pay the debt claimed, and a fifth part more, reserving a power of redemption for five years only, when his refusal subjects him to no harder alternative, than to have his whole lands impledged for security of the neat sum due, with a power of redemption for ten years. It had been an attempt more worthy of the legislature, to restore the brieve of distress, by appointing land to be sold, upon application of any single creditor, for payment of his debt. But nothing of this kind was thought of, till the year 1681, when a statute was made, authorising a sale of the debtor's whole estate, in case of insolvency. This regulation, which was brought to greater perfection by later statutes, is, after all, an imperfect remedy; because it only takes place where the debtor is bankrupt. And hence it is, that by the present law of Scotland, there is no effectual means for obtaining payment out of the debtor's land-estate, unless he be insolvent. Being familiarized with this regulation, it doth not disgust us; but it probably will surprise a stranger, to find a country, where the debtor's insolvency affords the only effectual means his creditors have to obtain payment by force of law.
UPON the whole, it is a curious morsel of history that lies before us. In the first stages of our law, we had a form of execution for drawing payment of debt, perfect in its kind, or so nigh perfection, as scarce to be susceptible of any improvement. It has been the operation of ages, to alter, change, innovate, and relax from this form, till it became grievous and intollerable. New moulded by various regulations, it makes at present a better figure. But with all the improvements of later times, the best that can be said of it is, that, though far distant, it approacheth nearer to its original perfection, than at any time for a century or two past. And for the publick good, nothing remains for the legislature, but to review the brieve of distress in its original state, with respect to moveables as well as land; admitting only some alterations that are made necessary by change of circumstances, such as the present independency of tenants, and their privilege to hold property distinct from their landlords.
TRACT XI.
HISTORY OF PERSONAL EXECUTION for payment of debt.
THE subjects that ly open to execution for payment of debt, are, 1st, The debtor's moveables. 2dly, His land. And, 3dly, His person. The two former being discussed in the tract immediately foregoing, we proceed to the history of the latter. Personal execution for payment of debt, was introduced after execution against land, and long after execution against moveables. Nor will this appear singular, when we consider, that the debtor's person, cannot, like his land or moveables, be converted into money for payment of debt. And with regard to a vassal in particular, his person cannot regularly be withdrawn from the service he owes his superior. This would not have been tolerated while the feudal law was in vigour, and came to be indulged in the decline of that law, when land was improved, and personal services were less valued than pecuniary casualties
AMONG the ancient Egyptians, payment was taken out of the debtor's goods; but the body of the debtor could not be attached. An individual, upon account of a private debt, could not be withdrawn from the service he owed to the publick, whether in peace or war. Our author Diodorus Siculus
Book 1. Ch. 6.
mentions, that Solon established this law in Athens, freeing all the citizens from imprisonment for debt. And he adds, that some did justly blame many of the Grecian law-makers, who forbade arms, ploughs, and other things necessary for labour, to be taken as pledges, and yet permitted the persons who used these instruments to be imprisoned.
. The first statute in this island introducing personal execution is, IIth Edward I. which, as appears from the preamble, was to secure merchants and encourage trade. It is directed against the inhabitants of royal burrows, and
"subjects, in the first place, their moveables and burgage lands to be sold for payment of the debt due to the merchant. And failing goods, the body of the debtor is to be taken and kept in prison till he agree with his creditor. And if he have not wherewith to sustain himself in prison, the creditor shall find him in bread and water."
An additional security is introduced by 13th Edward I.
"If the debtor do not pay the debt at the day, the magistrates, upon application of the creditors, are obliged to commit him to the town-prison, there to remain upon his own expence until payment. If the debtor be not found within the town, a writ is directed to the sheriff of the shire where he is, to imprison him. After a quarter of a year from the time of his imprisonment, his goods and lands shall be delivered to the merchant by a reasonable extent, to hold them till the debt is levied, and his body shall remain in prison, and the merchant shall find him bread and water."
This latter statute was adopted by us
2d stat. Rob. I. cap. 19.
; and our statute, I presume, is the foundation of the act of warding peculiar to royal burrows: for this execution is precisely in terms of the statute.
As this was found a successful expedient for obtaining payment of debt, it was thereafter extended to all creditors
25th Edward III. cap. 17.
. And thus in England, the creditor may, if he pleases, begin with attaching the person of his debtor, by a writ named
Capias ad satisfaciendum,
the same with an act of warding in Scotland against inhabitants of royal burrows. But as this act of Edward III. was not adopted by our legislature, there is to this day with us no authority for a
capias ad satisfaciendum,
except in the single case above mentioned of an act of warding.
IT is a celebrated question in the Roman law, touching obligations
ad facta praestanda,
whether the debtor be bound specifically to perform, or whether he be liable
pro interesse
only. It is at least the more plausible opinion, that a man is bound according to his engagement; and after all, why indulge to the debtor an option to pay a sum, in place of performing that work to which he bound himself without an option? The person accordingly who becomes bound
ad factum praestandum,
is not with us indulged in an alternative. If he refuse when he is able to perform, it is understood an act of contumacy and disobedience to the law. This is a solid foundation for the letters of four forms, which formerly were issued upon obligations
ad facta praestanda.
And this execution was at the same time abundantly moderate: for it is worthy to be remarked, that there is not in these letters a single injunction but what is in the obligor's power to perform. The ultimate injunction is,
"To perform his obligation, or to surrender his person to ward, under the penalty, that otherwise
he shall be denounced rebel."
If the obligor surrendered his person to prison, the will of the letters was fulfilled, and no further execution did proceed. If he was contumacious, by refusing both alternatives, his disobedience to the law was justly held an act of rebellion, to subject him to be denounced or declared rebel
See in the Appendix, No . 7. a copy of letters of four forms.
. And perhaps this execution was rather too mild; for the man who refuseth to perform his engagement, when it is in his power, may in great justice be declared a rebel, without admitting any alternative, such as delivering his person to ward.
OBLIGATIONS for payment of money, were viewed in a different light. If a man failed to pay his debt, the failure was presumed to proceed from inability, not obstinacy. Therefore, unless some criminal circumstance was qualified, the debtor was not subjected to any sort of punishment. His land and moveables lay open to be attached by poinding, apprising, and arrestment, and these were in this case the only remedies provided to the creditor. The English have adopted very different maxims. Imprisonment upon failure of payment, whether considered as a punishment or a compulsion, must proceed upon the supposition of contumacy and unwillingness to pay. For upon the supposition of inability, without any fault on the debtor's part, it is not only repugnant to the plainest principles of law, to punish him with loss of liberty, but an absurd regulation, tending to no good end. Therefore the
capias ad satisfaciendum
in England, must be founded upon the presumption of unwillingness to pay. This appeared to us a harsh presumption, as it is frequently wide of the real fact; and therefore we forbore to adopt the English statute. But experience taught our legislature, that failure in making payment proceeds from obstinacy or idleness, as often as from inability: nay, in many instances, debtors were found secreting their effects, in order to disappoint their creditors; and there was encouragement to deal in such fraudulent practices, when debtors were in all events secure against personal execution. These considerations produced the act of sederunt 1582. It is set forth in the preamble,
"That the defect of personal execution upon liquid grounds of debt was heavily complained of; because, after great charge and tedious delay in obtaining decreet, the creditors were often disappointed of their payment, by simulate and fraudulent alienations made by the debtors, of their lands and goods, whereby execution upon such decreets was altogether frustrated:"
therefore appointed,
"That letters of horning, as well as of poinding, shall be directed upon decreets for liquid sums, in the same manner as formerly given upon decreets
ad facta praestanda.
"
And this act of sederunt is ratified by the act 139. p. 1584.
THERE is not in the law of any country a stronger instance of harshness, I may say of brutality, than occurs in our present form of personal execution for payment of debt; where the debtor, without ceremony, is declared a rebel, merely upon failure of payment. To punish a man as a rebel, who, by misfortunes, or be it bad oeconomy, is rendered insolvent, betokens the most savage and barbarous manners. One would imagine love of riches to be the ruling passion, in a country where poverty is the object of so great punishment. It is true, the cruelty of this execution is softened by practice, as it could not possibly stand its ground against every principle of humanity. It is a subject however of curiosity, to enquire how this rigorous execution crept in. The act 1584, just now mentioned, gives no countenance to it: for the letters of four forms to be issued by that statute upon decrees for payment of debt, are by no means so rigorous as our hornings are at present. These letters, as above explained, impose no other hardship upon the debtor, than to oblige him to surrender his person in ward if he doth not pay. This indeed is a stretch, but a moderate one, which the uncertainty whether failure of payment proceeds from unwillingness or inability, may justify. But upon such an uncertainty, to declare a debtor rebel, unless he pays, is a brutal practice, which can admit of no excuse. If indeed the debtor who does not pay, refuse to put himself in prison, this is a contempt of authority, for which he may be justly declared rebel. The question then is, what it was that produced an alteration so rigorous in the form of this execution, that a debtor, in place of being denounced rebel upon failing to go to prison, is denounced rebel upon failing to make payment, when it is often not in his power to make payment?
IN handling this curious subject, we must be satisfied to grope our way in the dark paths of antiquity, almost without a guide. And when we travel this road, the first thing we discover is, that letters of four forms were not the only warrant for personal execution upon
facta praestanda.
By the act 84. p. 1572, touching the designation of a manse and glebe to the minister, letters of horning are ordered to be directed by the privy council, to charge the possessor to remove within ten days, under the pain of rebellion, without any alternative, such as that of surrendering his person in ward. And indeed this alternative would be absurd, where a fact is commanded to be done that cannot conveniently admit of delay. Obligations
ad facta praestanda
arising
ex delicto,
were, I presume, attended with the like summary execution. And I have seen one instance of this,
viz.
letters of horning,
anno
1573, against a person who had been guilty of a spuilȝie, commanding, that he should be charged to redeliver the spuilȝied goods within eight days, under the penalty or certification of being denounced rebel. Thus, though no execution was awarded upon civil contracts
ad facta praestanda
other than letters of four forms, yet, I presume, that upon such obligations arising
ex delicto,
horning, properly so called, upon one charge
LETTERS of horning mean a letter from the King, ordering or commanding the debtor to make payment, under the pain of being proclaimed a rebel. The service of this letter upon the debtor, is named a Charge of Horning. If the debtor disobey the charge, he is denounced or proclaimed a rebel: and because of old, a horn served the same purpose in proclamations that trumpets do at present, therefore the said letter has by custom, though improperly, obtained the name of Letters of Horning, and the service of the letter has obtained the name of a Charge of Horning.
, was commonly the execution. And as to obligations introduced by statute, the manner of execution is generally directed in the statute itself.
I have made another discovery, that the alternative of surrendering the person in ward, was not always the stile of letters of four forms. On the contrary, when letters of four forms proceeded upon a delict, as they sometimes did, I conjecture, that the foregoing alternative was left out. My authority is, the act 53. p. 1572,
"ordering letters to be direct by the Lords of council in all the four forms, charging excommunicated persons to satisfy the kirk, under the pain of rebellion,"
with out any such alternative as surrendering the person in ward.
THOUGH horning be a generic term, comprehending letters of four forms, as well as horning properly so called, as is clear from the above mentioned statute 1584, appointing a decree for a liquid sum to be made effectual by letters of four forms which there pass under the general name of horning, yet, generally speaking, when horning is mentioned in our old statutes, it is understood to be horning upon one charge, in opposition to letters of four forms. And it is a rule without exception, that wherever horning is ordained to proceed upon a single charge, the alternative of surrendering the person in ward, is understood to be excluded. For where the common number of charges is remitted in order to force a speedy performance, it would be absurd to put it in the power of the person charged, to evade performance by going to prison.
THE operations of our law were originally slow and tedious. There behoved to be four citations before a man could be effectually brought into court, and there behoved to be four charges before a man could be effectually brought to give obedience to a decree pronounced against him. The inconveniency was not much felt in the days of idleness; but when industry prevailed, and the value of labour was understood, the multiplicity of these legal steps became intolerable. The number of citations were reduced to two, authorized by the same warrant, and at last a single citation was made sufficient. It is probable, that the charges necessary to be given upon decrees, did originally proceed upon four distinct letters or warrants, which being found unnecessary, and that one letter or warrant might be a sufficient authority for the four charges, the form was changed according to the model of the letters of four forms latest in use. At the same time, where dispatch was required, as upon obligations
ad facta praestanda
arising
ex delicto,
and upon statutory obligations, one charge instead of four was made sufficient. But these different forms of execution were confined to obligations
ad facta praestanda.
And with relation to all of them, not excepting the most rigorous, it must be remarked, that they did not exceed rational bounds. The obligor was in no case declared a rebel, unless where he was guilty of a real contempt of legal authority, by refusing to do some act which he had power to perform.
WE next proceed to unfold the origin of personal execution upon bonded debts, which probably will give light to the present enquiry. There is no ground to suppose, that personal execution was known in this island before the reign of Edward I. In England it was introduced by two statutes, which were adopted by us. This has already been mentioned; as also that in England, by a statute of Edward III. every person who is debtor in a sum of money is subjected to personal execution; which was not adopted by us. Now, though our law gave no authority for personal execution, except against inhabitants of royal burrows, yet a hint was taken to make this execution more general by consent. While money was a scarce commodity, and while the demand for it was greater than could be readily supplied, monied men, taking advantage of that circumstance, introduced a practice of imposing upon borrowers hard conditions, which were ingrossed in the instrument of debt. One of these was, that in case of failing to make payment, personal as well as real execution should issue, And letters of four forms were accordingly issued: though it may be a doubt, whether, in strict law, a private paction be a sufficient foundation for such execution, which being of the nature of a punishment, cannot justly be inflicted where there is no crime. But by this time we had begun to relish the English notion, that the failing to make payment proceeds generally from unwillingness, and not from inability: and upon that supposition the execution was materially just, though scarce well founded on law. This practice however gained ground, without attention to strict principles; and it came to be established, that consent is a sufficient foundation for personal execution.
BUT the rigour of money-lenders did not stop here. They were not satisfied with letters of four forms, because the dreadful commination of being declared rebel, might in all events be evaded by the debtor's surrendering his person in ward. Nothing less would suffice, than to have the most rigorous execution at command, such as was in practice upon an obligation
ad factum
praestandum,
arising
ex delicto.
And thus in bonds for borrowed money, it became customary to provide, that, instead of letters of four forms, letters of horning should proceed upon a single charge, commanding the debtor to make payment, under the penalty of being declared a rebel, without admitting the alternative of going to prison. At the same time, the debtor commonly was charged to make payment within so few days, as not even to have sufficient time for the performance, however willing or ready he might be. The rigour of these pactions was in part repressed by the act 140. p. 1592; particularly with respect to the time of performance: but personal execution upon obligations for debt was left untouched, as was also the form of this execution upon a single charge, attended with the penalty of rebellion upon failing to make payment.
IN this manner crept in personal execution upon bonded debts, which in practice was so thoroughly established, as to be issued without ceremony upon consenting in general,
"that executorials might proceed in form as effeirs."
One instance of this appears in the record,
viz.
letters of four forms, John Lawson
contra
Sir John Stewart and his son, dated the 7th May 1582, and recorded 16th August thereafter. But probably letters of horning, properly so called, upon a single charge, were never issued unless in pursuance of an explicite consent.
IT may justly be presumed, that the practice of personal execution upon bonded debts paved the way to the above mentioned act of sederunt 1582. For after personal execution upon decrees of consent for payment of money was once established, it was a natural extension to give the same execution upon decrees for payment of money obtained
in foro contentioso.
IT only remains to be observed, with respect to personal execution upon decrees
in
foro contentioso,
that it has always been understood an extraordinary remedy; and therefore that it requires the special interposition of the sovereign authority. This authority is obtained by an order directed to the keeper of the King's signet, issuing from any of his proper courts, such as the session, justiciary, or privy council, when it was in being; for the King interposes his authority of course, for executing the ordinances of his own courts. But as he condescends not to execute the ordinances of any other court, therefore no inferior judge or magistrate can give warrant for letters of horning, not even the judge of the court of admiralty, nor the commissaries of Edinburgh, neither of which properly are the King's courts. The method formerly in use for procuring personal execution upon the decrees of such courts, was to obtain from the court of session a decree of interposition, commonly called a
Decreet conform,
which being a decree of a sovereign court, was a proper foundation for letters of horning. But this method gave place to one more expeditious, as we shall see anon.
IF this sketch of the origin of personal execution with respect to debt, be but roughly drawn, let the deficiency of materials plead my excuse. Luckily there is not the same ground of complaint in the following part of the history, every article of which is clearly vouched. The first statute abridging letters of four forms upon decrees
in foro contentioso,
is the act 181. p. 1593,
"authorising letters of horning containing a single charge of ten days, to proceed upon decreets of magistrates withinburgh, without the necessity of letters conform."
Letters of horning, properly so called, upon a single charge being here introduced in place of letters of four forms, the known tenor of such letters removed all ambiguity, and made it evident, that the legislature intended, the debtor should be denounced rebel upon failing to make payment, without admitting the alternative of surrendering his person in ward. Here is a monster of a statute, repugnant to humanity and common justice. But by this time, the alternative of being denounced rebel upon failing to make payment, founded on consent, was familiar; and if such execution could be founded on consent, it was reckoned, as would appear, no wide stretch to give the same execution upon a decree
in foro contentioso.
This however is no sufficient apology for extending a harsh practice, which ought rather to have been totally abolished. But the influence of custom is great; and our legislature submitted to its authority without due deliberation; not only in this statute, but in others, which past afterwards of course, extending this regulation to the decrees of other inferior courts
Act 10. p. 1606. Act 6. p. 1607. Act 15. p. 1609. Act 7. p. 1612.
. It may justly be a matter of surprise, how it is possible, that statutes so contradictory to every principle of equity and humanity, could make their way and be tamely submitted to. To account for this, I must observe, that the same thing happened here that constantly happens with relation to harsh and rigorous laws. Such laws have a natural tendency to dissolution; and even where they are supported by the authority of a settled government, means are never wanting in practice to blunt their edge. Thus, though the law was submitted to, which annexed the penalties of rebellion to the guilt of presumed disobedience, when possibly at bottom there was no fault, yet no judge could be so devoid of common humanity, as willingly to give scope to such penalties. A distinction was soon recognized betwixt treason or rebellion, in the proper sense of the word, and the constructive rebellion under consideration, termed civil rebellion; and it came to be reckoned oppressive and disgraceful, to lay hold of any of the penalties attending the latter. In this manner civil rebellion lost its sting, first in practice, and now with regard to single and liferent escheat, by a British statute
20th Geo. II. 50.
. For though the law was scarce ever put in execution to make these penalties effectual, yet as upon some occasions they were used as a handle for oppression, it was thought proper to abolish them altogether.
IN the mean time, letters of four forms continued to be the only warrant for personal execution, upon decrees of the court of session. But this court, esteeming it a sort of impeachment upon their dignity, to be worse appointed than inferior courts are with respect to personal execution, took upon them
Act of sederunt 1613.
to abolish letters of four forms, and to appoint the same letters of horning to pass upon their own decrees, that by statute were authorized to pass upon decrees of inferior courts. That decrees of the supreme court should at least be equally privileged with those of inferior courts, is a proposition that admits not a dispute. I cannot however, without indignation, reflect upon the preamble of the act of sederunt, asserting, that letters of horning, properly so called, are a form of execution less burdensome upon debtors than letters of four forms; which is a bold attempt to impose upon the common sense of mankind.
To compleat this short history, there only remains to be added in point of fact, that to obtain a warrant for personal execution, it is scarce ever necessary, as our law now stands, to apply to the court of session for a decree of interposition. By the regulations 1563, concerning the commissary court, a more curt method was introduced, for obtaining letters of horning upon the precepts of the commissaries of Edinburgh; which is, that the court of session, upon an application to them by petition, should instantly issue a warrant for letters of horning. And the same method was prescribed in all the statutes above mentioned, that authorized letters of horning upon decrees of inferior courts.
WHEN we compare our form of personal execution with that of England, we perceive a wide difference. In England, the
capias ad satisfaciendum
is a writ directed to the sheriff, to imprison the person of the debtor, until he give satisfaction to his creditor; of which the consequence is, that payment made by the debtor intitles him of course to his liberty. But in Scotland, an act of warding excepted, a debtor is not committed to prison upon account merely of his failing to make payment. He must be denounced rebel before a
capias
or caption can be issued. At the same time, this
capias
is not
ad satisfaciendum:
it is built upon a different foundation. Imprisonment is one of the penalties of rebellion, and our
capias
is issued against the person, not as debtor but as rebel. The debtor accordingly, by the words of our caption, must remain in prison,
"till he be relaxed from the process of horning;"
that is, obtain the King's pardon for his rebellion. For this reason it is, that tendering the sum due, is not, in strict law, sufficient to save the debtor from prison. Nor after imprisonment will he be entitled to his freedom upon tendering the sum, till he also obtain letters of relaxation. The court of session indeed dispensed with this formality in small debts,
"declaring the creditor's consent sufficient for the debtor's liberation, when the sum exceeds not 200 merks
Act of sederunt, 5th February 1675.
."
TRACT XII.
HISTORY OF EXECUTION for obtaining payment after the death of the debtor.
IN handling this subject, I cannot hope fully to gratify the reader's curiosity otherwise than by traceing the history of this branch of law from remote ages. It will be necessary not only to gather what light we can from the rules of common justice, but also to examine the laws of England and of old Rome, which have been copied by us in different periods.
THE great utility of money, as a commercial standard, made it from the time of its introduction a desirable object. It came itself to be one of the principal subjects of commerce, and of contracts of loan. When money is lent, it is the duty of the debtor to pay the sum at the term covenanted; and to procure money by a sale of his goods, if he cannot otherwise satisfy his creditor. If the debtor be refractory or negligent, it is the duty of the judge to interpose, and to direct a sale of the goods, in order that the creditor may draw his payment out of the price.
IN what manner debts are to be made effectual after the debtor's death, by the rules of common justice, is a speculation more involved. One thing is obvious, that if no person claim the property of the goods as heir, or by other legal title, the creditors ought to have the same remedy that they had during their debtor's life. In this case there is required no stretch of authority. On the contrary, when a debtor's goods after his death are sold for payment of his debts, the law is no further exerted than to supply the defect of will, which, it is presumed, the debtor would have interposed had he been alive; whereas when a debtor's goods are sold during his life, by publick authority, his property is wrested from him against his will.
BUT now an heir makes his appearance, and the property is transferred to him by right of succession. Justice will not allow him to enjoy the heritage of his ancestor, without acknowledging his ancestor's debts. Therefore, if he submit not to pay the whole debts, one of two things must necessarily follow, either that he account to the creditors for the value of the heritage, or that he consent to a sale for their behoof. Justice, as appears to me, cannot be fulfilled but by pursuing the latter method; and my reasons for thinking so are two. The first is, that by natural justice creditors have access to the effects only of their debtor, and have no claim against his issue or other relations; and therefore that these effects ought to be surrendered to the creditors for their payment, unless the heir, by making full payment, put an end to the claim which the creditors have to these effects. The next is, that sale, which is the only unexceptionable method for determining the value of a commercial subject, ought for that reason to be preferred by judges, before the more uncertain opinion of witnesses. For the
praetium affectionis
of the heir, supposing the thing, ought not to weigh against the more solid interest of creditors, who are
certantcs de damno evitando;
not to mention that an heir, who hath an affection for the subject, may gratify his affection, by offering the smallest sum above what another esteems the intrinsick value.
THE Romans, with respect to heirs, had a peculiar way of thinking, which must be explained, because it relates to the subject under consideration. An heir, in the common sense of mankind, is that person, who, by blood or by will, is entitled to the effects of a person deceased; and the succession of an heir is a method established by law, for vesting in a living person effects which belonged to another at his death. Hence it is, that, with respect to different subjects, the same person may have different heirs; as for example, an heir of blood may succeed to some subjects, and an heir by will to others. The idea of an heir, in the Roman law, is not derived from the right of succeeding to the heritage in general, or to any particular subject, but rests upon a very different foundation. The Roman people were distinguished into tribes or
gentes.
A tribe was composed of different
familiae,
and a
familia
of different
stirpes;
and while the republick stood, it was one great branch of their police, to preserve names and families distinct from each other. To perpetuate old families, the privilege of adoption was bestowed upon those who had not children. The person adopted, who assumed the name of the family, came in place of a natural son, and had all the privileges that by law belong to a natural son. This branch of the Roman police produced a singular conception of an heir,
viz.
the bearing the name of the family, and continuing the chain of the family in place of the person deceased. The succession of an heir among the Romans had no relation to property, was not considered as a right of succeeding to subjects, but as a right of succeeding to the person deceased, of coming in his place, of representing him, and of being, as termed in the Roman law,
eadem persona cum defuncto.
In a word, an heir, in the Roman law, is he who represents the deceased personally; and the representing the deceased with respect to subjects of property, doth not less or more enter into the Roman definition of an heir. Nor was it at all necessary that this circumstance should enter the definition: it was sufficient that every benefit of succession was the unavoidable consequence of personal representation; which obviously is the case. If an heir is
eadem persona cum defuncto,
succession, in the eye of law, makes no change of person, and consequently not even a change of property. Hence the maxim in the Roman law, that
Nemo potest mori pro parte testatus et pro parte intestatus.
For if an heir was adopted or named, his personal representation of the testator entitled him of course to every subject, and every privilege that belonged to the testator.
THIS singular notion of an heir, among the Romans, gave creditors a benefit which they have not by common justice. The death of their debtor, if he was represented by an heir, made no alteration in their affairs. A debtor who had a representative, died not in a legal sense; his existence was continued in his heir, without change of person. The heir accordingly was subjected to all the debts, whether he had or had not any benefit by the succession; and if the heir proved dilatory or refractory, his whole effects might be sold for payment, as well what belonged properly to himself, as what he acquired by succession. This undoubtedly was a stretch beyond the rules of common justice; for creditors ought not to gain by the death of their debtor, and an heir ought not to suffer by his succession. But to palliate this injustice, an heir had a year to deliberate whether he should accept of the succession; and if he made it his choice to accept, and to run all hazards, which sometimes produced loss instead of gain, this, being his own choice, was reckoned no such hardship as to deserve a remedy. But this notion of an heir, beneficial to the creditors in one respect, was hurtful to them in another. For where the heir's proper debts exceeded his own funds, his creditors had access to the funds of the ancestor, which were now become their debtor's property by succession. Here was real injustice done to the ancestor's creditors; which in course of time was remedied by the Praetor. He decreed a
separatio bonorum,
and authorized the ancestor's funds to be sold for payment of his debts
l. 1. § 1. de separationibus.
.
THE gross injustice of subjecting an heir to the debts of the ancestor without limitation, produced in time another remedy,
viz.
the benefit of inventory, by which, upon making an exact list of the ancestor's effects, an exception in equity was given to the heir, to protect him from being further liable personally than to the value of the goods contained in the list. Whether this value was to be ascertained by the opinion of witnesses, or whether the heir was bound to sell the goods for payment of the ancestor's debts, is not clear. But the latter seems to have been the rule, as may be gathered, not only from the reason of the thing, but from the constitution of Justinian introducing this remedy
l. 22. § 4 & 8. C. de jure delib.
. And in our practice, though an heir who has the benefit of inventory, is not liable personally beyond the value of the goods in the inventory, to be ascertained by a proof, yet if the creditors chuse to take themselves to the goods for their payment, it is in their power to bring the same to sale, and to lay hold of the price for their payment.
BUT however far the Roman law strayed from the common rules of justice, where the debtor's heritage was claimed by an heir, the same complaint does not ly in the case of insolvency, where the heir abandoned the succession; for the debtor's goods were in this case sold for payment of his debts, in the same manner as when he was alive. It is true, that among the Romans, remarkable originally for virtue and temperance, it was ignominious for a citizen to have his effects sold by publick authority. To prevent such disgrace, it was common to institute a slave as heir, who, after the testator's death, being obliged to enter, the hereditary subjects were sold as his property, and the real debtor's name was not mentioned
Instit. de hered. qualit. et diff. § 1. Heineccius antiquit. L. 2. Tit. 17, 18, 19. § 11.
.
WE proceed to the English law, which in all probability was antiently the same with our own. And to understand the spirit of that law, it must be premised, that while the feudal law was in its purity, a vassal had no land-property: he had only the profits of the land for his wages; and when he died, his service being at an end, there could no longer be a claim for wages. The subject returned to the superior, and he drew the whole profits, till the heir appeared; who was entitled by the original covenant, upon performing the same service with his ancestor, to demand possession of the land as his wages. If his claim was found just, the possession was delivered to him by a very simple form,
viz.
an order or precept from the superior to give him possession; and this was called
renovatio feudi.
There is nothing to be laid hold of, in any branch of this process, for making the heir liable to the ancestor's debts. By performing the feudal services, every heir is entitled to the full enjoyment of the land in name of wages; and his right being thus limited, he hath no power of disposal, or of contracting debt to affect the subject farther than his own interest reaches. The next heir who succeeds is not liable to the predecessor's debts; because the land is delivered to the next heir, not as the predecessor's property, but as the property of the superior; and possession is given to the next heir as wages, for the service he hath undertaken to perform. From this short sketch it must be evident, that, while the feudal law subsisted in its purity, a vassal's debts after his death, however effectual against his moveables, could not burden the land, nor the heir who succeeded to the land.
BUT after land was restored to commerce, and a vassal was understood to be in some sort proprietor, so as even to have a power of alienation, it was a natural consequence, that the land, as his property, should be subjected for payment of his debts, not only during his life, but even after his death. And indeed if a man's moveables can, after his death, be attached for payment of his debts, why not his land; supposing him equally proprietor of both? Accordingly by the law of England,
"Judgments of all kinds, whether
in foro contentioso,
or by consent, may be made effectual by an
elegit,
after the debtor's death, as well as during his life, without necessity of taking a new judgment against the heir
New abridgment of the law, vol. II. page 337.
."
A judgment by the law of England hath still greater force.
"Lands are bound from the time of the judgment, so that execution may be of these, though the party aliens
bona fide,
before execution sued out
New abridgment of the law, vol. II. page 361.
."
For if an
elegit
can be taken out, to attach land conveyed after the judgment to a
bona fide
purchaser, it is not so great a stretch to make it attach land after the debtor's death, in the hand of the heir, or
in hereditate jacente,
if the heir be not entered.
THE same method takes place in other debts, upon which there is no judgment against the debtor; with this only variation, that the creditor must begin with taking a decree against the heir; because the authority of a decree is necessary for execution. The decree taken against the heir is, in this case, of the nature of a decreet of cognition with us, to be a foundation for attaching the deceased debtor's heritage, but not to have any personal effect against the heir, nor against his proper estate
Ibid. vol. III. page 25.
.
NOR is it difficult to discover the foundation of this practice. It depends on a principle of justice, which is simple and obvious, that every man's proper effects ought to be applied for payment of his debts. His death can have no such effect naturally, as to withdraw these effects from his creditors: nor can it have such effect as to subject the heir, who ought not to be liable for debts not of his own contracting; unless so far as he converts to his own use the ancestor's effects, which are the only fund destined by law for payment of the ancestor's debts.
THE natural principle which prevails in England, that an heir is not subjected to his ancestor's debts, but only the ancestor's own funds, produced another effect, which is, to vest in the heir the property of the ancestor's heretable estate, even without exerting any act of possession. The very survivance of the heir gives him, in the law-language of England, legal seisin, that is, gives him all the advantages of real possession; and justly, because his
animus possedendi
is presumed, and must always be presumed, where the apprehending possession is attended with no risk. This is the sense of the maxim,
Quod mortuus sasit vivum,
which obtains in France as well as in England; and of which we now see the foundation. This branch of the law of England, is not more beautiful by its simplicity, than by its equity and expediency. Nothing can be more simple or expedient, than by mere survivance, to vest in the heir the estate that belonged to the ancestor; and nothing can be more equitable than a
separatio bonorum,
by which the funds of the ancestor are set apart for payment of his debts, without vexing the heir, who, in common justice, ought not to be liable but for debts of his own contracting.
WE have great reason to presume as to this matter, that our law was once the same with that of England, though we have now adopted different maxims, deviating far from natural equity, and from the simplicity and expediency of the English law. That our law was the same will readily be believed, when in this country of old we find the same effect given to judgments, that at present is given in England. In the 2d statute Robert I. cap. 19. § 12. it is laid down with respect to debts due to merchants,
"That in execution against the lands of the debtor, sasine shall be given of all the lands which belonged to the debtor at the time of entering into the recognizance, in whose ever hands they have since come, whether by infeftment or otherwise."
This authority, it is true, relates to a decree of consent; but we are not to suppose, that it was more privileged than a judgment
in foro contentioso;
and if so, there could be no difficulty of making a judgment effectual against the debtor's land, in the hands of his heir, or
in hereditate jacente.
And we find traces of this very thing in our old law. In the above mentioned 2d statutes Robert I. § ult. it is enacted,
"That if a debtor die, the merchant creditor shall not have his body, but shall have execution against his lands, as there above laid down;"
that is by a brieve out of the chancery directed to the sheriff, to deliver to the creditor all the goods and lands which belonged to the debtor, by a reasonable extent. The like execution is authorized, Leg. Burg. cap. 94. even where the heir is entered. But this is not all: we have positive evidence, that such was the practice in Scotland even after the beginning of the sixteenth century. There is upon record a charter of apprising,
anno
1508, in favour of Richard Kine, who having been decerned to pay 20
l.
as cautioner for Patrick Wallance, obtained letters after Patrick's death for apprising his land. Patrick's heirs were edictally cited, and his land was apprised and adjudged to Richard, for payment to him of the said sum; and this was done without any previous decree against the heir, or charge to enter. A copy of this charter is annexed
Appendix, No. 8.
; and upon searching the records, many more of the same kind may doubtless be found. In a matter of such antiquity, these authorities ought to convince us, that as to execution against a debtor's land-estate after his death, our old law was the same with the English law, and the same that continues to be the English law to this day.
AND if such was the law of Scotland with respect to execution after the debtor's death, upon decrees whether
in foro
or of consent, we can have no reasonable doubt that the same form of execution did obtain where there was no judgment during the debtor's life; with this variation only, that there behoved to be a decree of cognition before execution could be awarded.
A man who treads the dark paths of antiquity, ought to proceed with circumspection, and be constantly on the watch. We have entertained hitherto little doubt about the right road; but in prosecuting our journey, appearances are not quite so favourable. We stumble unluckily upon the act 106. p. 1540, which seems to pronounce, that far from proceeding in the right path, we have been wandering this while. In this statute it appears to be taken for granted, that if the heir avoided entering to the land, the ancestor's creditors had no means to recover payment. Nay, a remedy is provided, by entitling them to apprise the land after charging the heir to enter. The act, it is true, is conceived in terms so ambiguous, as to make it doubtful whether the remedy concerns the creditors of the ancestor or those of the heir. But that it is calculated to relieve the former only, all our authors agree. And we have a still greater authority,
viz.
the act 27. p. 1621, which proceeding upon the narrative, that the said statute regards the creditors only of the deceased, extends the same remedy to creditors of the heir. This, in effect, is declaring, not only that the creditors of the heir, before the 1621, had no execution against the ancestor's land unless the heir their debtor was pleased to enter; but also, that not even the creditors of the ancestor had, before the act 1540, any execution against the land unless the heir, who was not their debtor, was pleased to enter.
THESE are weighty authorities in support of the sense universally given to the statute 1540. And yet that the common law of Scotland, should impower every heir of a land-estate, by abstaining from the succession, to forfeit the creditors of his ancestor, is a proposition too repugnant to the common principles of justice to gain credit. This proposition will appear still more absurd, by bringing the superior into the question. The land returned to him, if the heir did not submit to be his vassal: but a good understanding betwixt them, perhaps for a valuable consideration, might entitle the heir to hold the land in defiance of all the creditors. To accomplish a scheme so fraudulent, no more was necessary but a private agreement, that the land should return to the superior by escheat, and be afterwards restored to the heir by a new grant. A contrivance so grossly unjust would not have been tolerated in any country. We had apprisings of land as early as the reign of Alexander II. I have demonstrated above, that it is no stretch of legal authority, to issue this execution after the debtor's death more than during his life, and that the heir hath no title to prevent this execution whether he be entered or not entered. Let it further be considered, that, by our oldest law, the heir was liable even for moveable debts, where the moveables were deficient
Reg. Maj. L. 2. cap. 39. § 3.
. What then was to bar law from taking its natural course? It is certain there lay no bar in the way; and the necessity of such an execution must have been obvious to the meanest capacity, in order to fulfil the rules of common justice; not to mention its utility for supporting credit and extending commerce.
BUT it is losing time, to argue thus at large about the construction of a statute. The above mentioned charter 1508 makes it clear, that the statute cannot relate to the creditors of the ancestor. By that charter it is vouched, that in the 1508, execution against the debtor's estate proceeded after his death, with as little ceremony as during his life. The practice must have been the same in the 1540, and therefore as the creditors of the deceased had no occasion for a remedy, the remedy provided by the statute must have been intended for the creditors of the heir. And to fortify this construction, there is luckily discovered another remarkable fact. Our sovereign court, so far from doubting of the privilege that creditors have to attach the land-estate of their debtor after his death, ventured to authorize an apprising of the predecessor's estate upon the debt even of the heir-apparent. One instance of this I find in a charter of apprising, 24th May 1547, granted by Queen Mary to the Master of Semple. This charter subsumes,
"That the Earl of Lennox, in order to protect his family-estate from being attached for payment of a debt due by him personally to the Queen, had refused to enter heir to the said estate; that he had been charged to enter heir within twenty one days, under certification, that the lands should be apprised as if he were really entered: and that he having disobeyed the charge, the lands were accordingly apprised, &c.
See a copy of this charter, Appendix, No . 9.
"
The date of the charge to enter is omitted in the charter; but that it must have been before the statute 1540, is evident from the following circumstances, that the statute is not mentioned in the charter; and that the charge is upon twenty one days, which shows that it proceeded not upon the authority of the statute; for in that case the charge must have been on forty days. We have no reason to suppose this to be a singular instance; nor is it mentioned in the charter as singular. Here then is discovered an important link in the historical chain, to wit, that a charge against the heir to enter at the instance of his own creditor, was introduced by the sovereign court, without the authority of a statute. And if this hold true, the act 1540 could not be intended for any other effect, but to confirm this former practice, with the single variation, that the charge to enter should be upon forty days in place of twenty one. Viewing this curious fact in its true light, it affords convincing evidence, that before the 1540, the debtor's death did not bar his creditors from access to his estate. For it is not consistent with the natural progress of improvements, that the common law should be stretched in favour of the creditors of the heir-apparent; while the predecessor's own creditors, whose connection with his estate is incomparably stronger, were left without a remedy. These creditors must have been long secure, before a remedy would be thought of for remoter creditors,
viz.
those of the heir-apparent.
BUT in combating the authority of the said act 1621, we must not rest satisfied with such proofs as may be reckoned sufficient in an ordinary case. I add therefore other proofs, that will probably be thought still more direct. In the first edition of the statutes of James V. bearing date 8th February 1541, the title prefixed to the statute under consideration is in the following words:
"The remeid against them that lye out of their lands, and will not enter in defraud of their creditors."
This clearly shows what was understood to be the meaning of the statute at the time it was enacted,
viz.
that it respects the creditors solely of the heir-apparent. And the same title is also prefixed to the next edition, which was in the 1566. The other proof I have to mention, appears to be altogether decisive. Upon searching the records, it is discovered, that the first charges given by authority of the statute, were at the instance of creditors of heirsapparent; one of them as early as the year 1542. This I take to be demonstrative evidence of the intendment of the statute; for we cannot indulge so wild a thought, as that our judges, the very persons probably who framed this statute, were ignorant of its meaning.
As the foregoing arguments and proofs seem to be invincible, we must acknowledge, however unwillingly, that our legislature, when they made the act 1621, were, in one particular, ignorant of the law of their own country. They are not however altogether without excuse. I shall have occasion immediately to show, that long before the year 1621, the old form of execution against land after the death of the debtor, simple and easy as it was, had been abandoned, and another form substituted, not less tedious than intricate, which, considered in a superficial view, might lead our legislature into an opinion, that the creditors of the heir-apparent were not provided for by the statute 1540. In fact they adopted this erroneous opinion, which moved them to make the act 1621.
No sort of study contributes more to the knowledge of law, than that which traces it through its different periods and changes. Upon this account, the foregoing enquiry, though long, will, it is hoped, not be thought tedious or improper. In reality it is not practicable, with any degree of perspicuity, to handle the present subject, without first ascertaining the true purpose of the act 1540. For according to the interpretation commonly received, how ridiculous must the attempt appear, of tracing from the beginning the form by which debts are made effectual after the death of the debtor, where the heir renounces or avoids entering; while it remains an established opinion, that creditors were left without a remedy till the statute was made.
HAVING thus paved the way, by removing a great deal of rubbish, I proceed to unfold the principles that govern our present form of attaching land and other heretable subjects after the death of the debtor.
IT is a matter which cannot rationally admit of a doubt, that our notion of an heir was once the same with what is suggested by the common principles of law,
viz.
one who by will or by blood is entitled to succeed to the heritage of a person deceased, wholly or partially. Nay, we have the same notion at present, with respect to all heirs who succeed in particular subjects, such as an heir of conquest, an heir male an heir of entail, an heir of provision. Nor is there the least reason or occasion to view even an heir of line in a different light. For what more proper definition of an heir of line, than the person who succeeds by right of blood to every heretable subject belonging to the deceased, which is not by will provided to another heir? And yet, with respect to the heir of line, we have unluckily adopted the artificial principles of the Roman law, of a personal representation, and of identity of person, according to the Roman fiction, that the heir is
eadem persona cum defuncto.
The Roman law, illustrious for its equitable maxims, deserves justly the greatest regard. But the bulk of its institutions, however well adapted to the civil polity of Rome, and the nature of its government, make a very motley figure when grafted upon the laws of other nations. In this country, ever famous for love of novelty, the prevailing esteem for the Roman law, has been confined within no rational bounds. Not satisfied with following its equitable maxims, we have adopted its peculiarities, even where it deviates from the common principles of justice. The very instance now under consideration, without necessity of making a collection, is sufficient to justify this reflection. No man can hesitate a moment, to prefer the beautiful simplicity and equity of our old law concerning heirs, before the artificial system of the Romans, by which an heir cannot demand what of right belongs to him, without hazarding all he is worth in this world. No regulation can be figured more contradictory to equity and expediency: and yet such has been the influence of the Roman law, that as far as possible, we have relinquished the former for the latter; that is, with respect to general heirs; for as to heirs of conquest, heirs of provision, and all heirs who succeed to particular subjects, their condition is so opposite to that of an heir in the Roman law, that it is impossible, by any stretch of fancy, to apply the Roman fiction to them.
THIS unlucky fiction, which supposes the heir and ancestor to be the same person, hath produced that intricate form presently in use, for recovering payment of debt after the death of the debtor. The creditors originally had no concern with the heir: their claim lay against their debtor's effects, which they could directly attach for their payment, whether
in hereditate jacente
or in the hands of the heir. But when the maxim of representation and identity of person came to prevail, the whole order of execution was reversed. By the heir's assuming the character of representative, and by becoming
eadem persona cum defuncto,
the ancestor's effects are withdrawn from his creditors, and are vested in the heir as formerly in the ancestor. In a strict legal sense, a debtor who has a representative dies not; his existence is continued in his heir, and the debtor is not changed. In this view the heir comes in effect to be the original debtor; and the creditors cannot reach the effects otherwise than upon his failure of payment, more than if he were in reality, instead of fictitiously, the original debtor.
THE foregoing case of an heir's taking the benefit of succession, is selected from many that belong to this subject, in order to be handled in the first place; for being of all the simplest, it furnishes an opportunity to examine with the greater perspicuity, what it was that moved our forefathers, to give up their accustomed form of execution for that presently in use. This new form of execution against the heir when entered, was probably established long before the sixteenth century. We discover from our oldest law-books, and in particular from the Regiam Majestatem, that our forefathers began early to relish the maxims of the Roman law. And though in this book we discover no direct traces of the fiction that makes the heir and the ancestor to be the same person, it is probable however, considering the swift progress of the Roman law in this country, that the fiction obtained a currency with us not long after the Regiam Majestatem. Hence it is likely, that the old form of apprising the land for the predecessor's debt, without regarding the heir, must have been long in disuse, in the present case, where the property is by service transferred to the heir; and who thereby is subjected personally to all the predecessor's debts. This case undoubtedly gave a commencement to the form presently in use, which requires, that the estate be attached, not as belonging to the ancestor the original debtor, but as belonging to the heir. In this view, a decree goes against the heir, making him liable for the debt; and thereafter adjudication passes against the estate, as his property and as for payment of his debt. But though the new form commenced so early, we have no reason to believe it was so early compleated. Where an heir lyes out unentered, and intermeddles not with the ancestor's effects, he cannot, in that situation, be held as
eadem persona cum defuncto;
and an estate to which the heir lays no claim, is naturally considered as still belonging to the ancestor. For these reasons, there was in this case nothing to obstruct the ancestor's creditors from attaching the estate by legal execution, more than if their debtor were still alive. Accordingly, from the charter of apprising above mentioned, granted to Richard Kine, we find, that where the heir did not enter, the old form of attaching land was in use so late as the 1508. Nor have we reason to suppose that this was the latest instance of the kind; for where the creditors of the ancestor, are willing to confine their views to his estate without attacking the heir, there cannot be a more ready method for answering their purpose, than that of apprising the land, which might be done with as little ceremony as when the debtor was alive. A decree, it is true, was necessary for this execution, as no execution can proceed without the authority of a judge: but it was a matter of no difficulty to obtain a decree, if not already obtained against the debtor himself. The form is, to call the heir in a process, not concluding against him personally, but only that the debt is true and just. The heir has no concern here, but merely to represent a defendant; and therefore a decree goes of course, declaring the debt to be just. This declaratory decree, commonly called a decreet of cognition, was held, and to this day is held, a sufficient foundation for execution.
CONSIDERING that in the beginning of the sixteenth century, creditors after their debtor's death had access to attach his land, in the manner now mentioned, and considering that a general charge was in practice before this time, as will by and by be proved, it appears to me evident, that this writ was invented, for no other purpose but to reach the heir, and to subject him personally to the debts of his ancestor; which may be gathered even from the writ itself. The heir was subjected if he entered; and this was a contrivance to reach him, if possible, where he was not entered. This writ, as will be shown by and by, produced the present form of execution for recovering payment after the debtor's death, and thereby occasioned a considerable revolution in our law; which makes it of importance to trace its history with all possible accuracy.
To have a just notion of letters of general charge, we must view the condition of an heir-apparent with relation to the superior. The heir-apparent has a year to deliberate, whether it will be his interest to enter to the land, and subject himself to all the duties incumbent on the vassal. And he may also continue to deliberate after the year runs out, until he be compelled in the following manner to declare his will. The superior obtains a letter from the King, giving authority to charge or require the heir to enter within forty days, under the penalty of forfeiting his right to the feudal subject. This furnished a hint to creditors who wanted to make the heir liable. A similar form was invented, which had the sanction of the sovereign court without a statute. A creditor obtains a letter from the King, giving authority to charge or require the heir to enter within forty days; and to certify him, that his disobedience shall subject him personally to the creditor, in the same manner as if he were entered. This letter, commonly called Letters of General Charge, being served on the heir, obliges him to come to a resolution. If he obey the charge by entering, he is of course subjected to all his ancestor's debts. If he remain in his former situation without entering, the charge is a medium upon which he may be decerned personally to make payment to the creditor in whose favour the letter is issued; and therefore to avoid being liable, he has no other method but to renounce the succession, which is done by a formal writing under his hand, put into the process or into the record.
AT what time the general charge was introduced, cannot with accuracy be determined. That it was known long before the statute 1540, appears from a decision cited by Balfour, dated
anno
1551
Tit. Heirs and Successors, chap. 17.
, in which it is mentioned as a writ in common and general use; not at all as recent or newly invented. Its antiquity is further ascertained by an argument, which, though negative, must have considerable weight. The court of session, the same that is now in being, was established
anno
1532; and though the most ancient records of this court are not entire, we have however pretty great certainty of its regulations, such of them at least as are of importance; for these, where the records are lost, may be gathered from our authors, and from other authentick evidence. But as there is not in any author, or in any writing, the smallest hint that this writ was introduced by the court of session; we have good reason to conclude, that it had a more early date.
THE better to understand what follows, we must take a deliberate view of this new writ. To supply defects in the common law, is undoubtedly the province of the sovereign court, and is one of its most valuable prerogatives. But then, regulations of this sort ought not only to be founded on necessity, but also on material justice. Unhappily, neither of these grounds can be urged, to justify letters of general charge. For first, this writ, when invented, was in no view necessary; the common law giving ready access to a debtor's effects after his death for payment of his debts, as well as during his life; and beyond this a creditor can have no just claim. In the next place, this writ, with respect to the heir-apparent, is oppressive and unjust: for while the effects of the debtor ly open to execution, what earthly concern has the creditor with an heir, who hath not claimed the succession, nor intermedled with the effects? and why should any attempt be indulged, to subject a man to the payment of debt not of his own contracting? This heteroclite writ, procured, in all appearance, by the undue influence of creditors, hath in its consequences proved even to them an unhappy contrivance. It evidently produced our present form of obtaining payment after the debtor's death, which, as observed, being unjust as to the heir, has recoiled against the creditors, by involving them in an execution, intricate, tedious, and expensive; opposite in every particular to the simple and beautiful form established in the common law. I proceed to show in what manner the general charge produced a revolution so important.
REFLECTING upon this subject, it will be found, that after the charge is given, and the forty days elapsed, the creditor charging has it no longer in his power to retreat, or in quality of the ancestor's creditor, to attach by real execution, the estate as belonging to the ancestor. Such necessarily must be the effect of the change of circumstances occasioned by this charge. If the heir obey the charge by entering, he occupies the place of the ancestor: he is, in a legal sense, the ancestor; and execution proceeds against him and his effects, precisely as if he were really, and not by a fiction, the original debtor. This case therefore bars all access to the original form of execution. The ancestor is withdrawn as if he had never been; and upon that supposition the estate cannot be apprised as his property. In the next place, if the heir remain in his former situation, without declaring his mind, he becomes personally liable, precisely as if he had entered. This situation, equally with the former, and for the same reason, bars the creditor from having access to the estate by the old form of execution. So soon as the debt is transferred against the heir, he so far becomes
eadem persona cum defuncto.
With regard to this debt, he is considered to be the original debtor; and as the creditor no longer enjoys the character of the ancestor's creditor, he cannot have access to the estate as belonging to the ancestor; neither can he have access to it as creditor to the heir, who himself hath no right until he enter. Again, if the heir renounce, the estate returns to the superior, who must have the land if he have not a vassal; and by this means also the creditor is excluded from all access to the land; because it is now no longer the property either of the ancestor or of the heir. These consequences of a charge, where the heir enters not, appear to to be strong obstacles against the creditor wanting to attach the land. In what manner they were surmounted, I shall endeavour to show.
I begin with the case where the heir-apparent, after he is charged, remains silent, and neither enters nor renounces. The charge in this case, for the reason above mentioned, subjects him personally to the creditor at whose instance he is charged; and by the same means he may be subjected to all the creditors. So far good. The creditors upon this medium may proceed to personal execution. But as to real execution, the difficulty is great; for, as above observed, the debt by the charge being laid upon the heir, there cannot be access to the land otherwise than as belonging to him. But then, how can land be adjudged from a debtor who is not vested in the property? The reader will advert, that he is engaged in a period long before the statute 1540, affording relief to the proper creditors of the heir by means of a special charge. Admitting only the heir to be justly subjected to his ancestor's debts, which, with respect to what is now under consideration, must be admitted, it becomes unquestionably his duty to enter to the land, in order to give the creditors access to it for their payment. And if he prove refractory, it becomes the duty of the sovereign court to interpose and to perform for him by selling the land, or at least by adjudging it to the creditors for their payment. The latter was accordingly done. But before attempting an extraordinary remedy, as good order requires, the debtor's obstinacy to be first ascertained; a second letter in that view is obtained from the King, giving authority to charge or require the heir, to enter to the land within forty days; and to certify him, that, after the lapse of this term, he shall be held, with respect to the creditors, as actually entered. This method solves all difficulties. The creditors proceed to apprise the land from the heir, now their debtor, in the same manner as if he had a compleat title to the same by a solemn entry.
IN the case of a renunciation, the obstacle is much greater than in that last mentioned. A renunciation to be heir, according to the nature of feudal property, is a total bar to the ancestor's creditors, which could not have been surmounted, and ought not to have been surmounted, while the feudal law was in vigour. In the original feudal system an heir hath no claim to the land which his ancestor possessed, unless he undertake to serve the superior in quality of a vassal; and therefore if he refuse to submit to this service, the superior enters to possess the land, which antecedently was his property. But a renunciation to be heir, though obtained at the suit of a creditor, being however an express declaration by the heir, that he will not submit to be vassal, must, in strict law, have the effect to restore the land to the superior, and to cut out all the creditors. This, as observed, would originally have been thought no hardship. But at the time we adopted the notions of the Roman law, the bulk of the land in Scotland had passed from hand to hand for a full price paid; and such a purchase, contrary to the original constitution of the feudal law, transferred the property to the purchaser, though, according to the form of our land-rights, he is obliged to assume the character of a vassal. And therefore, whatever effect a renunciation might have while a vassal's right was merely usufructuary, it was rightly judged, that it ought not to have the same effect where the vassal, in reality, is proprietor. Equity pleaded strongly for the creditors, that the superior,
certans de lucro captando,
ought not to be preferred to them,
certantes de damno evitando.
These considerations moved the sovereign court, to think of some remedy for relieving the creditors. It would have been too bold an attack upon established law, to declare, that, in this case, a renunciation should not operate in favour of the superior, but only of the creditors. The court took softer measures. The law was permitted to have its course, in restoring the land to the superior. But action was sustained to the creditors against the superior, to infeft them in the land for security and payment of their debts; and the decree given in this process obtained the name of an adjudication upon a renunciation to be heir, or an adjudication
cognitionis causa;
which being afterwards modelled into a different form, passes now commonly under the name of an adjudication
contra hereditatem jacentem.
Here was invented a new sort of execution against land, similar in its form to no other sort in practice. And it may be thought strange, why the court, in imitation of the established form of apprising, did not rather direct the land to be sold for payment of the creditors. In matters of so great antiquity, where history affords scarce any light, it is difficult to give satisfaction upon every point. I can form no conjecture more probable, than that, in contriving a remedy against the hardships of the common law, the court thought they had no sufficient authority to award a compleat execution, such as was given by the common law; and that it was venturing far enough to afford the creditors a security, upon land which once indeed belonged to their debtor, but was now legally transferred to the superior with whom they had no connection.
WITH respect to other heretable subjects, allodial in their nature as not held of any superior, heirship moveables, for example, bonds secluding executors, and dispositions of land without infeftment, the heirs renunciation created no difficulty. Subjects of this kind are by the renunciation left
in media
without an owner; and it is an obvious as well as a natural step, to adjudge them to a creditor for his payment. By such adjudication the court doth nothing but what the debtor himself ought to have done when alive; and which it is presumed he would have done, had he not been prevented by death. This particular adjudication, it is probable, was the first that came into use, and paved the way to an adjudication of land, when it returned to the superior by the heir's renunciation.
IF the general charge be of an ancient date, we cannot have much difficulty about the aera of the special charge. For as the general charge is a very imperfect remedy without the special charge, the invention of the latter could not be at any distance of time from the establishment of the former. And a fact is mentioned above, which puts this matter beyond conjecture. Before the statute 1540, we find relief by a special charge afforded even to the proper creditors of the apparent heir; which proves to conviction, that the same relief must have been afforded long before to the creditors of the ancestor, after the heir is made liable by a general charge. For, as above observed, it is not supposable, that a remedy, afforded to the proper creditors of the heirapparent, would be denied to the creditors of the deceased proprietor, who are more connected with the estate. According to the natural course of human improvements, the creditors of the deceased proprietor, must have been long privileged with a special as well as with a general charge, before it would be thought proper to extend the privilege of a special charge to the creditors of his heir-apparent.
IT appears from Craig
L. 3. Dieg. 2. § 23.
, that an adjudication
cognitionis causa
is the remedy which of all came latest. We have this author's express authority for saying, that in his time it was a recent invention. Nor is this at all wonderful. For a renunciation to be heir, must, to the ancestor's creditors, be a puzzling circumstance, when its legal effect is to restore the land to the superior, who is liable for none of the vassal's debts.
TAKING under review the foregoing innovations, to which we were insensibly led by the prevailing influence of the Roman law, it is probable, that the fiction of identity of person was first applied by our lawyers to the case where an heir regularly enters to the estate of his ancestor. Being in this case beneficial to creditors, who have the heir bound as well as the estate, it gained credit, and obtained a currency. Nor was it attended with any inconvenience, to creditors at least, while they had access to apprise, as formerly, the estate of their debtor, where the heir abstained from entering. This, one should think, was affording to creditors every privilege they could justly demand for obtaining payment. But this did not satisfy them. To have the heir bound personally, in place of his ancestor, was an enticing prospect; and the general charge was invented, in order to make him liable before his entry, and where he has not taken the benefit of the succession. This legal step, it must be acknowledged, is pretty well contrived to answer its purpose. The heir, urged by a general charge, hath no way to evade the certification of being personally liable, other than the hard alternative of renouncing altogether the succession. This new form, for that reason was much relished. Creditors did not chuse to confine themselves to the estate of the ancestor their debtor, while any hope remained of subjecting the heir personally, by means of a general charge. And accordingly for a century and a half, or perhaps more, it has been the constant method to set out with a general charge, where the heir is not entered. If this method to subject the heir personally prove successful, the creditors, as made out above, must bid adieu to the estate considered as
in hereditate jacente
of their original debtor. Having chosen the heir for their debtor, they cannot now attach the estate otherwise than in quality of his creditors. Thus it has happened, that during so long time as that now mentioned, there is no instance of following out the old form by apprising or adjudging the land after the debtor's death, without regarding the heir. Whether it may be thought too late now to return to this old form, governed by the principles of justice as well as of expediency, I take not upon me to determine.
THE difference betwixt the law of Scotland and of England as to the present subject, will be clearly apprehended, by setting the matter in the following light. A pure donation, which doth not subject the donee to any obligation, transfers property without the necessity of acceptance; and upon that account, infants and absents are benefited by such deeds, without knowing any thing of the matter. But a deed laying the donee under any burden, bestows no right without actual acceptance: if it did, any man might be subjected to the severest burdens without his consent. Thus, in England, the rule obtains,
Quod mortuus sasit vivum;
because an heir, though vested in his ancestor's heritage, is not subjected personally to his ancestor's debts. In Scotland again, the effects of the ancestor are not transmitted to the heir, but by means of some voluntary act, which imports the consent of the heir to subject himself to his ancestor's debts. For, by our law, a strict connection is formed, betwixt the right that the heir has to the ancestor's estate, and the obligation he is under to pay the ancestor's debts, so far at least as that the latter is a necessary consequence of the former. It may indeed happen, that the heir is made liable to pay the ancestor's debts, without being vested in the estate; but this is to be considered as a penalty for refusing to enter heir when he is charged, or for intermeddling irregularly with the ancestor's effects, which are singular cases.
THE matter of the foregoing history is so singular, as not perhaps to have a parallel in the law of any country. Here, from the dead law of an ancient people, we find a metaphysical fiction adopted, without any foundation in the common rules of justice, and repugnant in a peculiar manner to the common law of this island; and yet so fervently impraced, as to have made havock of every part of our law that stood in opposition. I have pointed out some of the many inconveniencies that its reception produced, with regard to creditors, and consequently to credit. I have shown what subterfuges and fictitious contrivances were necessary, in order to give it a currency. I have shown how tedious, how intricate, and how expensive a form it hath occasioned, for recovering payment of debt: but I have not yet shown it in its worst light. The evils I have mentioned, are mere triffles compared with those that follow. No person who hath given any attention to the history of our law, can be ignorant of the numberless artifices invented by heirs in possession of the family-estates, to screen themselves from paying the family-debts. The numberless regulations made in vain, age after age, to prevent such artifices, will satisfy every one, that there must be an error in the first concoction, by which a remedy is rendered extremely difficult. How comes it that we never hear of such frauds in England? The reason is obvious. The just and natural rule of a
separatio bonoruni,
which obtains there, makes it impracticable for the heir to defraud his ancestor's creditors. They have no concern with the heir, but take themselves to the ancestor's estate for their payment. In Scotland, the ancestor's estate cannot be reached, even by his own creditors, otherwise than by attacking the heir, unless he be pleased to abandon it to the creditors. But this seldom was the case of old. The heir had a more profitable game to play, even where the estate was overburdened with debts. His method generally was to renounce to be heir, in order to evade a personal decerniture: but he did not however abandon the estate. It was seldom difficult to procure some artificial or sictitious title to the estate, under cover of which possession was apprehended; and this was a great point gained. If such title, after a dependance perhaps for years, was found insufficient to bar the creditors, another title of the same kind was provided; and so on without end. It is true, the heir's renunciation entitles the creditors to attach the estate by adjudications
cognitionis causa:
but then the heir, as has been observed, was always provided with some collateral title, not only to colour his possession, but also to compete with the creditors. In the mean time, the rents were a fund in his hands to take off any of the preferable creditors that were like to prove too hard for him. And such purchase was a new protection to the unconscientious heir, against the other creditors. In fact, the most considerable estates in Scotland, are possest at this day by such dishonest titles; the legislature, however willing, never having been able to invent any compleat remedy to prevent such pernicious frauds. The foregoing observations will enable us to trace these artifices to their true source. They must be ascribed to the fiction of identity of perron; because by means of this fiction chiefly, opportunity was furnished for committing these frauds. Had this matter been seen by our legislature in its proper light, a very simple and very effectual remedy must have occurred to them. If the heir refused to subject himself to the debts of his ancestor, nothing else was necessary, but to restore the ancient law, authorising the ancestor's heritage to be sold for payment of his debts. But this regulation had been long in disuse, and we were not less ignorant of it, than if it never had existed.
AND, as an evidence of the weakness of human foresight, I must observe, that a statute made without any view to the frauds of heirs, proved more successful against these frauds, than all the regulations purposely made; and that is the statute for selling the estates of bankrupts. An heir has now very little opportunity to play the accustomed game, when it is in the power of creditors to wrest the estate out of his hands, by a publick auction. And the experience now of
ifty years, has vouched this to be a compleat remedy. For we hear not at present of any frauds of this kind, nor are we under any apprehension of them. So far from it, that we are receding more and more, every day, from the rigid principle of an universal representation, and approaching to the maxim of equity, which subjects not the heir beyond the value of the succession. For what other reason is it, that the act 1695, introducing some new rigid passive titles, is totally neglected, though it is undoubtedly an additional safe-guard to creditors against the frauds of heirs? We are not now afraid of these frauds: they are prevented by the equitable remedy of selling the ancestor's estate; and judges, if they have humanity, will be loath to apply a severe remedy, when a mild one is at hand, which is also more effectual. It is remarkable, that though the act for selling the estates of bankrupts proved an effectual remedy, yet this virtue in the statute was not an early discovery. It was not discovered at the time of the act 1695, and if any person, of more than ordinary penetration, had been looking on when that statute was made, it must have provoked a smile, to find our legislature, with their eyes open contriving an imperfect remedy, when they had already, with their eyes shut, stumbled on one that was perfect.
TRACT XIII.
HISTORY OF The LIMITED and UNIVERSAL Representation of Heirs.
BY the law of nature, an heir, beyond what he takes by the succession, is not subjected to the debts of his ancestor. In the Roman law a singular notion was adopted, that the heir is the same person with the ancestor. Hence an heir, in the Roman law, succeeds to all the effects of the ancestor, and is subjected to all his debts. This was carried so far with regard to children, that they were heirs
ex necessitate juris;
and upon that account were distinguished by the name of
sui et necessarii heredes.
Natural principles afterwards prevailed, and children, in common with other heirs, were privileged to abstain from the succession. This was done by a
separatio bonorum,
and by abandoning the goods of the ancestor to his creditors. But still if the heir took possession of the ancestor's effects, or in any manner behaved as heir, he, from that moment, was understood to be
eadem persona cum defuncto,
and consequently was subjected universally to all the ancestor's debts. At last the benefit of inventory was afforded, which protected the heir from being liable farther than
in valorem.
This privilege, tempered the severity of the foregoing artificial principle, and, in a manner, restored the law of nature, which had been overlooked for many ages.
IN England, the artificial principle of identity of person never took place. An heir, by the English law, is not bound to pay his ancestor's debts, even when he takes by succession. The creditors have the privilege of attaching their debtor's effects possessed by the heir, in the same manner as when these effects were in the debtor's own possession, during his life. The heir is personally liable to the extent only of what he intermeddles with. The English law indeed deviates from natural justice, in making a distinction betwixt the heritable and moveable debts, subjecting the heir to the former only, and the executor to the latter. This is evidently unjust as to creditors; for they may be forfeited by their debtor's death, though he die in opulent circumstances, which as to personal creditors must always happen, when his moveable funds are narrow and his moveable debts extensive. Such a regulation is the less to be justified, that it furnisheth an opportunity for fraud. For what if a man, with a view to disappoint his personal creditors after his death, shall lay out all his money upon land? I know of no remedy to this evil, unless the court of chancery, moved by a principle of equity, venture to interpose.
BY the feudal law, when in purity, there could not be such a thing as representation; because the heir took the land, not as coming in place of his ancestor, but by a new grant from the superior. But when land was restored to commerce, and was purchased for a full price, it was justly reckoned the property of the purchaser, though held in the feudal form. Land by this means is subjected to the payment of debt, even after it descends to the heir. And in Scotland, probably, the privilege at first was carried no farther than in England, to permit creditors, after the death of their debtor, to attach his funds in possession of the heir.
BUT as Scotland always has been addicted to innovations, the Roman law prevailed here, contrary to the genius of our own law; and the fiction was adopted of the heir and ancestor being the same person. This fiction crept first into the reasonings of our lawyers, figuratively, in order to explain certain effects in our own law; and gained by degrees such an ascendant, as, in our apprehension, to form the very character of an heir. Yet, considering the heirs of different kinds that are acknowledged with us, an heir of line, an heir-male, an heir of provision, &c. one should not imagine that our law lay open to have this fiction grafted upon it. In the Roman law there was but one heir who succeeded
in universum jus defuncti,
and who, by a very natural figure, might be stiled
eadem persona cum defuncto.
But can we apply this figure, with any propriety, to an heir who succeeds not
in universum jus,
but is limited to a particular subject? This opens a scene which I shall endeavour to set in a just light, by examining how far the figure has been carried with us, and what bounds ought to be set to it.
OUR law in all probability was once the same with that of England,
viz.
that the heir who succeeds to the real estate, is liable to real debts only; the moveable debts being laid upon the executor. But this did not long continue to be our law. It must sometimes have happened, notwithstanding the frugality of ancient times, that the personal estate was not sufficient for satisfying the personal debts. It was in this case justly thought hard, that the heir should enjoy the family-estate, while the personal creditors of his father, or other ancestor, were left without remedy. Equity dictates, that after the moveables are exhausted, the personal creditors shall have access to the land for what remains due to them. This practice is with us of an early date. We find it established in the reign of David II. as appears from the Regiam Majestatem
Lib. 2. cap. 39. § 3.
. And it was improved to the benefit of creditors by statute
Act 76. p. 1503.
, enacting,
"That if the personal creditors are not paid out of the moveables within the year, they shall, without further delay, have access to the heir."
Upon the same foundation, and by analogy of the statute, the executor is made liable for the heretable debts. This came in late; for Sir Thomas Hope
Minor Practicks, § 104.
observes,
"That the Lords of old were not in use to sustain process against the executor for payment of an heretable debt."
And he is so little touched with the equity of the innovation, as to censure and condemn it; for a very insufficient reason indeed;
"because (says he) there is no law to give the executor relief against the heir, as the heir has against the executor when he pays a moveable debt;"
as if this relief did not follow from the nature of the thing. Reviewing this historical deduction, I cannot perceive in it the slightest symptom of identity of person. This fiction admits not of a distinction betwixt heretable and moveable subjects. Identity of person bestows necessarily upon the heir every subject that belonged to the ancestor. Neither admits it of any distinction among debts; for if the deceased was liable to all debts without distinction, so must the heir. In place of which we find the heir of line subjected, by the common law, to heretable debts only; and not to moveable debts, otherwise than upon a principle of equity, which, if the moveables be not sufficient, subjects the land-estate, rather than that the creditors should suffer.
IT is then evident, that in our practice there is no place for this fiction, even with regard to the heir of line; and that this heir is subjected universally to his ancestor's debts, without any foundation in the common law; and even without any foundation in the fiction itself. For as an heir of line is clearly not
eadem persona cum defuncto,
except as to the heretable estate, it is equally clear, that, by authority of this fiction, he ought not to be subjected universally to any debts but what are heretable. As to moveable debts, equity dictates that creditors be preferred to every representative of their deceased debtor; and therefore that the land-estate should be subjected to the personal creditors, when the moveables are not sufficient. But this maxim of equity can never be extended farther against the heir, than to make him liable for moveable debts, so far as he is benefited by the succession; because equity, which relieves from oppression, can never be made the instrument of oppression.
IN the next place, as to a limited heir, succeeding to one subject only, why ought he to be liable universally to the ancestor's debts? If he represent the ancestor, it is not universally, but only as heir in a particular subject. And therefore, according to the nature of his representation, he ought to be liable for debts only which affect that subject, or for debts of the same kind with the subject, or at farthest for debts of every kind to the extent of the subject. I know not that it has been held by any able writer, far less decided, that an heir provided to a particular subject is liable universally to the ancestor's debts. Dirleton gives his opinion to the contrary in a most satisfying manner
Doubts. Tit. (Heirs of Tailȝie)
. His words are:
"Heirs of provision and tailȝie who are to succeed only
in rem singularem
albeit
titulo universali; Quaeritur
if they will be liable to the defuncts whole debts, though far exceeding the value of the succession; or if they should be considered as
heredes cum beneficio inventarii,
and should be liable only
secundum vires,
there being no necessity of an inventory, the subject of their succession being only, as said is,
res singularis?
Answer. It is thought that if one be served general heir-male without relation to a singular subject (as to certain lands) he would be liable
in solidum;
but if he be served only special heir in certain lands, he should be liable only
secundum vires.
"
THE heir of line, or heir general, is then the only person to whom the character of identity of person can with any shadow of propriety be applied. Nor to him can it be applied in the unlimited sense of the Roman law; but only as to the heretable estate and heretable debts. To all that is carried by a general service he has right, without limitation; and it is plausible if not solid, that he ought to be liable without limitation, to all heretable debts, such as come under a general service. We follow the same rule betwixt husband and wife, when we subject him to her moveable debts in general, and give him right to all her moveable effects in general. And this at the same time appears to be the true foundation of the privilege of discussion, competent to heirs whose right of succession is limited to particular subjects. The general heir, or heir of line, who is not thus limited, but succeeds in general to all subjects of a certain species, is the only heir to whom the identity of person can with any colour be applied; and consequently is the only heir who ought to bear the burden of the debts.
IT may be thought more difficult to explain, why an heir of line, making up titles by a service to a land-estate which was the property of his ancestor, should be subjected universally to his ancestor's debts; when this very title,
viz.
his retour and seisin, contains an inventory
in gremio;
not being in its nature a general title, but only a title to one particular subject.
To explain this matter distinctly, it will be necessary to carry our view pretty far back in the history of our law. Among all nations it is held as a principle, that property is transferred from the dead to the living, without any solemnity. Children, and other heirs, are entitled to continue the possession of their ancestor; and where the heir is not bound for his ancestor's debts, such possession is understood to be continued by will alone, without any ouvert act. In Scotland, the heir originally was not liable for the debts of his ancestor, nor at present is he liable in England. Hence it is, that as to rent-charges, bonds secluding executors, and other heretable subjects, which may be termed allodial, because not held of any superior, these were transferred to the heir of blood directly upon his survivance; and, with regard to these, the same rule obtained here, that obtains universally in England and France,
Quod mortuus sasit vivum.
Land and other subjects held of a superior, are with us in a very different condition. The vassal, by the principles of the feudal law, is not proprietor; and, strictly speaking, transmits no right to his heir. The subject must be claimed from the superior; and the heir's title is a new grant from him. Thus then stood originally the law of Scotland. Heretable subjects vested in the heir merely by survivance. The single exception was a feudal holding, which required, and still requires a new grant from the superior. If the heir of line had this new grant, he needed no other title to claim any heretable subject which belonged to his ancestor. But heirs were put in a very different situation, by the fiction of identity of person adopted from the Roman law. The heir by claiming the succession, being subjected personally to his ancestor's debts, must have an election to claim or to abandon as it suits his interest. This of necessity introduced an
aditio hereditatis,
as among the Romans, without which the heir can have no title to the effects of his ancestor. If he use this form, he becomes
eadem persona cum defuncto
with regard to benefits as well as burdens. If he abstain from using it, he is understood to abandon the succession, and to have no concern either with benefits or burdens. The only point to be considered was, what should be the form of the
Aditio.
By this time the property being transferred from the superior to his vassal, it was justly thought, that the vassal's heir who enjoyed the land-estate of his ancestor, could not evade payment of his debts. For this reason, an infeftment being the form established for transmitting the property to the heir, the same form was now held as a proper
aditio hereditatis
to have the double effect, not only of vesting the heir with the property as formerly, but also of subjecting him to the ancestor's debts. This title, it is true, being in its nature limited, ought not to subject him beyond the value of the subject. But then the identity of the ancestor and his heir being once established, it was thought, as in the Roman law, to have an universal effect, and to be an active title to every subject that could descend to the heir of line. And our former practice tended mainly to support this inference; for it was still remembered, that formerly all allodial heretable subjects were vested in the heir of line, upon his survivance merely. The infeftment being thus held an
aditio hereditatis,
not only with respect to the land-estate, but with respect to all other heretable subjects, it followed of course, that the infeftment behoved also to be an universal passive title; for if the heir succeeded to all heretable subjects without limitation, it seemed not unreasonable that he should be subjected to all debts without limitation. These conclusions, it must be owned, were far from being just or accurate. It appears extremely plain, that if a man die possest of a subject held of a superior, and of other heretable subjects that are allodial, the heir ought to be privileged to make a title to one or other at his pleasure, and to be subjected accordingly to the debts; that if he use a general service, he must lay his account to be liable universally, but that if he confine himself to a special service, he is not to be liable beyond the value of the subject. But our ancient lawyers were not so clear sighted. They blindly followed the Roman law, by attributing to the identity of person the most extensive effects possible. An infeftment in the land-estate established this identity, which, it was thought, did on the one hand entitle the heir of line to all the heretable subjects, and on the other did subject him to all the debts. And this affords a clear solution of the difficulty above mentioned. If the identity of person take at all place, it applies to none more properly than to an heir of blood, who enters by infeftment; especially as he generally is of the same name and family with his ancestor, lives in the same house, possesses the same estate, and carries on the line of the same family.
BUT now supposing the foregoing deduction to be just, is there not great reason to alter our present practice, and to hold a special service to be, as it truly is in its nature and form, a limited title? Let us suppose that the heir of line, unwilling to represent his ancestor universally, chuses to abandon all the heretable subjects, except a small land-estate, to which he makes up titles by a special service; why should he be liable universally in this case? The natural construction of such a service is, that the heir intends to confine himself to the subject therein mentioned, and to abandon the ancestor's other estate, since he forbears to take out a general service. Such construction will better the condition of heirs, by removing some part of the risk they run, and will not hurt creditors so far as their claim is founded on natural equity,
viz.
to have their debtor's effects applied for payment of his debts.
AND I must observe with some satisfaction, that we have given this very construction to an infeftment upon a precept of
Clare Constat;
it being an established rule, that such infeftment is not a title to any other subject but that contained in the precept. And for this very reason, neither doth it make the heir liable for the debts of his ancestor farther than
in valorem.
Lord Stair
Instit. page 467. at the foot.
, it is true, considers a precept of
Clare
as an universal passive title. But the court of session entertained a juster notion of this matter. A remarkable case is observed by Lord Harcus
Tit. (Heirs) March 1683, Farmer
contra
Elder.
, to the following purpose.
"A man infeft upon a precept of
Clare Constat
as heir to his father, being pursued for payment of a debt that was due by his father; pleaded an absolvitor upon the following medium, that he had no benefit by the succession, the subject to which he had connected by a precept of
Clare
being evicted from him."
It was answered,
"That his entering heir by the precept of
Clare Constat,
made him
eadem persona cum defuncto;
that it was a behaviour as heir, which subjected him to all his predecessor's debts, without regard to the estate, whether it was swallowed up by an earthquake, or evicted by a process."
The Lords
"judged the defender not liable as heir, in respect the land was evicted from him."
It was said, that had there been a general service, or a special service which includes a general, the matter would have been more doubtful; especially if there were other subjects to which a general service gives right. The plain inference from this judgment is, that if eviction of the land-estate relieve the heir from being liable to pay the family-debts, the estate must be the measure of his representation, and consequently that he is not liable beyond the value.
THIS subject will perhaps be thought unnecessary, now that the benefit of inventory is introduced into our law. It is indeed less necessary than formerly, but not however altogether useless. In many instances heirs neglect to lay hold of this benefit; and frequently the forms required by the statute are unskilfully or carelessly prosecuted, so as to leave the heir open to the rigour of law, in all which cases it comes to be an important enquiry, how far an heir is liable for the debts of his ancestor. I cannot at the same time help remarking, that it shows no true taste for science, to relinquish a subject, however beautiful, merely because it appears not to be immediately useful. The history of law, which unfolds a subject in its natural as well as political progress, can never be useless. And, taking it upon the lowest footing, it enables us to compare our present with our former practice, which always tends to instruction.
TRACT XIV.
OLD and NEW EXTENT.
THE extents old and new make a part of our law, which is involved in the dark clouds of antiquity. These extents are not mentioned by our first writers, and later writers satisfy themselves with loose conjectures, which are the product of fancy without evidence. The design of the present essay is to draw this subject from its obscurity, into some degree of light. It is a matter of curiosity, and possibly may be not altogether unprofitable, with relation especially to our retours, of which these extents make an essential part.
As the English brieve of
diem clausit extremum
approaches the nearest of any to our brieve of inquest, it may be of use to examine the English brieve, and the
valent
clause therein contained. Fitz-herbert, in his new nature of brieves
Page 558.
, explains this brieve in the following words.
"The writ of
Diem clausit extremum
properly lieth, where the King's tenant, who holdeth of him
in capite,
as of his crown, by knights service, or in soccage, dieth seised, his heir within age, or of full age, then that writ ought to issue forth, and the same ought to be at the suit of the heir, &c. for upon that, when the heir cometh of full age, he ought to sue for livery of his lands out of the King's hands."
And the writ is such.
"Rex dilect. sibi W. de K. escheatori suo in Com. Deven. Salut. Quia W. de S. qui de nobis tenuit in capite, diem clausit extremum, ut accipimus; tibi praecipimus, quod omnia terras et tenementa de quibus idem W. suit seisitus in dominico suo ut de feodo in Balliva tua die quo obiit sine dilatione cap. in manum nostram, et ea salvo custodiri fac, donec aliud inde praeceperimus, et per sacramentum proborum et legal. hominum de Balliva tua, per quos rei veritas melius scire poterit; diligent. inquiras, quantum terrae et tenementorum idem W. tenuit de nobis in capite, tam in dominico quam in servitiis, in Balliva tua die quo obiit, et quantum de aliis, et per quod servic. et quant. terrae et tenementa illa
valent
per annum in omnibus exitibus; et quo die idem W. obiit, et quis propinquior ejus heres sit: et cujus aetatis, et inquisic. inde distincte et aperte fact. nobis in cancell. nostra sub sigillo tuo, et sigillis eorum per quos fact. fuerit, sine dilatione mittas, et hoc Breve. Teste, &c."
At what time the question about the yearly rent of the land was ingrossed in this brieve, is uncertain; probably after the days of William the Conqueror: for as all the lands in England were accurately valued in that King's reign, and the whole valuations collected into a record, commonly called Domes-day book, this authentick evidence, of the rent of every barony, was a rule for levying the King's casualties as superior, without necessity of demanding other evidence. But domes-day book could not long answer this purpose; for when great baronies were dismembered, each part to be held of the crown, this book afforded no rule for the extent of the casualties to to be levied out of the lands of the new vassals. An inquisition therefore was necessary, to ascertain the yearly rents of the disjoined parcels; and there could not be a more proper time for such enquiry than when the heir of a crown vassal was suing out his livery. This seems to be a reasonable motive for ingrossing the foregoing question in the brieve. And in England, this enquiry was necessary upon a special account. It was not the custom there to give gifts of the casualties of superiority. Officers were appointed in every shire to take possession in name of the King of the lands of his deceased vassals, and to keep possession till the heirs were entered. These officers, called escheators, were accountable to the crown for the rents and issues, and for the other casualties; and the rent of the land ascertained by the retour was the rule to the treasurer for counting with escheators.
WE find not different values or extents in the English brieve, like what we find in the Scotch brieve. I shall endeavour to trace the occasion of the difference, after premising a short history of our taxes; carrying the matter as far back as we have evidence.
TAXES were no part of the constitution of any feudal government. The King was supported by the rents of his property-lands, and by the occasional profits of superiority, passing under the name of casualties. These casualties, such as ward, nonentry, marriage, escheat, &c. arose from the very nature of the holding; and beyond these the vassal was not liable to be taxed; some singular cases excepted established by custom, such as, for redeeming the King from captivity, for a portion to his eldest daughter, and a sum to defray the expence of making his eldest son a knight. For this reason, it is natural to conjecture, that the first universal tax was imposed upon some such singular occasion. The first event we can discover in the history of Scotland to make such a tax necessary, happened in the reign of William the Lyon. This King was taken prisoner by the English at Alnwick, 12th July 1174; and in December that year, he obtained his liberty from Henry II. upon a treaty, by which he and his nobles subjected this Kingdom to the crown of England
Rymer, vol. I. page 39.
. Hector Boece, our fabulous historian, says, That upon this occasion, William paid to Henry a hundred thousand merks. But this seems to be asserted without any authority. The dependency of Scotland on the crown of England, was a price sufficient for William's liberty, without the addition of a sum of money; and the silence of all other historians as to this fact, joined with the great improbability that a sum so immense could be paid, leave this author without excuse.
RICHARD I. who succeeded Henry, bent upon a voyage to the holy land, stood in need of great sums for the expedition. William laid hold of this favourable conjuncture, met Richard at York, and, upon paying down ten thousand merks Sterling, obtained from him a discharge of the treaty made with his father Henry; which was done by a solemn deed, dated the 25th December 1190, still extant
Rymer, vol. I. page 64.
.
THE sum paid to King Richard upon this occasion was too great to be raised by the King of Scotland out of his own domains. It must have been levied by a tax or contribution; and there was good reason for the demand, as the money was to be applied for restoring the kingdom to its former independency. But of this fact we have better evidence than conjecture. The monks of the Cistertian order having contributed a share, obtained from King William a deed, declaring, That this contribution should not be made a precedent in time coming
Appendix to Anderson's essay on the independency of Scotland, No . 21.
.
"Ne quod in tali eventu semel factum est, qui nec prius evenit, nec in posterum Deo miserante futurus est, ullo modo in consuetudinem vel servitutem convertatur; ut videlicit per quod ipsi, pro redimenda regni libertate gratis fecerunt, servitus iis imponatur."
This, in all probability was the first tax of any importance that was levied in Scotland; and though our historians are altogether silent as to the manner, the deed now mentioned proves it to have been levied by voluntary contribution, and not by authority of parliament, which in those days probably had not assumed the power of imposing taxes.
THE next tax we meet with, is in the days of Alexander II. son to the above mentioned William. This King made a journey the length of Dover, and his ready money being exhausted, he procured a sum by pledging some lands, to redeem which he levied a tax. This appears from a deed,
anno regni
15o . in which he declares, that the monastry of Aberbrothick, having aided him on this occasion, it should not turn to their prejudice
Chartulary of Aberbrothick, fol. 74.
.
ALEXANDER III. married Margaret, daughter to Henry III. of England, and was in perfect good understanding with that kingdom during his whole reign. He was but once obliged to take up arms, and the occasion was, to resist an invasion by Acho king of Norway, who landed at Ayr, August 1263; nor was this war of any continuance. Acho was defeated on land, and his fleet suffered by a storm, which obliged him to retire not many months after his landing. Alexander, some years thereafter,
viz.
25th July 1281
Rymer, vol. II. p. 1079.
, contracted his daughter Margaret to Eric the young king of Norway, and bound himself for a tocher of 14000 merks Sterling; a fourth part to be instantly advanced; a fourth part to be paid 1st August 1282, a fourth part 1st August 1283, and the remaining fourth 1st August 1284; but providing an option to give land for the two latter shares, at the rate of 100 merks of rent for 1000 merks of money.
THIS sum, which Alexander contracted in name of portion with his daughter, amounted to about 28000
l.
Sterling of our present money
Ruddiman's preface to Anderson's Diplomata Scotiae.
; too great a sum to be raised out of his own funds: and as by law he was intitled to demand aid from his vassals upon this occasion, there can be little doubt that the sum was levied by some sort of tax or contribution. He had recent authority for laying this burden upon his subjects,
viz.
that of his father-in-law Henry III.
Spelman's Glossary, (voce) Auxilium.
; and if his subjects were to be burdened equally, it was necessary to ascertain the value of the whole lands in the kingdom. Possibly he might take a hint of this valuation from the statute 4th Edward I.
anno
1276, directing a valuation to be made of the lands, castles, woods, fishings, &c. of the whole kingdom of England. And the rent ascertained by such valuation got the name of extent; because the lands were estimated at their utmost value or extent
Cowel's Dictionary, (voce) Extent.
. One thing is certain, that there was a valuation of all the lands of Scotland in the reign of Alexander III. the proof of which shall be immediately produced, and there is not upon record any event to be a motive for an undertaking so laborious other than levying the said sum.
ALEXANDER III. left no descendants but a grand-daughter, commonly called the Maid of Norway; and she having died unmarried and under age, Scotland was miserably harrassed by Edward I. of England, who laid hold of the opportunity of a disputed succession to enslave this kingdom. Robert Bruce, by unwearied opposition, got peaceable possession of the crown,
anno
1306, and though he seized upon the lands belonging to Baliol and the Cummins, and made considerable profit by lessening the weight of money in the re-coinage, yet, by a long train of war and intestine commotions, the crown-lands were so wasted, that, towards the end of his reign, it became necessary for him to petition the parliament for a supply. Upon the 15th July 1326, the parliament being conveened at Cambuskenneth, the laity agreed to give him during his life the tenth penny of all their rents,
tam infra burgos et regalitates quam extra,
"according to the old extent of the lands and rents in the time of Alexander III."
This curious deed, a copy of which is annexed
Appendix, No . 4,
, contains an exception in these words;
"Excepta tantummodo destructione guerrae, in quo casu fiet decidentia de decimo denario praeconcesso, secundum quantitatem firmae, quae occasione praedicta de terris et redditibus praedictis levari non poterit, prout per inquisitionem per vicecomitem loci fideliter faciendam poterit reperiri."
HERE is compleat proof of a valuation in the reign of Alexander III. named in the indenture, the
Old Extent.
And as the necessity of the case affords real evidence that the tax was levied, we have no reason to doubt, that every man whose rents had fallen by the distresses of war, took the benefit of the foregoing clause, to get his lands revalued by the sheriff, that he might pay no more than a just proportion of the tax.
WE have now materials sufficient for an explanation of the
valent
clause in our retours. At what time it came into practice, is altogether uncertain. If this clause was not made a part of the brieve of inquest before the days of Alexander III. there was little occasion for it, after the extent made in that reign, till the great baronies were split into parts, and the King's vassals were multiplied. One thing we may rely on as certain, that before the 1326, when the said indenture passed between King Robert and his parliament, one extent only was mentioned in retours,
viz.
that of Alexander III. Nor before that period was there any occasion for a double extent here more than in England. Of this I reckon we may be convinced by what follows. In levying the casualties of superiority, such as ward, nonentry, &c. it was not the genius of this country, to stretch such claims to the utmost, by stating the just and true rent of the land upon every occasion. Such a fluctuating estimation, severe upon vassals, would at the same time have been troublesome to superiors. The King, and, in imitation of him, other superiors were satisfied with a constant fixed rent to be a general rule for ascertaining the casualties, without regarding any occasional increase or diminution of rent. The extent in the reign of Alexander III. was probably the full rent, and must have continued a pretty just valuation for many years. This extent then became the universal measure of the casualties of superiority. If a barony remained entire as in the days of Alexander III. there was no occasion for witnesses to prove the rent: it was found in the rolls containing the old extent. If a barony was split into parts, the rent of the several parcels was found in the retours, being a proportion of the old extent of the whole. Hence this
quaere
in the brieve,
Quantum
valent dictae terrae per annum,
came to have a fixed and determined meaning; not what these lands are worth of yearly rent at present, but what they were worth at the last general valuation; or, in other words, what they are computed to in the rolls containing the old extent.
THUS the matter stood, and behoved to stand, at the date of the indenture 1326, which laid a foundation for a re-valuation, not of the whole lands in Scotland, but only of what were wasted by war. Supposing now such a re-valuation, of which we can entertain no reasonable doubt when it was in favour of vassals, it behoved to be the rule, not only for levying the tax then imposed, but also for ascertaining the casualties of superiority. If so, it was necessary to take notice of this new valuation in the retours of these lands, and consequently in the brieve, which was the warrant of the retour. The clause,
quantum valent,
contained in the brieve, could not answer this purpose, because that clause regarded only the old extent, and was a question to which the old valuation of the land was the proper answer. A new clause therefore was necessary, and the clause that was added, points out so precisely the re-valuation authorized by this indenture, as to afford real evidence, that the clause must have been contrived soon after it. The clause as altered runs thus:
Et quantum nunc valent dictae terrae, et quantum valuerunt tempore pacis.
It was extremely natural to characterize the old extent by the phrase
tempore pacis,
not only as made in a peaceable reign, but also in opposition to the new extent occasioned by the devastation of war. I need only further remark, that this new clause behoved to be ingrossed in every brieve; because, with respect to any particular land-estate, it could not beforehand be known, whether it had been wasted by war or not.
BUT, besides conjecture, there are facts which will put this matter beyond controversy. I have not hitherto discovered a retour of land held of the King, so ancient as the 1326; but of that period there are preserved authentick copies of many retours of lands held of bishops, monasteries, &c. who had the privilege of a chancery. And we have no reason to doubt, that the great barons who had this privilege, were ambitious of copying after the King's chancery in every article. The first retour I shall mention, happens to be a very lucky authority; for it verifies a fact which I have mentioned above upon the faith of conjecture, that at the date of the indenture 1326, there was but one extent mentioned in the brieve and retour. The retour I appeal to, is that of the land of Orroc in the county of Fife, held of the abbay of Dunfermline, dated the 20th May 1328, the
valent
clause of which runs thus:
Item dicunt quod praedictae terrae de Orroc valent per annum
12
l.
This retour at the same time shows, that the alteration in the
valent
clause was not then introduced, which is not wonderful, when the retour is but a year and ten months after the indenture
SINCE writing what is above, I have seen a copy, not, properly speaking, of a retour, but of a valuation of the lands of Kilravock and Easter-Gedies,
anno
1295, in which the
valent
clause runs thus:
"Quod terra de Kilravock cum omnibus pertinentiis suis, sciz. cum molendinis bracinis quarellis et bosco valet per annum 24 lib. item dixerunt quod terra de Easter-Gedies cum molendino et bracinis valet per annum 12 lib."
. The most ancient retour I have seen after that now mentioned, bears date in the 1359, being of land held of the same abbay. Before this time, probably several years, the alteration of the
valent
clause was made; for in this retour it runs thus:
Et dictae terrae valebant tempore bonae pacis L.
13: 6: 8.
et nunc valent L.
10: 13: 7. There are in that period many other retours mentioning two extents, distinguishing them in the same manner. And uniformly the
valuerunt tempore pacis
is greater than the
nunc valent;
which puts it past doubt, that the
nunc valent
refers to the new extent authorized by the said indenture. Some retours indeed there are of that period, where the
valuerunt tempore pacis
and the
nunc valent
are the same. But it is easy to account for that circumstance: because from the indenture it appears, that but a part of our lands were wasted by war; and the retours now mentioned must be of lands which were not so wasted.
DOWN to the days of our James I. I take it to be certain, that the two extents mentioned in retours, were these of Alexander III. and Robert Bruce. In James's reign we observe an alteration, which cannot be explained without going on with the history of the publick taxes. The next tax that deserves to be taken notice of, was in the reign of David II. This King was taken prisoner by the English at the battle of Durham
anno
1346, and was released
anno
1365; after agreeing to pay for his ransom 100,000
l.
Sterling within the space of twenty five years. And there is good evidence that the whole was paid before the year 1383
Rymer, vol. VI. p. 464. vol. VII. p. 417.
. This immense debt, contracted for redeeming the King from captivity, came to be a burden upon his vassals, by the very constitution of the feudal law, abstracting from the authority of parliament. It must therefore have been levied as a publick tax, which appears to be the case from the rolls of that King still extant in exchequer. And as there is no vestige of any new valuation at this time, the old extent,
viz.
that of Alexander III. must have been the rule; except so far as it was altered by the partial valuation in the reign of Robert I. And what puts this past doubt is, that the new extent continued to be lower than the old extent, or extent
tempore pacis,
during this King's reign, and until the reign of James I.
JAMES I. having been many years detained in England, obtained his liberty upon giving hostages for payment of 40,000
l.
Sterling, demanded under the specious title of alimony. Of this sum 10,000
l.
was remitted by Henry VI. at that time King of England, upon James's marrying a daughter of the duke of Somerset. In the parliament 1424, provision was made for redeeming the hostages by a subsidy granted of the twentieth part of lands, moveables, &c.
Black acts, p. 1624, C. 10, 11.
In order to levy this tax, a valuation was directed of lands as well as of moveables. And this new valuation of lands became proper, if not necessary, upon the following account, that the reason for making the new extent in the 1326 no longer subsisted. The lands which at that time had been wasted by war, were now restored to their wonted value; and yet without a new valuation, these lands could only be taxed according to the extent 1326. And with this special reason concurred one more general, which is, than an extent, if the commerce of land be free, cannot long be a rule for levying publick taxes. For by succession, purchase, and other means of acquiring property, parcels of land are united into a a whole, or a whole split into parcels, which acquire new names, till, by course of time, it comes to be a matter of uncertainty, what lands are meant by the original name preserved upon record. This reason shows the necessity of new extents from time to time; for after the connection betwixt land and the name it bears in the extent rolls is lost, these rolls can no longer be of use for proportioning a tax upon such land.
IT was appointed by the act imposing the subsidy, that this extent should be made and put in books, betwixt and the 13th July then next; and that it was made, and also that the subsidy was levied, appears from the continuator of Fordon
L. 16. cap. 9.
. He reports, that it amounted the first year to 14000 merks, that the second year it was much less, and the people beginning to murmur, that the tax was no longer continued. But we have still a better authority than the continuator of Fordon, to prove that the extent was made,
viz.
several retours recently after the 1424, where the new extent is uniformly greater than the old extent, or extent
tempore pacis.
These must refer to some late extent, and not to the extent 1326, which behoved to be less than the old extent. Of these retours the most ancient I have met with is dated 1431, being of the lands of Blairmukis, held of the Baron of Bothvill, in which James de Dundas is retoured heir to James de Dundas his father,
"Qui jurati dicunt quod dictae terrae nunc valent per annum 20 mercas, et valuerunt tempore pacis 100 solidos
N.B. THIS retour is in the hands of Sir John Inglis of Cramond.
."
SINCE there was a new extent of the whole lands of Scotland, which must have been the rule for levying the casualties of superiority, as well as the tax then imposed, one is naturally led to enquire, what was the use of continuing in the brieve of inquest the
quoere
about the two different extents? why not return to the ancient form specifying one extent only,
viz.
the present extent? In answer to this, it must be yielded, that there could ly no objection to this innovation had it been intended. But by this time the rule had prevailed of preserving inviolably the stile of judicial writs; and as to questions so easy to be answered, the innovation probably was reckoned a matter of no such importance, as to occasion an alteration in the stile of the brieve of inquest. One thing is certain, that the stile remains the same without any alteration since the days of King Robert I. The brieve and retour obtained however a different meaning; so far as that the
nunc valent,
by which formerly was meant the extent 1326, came afterwards to mean the extent 1424. For instance, the retour of the lands of Tullach, held of the abbey of Aberbrothick, bearing date 1438, has the
valent
clause thus:
Valent per annum L.
33: 6: 8,
et tempore pacis valuerunt L.
10. Another instance is a retour of the lands of Forglen, held of the same abbey, dated 1457,
Valent nunc per annum
20
merks, et valuerunt tempore pacis L.
10. That by the
nunc valent
in these two retours must be meant the late extent of James I. is evident from the following circumstance, that instead of being less than the extent
tempore pacis,
which the extent 1326 constantly was, it is considerably greater.
As the extent 1424 was uniformly ingrossed in every retour, in answer to the
quantum nunc valent
in the brieve, this practice came to be exceeding favourable to vassals in counting for the casualties due by them; because in every such account this extent was taken for the true rent of the land. By the gradual sinking of the value of money and the improvement of land, the benefit which vassals had by this form of stating accounts, came to be too considerable to be overlooked. The value of the King's casualties by this means gradually diminishing, the matter was taken under consideration by the legislature, and produced the act 55. p. 1474, ordaining,
"That it be answered in the retour, of what avail the land was of old, and the very avail that it is worth and gives, the day of serving the brieve."
I formerly inclined to think, that it was not the meaning of this statute, to require a new proof of the rent of land every time it was retoured upon a brieve of inquest. I suspected that there had been some new general valuation of the lands in Scotland recently before the statute, and that the statute referred to this valuation. And I was encouraged to embrace this opinion, by finding in the records of parliament
1467, acts 74, 79, 86.
, a tax imposed of
L.
3000, for defraying the expence of an embassy to Denmark, and a general valuation appointed in order to levy that tax. Commissioners are named to take the proof, and certain persons appointed, one out of each estate, to receive the sums that should be levied. And that this must have been the case, appeared probable, upon finding, that the new extent, even after this period, was not less uniform than formerly, and therefore that it could not correspond to the true rent of land, which all the world know is in a continual fluctuation. But if after all there ensued no new valuation of the land-rent of this kingdom, of which there is not the slightest vestige, the statute must be taken in its literal meaning, because it can admit of none other. I have still better authority for adhering to the literal meaning of this statute,
viz.
the proceedings of the sovereign court, while the statute was fresh in memory. The Earl of Bothwell, donator to the relief and nonentry of the barony of Balinbreich, brought a reduction against the Earl of Rothes proprietor, of his retour of that barony upon this medium, that they were retoured to 200 merks only for the new extent, though the rent really amounted to a much greater sum. It was proved before the court, that the barony paid 500 merks of rent; and upon this medium the retour was reduced
22d October 1489.
. And the like was done with respect to the retour of the lands of Shield and Drongan, which were retoured to
L.
42 of new extent, and yet were proved by witnesses to be 100 merks of yearly rent
13th February 1499, The King
contra
Crawford.
.
IN the retours accordingly, that bear date recently after the statute, we find a sudden start of the new extent, and a much greater disproportion than formerly betwixt it and the old extent. In the chartulary of the abbey of Aberbrothick, there is a copy of a retour of certain lands, dated
anno
1491, the particulars of which are,
Terrae de Pittarrow
valent nunc L.
22.
tempore pacis L.
8.
Terrae de Cardinbegy valent nunc L.
13,
et tempore pacis L.
5.
Terrae de Auchingarth valent nunc
5
merks, tempore pacis
2
merks.
In the chartulary of the abbey of Dunfermline there is a copy of a retour of the lands of Clunys, held of that abbey, bearing date
anno
1506,
Valent nunc
50
merks et tempore pacis L.
4. I have had occasion to mention a retour of the lands of Forglen, held of the abbey of Aberbrothick, dated
anno
1457, of which the new extent is 20 merks, and the old extent is
L.
10. In the same chartulary, there is luckily another retour of the same lands, bearing date
anno
1494, of which the
valent
clause is in the following words,
Valent nunc L.
20.
et valuerunt tempore pacis
20
merks.
The difference in so short a time as 37 years betwixt 20 merks and
L.
20 of new extent, is real evidence, that the act of parliament was duly observed in making out the retour last-mentioned. But from the comparison of these two retours, a more curious observation occurs,
viz.
that retours of lands held of subject-superiors, are not much to be relied on as evidence of the old extent. In the first of these retours the old extent is stated at
L.
10, in the other at 20 merks; occasioned by a blunder of the inquest, who ingrossed as the old extent in the retour they were forming, the new extent contained in the former retour. Many such blunders would probably be discovered, had we a full record of old retours. And it need not be surprising, that in such retours little attention was given to the
valent
clause, which was reckoned a matter merely of form. For though the publick taxes were levied from the King's vassals according to the old extent, yet in proportioning the relief which a Baron had against his own vassals, there is little doubt that the true rent was made the rule. The new extent was of more consequence, because it was the rule for the nonentry duties, before a declarator of nonentry was raised by a Baron against the heir of his vassal.
IT may be remarked here by the by, that the act 1474 is real evidence of a flourishing state of affairs after our James I. got possession of his throne. From the valuation 1424 to the said act, there passed but fifty years; and the land rent of Scotland must have increased remarkably during that period, to make the act 1474 necessary. But that Monarch in his younger years was disciplined in the school of adversity. During a tedious confinement of eighteen years, he had sufficient leisure to study the arts of government; and probably he made the best use of his time. It is certain, that before his reign we had no experience and scarce any notion of a regular government, where the law bears sway, and the people peaceably submit to the authority of law. But to return to our subject.
AS by the statute now mentioned, the superior's casualties were raised to their highest pitch, it was impracticable to support them long at that height, in opposition to the general bias of the nation in favour of Vassals. The notion had been long ago broatched, and was now firmly established, that the vassal was proprietor, and consequently that ward, relief, and nonentry were rigorous and severe casualties. We have Spotswood's authority, in his history of the church of Scotland, that loud complaints were made against these casualties early in the reign of James IV. But why at this period in particular, for we do not find the same complaints afterwards; at least they make no figure in the annals of more recent times? The act we have been discoursing about affords a satisfactory answer. These casualties, in consequence of the statute, were more rigorously exacted than formerly. And we shall now proceed to show, that they were very soon brought down to a moderate pitch, notwithstanding the statute. In serving a brieve of inquest, it is certain the practice did not long continue, of taking a proof by witnesses of the true rent of the land. The old method was revived, of making a former extent the rule. If the land was once retoured as prescribed by the statute, the old and new extent ingrossed in that retour were continued in the following retours. If there was no retour, a proportion of the old and new extent of the whole barony was taken. And where that was not to be had, it was the method, to ingross a new extent bearing a certain proportion to the old extent. For the last we have Skene's authority (
voce
Extent). His words are:
"The Lords of session esteem a merk-land of old extent to four merk-land of new extent."
And he cites a decision,
viz.
21st March 1541, Kennedy
contra
Mackinnald, which seems to import so much; though but obscurely, because the case is not distinctly stated. The process being for the nonentry duties of a five merk-land, it is said to have been proved, that the land payed of rent four merks for every one of the said five merks; and I must acknowledge, that the manner of expression seems to point at some general rule, rather than at a proof by witnesses. If this be the meaning of the decision, it is the first case I have observed, where this deviation from the statute was authorized by the sovereign court; and a notable deviation it was, to take up with such an imaginary rule for ascertaining the rent of the land, when the statute directed a proof by witnesses of the true rent. But when the act came once to be neglected, the court was more explicit in their judgments on this point. In a case observed by Balfour, (Title of Brieves and Retours) 17th July 1562, Queen's Advocate and Lord Drummond
contra
George Mushet, a general rule is established directly in face of the statute; which is, that when lands pay farm-victual, poultry, &c. the inquest are not bound to take inquisition of the yearly rent, nor to convert such casualties into money. And the reason given is remarkable,
viz.
that the price of such casualties is so changeable that no certain or fixed sum can be ascertained. This is a very bad reason upon the plan of the statute, though it serves to show the sense of the nation, which the statute had not eradicated, that the new extent ought to be fixed and uniform as well as the old. At the same time, as the land-rent in Scotland was generally paid in victual, this decision was in effect a repeal of the statute; of which we need not doubt, that the proprietors, whose rents were paid in money, would take advantage. And the act 1474 came in this manner to be so universally neglected, that it was established as a matter of right, that the new extent should always be lower than the true rent; and for this we have the best authority. The act 6. p. 1584 impowering the King to feu out his annexed property, has the following clause.
"Providing always that the saidis infeftments of feuferme be not maid within the just avail, to the prejudice and hurt of our sovereign Lord and his successoures: That is to say, within the dewtie to the quilkis the saidis landis are retoured, or may be justly retoured, for the new extent. Quhilk new extent his hieris, with advice forsaid, declaires to be the just avail of the saidis lands, for the quhilk the samen may be set in feu-farm."
Here it is clearly supposed, that the new extent is a favourable estimation of the rent, and lower than what is truly paid for the land.
N. B.
For the materials employed in this tract, the author is indebted to Mr. John Davidson clerk to the signet, whose extensive knowledge reflects honour upon the society to which he belongs.
APPENDIX.
NUMBER I.
COPY of a SEISIN, which proves that the
Jus Retractus
was the law of Scotland in the fifteenth century, as observed vol. I. p. 158.
IN DEI NOMINE Amen. Per hoc praesens publicum instrumentum cunctis pateat evidenter, Quod anno ab incarnatione ejusdem 1450 mensis vero Januarii Die antepenultima, indictione 14ta Pontificatus sanctissimi in Christo Patris ac Domini nostri Domini Nicholai divina providentia Papae quinti anno quarto, In mei notarii publici et testium subscriptorum praesentia personaliter constitutus providus vir Robertus Gyms burgensis de Linlithgow exposuit qualiter per breve Domini nostri Regis de compulsione legittime obtinuit super haereditate quondam Johannis Gyms fratris sui summam octoginta quindecem librarum coram balivis dicti burgi in curia, pro qua quidem summa balivi tunc temporis existentes sibi possessionem de tenemento dicti quondam Johannis ex parte occidentali fori jacente ex avisamento consilii tradiderunt. Et quia dictus Robertus, magna necessitate compulsus, dictum tenementum alienare proposuit, ad suae vitae necessaria supportanda, eo quod nullus alius amicorum inventus fuerat qui sibi tempore necessitatis succurrere proposuit excepta solummodo Thoma de Forrest ejus consanguineo, prefatus Robertus ballivos dicti burgi cum instantia specialiter supplicavit quatenus secum usque solum dicti tenementi properare curarent, quo facto dictus Robertus totum jus et clameum quod in dicto tenemento habuit ratione dictae summae recuperatae prefato Thomae de Forrest sursum reddidit ac sibi possessionem corporalem exinde tradidit per manus honorabilis viri Alexandri de Hathwy tunc temporis ballivi dicti burgi sibi et haeredibus suis et assignatis suturis temporibus permausuram quousque de dicta summa principali plenarie fuerit satisfactum, super quibus omnibus et singulis dictus Thomas de Forrest a me notario publico infra scripto sibi sieri petiit publicum instrumentum. Acta fuerant haec supra solum dicti tenementi hora quasi secunda postmeridiem anno DEI mense indictione et pontificatu quibus supra, praesentibus providis viris David de Crawfurd Johanne Kemp ballivis, Thoma de Foulis Johanne Simson Thoma Henrison Henrico Cauchlyng Johanne Collano et Johanne Chalon serjandis cum multis aliis testibus ad praemissa vocatis specialiter et rogatis.
Et ego Jacobus de Foulis clericus Sancti Andreae diocesios publica authoritate imperiali notarius praedictis omnibus et singulis dum sic ut praemittitur fierent et agerentur una cum praenominatis testibus praesens personaliter interfui, eaque sic fieri dici, vidi et audivi, indeque praesens instrumentum aliena manu ex meo mandato scriptum confeci et meis signo et subscriptione manu propria roboravi una cum appensione sigilli dicti Alexandri Hathwy ballivi propter majoris roboris et testimonium premissorum.
NUMBER II.
COPY BOND Sir Simon Lockhart of Ley, to William of Lindsay Rector of the church of Ayr, for an annualrent of
L.
10 Sterling out of the lands of Ley,
anno
1323, referred to vol. I. p. 242.
The Principal is in the charter-chest of John Lockhart of Ley.
OMNIBUS hanc cartam visuris vel audituris Simon Locard miles dominus del Lay et Cartland infra vicecomitatem de Lanerk salutem in Domino sempiternam. Noveritis universitas vestra me pro me et haeredibus meis quibuscunque concessisse et vendidisse ac praedictas concessionem et venditionem praesenti carta confirmasse discreto viro domino Willielmo de Lindesay rectori aecclesiae de Ayr decem libras Sterlingorum annui redditus percipiendas annuatim in terris meis de Cartland et de Lay praedictis pro quadam summae pecuniae mihi prae manibus persolutae de qua teneo me bene contentum, solvendum praedictum annunm redditum praefato domino Willielmo haeredibus suis et suis assignatis in manreio loco de Lay supradicto per me et haeredes meos ad duos anni terminos, viz. centum solidos ad festum Pentecostes et centum solidos ad festum Sancti Martini in hieme, primo vero termino solutionis incipiente ad sestum Pentecostes anno Domini millesimo tricentesimo vicesimo tertio, tenen. et haben. dictum annuum redditum decem librarum praefato domino Willielmo haeredibus suis et suis assignatis quibuscunque libere quiete bene et in pace in perpetuum, ad quemquidem annuum redditum decem librarum fideliter et sine aliqua contradictione solvendum loco et terminis supra dictis ut praedicitur obligo pro me et haeredibus meis praedictam terram de Cartland et de Lay una cum omnibus bonis et catellis in iisdem terris inventis seu inveniendis ad districtionem praedicti domini Willielmi haeredum suorum vel suorum assignatorum qotiescunque defecero scu aliquis haeredum meorum defecerit in solutione dicti annui redditus decem librarum in toto vel in parte predictis loco et terminis, tam ad restitutionem dampnorum et expensarum si quae fuerint quam ad solutionem praedicti annui redditus nullo proponendo obstante. Ego vero Simon et haeredes mei praedicto domino Willielmo haeredibus suis et suis assignatis quibuscunque praedictum annuum redditum decem librarum, pro praedictae pecuniae summa in praedictis manibus ut praedictum est persoluta, contra omnes gentes warrantizabimus acquittabimus et in perpetuum defendemus. In cujus rei testimonium sigillum meum praesenti cartae apposui et ad majorem hujus rei evidentiam et sigilli mei testimonium nobilis vir dominus Walterus Senescallus Scotiae ad instantiam meam sigillum suum huic cartae similiter apposuit. His testibus nobili viro domino Waltero Senescallo superdicto, domino Gervaso abbate de Newbottle, domino Davide de Lindesay domino de Crawford, domino Roberto de Herris domino de Nidsdale, domino Richardo de Hay, domino Jacobo de Cuninghame, domino Adamo More, domino Jacobo de Lindsay, domino Waltero filio Gilberti et domino Davide de Graham militibus et Reginaldo More et multis aliis.
BOND by James of Douglas Lord of Balvany, from the original, found among the papers of Baillie of Walstoun, referred to vol. I. p. 242.
BE it kende till all men be thir present letteris me Jamis of Duglas lorde of Balwany sekyrly to be haldyn and thrw thir present letteris lely to be oblist tyll a worschepyll man & my cusing Schir Robert of Erskyn lorde of that ilk in fourty pund of usuale moneth of Scotland now gangand for cause of pure lane thrw the forsaide Schir Robert to me lent before hand in my gret myster to be payt to the fornemmyt Schir Robert or tyll his ayre executuris or assignes at the fest of Whitsonday and Martynmas in wynter nexit eftir the makyn of thir present letteris be evynlyk porciounis in maner & forme as eftir folous, that is to say, that all the landis of the barounry of Sawlyn with the appurtiones lyand within the Schiradome of Fife the quhilkis I haf in intromettyng of Alexander of Halyburton lorde of the sayd landis sall remayne with the sayde lorde with all fredomes esis & commoditeis courtis & playntis & eschetis quhill he the said lord of Erskyn his ayris executuris & assignes be fully assitht of xl. punde as is beforsayde. And gif it hapnes as God forbede that the said Schir Robert be nocht assitht be ony maner of way of the said landis of Sawlyn I the said Jamis oblis & byndis all my landis of the lordschip of Dunsyare to be distrenȝit als wele as the landis of Sawlyn at the wyll of the said Schir Robert his ayris or assignes quhill he or thai be assitht of the fornemmyt sowme as he or thai suld strenȝe thair propir landis as for thair awyn mail without lefe of ony juge seculer or of the kirk.
In the witnes of the quhilk thing to thir present letteris I haf sett my sele at Lynlithqw
the aucht day of May the ȝere of grace MCCCC & XVIII.
NUMBER III.
OLD STILE of letters of poinding the ground, founded on the infeftment without a previous decree, referred to vol. I. p. 253.
JAMES by the Grace of God, King of Scottis to our lovites — Andrew Foreman messenger our sherrifs in that part conjunctly and severally specially constitute, greeting: FORASMUCHAS it is humbly meant and shown to us, by our lovite oratrix and wido Katherine Greg the relict of umquhile Alexander Forrester of Killennuch, THAT WHERE she has the lands of Wester Crow, with the pertinents, lying within the stewartry of Menteith, and sherrifdom of Perth, pertaining to the said Katherine in liferent, as her infeftment made thereupon bears: NOTTHELESS the tenants and occupiers of the saids lands rests awind to her the mealls and duties thereof, of certain terms of langtime bypast, and will make no payment thereof unless they be compelled, to her heavy damage and skaith, as is alledged. OUR WILL is therefor, and we charge you straitly and command, that, incontinent thir our letters seen, ye pass, concurr, fortify, and assist the said Katherine and her officiaris, in the poinding and distrinȝying the tenants and occupyers of the saids lands for the mealls farms and duties thereof, the two terms last bypast resting awand by them, and make the said Katherine to be paid thereof conform to her infeftment; And sycklyke yearly and termly in time coming, and if need bees that ye poind and distrinȝie therefor. ACCORDING to justice as ye will answer to us thereupon. The whilk to do we commit to you conjunctly and severally our full power, by thir our letters, delivering them, by you duly execute and indorst, again to the bearer.
Given under our signet at Edinburgh,
the seventh day of December, and of our reign the 30 ȝeir.
Ex deliberatione dominorum concilii.
Signd J. WALLACE.
NUMBER IV.
TAX granted by the parliament to ROBERT I. for his life, referred to vol. I. p. 288.
The original in the Advocates library.
HOC est transcriptum indenturae concordatae et affirmatae inter Dominum Robertum Dei gratia Regem Scottorum illustrem, et comites, barones liberetenentes, communitates burgorum ac universam communitatem totius regni, magno sigillo regni et sigillis magnatum et communitatum praedictorum alternatim sigillatum in haec verba; Praesens indentura testatur, quod, quintodecimo mensis Julii anno ab incarnatione Domini M. CCC. vicesimo sexto, tenente plenum parliamentum suum apud Cambuskenneth serenissimo Principe Domino Roberto Dei gratia Rege Scottorum illustri, convenientibus ibidem comitibus, baronibus, burgensibus et ceteris omnibus liberetenentibus regni sui, propositum erat per eundem Dominum Regem, quod terrae et redditus, qui ad coronam suam antiquitus pertinere solebant, per diversas donationes et translationes, occasione guerrae factas, sic fuerant diminuti quod statui suo congruentem sustentationem non habuerit, absque intollerabili onere et gravamine plebis suae: Unde instanter petiit ab eisdem, quod cum tam in se, quam in suis, pro-eorum omnium libertate recuperanda et salvanda, multa sustinuisset incommoda, placeret eis, ex sua debita gratitudine, modum et viam invenire per quem juxta status sui decentiam ad populi sui minus gravamen congrue posset sustentari. Qui omnes et singuli comites, barones, burgenses et liberetenentes, tam infra libertates quam extra, de Domino Rege, vel quibuscunque aliis dominis infra Regnum mediate vel immediate tenentes, cujuscunque fuerint conditionis, considerantes et fatentes praemissa Domini Regis motiva esse vera, ac quamplura alia, suis temporibus, eis per eum commoda accrevisse, suamque petitionem esse rationabilem atque justam, habito super praemissis commune ac diligenti tractatu, unanimiter gratanter et benevole concesserunt et dederunt Domino suo Regi supradicto annuatim ad terminos Sancti Martini et Pentecostes, proportionaliter, pro toto tempore vitae dicti Regis, decimum denarium omnium firmarum et reddituum suorum, tam de terris suis dominicis et wardis quam de ceteris terris suis quibuscunque infra libertates et extra, et tam infra burgos quam extra, juxta
antiquam extentam
terrarum et reddituum tempore bonae memoriae Domini Alexandri Dei gratia Regis Scottorum illustris ultimo defuncti, pro ministeriis ejus fideliter faciend. excepta tantummodo destructione guerrae; in quo casu fiet decidentia de decimo denario praeconcesso, secundum quantitatem firmae, quae occasione praedicta, de terris et redditibus praedictis, levari non poterint, prout per inquisitionem per vicecomitem loci fideliter faciendam poterit reperiri: Ita quod omnes hujusmodi denarii, in usum et utilitatem dicti Domini Regis, sine remissione quacunque, cuicunque facienda, totaliter committantur: Et si donationem vel remissionem fecerit de hujusmodi denariis antequam in Cameram Regis deferantur et plenarie persolvantur, praesens concessio nulla sit, sed omni careat robore firmitatis. Et quia quidem magnates regni tales vendicant libertates, quod ministri Regis infra terras suas ministrare non poterint, per quod solutio Domino Regi facienda forsan poterit retardari: Omnes et singuli hujusmodi libertates vendicantes, Domino Regi manuceperunt, portiones ipsos et tenentes suos contingentes, per ministros suos, ministris Regis, statutis terminis plene facere persolvi: Quod si non fecerint, vicecomites Regis quilibet in suo vicecomitatu, tenementa hujusmodi libertatum, regia auctoritate, pro hujusmodi solutione facienda distringant. Dominus vero Rex, gratitudinem et benevolentiam populi sui placide ponderans et attendens, eisdem gratiose concessit, quod a festo Sancti Martini proximo futuro, primo viz. termino solutionis faciendae, collectas aliquas non imponet, prisas seu cariagia non capiet, nisi itinerando seu transeundo per regnum, more predecessoris sui Alexandri Regis supra dicti: Pro quibus prisis et cariagiis plena fiat solutio super unguem: Et quod omnes grossae providentiae Regis cum earum cariagiis, fiant totaliter sine prisis. Et quod ministri Regis, pro omnibus rebus ad hujusmodi grossas providentias faciendas, secundum commune forum patriae, in manu solvant sine dilatione. Ceterum consensum est et concordatum inter Dominum Regem et communitatem regni sui, quod, ipso Rege mortuo, statim cesset concessio decimi denarii supradicti. Ita tamen quod de terminis praeteritis ante mortem ipsius Domini Regis plenarie satisfiat. Et quod nec per praemissa, vel aliquod praemissorum, post hujusmodi concessionem finitam, haeredibus dicti Domini Regis aut communitati regni sui aliquatenus fiat praejudicium, sed quod omnia in eundem statum redeant et permaneant, in quo erant ante diem praesentis concessionis. In quorum omnium testimonium, uni parti hujus indenturae, penes dictos comites, barones, burgenses et liberetenentes residenti, appositum est commune sigillum regni: Alteri vero parti, penes Dominum Regem remanenti, sigilla comitum, baronum et aliorum majorum liberetenentium una cum communibus sigillis burgorum regni, nomine suo et totius communitatis concorditer sunt appensa. Dat. die, anno et loco supradictis. Et hoc transcriptum penes magnates et communitates praedictos et eorum successores, remansurum, sigillo regni consignatur, in testimonium et memoriam futurorum. Datum apud Edinburgum, in parliamento Domini Regis tento ibidem, secunda Dominica quadragesimae, cum continuatione dierum sequentium, anno gratiae M. CCC. vicesimo septimo.
NUMBER V.
Lord LILE'S trial, referred to vol. I. p. 415.
Parliament of King JAMES III. holden at Edinburgh, 18th March 1481.
22 Martii quinto die parliamenti Domino Regi sedente in trono justiciae.
ASSISA.
Comes ATHOLIAE
Comes de MORTON
Dominus GLAMMIS
Dominus ERSKINE
Dominus OLIPHANT
Dominus CATHKERT
Dominus GRAY
Dominus BORTHWICK
Dominus de STOBHALL
Dominus de DRUMLANGRIG
Dominus MAXWELL
WILLIELMUS BORTHWICK Miles
ALEXANDER Magister de Crawfurd
SILVESTER RATRAY de Eodem
ROBERTUS ABERCROMMY de Eodem, Miles
DAVID MOUBRAY de Bernbougale, Miles.
Accusatio super Roberto domino Lile per rotulos ut sequitur:
ROBERT Lord LILE yhe ar dilatit to the King's hienes that yhe have send letters in Ingland to the tratour James of Dowglace, and to uthir Inglismen in tressonable maner; and also resavit letters fra the said tratour, and fra uthir Inglismen in tressonable manner and in furthering of the Kings enemys of Ingland, and prejudice and skaith to our soverane Lord the King, his realme and liegis.
QUAE assisa suprascripta in praesentia supremi domini nostri regis jurata, et de ipsius mandato super dictam accusationem cognoscere per eundem supremum dominum nostrum regem mandata, remota et reintrata deliberatum est per os Joannis Drummond de Stobhall, nomine et ex parte dictae assisae et prolocutorio nomine ejusdem, Dictum Robertum dominum Lile quietum fore et immunem et innocentem accusationis et calumpniationis suprascript. Super quibus dictus Robertus dominus Lile petiit notam curiae parliamenti et testimonium sub magno sigillo ejusdem domini nostri regis sibi dari super praemissis, quodquidem testimonium idem dominus rex sibi concessit, darique mandavit eidem in forma suprascripta et consueta.
NUMBER VI.
CARTA CONFIRMATIONIS
Lib. 4. No . 49. 1450 July 22d.
Gilberti Menȝeis, referred to vol. II. p. 62.
JACOBUS, DEI gratia, rex Scotorum, omnibus probis hominibus totius terrae suae, clericis et laicis, salutem: Sciatis nos, quandam literam per Robertum de Keth militem, et Alexandrum de Ogilvy de Inverquhardy, vicecomites nostros de Kincardin deputatos, sigillis eorum sigillatam, factam Gilberto Menȝeis burgensi burgi nostri de Aberdeen, in curia capitali apud Bervy tenta, anno et die in infrascripta litera expressis, penes prosecutionem dicti Gilberti contra Joannem de Tulch de eodem, et Walterum de Tulch filium suum, per brevem compulsionis capellae nostrae, per dictum Gilbertum impetratum de summa centum et sexaginta librarum usualis monetae regni nostri; et penes alienationem terrarum de Portarstone et de Orcharfeldie infrascriptarum, cum pertinen. de mandato nostro, visam, lectam, inspectam et diligenter examinatam, sanam, integram, non rasam, non cancellatam, ac in aliqua sui suspectam, sed omni prorsus vitio et suspicione carentem ad plenum intellexisse, sub hac forma: Till all and sundrie thir present letteris sall heer or see, Robert master of Keth knight, and Alexander of Ogilvy of Inverquhardy sherive deputes of Kincardin, greiting, in God ay lestand, till ȝour universitie we mak knawin, That in ye shirriff-courte be us haldin at Inverbervy ye 28 day of the month of May, the ȝeir of our Lord 1442 ȝeiris, Gilbert Menzeis burges of Aberdeen followit Johne of Tulch of that Ilk, and Wat of Tulch his son, be the Kings brevis of compulsione upon a some of viii score of punds of the usuale mony of Scotlande, the quhilk some the foirsaide Johne and Wat war awande to the foirsaide Gilbert conjunctly bundyn be thair obligationes, and the quhilk some, after lauchfull processe maide, ye foirsaid Gilbert optenit and wan lauchfulli befoir us in jugement, for the payment of ye quhilks to the said Gilbert to be maide, we, of autority of our office, and at command of our liege Kings precepts thairupone till us directit, findand no guidis of the foirsaide Johne nor Wat within our shirriffdome to mak the payment foirsaide, gert our mairs set a strop upon the landis of ye Porterstoun and of the Orchard feldie, and gert present to the four heid courts nixt thairaftir halden at Kincardine erd and stane, and proferit that landis to sel for the payment of the foirsaide some; and at the last curt, quhen ȝire and dey was passit, and the procis lauchfullie provit in the curt, the foirsaide Wat of Tulch maide instance, to gar that actione be deleyit, in the plyght it then was to the nixt heide curt, thair to be haldin efter ȝule; at the quhilk heide curt haldin at Kincardine the 13 day of the month of Januar, the ȝire of our Lord 1443, baith perties appeirit in jugement, and thair the foirsaid Gilbert askit us fullfilling of law and payment to be maide him, and thairupon present us our liege Kings preceps of commandment, to the quhilks we, riply avisit with men of law, Gert chese upe ane assise of the barony of the Merns, the grete ath sworne, gerte tham gang out of the curt to pryse to the foirsaide Gilbert als meikle land as might content him lauchfully of the some foirsaide; the quhilk assise well avysit income and deliverit, that the foirsaide Gilbert sulde have, as his awn propir landis, the landis of Porterstone and the landis of Orcharfelde, with yair pertinents be tham prisit and extendit till aucht pundis worth of land for hale payment of the aucht score pundis foirsaide; and we, of autority of our office, deliverit to the foirsaide Gilbert in playne curt, the landis foirsaide, to brouke and to joyse as his awn propir landis; and for the mair sykernes we gert our mair Tome Galmock gang with the foirsaid Gilbert to the foirsaide landis and gif him heritable state and possessione: The quhilk possessione was gevin in presence of Hew Aberuthno of that Ilk, Johne Bissit of Kinneffe, Will. of Strathachin, Johne of Pitcarne, Ranald Chene, and mony uthers, and this till all that it effeiris or may effeir in tyme to cum we make knawyne be thir present letteris, to the quhilks we have put to our sellis, the ȝire, day, and place foirsaide. Quamquidem literam ac omnia et singula in eadem contenta in omnibus suis punctis et articulis conditionibus et modis ac circumstantiis suis quibuscunque forma pariter et effectu in omnibus et per omnia approbamus, ratificamus, et pro nobis heredibus et successoribus nostris, ut premissum est, pro perpetuo confirmamus, salvis nobis haeredibus et successoribus nostris, wardis, releviis, maritagiis, juribus et servitiis de dictis terris ante presentem confirmationem nobis debitis et consuetis. In cujus rei testimonium presenti cartae nostrae confirmationis magnum sigillum nostrum apponi praecipimus: testibus reverendis in Christo patribus Willielmo et Johanne Glasguen. et Dunkelden. aecclesiarum episcopis, Willielmo domino Crichton nostro cancellario et consanguineo, predilecto carissimo consanguineo nostro Willielmo comite de Duglas et de Anandale, domino Galvidiae, venerabili in Christo patre Andrea abbate de Melros nostro confessore et thesaurario, dilectis consanguiniis nostris Patricio domino Glamis magistro hospitii nostri, Patricio domino de Graham, Georgeo de Chrichton de Carnis admiralo regni nostri, David Murray de Tulibardyn, militibus, magistris Joanne Arons archideaconen. Glasguen. et Georgeo de Schoriswod rectore deculture clerico nostro. Apud Striviline, vicesimo secundo die mensis Julii, anno Domini Mcccc quinquagesimo, et regni nostri decimo quarto.
NUMBER VII.
LETTERS of four forms, issued upon the debtor's consent.
JAMES, by the grace of God, King of Scottis, to oure lovittis Robert Howieson messenger, — messengeris, our sherriffis in that part conjunctlie and severallie speciallie constitute, greiting: FORASMEIKLEAS it is humly meint and shawin to us, be oure lovitt Henrie Leirmonth, serviter for the tyme to umquhill mester David Borthuick of Bowhill, oure advocate for the tyme: THAT QUHAIR thair is ane contract and appointment maid betwix Johnne Forrest Provest of oure burgh of Linlitgow, and Helen Cornwall his spouss as principalis, and Jerem Henderson cautioner for thaim on the ane parts, and the said Henry on the other pairt, of the dait att oure said burgh of Linlitgow the 16th day of November, in the ȝeir of God 1576 ȝeirs; be the quhilk contract the said Johnne and his said spouss salde and analeit heretablie ane annualrent of twelve punds monie of our realm ȝeirly, to be uplifted at Whit. and Mart. be equal portions, furth of all and haill thair four acres of land, callet the Lonedykes, lyand within the territorie and oure Sherrifdome of Linlitgow, boundet as is containit in the said contract, and to warrant the saim to the said complainer frae all wardis, relieves, nonentries, and otheris inconvenientis whatever, at length specified and containit thairintill: LIKEAS they and thair cautioner forsaid ar bund and obliest conjunctlie and severallie for them and thair aires, to mak thankfull payment ȝeirly to the said Henry of the said annualrent, frae the dait of his infeftment unto the lawfull redemtion of the samen, and to fulsill divers and sundrie utheris headis, pointis, parts, and clausis, specified and containit in the said contract, to the said Henry, for thair pairt, as the samen at more length proportis; quhilk contract is actit and registrat in the Lordis buiks of oure conceil and session, and decernit to haiff the strenth of thair act and decreet, with letteris and executorials of horning or poinding to pass and bee direct thairupon, at the said Henries will and pleiser, as the saids Lordis decreet interponit thereto, of the dait the tenth day of June 1581 ȝeirs, at lenth proportis: NOTTHELESS the said Johnne Forrest, his spouss and cautioner forsaid, will not observe keep and fulfill the forsaid contract and appointment to the said Henrie, in all and sundrie pointis and clausis thereof, as specially to mak paiment to him of the said annualrent of twelve punds monie forsaid, restand awand to the said complainer of all ȝeirs and terms bygane, frae the daite of the said contract, and syklike ȝeirly and termly in time coming, during the nonredemtion thairof, the termis of paiment being bypast conforme thairto, without they be compellit.
First Form.
OURE WILL IS HEIRFOR, and we chairge you strictly, and commandis, that incontinent thir oure Letters seen, ye pass, and, in our name and authority, command and charge the said Johnne Forrest, Helen Cornwall his said spouss, and the said Jerem Henderson thair cautioner forsaid, conjunctly and severally, to observe keip and fulfill the forsaid contract and appointment to the said Henry Leirmonth, in all and sundrie pointis partis and clausis thereof, and specially to mak payment to him of the said annualrent of twelve punds monie forsaid, restand awand to him, of all ȝeirs and termis bygane, and syklyke ȝeirly and termlie in tyme coming, during the nonredemtion of the samen, conform to the said contract, and the saids Lordis decreit forsaid interponit thairto as said is, within thrie days nixt after they be chargit be you thairto, under all highest paine and chairge that after may follow. THE SAIDS thrie days being bypast, and the saids persons disobeyand,
Second Form.
That ye chairge them ȝit as of before, to observe, keip, and fulfill the forsaid contract and appointment to the said Henry, in all and sundrie pointis, partis and clausis thairof, and speciallie to mak paiment to him of the said annualrent of twelve punds money forsaid, restand awand, of all ȝeirs and termis bygane, and syklyke ȝeirly and termlie in tyme comeing, during the nonredemtion thairof, conform to the said contract, and decreit forsaid interponit thairto as said is, within other 3 dais next after they be chargit be you thairto, under the paine of wairding thair personis. THE QUHILKS thrie dais being bypast, and the forsaids personis disobeyand,
Third Form.
That ȝe chairge the disobeyeris ȝit as of before, to observe keip and fulfill the said contract and appointment to the said Henrie, in all and sundrie pointis pairtis and clausis thairof, and speciallie to mak payment to him of the said annualrent of twelve punds money forsaid, restand awand, of all ȝeirs and termis bygane, and syklyke ȝeirlie and termlie in tyme coming during the nonredemption thairof, conform to the said contract and decreit forsaid interponit thairto as said is, within other thrie dais next after they and ilk ane of them be chargit be ȝou thairto; or else that they, within the samin thrie dais, pass and enter thair personis in waird within oure castell of Dumbartane, thairin to remain upon thair awin expencess ay and quhill they haive fulfillit the comande of thir our letteris, and be freid be us thairfrae, under the pain of rebellion and putting of thaim to our horn; and that they cum to oure secretar or his deputtis, keipars of oure signet, and receive oure other letteris for thair resaite in waird within oure said castell. THE QUHILKS thrie dais being bypast, and the saids personis or ony of thaim disobeyand,
Fourth Form.
That ȝe chairge the disobeyeris ȝit as of before, to observe, keip, and fulfill the said contract and appointment to the said complainer, in all and sundrie pointis partis and clausis thairof; and speciallie to make payment to him of the said annualrent of twelve punds money forsaid, restand awand to him, of all ȝeirs and termis bygane; and siklike ȝeirly and termlie in tyme coming, during the nonredemtion thairof, conform to the said contract and decreit forsaid interponit thairto, as said is, within other three dais next after they be chargit be ȝou thairto; or else that they, within the samen three dais, pass and enter thair personis in waird, within oure said castell of Dumbartane, thairin to remaine upon thair awin expencess, ay and quhill they have fulfillit the command of thir our letteris, and be freid be us thairfrae, under the said paine of rebellion and putting of thaim to oure horne; and that they cum to our said secretar, or his deputtis, keipars of oure said signete, and resaive oure said other letteris for thair resaite in waird within oure said castell. THE QUHILK last three dais of all being bypast, and the saids personis or ony of thaim disbeyand, and not fulfilland the command of thir oure letteris, nor ȝit enterand thair saids personis in wairde within oure said castell as said is,
Warrand to denounce.
That ȝe, incontinent thairafter, denunce the disobeyeris our rebellis, and put thame to oure horne; and escheat and inbring all thair movable guidis to oure use for thair contemption; and immediately after ȝour said denunciation, that ȝe mak intimation to the Schyrriff of oure Schyre whair our saids rebellis is, and syklyke to our thesaury and his clerkis, conform to oure act of parliament made thairanent. According to justice, as ȝe will answer to us thairupon; the quhilk to do, wee comitt to you conjunctly and severally our full power be thir oure letters, delivering thaim be ȝou duely execute and indorsit againe to the bearer. Given under our signet att Edinburgh, the 17th day of
Junii,
and of our reign the 19th ȝeir 1586.
Ex deliberatione Dominorum concilii.
The EXECUTIONS written on the back thus:
Execution of First Form.
UPON the 21 day of the month of Aprile, in the ȝeir of God 1591 ȝeirs, I Robert Howison messenger, past, att command of thir our soveraign Lordis letteris withinwritten, to the dwelling house of Helen Cornwall, within the burgh of Linlitgow, relict of umquhill Johnne Forrest of Magdalane personallie, and syklike, to the dwelling house of Jerom Henderson as cautioner and sourtie for the said John Forrest and Helen Cornwall his relict, and I, conform to the tenor of the first chairge containit in thir letteris within written, in oure soveraign Lordis name and authoritie, commandit and chargit the foresaid Helen Cornwall and Jerom Henderson the cautioner personally, conjunctly and severally, to observe, keep and fulfill the contract and appointment aforspecifyed, to Henry Leirmonth complainer, in all pointis partis and clausis containit thairintill, and specially to mak payment to him of the annual rent of xii
libs
money forsaid, rest and awand to him, of all ȝeirs and termis bygane, conform to the tenor of the letteris, and syklyke ȝeirly in time coming during the nonredemtion of the landis containit in the forsaid contract, and the Lordes decreit interponit thairto, within thrie dais nixt after this my charge, under the heighest paine and chairge that after might follow; and this I did conform to the tenor of the first chairge in all points, before theise witnesses, &c. Sign'd by the messenger only, and sealed.
Of Second.
UPON the 28 day of the month of Aprile, I Robert Howison messenger, ȝit as of before, past att command of thir oure soveraign Lordis letteris afforspecifyed, and I personally apprehended Helen Cornwall relict of umquhill John Forrest and Jerom Henderson the cautioner, and I, conforme to the tenor of the second chairge containit thairintill, commandit and chargit thaim, and ilk ane of thaim, in all pointis, and this within other thrie dais nixt after this my chairge, under the paine of wairding of thair personnis. This I did before these witnesses, &c. And for verification of this my second chairge I have subscribit the samin, and affixit my signet thairto. Signed and sealed as before.
Of Third.
UPON the 3d day of the month of May, and yeir of God aforwritten, I Robert Howison messenger, ȝit as of before, past to the personal presence of Helen Cornwall relict of umquhile John Forrest, and syklyke to the personal presence of Jerom Henderson, and I, conforme to the tenor of the third charge containit in the former letteris, commandit and chargit them, in our soveraign Lordis name, to observe the samin within other thrie dais, or else that thay within the said thrie dais pass and enter thair personis in waird within the castell of Dumbartane, thair to remain upon thair own expencess, ay and quhile they have fulfillit the command of thir letteris, and be freed orderlie thairfrae, under the paine of rebellion and putting of thaim to the horne, and that thay cum to the secretar or his deputtis, keepars of the signette, and resaive other letteris for thair resaite and waird within the said castle: And this I did conform to the tenor of the third chairge containit thairintill in all pointis. And this I did before thaise witnesses, &c. Signed by the messenger only and sealed.
Of Fourth.
UPON the 8th day of the month of May, and ȝeir of God forsaid, I Robert Howison messenger, ȝet as of before, past to the personal presence of Helen Cornwall relict of umquhill John Forrest, and syklyke to the personal presence of Jerom Henderson the cautioner, and I, conform to the tenor of the fourth chairge containit in the former letteris, I commandit and chairgit them, in oure soveraign Lordis name and authoritie, to observe the samen within letteris thrie dais next after my chairge, or else that they within the said thrie dais pass and enter thair personnis in waird within the castell of Dumbartane, thair to remain upon their ain expences ay and while they hae fulfillit the command of thir letteris, and be freed orderlie thairfrae, under the pain of rebellion and putting of them to the horne, and that they cum to the secretar, keipar of the signet, and resaive other letteris for their resaite and waird within the said castell: And this I did conform to the tenor of the fourth chairge containit thairintill in all pointis. This I did before thir witnesses, &c. Sign'd &c. as before.
Intimation.
UPON the 21 day of the month of May, and ȝeir of God foresaid, I Robert Howison messenger, personally apprehended Helen Cornwall foresaid and Jerom Henderson, and I maide intimation to ilk ane of thaim, that I would denounce them oure soveraign Lordis rebellis, and put them to his heighness horn. This I did before thir witnesses, &c. Sign'd by the messenger, but not sealed.
Denounciation.
UPON the 22 day of the month of May and ȝeir of God foresaid, I Robert Howison messenger, past to the mercate corse of the burgh of Linlitgow, and thair, be open proclamation be thrie blasts of ane horne, as use is, I denounced, and put to oure soveraign Lordis heighness horne, Helen Cornwall relict of umquhill John Forrest and Jerom Henderson the cautioner, and this conform to the tenor of thir letteris in all partis: This I did before thir witnesses, &c. And for the verification of this and my former executions I haive subscribit thir presents with my hand, and affixit my signet thairto. Sign'd, &c.
Apud LINLITGOW, die sexto mensis
Junii 1591, regrat. per.
NOTES of Letters of four forms.
Registred 19th September 1610.
JAMES, &c. Forasmeikleas (here is narrated a decreit obtain'd before the commissars of Edinburgh, att the instance of Robert White, against Sir James Crichton, decerning him to pay
L.
162. Scots of principal, and
L.
4. of expences; and that Robert White had thereupon raised the commissar's precept, and caused chairge the said Sir James Crichton to pay to him the saids sums, within 15 days, under the pain therein contain'd, as the said precept, shawin to the Lords, &c. testified: In and to which decreet precept and sums Robert Scott, &c. has right by assignation, &c. notwithstanding whereof the said Sir James Crichton has noways fulfillit, nor will fulfill to the said complainer as assigney forsaid, the forsaid decreet and precept raised thereupon, without he be furder compellit.) Our will is, &c. command and chairge the said Sir James Crichton to content and pay to the said complainer, the sums of money abovewritten, after the form and tenor of the said decreet and precept, in all points, within 3 days next after the charge, under all highest pain, &c. which 3 days being past, to charge him within other 3 days. And so on as in common letters of 4 forms.
THERE is another registred 12th September, at the instance of James Wardlaw, against James Earle of Murray, proceeding upon a decreet before the Lords of councill and session, for 4000 merks, dated 2d March 1610, which decreet the said Earle will not obtemper and fulfill. Our will, &c. charge him within three days, &c. as in common letters of four forms. Given under our signette, penult day of
Maii,
&c. 1610.
Ex deliberatione Dominorum concilii.
THIS it seems has past upon a bill, although proceeding upon a decreet of the Lords.
NUMBER VIII.
CARTA RICARDI KINE
Lib. 16. No. 77. 1508. 29th January.
, referred to vol. II. p. 119.
JACOBUS, &c. Quia direximus literas nostras Vicecomiti nostro de Selkrig, ad investigandum et perquirendum terras
quondam
Patricii Wallance, ubicunque infra bondas officii, et appretiari faciendum easdem in quantum se extendunt, pro relevio dilecti Ricardi Kine, nostri coronatoris Vicecomitatus de Selkrig, de summa viginti librarum, in qua adjudicatus erat pro dicto Patricio secundum tenorem acti adjornalis nostri, prout in eisdem literis nostris sub signeto nostro desuper decretis plenius continetur. Pro quarum executione Joannes Murray de Fallahill, Vicecomes noster deputatus de Selkrig, accedens invenit unam terram husbandiam nuncupatam Burges Walleys in burgo nostro de Selkrig, eidem
quondam
Patricio in hereditate spectantem. Et ibidem, apud capitale messuagium dictae terrae husbandiae, dictus noster Vicecomes deputatus
heredes dicti quondam
Patricii, et ceteros omnes ad praefatam terram interesse habentes, legitime premonuit, vicesimo die mensis Septembris 1508, ad comparendos coram ipso vicecomite, vel deputatis suis, super solum dictae terrae, tertio die mensis Octobris anno praescripto, ad audiendum prefatam terram husbandiam appretiari, pro relevio dicti Ricardi et terrarum suarum, quae pro dicta summa
L.
20. appretiatae fuerunt. Quo tertio die Octobris dictus noster vicecomes deputatus comparuit super solum dictae terrae husbandiae, et ad capitale messuagium ejusdem, curiam vicecomitatus nostri de Selkrig affirmari fecit, et in eadem,
haeredibus dicti Patricii
et caeteris omnibus ad prefatas terras interesse habentibus, ad audiendum eandem terram ut praemittitur appretiari, legitime vocatis, et non comparentibus, dictus noster vicecomes, per tres decem condignas personas ad hoc electas, pro predicta summa
L.
20. eo quod dicta terra husbandia ad viginti solidos terrarum se extendit, legitime appretiari fecit. Qua quidem terra sic ut praemittitur appretiata, dictus vicecomes eandem
haeredibus dicti quondam Patricii,
seu cuicunque ipsam pro predicta summa emere volenti, publice vendendam obtulit. Et quia nullam personam dictam terram pro praefata pecunia emere volentem invenit, idem noster vicecomes, virtute sui officii, praedictam terram husbandiam assignavit dicto Ricardo, in plenariam contentationem et solutionem dictae summae viginti librarum, pro ipsius relevio de eadem, secundum tenorem acti nostri parliamenti. Volumus et ordinamus quod haeredes dicti quondam Patricii habeant regressum per solutionem infra septennium.
NUMBER IX.
CHARTER of APPRISING
Thirty first Book of Charters, No . 294.
, referred to vol. II. p. 124.
MARIA, &c. omnibus, &c. sciatis quia literas nostras, per dilectum clericum consiliariumque nostrum magistrum Henricum Lauder nostrum advocatum, impetratas, dilectis nostris Wilielmo Champnay nuncio vicecomiti nostro in hac parte et aliis direximus, mentionem in se proportantes, quod ipse noster advocatus decretum coram concilii nostri dominis contra et adversus Matheum comitem de Levinax nuper obtinuit, nostras literas super ipso decernentes ad compellendum, namandum, et distringendum ipsius terras et bona pro summa 10000
l.
monetae regni nostri, secundum formam suae obligationis in libris concilii nostri registrat. prout hujusmodi decretum latius proportat. Et quia dictus comes introitum ad terras suas et hereditates tempore promulgationis dicti decreti minime obtinuit, sed ad frustrandam executionem ejusdem ad easdem intrare noluit, idem noster advocatus, per supplicationem nostri concilii dominis porrectam, alias nostras literas impetravit, virtute quarum dictum comitem precepit, quatenus ad predictas suas terras et hereditates intra viginti et unam dies intraret, ad effectum, ut hujusmodi decretum debite executioni demandaretur, eidem certificantes, quod si in id defecerit, lapsis dictis viginti et una diebus, quod praedictae suae terrae et hereditates, pro solutione dictae summae, eodem modo sicut ad easdem introitum habuisset, nobis appretiarentur, et appretiatio earundem ita legitima foret, ac si dictus comes introitum ad easdem legitime habuisset, prout prefatae aliae literae nostrae in se latius proportant. Quibus idem comes obtemperare minime voluit, prout in hujusmodi nostris literis, et in earundem executione, plenius continetur. QUAPROPTER dicti comitis terrae et hereditates pro dicta summa appretiari debebunt, veluti in eisdem infeodatus hereditarie fuisset, et terrae ejusdem quas dictus advocatus appretiari causaret, jacentes infra vicecomitatum nostrum de Renfrew, et ob magnas curas nobis pro publica concernentes sibi commissas in istis partibus tractandas, pro dictis terris appretiandis, ad vicecomitem nostrum de Renfrew antedictum accedere minime poterat, ideo alias literas nostras, dicto Wilielmo et aliis suis collegis vicecomitibus nostris in hac parte, direximus ad denunciandas terras et hereditates dicti Mathei comitis, pro dicta summa nobis appretiari; et ad hunc effectum curias infra praetorium nostrum de Edinburg. affigere et tenere, et ibidem supra appretiatione earundem procedere, ac si dictus comes legitimum introitum habuisset secundum tenorem aliarum nostrarum literarum prius desuper directis, et ad praemoniendum eundem, per publicam proclamationem apud cruces forales burgorum nostrorum de Renfrew et de Edinburgo respective, super 60 dierum premonitione, ad videndum et audiendum hujusmodi appretiationem legitime fieri et deduci, eo quod ipse comes nunc extra regnum nostrum extat, et penes loco desuper dispensando, et predictum pretorium nostrum de Edinburgo et crucem foralem ejusdem, ita legitima pro hujusmodi appretiationis deductione sint, quam pretorium et crux foralis burgi nostri de Renfrew ubi predictae terrae jacent, pro causis suprascriptis admittendo, prout in dictis nostris literis memorato Wilielmo et suis collegis desuper directis latius continetur. Virtute quarum—and so the charter goes on to mention the denunciation of the lands to be apprised, and the apprising of the same, 13th May 1544, and the allowance of the apprising, and the giving the land to the Master of Semple, &c. dated 24th May 1547.
FINIS.